disappointed in myersville

May 16, 2013


Some of Myersville is off in the distance in this image from Frostown Road.
//photo by Ann Nau

Federal  regulators have denied Myersville residents a rehearing on the permit for a planned compressor station in their rural community.

Myersville Citizens for a Rural Community (MCRC) had asked for a rehearing on Dominion Transmission Inc.’s planned 16,000-horsepower compressor station for fracked natural gas, saying in part that the environmental review was insufficient and the process was inadequate and unfair. The Federal Energy Regulatory Commission (FERC), however, agreed with itself. On every issue.

In its 35-page ruling issued today, it disagreed with each of MCRC’s points, from concerns about the need for the compressor station and the size of the facility to the noise, danger, air pollutants, environmental assessment and effect on property values. In a ruling summary issued this morning,  FERC said, “The order makes clear that the local laws and regulations upon which the Town bases its denial are preempted by the Natural Gas Act.”

Ted Cady, secretary for MCRC, said in an email that the group “is frustrated with the FERC decision.  It is not surprising that FERC denied our request along with the other 12 intervenors.  . . .It is amazing that each and every argument we raised was rejected.  FERC has never fully addressed why the compressor station is so large saying there’s no relationship to [export of liquefied natural gas] – but if LNG isn’t the reason for the overbuild, then what is the reason for it.  Also, FERC’s assertion that ‘the system works’ is entirely untrue and not based on the facts given the numerous procedural flaws.”

He said MCRC has 60 days to decide whether to appeal this decision. The group also lacks a hearing date for Dominion’s suit against the town, Town Council and mayor. And it awaits a ruling from a case heard this week, when Myersville got its day in court. Well, Myersville got its 15 minutes in court.

Monday morning, in the U.S. Court of Appeals for the District of Columbia Circuit, a lawyer for Dominion argued before a three-judge panel that Robert Summers and his Maryland Department of the Environment (MDE) should not be allowed to hold up the $112 million compressor station in Myersville.

FERC issued a certificate for the compressor station in December but stipulated that Dominion had to get required local and state permits before moving ahead.  MDE has said it won’t approve the air quality permit because Dominion doesn’t have the necessary local zoning. And Myersville won’t grant the local zoning in part because the town, nestled in a valley adjacent to I-70, is already out of compliance on federal air quality standards.  The proposed compressor station — which would spew volatile organic compounds, nitrogen oxide, carbon monoxide, sulfur dioxide, formaldehyde, carbon dioxide and the like — would only push the town more out of compliance.

The court allots 30 minutes for each case, so each side got 15 minutes to make its point. The lawyer for MDE gave the lawyer for MCRC some of its time. With so much to say and so little time to say it, everyone talked very quickly. (I note this because I am not a lawyer and I was forced to relinquish my laptop at the courthouse door. So keeping up was a challenge, but I got the gist.)

If not for this “one final stumbling block” – MDE’s failure to approve an air quality permit  – this compressor station could go forward, Dominion lawyer Christopher T. Handman argued.

Handman argued that Myersville’s zoning laws and the state’s air-quality enforcement efforts “certainly” couldn’t preempt the federal Natural Gas Act, otherwise utilities such as Dominion would have to consider local regulations on even the “right color brick.”  Which was an odd example, because Dominion had offered to make the compressor station look like a barn to blend in with the countryside.

“FERC has considered and rejected all arguments of Myersville,” Handman said.  The town was “holding things up,” he said, referring twice to the “radical nature” of Myersville’s appeal, which “puts local land-use regulations above FERC.”

He urged the court to give MDE direction and a deadline. Typically, states will say they need more time or manpower, Handman said, but MDE and its chief, Summers, “say they can’t go further.”   

Judge Thomas B. Griffith asked what MDE should be considering.  Handman said there “isn’t much left” because the Natural Gas Act preempts all local laws.

Griffith: “Have we been presented with all the land-use regulations that Myersville could rely on?”

Handman paused, then replied that the town had already raised whatever it could.

Roberta R. James, the lawyer representing MDE,  said the state has been involved in regulating clean air for the federal government since 1967. Without this federal-state partnership, the Environmental Protection Agency “would have all the regulatory burden.”

“The department has no real dog in this fight,” she said. Instead, Dominion “need[s] to get something from this  town.”

Carolyn Elefant, the lawyer for MCRC who specializes in energy and FERC cases, spoke with a passion otherwise absent from the roomful of fast-talking, case-name-dropping people in robes and suits. “This is a case about a gas company having made an imprudent decision to put a facility in a non-attainment  [air quality] area,” she said.  And now Dominion is “desperate because it needs a federal permit.”

Judge Brett M. Kavanaugh asked about the conflict with the Natural Gas law:  “It seems a little odd that a small town can prevent a facility.”

Elefant replied that the federal statutes — the Clean Air Act and Natural Gas Act — coexist. In this case, she argued, Dominion has the FERC certificate, but the FERC certificate says Dominion has to get local permits, including the air quality permit required under the Clean Air Act.  “Well, they haven’t gotten it. So they aren’t in compliance,”  she argued. “If you’ve got a loop, the tie goes to [upholding] the statute” rather than to presuming preemption of local laws. She also cited a similar case, involving Islander East Pipeline Co., in which FERC issued a permit for the pipeline to carry gas across Long Island Sound, but the Connecticut Department of Environmental Protection refused to issue a water-quality permit, saying the project threatened aquatic life and was inconsistent with Clean Water Act standards. The courts upheld Connecticut’s position.

At one point, Judge Griffith asked the attorney for Dominion, “Isn’t there another way to thread the needle?”  After the hearing, Elefant and  Cady, the MCRC secretary,  said that question could indicate that the judges, instead of choosing between the National Gas Act, the Clean Air Act and municipal self-determination, will simply tell MDE to either grant or reject the air quality permit. At that point, MDE would  have to stand with Myersville and clean air — or cave.

Cady and Ann Nau, vice president of MCRC, said in emails after the hearing that Elefant had been “eloquent” in articulating their position. “If the Court were to side with DTI, it would undercut federal authority granted to the states in implementing the Clean Air Act,” Nau wrote. “DTI continues to attempt to portray us as radical because we continue to challenge their attempts to railroad state and local rights and to protect our community.”

Cady wrote: “DTI claims we are radical in our interpretation of the federal statutes where it is DTI that is taking the radical and rare step of filing suits against the Town and MDE. There are numerous faults with this process and suit.”

“The judges,” Cady wrote, “have a difficult decision and could take either position.  Hopefully we will get a decision in our favor within the next couple of months.  In one regard, we have been successful to get to this point since this started two years ago.  We continue to battle a seriously flawed governmental process and a multi-billion dollar company which has stacked the deck against local citizens and their local zoning to ensure our rural community survives.”

The compressor station battle has also sucked Myersville into Pennsylvania’s —and the nation’s — fracking frenzy.  Although Maryland is still deciding whether to allow fracking and under what circumstances, fracked gas from rural communities in Pennsylvania would flow through the Myersville compressor station on the way to customers in the mid-Atlantic and Northeast but also — if Dominion gets its way — overseas, via tankers, from the Cove Point LNG facility on the banks of the Chesapeake Bay in Lusby, Md.  Dominion has asked for FERC’s seal of approval  to turn the existing LNG import terminal into an export plant.

Also:  Myersville is mentioned in grist.org.

–elisabeth hoffman


Myersville residents protested the compressor station last year.
//photo courtesy of Ann Nau


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