Posted on August 15, 2011 by Rick Glick
Environmental lawyers of a certain age who work on projects licensed by the Federal Energy Regulatory Commission (FERC) once knew what federal preemption meant: FERC has exclusive jurisdiction. Over the past couple of decades, the lines have been blurred as courts find plenty of room in federal legislation for broad assertion of state authority. Is there a point at which states overplay their hand?
In the context of hydropower licensing, the Supreme Court in First Iowa Hydro-Electric Cooperative v. FPC  made clear that federal regulation preempts duplicative state review of hydroelectric projects. The Court reaffirmed the
Then the states discovered Section 401 of the Clean Water Act (CWA), which requires FERC applicants to demonstrate compliance with state water quality standards and “any other appropriate requirement of State law.” In two separate opinions, the Supreme Court found that section 401 confers extensive regulatory authority in the states that all but equals the reach of FERC authority. See, PUD No. 1 of Jefferson County v. Wash. Dept. of Ecology,
The preemption issue arises in an interesting way with regard to
requires that regulatory agencies must have received a land use compatibility statement from the local governments before a permit may be issued. Thus, Oregon imposes local land use requirements as a basis for implementing its authority under the federal laws carved out by EPACT. Does this mean that LNG terminal and pipeline developers must get local land use approvals to comply with CZMA, CAA
It would seem that allowing local governments veto authority over LNG development would be contrary to Congress’intent
328 U.S. 152 (1946).
495 U.S. 490 (1990).
33 U.S.C. § 1341.
511 U.S. 700 (1994).
547 U.S. 370 (2006).
129 F.3d 99 (2d Cir. 1997).
Pub. L. 109-58, codified at 15 U.S.C. 717b(e)(1).
ORS Chapters 195, 196 and 197.
Pacific Connector Gas Pipeline, LP v. Louise Sollidayet. al., No.CV6279(D. Or..filed August 27, 2010).