Mountain Valley Pipeline, LLC v. Wender et al
Filing
34
MEMORANDUM OPINION AND ORDER granting 15 MOTION by Mountain Valley Pipeline, LLC for Summary Judgment and as further directed and set forth more fully herein. Signed by Judge John T. Copenhaver, Jr. on 8/29/2018. (cc: counsel of record; any unrepresented parties) (taq)
Case 2:17-cv-04377 Document 34 Filed 08/29/18 Page 1 of 35 PageID #: 556
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
MOUNTAIN VALLEY PIPELINE, LLC,
Plaintiff,
v.
Civil Action No. 2:17-cv-04377
MATTHEW D. WENDER, in his
official capacity as President
of the County Commission of
Fayette County, West Virginia;
DENISE A. SCALPH, in her
official capacity as a
Commissioner of the County
Commission of Fayette County,
West Virginia; and JOHN G.
BRENEMEN, in his official
capacity as a Commissioner of
the County Commission of
Fayette County, West Virginia,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is plaintiff Mountain Valley Pipeline, LLC’s
(“Mountain Valley”) motion for summary judgment, filed February
5, 2018.
I. Background
The material facts of this case are undisputed and
relatively simple.
Mountain Valley is a natural gas company
within the meaning of the Natural Gas Act (“NGA” or the “Act”),
Case 2:17-cv-04377 Document 34 Filed 08/29/18 Page 2 of 35 PageID #: 557
15 U.S.C. §§ 717 et seq. 1
Consequently, it is subject to the
jurisdiction of the Federal Energy Regulatory Commission
(“FERC”).
(1988).
Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 295
Defendants Matthew D. Wender, Denise A. Scalph, and
John G. Brenemen comprise the County Commission in Fayette
County, West Virginia (the “Commissioners”).
(See Verified
Compl. ¶ 12.)
On October 13, 2017, Mountain Valley received from
FERC a certificate of public convenience and necessity (the
“certificate”), authorizing the construction of a 303.5-mile
long natural gas pipeline of 42-inches in diameter stretching
from Wetzel County, West Virginia, to Pittsylvania County,
Virginia.
See Mountain Valley Pipeline, LLC, Equitrans, L.P.
(“Certificate”), 161 FERC P 61,043, at ¶¶ 7, 310(A) (Oct. 13,
2017).
The certificate is conditioned on, inter alia, Mountain
Valley completing the pipeline and placing it in service within
three years from the certificate’s issuance.
Id. ¶ 310(C)(1).
Additionally, the certificate instructs the following:
Any state or local permits issued with respect to the
jurisdictional facilities authorized herein must be
consistent with the conditions of this certificate.
We encourage cooperation between interstate pipelines
1
A “[n]atural-gas company” is “a person engaged in the
transportation of natural gas in interstate commerce, or the
sale in interstate commerce of such gas for resale,” while a
“person” can be either “an individual or a corporation.” 15
U.S.C.S. §§ 717a(1) and (6) (LexisNexis 2018).
2
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and local authorities. However, this does not mean
that state and local agencies, through application of
state or local laws, may prohibit or unreasonably
delay the construction or operation of facilities
approved by this Commission.
Id. ¶ 309 (citing, inter alia, Schneidewind, 485 U.S. at 310,
and Dominion Transmission, Inc. v. Summers, 723 F.3d 238, 245
(D.C. Cir. 2013)).
On June 15, 2018, FERC denied requests for
rehearing on the issuance of the certificate.
See Mountain
Valley Pipeline, LLC, Equitrans, L.P., 163 FERC P 61,197, at ¶ 5
(June 15, 2018).
Pertinent here, Mountain Valley’s certificate
authorizes construction of the Stallworth Compressor Station
(the “Stallworth Station”) on property in Fayette County owned
by Mountain Valley (the “Stallworth Property”).
Compl. ¶ 24.)
(Verified
The Stallworth Property is comprised of three
tracts of land totaling about 131 acres.
J. Cooper (“Cooper Decl.”) ¶¶ 5, 7.)
(Declaration of Robert
The construction and
operation of the Stallworth Station will impact a limited number
of those acres, with around thirty acres needed for construction
that reduces to around seven acres for operation.
(Id. ¶ 7.)
On January 29, 2018, FERC granted Mountain Valley permission to
proceed with construction of the Stallworth Station.
Resp. Ex. 2.)
3
(Comm’rs
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The Stallworth Property is currently designated a “R-R
Rural-Residential” zone under the Fayette County Unified
Development Code (the “UDC” or the “Fayette Zoning Code”).
UDC § 2001.4; (Verified Compl. ¶ 55). 2
See
To situate the Stallworth
Station there in compliance with the Fayette Zoning Code, the
Stallworth Property must be re-zoned a “H-1 Heavy Industrial”
zone.
See UDC § 4002; (Verified Compl. ¶ 56).
Then, before
beginning construction, Mountain Valley must obtain an
“improvement location permit,” UDC § 1006, Part II, and a state
building permit, id. § 5001.
(Verified Compl. ¶¶ 52-54.)
On
August 2, 2017, Mountain Valley applied to re-zone the
Stallworth Property.
(Verified Compl. ¶ 57.)
The Commissioners
ultimately denied that request on November 17, 2017.
68.)
(Id. ¶
Robert J. Cooper, “the Senior Vice President of
Engineering and Construction at Mountain Valley,” declares that
Mountain Valley will suffer irreparable economic and noneconomic harms resulting from delayed construction, such as lost
revenue, modifications to Mountain Valley’s construction
schedule, and a diminished reputation.
(See Cooper Decl. ¶¶ 1,
12-21.)
2
The UDC is available at http://fayettecounty.wv.gov/zoning/
Pages/default.aspx.
4
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Mountain Valley initiated this action the same day the
Commissioners denied its re-zoning application, invoking the
court’s federal question jurisdiction under 28 U.S.C. § 1331.
(Verified Compl. ¶ 9.)
Mountain Valley requests declaratory
judgment that the NGA preempts the Fayette Zoning Code insofar
as it applies to the property deemed by FERC to be necessary in
the siting, construction, and operation of the Stallworth
Station.
(Id. ¶¶ 8, 78-86.) 3
Additionally, Mountain Valley
seeks to permanently enjoin the defendants from “attempting to
enforce or rely on the Fayette [Zoning Code] to interfere with
or prevent [Mountain Valley’s] construction of the Stallworth
Station.”
(Id. ¶ 8, 87-92.)
II. Governing Standard
Summary judgment is appropriate only “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
In reviewing a motion for summary
3
Mountain Valley also seeks declaratory judgment that the
Fayette Zoning Code is preempted by the Pipeline Safety Act, 49
U.S.C. §§ 60101 et seq. (Id. ¶ 8.) In its reply, however,
Mountain Valley stated that “because NGA preemption is enough to
support the relief that [Mountain Valley] seeks in this action,
the Court need not issue a ruling on the preemptive effects of
the [Pipeline Safety Act] in this proceeding.” (Mountain Valley
Reply 14 n.22.)
5
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judgment, the court is guided by the principle that it must
“construe the evidence, and all reasonable inferences that may
be drawn from such evidence, in the light most favorable to the
nonmoving party.”
Dash v. Mayweather, 731 F.3d 303, 310 (4th
Cir. 2013) (citing PBM Prods., LLC v. Mead Johnson & Co., 639
F.3d 111, 119 (4th Cir. 2011)).
“As to materiality, . . . [o]nly disputes over facts
that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.
Factual disputes that are irrelevant or unnecessary will not be
counted.”
(1986)).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
Regarding genuineness, “summary judgment will not lie
if the dispute about a material fact is ‘genuine,’ that is, if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”
Id.; see also S.B. v. Bd. of
Educ., 819 F.3d 69, 74 (4th Cir. 2016) (quoting Perini Corp. v.
Perini Constr., Inc., 915 F.2d 121, 124 (4th Cir. 1990)).
The
moving party must first “‘show[]’ - that is, point[] out to the
district court - that there is an absence of evidence to support
the nonmoving party’s case.”
Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986).
If the movant carries its burden, the non-movant must
demonstrate that “there is sufficient evidence favoring [it] for
6
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a jury to return a verdict” in its favor.
Anderson, 477 U.S. at
249 (citation omitted); see also Dash, 731 F.3d at 311.
As
explained by our circuit court of appeals,
[a]lthough the court must draw all justifiable
inferences in favor of the nonmoving party, the
nonmoving party must rely on more than conclusory
allegations, mere speculation, the building of one
inference upon another, or the mere existence of a
scintilla of evidence. See Anderson, 477 U.S. at 252;
Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191 (4th
Cir. 1997). Rather, “a party opposing a properly
supported motion for summary judgment . . . must ‘set
forth specific facts showing that there is a genuine
issue for trial.’” Bouchat v. Balt. Ravens Football
Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting
Fed. R. Civ. P. 56(e) (2002) (amended 2010)).
Dash, 731 F.3d at 311 (alteration in original).
III. Discussion
The Commissioners argue at the outset that Mountain
Valley’s motion for summary judgment “should be denied as
premature because FERC is considering rehearing requests, and
because there are multiple legal challenges to the FERC
Certificate, any of which may invalidate the Certificate.”
(Comm’rs Resp. 6; Comm’rs Sur-reply 2-3.)
On the contrary, this
court recently recognized in Mountain Valley’s related
condemnation action that “a FERC order remains in effect unless
FERC or a court of appeals issues a stay, see 15 U.S.C. §
717r(c), and no such stay has been issued here.”
7
Mountain
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Valley Pipeline, LLC v. An Easement to Construct, Operate &
Maintain a 42-Inch Gas Transmission Line, No. 2:17-cv-04214,
2018 U.S. Dist. LEXIS 28755, at *20 (S.D. W. Va. Feb. 21, 2018). 4
Furthermore, as earlier noted, FERC denied the rehearing
requests on June 15, 2018, after the close of briefing on the
pending motion in this case.
Thus, the Commissioners’ initial
arguments are without merit, and the court turns to Mountain
Valley’s requests for declaratory judgment and injunctive
relief.
4
On July 27, 2018, the Fourth Circuit vacated the decisions of
the Bureau of Land Management and the Forest Service authorizing
construction of Mountain Valley’s project through federal lands
and remanded to those agencies to address the issues identified
in the appellate court’s decision. See Sierra Club, Inc. v.
U.S. Forest Serv., 897 F.3d 582 (4th Cir. 2018). On August 3,
2018, in response to the Fourth Circuit’s decision, FERC
notified Mountain Valley that it must cease all construction
activities except necessary measures to stabilize rights of way
and workspaces; later, on August 15, 2018, FERC permitted
Mountain Valley to resume construction on the first seventyseven miles of the project. See August 3 Notification of Stop
Work Order, https://www.documentcloud.org/documents/ 4637748FERC-MVP-Stop-Work-Order-August-2018.html; August 15 Stop Work
Order Modification, https://www.documentcloud.org/documents
/4775717-MVP-FERC-Stop-Work-Order-Modification.html.
Importantly, FERC’s stop work order does not operate to stay
Mountain Valley’s certificate, and FERC noted that “[t]here is
no reason to believe that the [federal agencies] will not be
able to comply with the [Fourth Circuit’s] instructions.”
August 3 Notification of Stop Work Order.
8
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A. Declaratory Judgment - Actual Controversy
The Commissioners contend that there is no “actual
controversy” from which the court may enter a declaratory
judgment.
(See Comm’rs Resp. 10-11.)
The Declaratory Judgment
Act requires, among other things, that an “actual controversy”
exist prior to the entry of declaratory relief.
§ 2201(a).
See 28 U.S.C.S.
Since “the operation of the Declaratory Judgment Act
is procedural only,” the “actual controversy” to which the
Declaratory Judgment Act refers is Article III’s cases-andcontroversies standing requirement.
See Aetna Life Ins. Co. v.
Haworth, 300 U.S. 227, 240 (1937); see also MedImmune, Inc. v.
Genentech, Inc., 549 U.S. 118, 126-27 (2007) (“[T]he phrase
‘case of actual controversy’ in the [Declaratory Judgment] Act
refers to the type of ‘Cases’ and ‘Controversies’ that are
justiciable under Article III.”).
In the context of declaratory
judgment, an actual controversy has been defined as one “of
sufficient immediacy and reality to warrant the issuance of”
declaratory relief.
Md. Cas. Co. v. Pac. Coal & Oil Co., 312
U.S. 270, 273 (1941) (citing Aetna Life Ins., 300 U.S. at 23942); see also Am. Whitewater v. Tidwell, 770 F.3d 1108, 1119
(4th Cir. 2014).
The immediacy and reality of the controversy here is
clear.
Mountain Valley’s certificate, issued by FERC,
9
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authorizes the construction of the Stallworth Station on the
Stallworth Property.
Mountain Valley has also applied to re-
zone the Stallworth Property to the appropriate designation that
allows for the targeted construction and use.
denied that application.
The Commissioners
Mountain Valley now challenges the
constitutionality of the Fayette Zoning Code on preemption
grounds insofar as it applies to the Stallworth Station.
These facts alone are enough to establish a sufficiently
immediate and real controversy to warrant consideration of
declaratory relief.
See Steel Hill Dev., Inc. v. Sanbornton,
335 F. Supp. 947, 951 (D.N.H. 1971) (finding an actual
controversy where a plaintiff “submitted a subdivision plan for
approval” but “the zoning amendments prohibit him from
subdividing and selling substantial portions of his property”);
10B Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2757 (4th ed.) (“There is little difficulty in
finding an actual controversy if all of the acts that are
alleged to create liability already have occurred.”); cf. EQT
Prod. Co. v. Wender, 191 F. Supp. 3d 583, 593-94 (S.D. W. Va.
2016) (finding that a plaintiff had standing to challenge a
county ordinance that only “uncertain[ly]” impacted the
plaintiff’s operations).
10
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Mountain Valley also indicates that it has refrained
from building the Stallworth Station because of a threat of
enforcement pursuant to the Fayette Zoning Code.
Compl. ¶ 73.)
(See Verified
The Commissioners point out that Mountain
Valley’s refrainment is belied by the evidence showing that it
has already begun construction activities.
reply Ex. 2.)
(See Comm’rs Sur-
Mountain Valley replies that its activities to-
date do not constitute “construction activities . . . that are
prohibited by the” Fayette Zoning Code.
(Mountain Valley Sur-
resp. 6 (emphasis omitted).)
Regardless, the Commissioners in their answer
acknowledge “that if Plaintiff violates the law [then] legal
recourse will ensue.”
(Answer ¶ 73.)
And the Fayette Zoning
Code allows for such recourse through “[a]ppropriate actions and
proceedings,” such as civil penalties, abatement, correction of
the violation, and referral to the county prosecutor for
criminal prosecution.
See UDC §§ 1003.VII. 5
As the Supreme
Court has explained,
5
The Fayette Zoning Code attempts to incorporate various
enforcement provisions from chapter 8, article 24 of the West
Virginia Code, which evidently imposed criminal sanctions. See
id. That article of the West Virginia Code has been repealed.
Nevertheless, chapter 8A, article 10 of the West Virginia Code
now governs enforcement of county and municipal land use
planning ordinances, which contemplates both civil and criminal
penalties. See W. Va. Code Ann. §§ 8A-10-1 (common nuisance), 2 (misdemeanor), -3 (injunctive relief).
11
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where threatened action by government is concerned, we
do not require a plaintiff to expose himself to
liability before bringing suit to challenge the basis
for the threat - for example, the constitutionality of
a law threatened to be enforced. The plaintiff’s own
action (or inaction) in failing to violate the law
eliminates the imminent threat of prosecution, but
nonetheless does not eliminate Article III
jurisdiction.
MedImmune, 549 U.S. at 128-29 (emphasis omitted); see also id.
at 129 (discussing Supreme Court precedent and concluding that
“putting [a plaintiff] to the choice between abandoning his
rights or risking prosecution [] is a dilemma that it was the
very purpose of the Declaratory Judgment Act to ameliorate”
(quotation marks omitted)).
The Commissioners suggest that Mountain Valley has
“manufactured” the immediacy and reality of its claim through
“self-inflicted” harms, such as a self-imposed in-service
deadline, speculation as to lost revenues, and delay in applying
to re-zone.
(See Comm’rs Sur-reply 3-4.)
The Commissioners
look for support in Mountain Valley’s precedent shipping
agreements, which the Commissioners insist show that Mountain
Valley contemplated trouble receiving all necessary permits,
including zoning permits.
(See id. 4-6.)
Whether Mountain
Valley’s harms are self-inflicted is immaterial here.
In short,
Mountain Valley has a certificate from FERC authorizing the
construction of the Stallworth Station, and the Commissioners
12
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denied Mountain Valley’s application to re-zone the Stallworth
Property to the proper designation.
Moreover, the Fayette
Zoning Code allows for the imposition of civil penalties and the
prosecution of a criminal action for zoning violations.
As
noted, those facts create an actual controversy, and the court
may therefore consider Mountain Valley’s request for a
declaratory judgment.
B. Declaratory Judgment - Preemption
The Supremacy Clause states that federal law is “the
supreme Law of the Land . . . any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.”
art. VI, cl. 2.
U.S. Const.
Consequently, Congress maintains the authority
to preempt state law through federal legislation.
v. Learjet, Inc., 135 S. Ct. 1591, 1595 (2015).
Oneok, Inc.
Whether
Congress has exercised that authority is “guided first and
foremost by the maxim that ‘the purpose of Congress is the
ultimate touchstone in every pre-emption case.’”
Epps v. JP
Morgan Chase Bank, N.A., 675 F.3d 315, 322 (4th Cir. 2012)
(quoting Wyeth v. Levine, 555 U.S. 555, 564 (2009)).
Further,
the preemption analysis is built on “the assumption that the
historic police powers of the States [are] not to be superseded
by . . . Federal Act unless that [is] the clear and manifest
13
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purpose of Congress.”
Cipollone v. Liggett Grp., 505 U.S. 504,
516 (1992) (alterations in original) (quoting Rice v. Santa Fe
Elevator Corp., 331 U.S. 218, 230 (1947)).
Congress may explicitly or implicitly preempt state
law.
Oneok, 135 S. Ct. at 1595; see Wash. Gas Light Co. v.
Prince George’s Cty. Council, 711 F.3d 412, 419-20 (4th Cir.
2013) (describing the three methods of federal preemption:
express preemption, field preemption, and conflict preemption).
Only implicit preemption, whether it be field or conflict, is at
issue here.
Specifically, Mountain Valley argues that the NGA
invalidates the Fayette Zoning Code insofar as it applies to the
Stallworth Station through field preemption and conflict
preemption.
(See, e.g., Verified Compl. ¶¶ 80, 82.)
1. Field Preemption
Field preemption arises where “Congress may have
intended ‘to foreclose any state regulation in the area,’
irrespective of whether state law is consistent or inconsistent
with ‘federal standards.’”
Oneok, 135 S. Ct. at 1595 (emphasis
omitted) (quoting Arizona v. United States, 567 U.S. 387, 401
(2012)).
“Actual conflict between a challenged state enactment
and relevant federal law is unnecessary to a finding of field
preemption; instead, it is the mere fact of intrusion that
14
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offends the Supremacy Clause.”
PPL EnergyPlus, LLC v. Nazarian,
753 F.3d 467, 474 (4th Cir. 2014) (citing N. Nat. Gas Co. v.
State Corp. Comm’n, 372 U.S. 84, 97-98 (1963)).
The preemptive effect of the NGA is well-settled: “The
NGA confers upon FERC exclusive jurisdiction over the
transportation and sale of natural gas in interstate commerce
for resale.”
Schneidewind, 485 U.S. at 300-01 (citing N. Nat.
Gas Co. v. State Corp. Comm’n, 372 U.S. at 89); see also Wash.
Gas Light, 711 F.3d at 423.
Nevertheless, “the [NGA] ‘was drawn
with meticulous regard for the continued exercise of state
power, not to handicap or dilute it in any way.’”
Oneok, 135 S.
Ct. at 1599 (quoting Panhandle E. Pipe Line Co. v. Pub. Serv.
Comm’n of Ind., 332 U.S. 507, 517-18 (1947)).
In the NGA
context, the Supreme Court “emphasize[s] the importance of
considering the target at which the state law aims in
determining whether that law is pre-empted.”
omitted).
Id. (emphasis
The relevant “[s]tatutory text and structure provide
the most reliable guideposts in this inquiry.”
PPL EnergyPlus,
753 F.3d at 474 (citing Medtronic, Inc. v. Lohr, 518 U.S. 470,
486 (1996)).
The Fourth Circuit holds that “the NGA gives FERC
jurisdiction over the siting of natural gas facilities, as a
natural gas company must obtain a certificate of public
15
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convenience and necessity from FERC before constructing an
interstate natural gas facility.”
Wash. Gas Light, 711 F.3d at
423 (citing 15 U.S.C. § 717f(c)(1)(A) (2006)); see also N. Nat.
Gas Co. v. Iowa Utils. Bd., 377 F.3d 817, 821 (8th Cir. 2004);
Nat’l Fuel Gas Supply Corp. v. Pub. Serv. Comm’n, 894 F.2d 571,
579 (2d Cir. 1990).
Analysis of FERC’s implementing regulations
is illustrative of our appellate court’s conclusion and helpful
in comparing the NGA against the Fayette Zoning Code.
Pertinently, the NGA’s certificate regulations implementing the
National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §
4321 et seq., 6 address the physical placement of facilities over
which FERC has jurisdiction (“jurisdictional facilities”).
See
18 C.F.R. § 380.12 (2018).
6
NEPA imposes procedural requirements aimed at “major federal
actions that may significantly affect the natural environment.”
Nat’l Audubon Soc’y v. Dep’t of the Navy, 422 F.3d 174, 184 (4th
Cir. 2005). Its purpose is twofold:
[First, to] ensure that an agency planning a major
federal action obtains and considers the necessary
information concerning any significant environmental
impacts that the action may cause. Hodges v. Abraham,
300 F.3d 432, 438 (4th Cir. 2002). [Second, to]
guarantee that the public has access to the relevant
information about the proposed action so that it can
participate in the decisionmaking process. Id.
Webster v. U.S. Dep’t of Agric., 685 F.3d 411, 417 (4th Cir.
2012). NEPA requires the preparation of an environmental impact
statement containing relevant information for such federal
actions. Id.
16
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FERC’s NEPA implementing regulations require an
applicant to prepare reports containing the following items and
information, in broad terms:
A. Maps showing the physical location of jurisdictional
facilities and associated land requirements, including “the
location of the nearest noise-sensitive areas . . . within
1 mile of [any] compressor station,” and descriptions of
any “reasonably foreseeable plans for future expansion of
facilities,” id. § 380.12(c);
B. Descriptions of impacted water use and quality, fish and
wildlife, vegetation, cultural resources, geological
resources, and soils; how these items will be impacted by
the jurisdictional facility; and proposed measures to
mitigate and minimize those impacts, id. §§ 380.12(d)-(f),
(h)-(i);
C. For projects “involving significant aboveground
facilities,” an analysis of the socioeconomic impact on
“towns and counties in the vicinity of the project,” id. §
380.12(g);
D. Descriptions of existing land uses on and within 0.25
miles of the jurisdictional facility, consequential changes
to those uses, and proposed mitigation measures, id. §
380.12(j);
E. For compressor stations, the impact “on the existing air
quality and noise environment” as well as a “descri[ption
of] proposed measures to mitigate th[ose] effects,” id. §
380.12(k); and
F. Descriptions and comparisons of alternatives, id. §
380.12(l).
Moreover, FERC instructs applicants to “avoid[] or
minimize[] effects on scenic, historic, wildlife, and
recreational values.”
Id. § 380.15(a).
When siting an
aboveground jurisdictional facility, FERC also mandates that an
applicant consider the obtrusiveness of the site and the noise
17
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potential of the facility; design the facility in a manner that
occupies minimum land and is in harmony with its surroundings;
and enhance the landscape of the facility where it is visible to
residential or public areas.
Id. § 380.15(g).
The NEPA reports
mandated by FERC must be submitted as an exhibit to a
certificate application.
Id. § 157.14(a)(7).
A reading of the foregoing regulations shows that
Congress intends for FERC, as part of its “exclusive
jurisdiction over the transportation and sale of natural gas in
interstate commerce for resale,” Schneidewind, 485 U.S. at 30001, to occupy the field of siting jurisdictional facilities.
Wash. Gas Light, 711 F.3d at 423.
Thus, any state or local law
that purports to target the field of siting a jurisdictional
facility is preempted.
Although it seems uncontroversial that a zoning
ordinance would fall in the field occupied by the NGA and FERC,
the Supreme Court instructs that the ordinance must nonetheless
“target” the preempted field.
Oneok, 135 S. Ct. at 1599.
express purposes of the Fayette Zoning Code are as follows:
The
A. Protect and encourage the health, safety, and
general welfare of the present and future population
of Fayette County.
B. Guide the future growth and development of Fayette
County in accordance with the adopted Comprehensive
18
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Plan.[ 7]
C. Encourage growth and development in areas where
sewer, water, schools, and other public facilities
are, or will, soon be available in order to provide
services in the most cost-effective manner.
D. Insure that growth and development are both
economically and environmentally sound.
E. Encourage an agricultural base in the County.
F. Encourage an improved appearance of Fayette County
with relationship to the use and development of land
and structures.
G. Encourage the conservation of natural resources.
H. Provide a guide for public action and the orderly
and efficient provision of public facilities and
services.
I. Provide a guide for private enterprise in
developing and building a community with healthy
businesses and tightly knit neighborhoods.
J. Encourage historic preservation.
UDC §§ 1001.II.A to J.
Specifically, the Fayette Zoning Code
regulates the location of “gas . . . transmission lines . . .
7
The “Comprehensive Plan” is “[a] composite of mapped and
written text, the purpose of which is to guide the systematic
physical development of the County and is adopted by the County
Commission.” UDC § 1002.II. Fayette County adopted its
Comprehensive Plan as “a vehicle through which local government
officials and citizens can express their goals for the future of
their community.” Comprehensive Plan Ch. 1, Part III (Adopted
2001), available at http://fayettecounty.wv.gov/
zoning/Pages/default.aspx. In other words, the Comprehensive
Plan is a roadmap for the future, providing for the ideal
development of property within Fayette County, and the Fayette
Zoning Code is designed to facilitate that development.
19
Case 2:17-cv-04377 Document 34 Filed 08/29/18 Page 20 of 35 PageID #: 575
and appurtenances” by requiring that they be located in a zone
designated “H-1 Heavy Industrial.”
Id. § 4002.
Plainly, the Fayette Zoning Code targets the siting of
jurisdictional facilities.
FERC’s NEPA implementing regulations
cover most, if not all, of the Fayette Zoning Code’s enumerated
purposes.
Compare 18 C.F.R. §§ 380.12, 380.15 with UDC §
1001.II.A to J.
And more importantly, the Fayette Zoning Code
explicitly targets the location of jurisdictional facilities
through the “H-1 Heavy Industrial” zoning designation.
UDC §
4002.
The Commissioners nevertheless insist that the Fayette
Zoning Code does not target jurisdictional facilities since it
“applies to all property located within Fayette County,”
(Comm’rs Resp. 14), but that position is belied by the Fayette
Zoning Code’s explicit language regarding gas transmission lines
and appurtenances, UDC § 4002.
Even if the Fayette Zoning Code
had not explicitly mentioned gas transmission lines and
appurtenances, it would nevertheless be preempted because it
unquestionably aims at regulating the location of jurisdictional
facilities - the field occupied by the NGA and FERC.
See Oneok,
135 S. Ct. at 1599-1600.
That the Fayette Zoning Code is preempted by the NGA
and FERC is further bolstered “by the imminent possibility of
20
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collision between [the Fayette Zoning Code] and the NGA” and
FERC’s regulations.
Schneidewind, 485 U.S. at 310 (citing N.
Nat. Gas Co. v. State Corp. Comm’n, 372 U.S. at 91-93, and
Maryland v. Louisiana, 451 U.S. 725, 751 (1981)).
While not
dispositive, such a possibility lends support to the preemptive
effect of the NGA over the state or local law at issue because
the state or local law could impair FERC’s ability to
comprehensively and uniformly regulate the transportation of
natural gas across state lines.
See id.
In fact, the federal
and local laws here have already collided.
The Commissioners advance several arguments against
Mountain Valley’s requested declaratory relief.
They contend
that Congress’s 2005 amendment to the portion of the NGA
addressing “LNG terminals” 8 negates the Act’s well-settled
preemptive nature.
(See Comm’rs Resp. 13.)
The 2005 amendment
granted FERC “exclusive authority to approve or deny an
application for the siting, construction, expansion, or
8
A LNG (liquid natural gas) terminal “includes all natural gas
facilities located onshore or in State waters that are used to
receive, unload, load, store, transport, gasify, liquefy, or
process natural gas that is imported to the United States from a
foreign country, exported to a foreign country from the United
States, or transported in interstate commerce by waterborne
vessel.” 15 U.S.C.S. § 717a(11). LNG terminals are further
defined not to include “any pipeline or storage facility subject
to the jurisdiction of [FERC] under section 7” of the NGA. Id.
§ 717a(11)(B).
21
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operation of an LNG terminal.”
Energy Policy Act of 2005, Pub.
L. No. 109-58, § 311, 119 Stat. 594, 685-86 (2005).
The
definition of an “LNG terminal” expressly excludes facilities
that must obtain a certificate of public convenience and
necessity pursuant to section 7 of the NGA, such as the
Stallworth Station.
See id.
Because Congress did not similarly
grant FERC “exclusive authority” over pipelines and compressor
stations, the Commissioners suggest that Congress intended to
withhold from FERC preemptive authority over pipelines and
compressor stations.
(See Comm’rs Resp. 13.) 9
There are two most prominent reasons why the
Commissioners’ argument is unavailing.
First, the 2005
amendments to the NGA addressed the specific and limited field
of LNG terminals, which, as earlier defined, are “onshore or in
State waters” facilities used in the importing and exporting of
liquid natural gas.
§ 311, 119 Stat. at 685-86.
Those
amendments did not, however, alter the sections from which FERC
9
Separately, the Commissioners note that a decision upon which
Mountain Valley heavily relies improperly construed the 2005
amendments as applying to such facilities. (Comm’rs Resp. 13-14
(citing Dominion Transmission, Inc. v. Town of Myersville Town
Council, 982 F. Supp. 2d 570, 577 (D. Md. 2013)).) In Town of
Myersville, the plaintiff sought to build a compressor station
within the defendant-town’s boundaries as part of a multistate
pipeline project. 982 F. Supp. 2d at 572. The court concluded
that the NGA preempted the town’s zoning code, relying on the
2005 amendment to the NGA even though the compressor station at
issue does not appear to be a LNG terminal. See id. 576-79.
22
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receives its preemptive power over the field of transporting and
selling natural gas in interstate commerce.
Compare id.
(amending sections 1, 2, and 3 of the NGA) with Iowa Utils. Bd.,
377 F.3d at 821 (stating that section 7 of the NGA “specifically
provides that the FERC will oversee the construction and
maintenance of natural gas pipelines through the issuance of
certificates of public convenience and necessity”).
It follows
that FERC’s field-preemptive authority under section 7 was also
unaltered.
And second, Congress’s grant of “exclusive
authority” is an express preemption clause.
See AES Sparrows
Point LNG, LLC v. Smith, 527 F.3d 120, 125-26 (4th Cir. 2008).
So it does not matter that FERC lacks such “exclusive authority”
over interstate pipelines and compressor stations - FERC never
had it, but retains the benefit of field preemption.
The Commissioners also point out that Mountain Valley
has not alleged that the Fayette Zoning Code has “prohibit[ed]
or unreasonably delay[ed] construction of the Stallworth
Station.”
(Comm’rs Resp. 14.)
This argument invokes the
certificate’s instruction that certificate holders should
attempt to cooperate with state and local permitting
authorities.
See Certificate ¶ 309.
Coined the “rule of
reason,” FERC directs certificate holders to engage in “bona
fide attempts to comply with state and local requirements.”
23
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Algonquin Gas Transmission, LLC, 154 FERC P 61,048, at ¶¶ 34-35
(Jan. 28, 2016).
Importantly, however, FERC believes that the
NGA preempts local zoning ordinances, e.g. id., and the rule of
reason is secondary to FERC’s mandate that “[a]ny state or local
permits issued with respect to the jurisdictional facilities
authorized [in a certificate] must be consistent with the
conditions of th[e] certificate.”
See Certificate ¶ 309.
Thus,
the rule of reason is only tangentially related to the field
preemption inquiry.
Lastly, the Commissioners assert that Mountain Valley
has not stated why it needs to rezone all its property rather
than only the acreage necessary to build the compressor station,
(Comm’rs Resp. 15), and that the certificate does not explicitly
reflect that FERC considered local zoning regulations in
approving Mountain Valley’s project, (Comm’r Sur-reply 10).
These arguments are irrelevant to the question of whether the
NGA and FERC preempt the Fayette Zoning Code insofar as it
applies to the Stallworth Station.
Furthermore, Mountain Valley
does not seek a declaration mandating the Commissioners to rezone the entire Stallworth Property.
Mountain Valley instead
seeks a declaration applicable only to the Stallworth Station.
Accordingly, the Fayette Zoning Code is preempted
insofar as it applies to Mountain Valley’s FERC-approved
24
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activities in connection with the Stallworth Station because it
attempts to regulate in a field occupied by the NGA and FERC.
See Algonquin LNG v. Loqa, 79 F. Supp. 2d 49, 52 (D.R.I. 2000)
(concluding that “there is no room for local zoning or building
code regulations on the” subjects of siting and building
jurisdictional facilities because such local regulations target
a field occupied by the NGA and FERC).
2. Conflict Preemption
Conflict preemption arises in two scenarios: [1]
“where it is ‘impossible for a private party to comply with both
state and federal requirements,’ or [2] where state law ‘stands
as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.’”
Freightliner Corp. v.
Myrick, 514 U.S. 280, 287 (1995) (citation omitted) (quoting
English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990), and Hines v.
Davidowitz, 312 U.S. 52, 67 (1941)).
The Fourth Circuit
instructs that
[a]ssessing a conflict preemption claim requires “a
two-step process of first ascertaining the
construction of the two statutes and then determining
the constitutional question [of] whether they are in
conflict.” Chi. & Nw. Transp. Co. v. Kalo Brick &
Tile Co., 450 U.S. 311, 317 (1981) (internal quotation
marks omitted). In making this determination, a court
“should not seek out conflicts . . . where none
clearly exist[].” College Loan Corp. v. SLM Corp.,
25
Case 2:17-cv-04377 Document 34 Filed 08/29/18 Page 26 of 35 PageID #: 581
396 F.3d 588, 595-96 (4th Cir. 2005) (internal
quotation marks and alteration omitted).
H&R Block E. Enters. v. Raskin, 591 F.3d 718, 723 (4th Cir.
2010) (last alteration added).
The Commissioners’ effort to regulate the siting of
jurisdictional facilities has obstructed Congress’s purposes in
enacting the NGA and empowering FERC with the Act’s
implementation.
FERC considered the myriad factors outlined
above and decided that the public convenience and necessity
required the Stallworth Station be located at the Stallworth
Property.
See Certificate ¶¶ 7, 310(A).
The Commissioners,
considering the Fayette Zoning Code and factors significantly
overlapping with those considered by FERC, disagreed.
Compl. ¶ 68.)
(Verified
Compare 18 C.F.R. §§ 380.12, 380.15 with UDC §§
1001.II.A to J.
In this instance, “the principles of field and
conflict preemption . . . are mutually reinforcing.”
EnergyPlus, 753 F.3d at 478.
PPL
The court is cognizant that the
NGA will not preempt every state or local law with an incidental
impact on interstate gas transportation, and that in such a
system of “interlocking jurisdiction” tensions will doubtlessly
arise yet nevertheless coexist within the congressionally“assigned sphere[s].”
Id. (quotation marks omitted) (quoting
Nw. Cent. Pipeline Corp. v. State Corp. Comm’n, 489 U.S. at 506,
26
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515, 515 n.12); see also Schneidewind, 485 U.S. at 308.
But the
Fayette Zoning Code’s attempt to regulate within the field
occupied by the NGA and FERC ran doubly awry of the Supremacy
Clause when the Commissioners denied Mountain Valley’s re-zoning
application, at least to the extent the application sought to
re-zone the property necessary for the Stallworth Station.
The
denial interfered with the comprehensive and careful
consideration of FERC in siting the Stallworth Station and
deeming that site in furtherance of the public convenience and
necessity.
Thus, “the impact of [local] regulation . . . on
matters within federal control is so extensive and disruptive of
[siting the Stallworth Station] that preemption is appropriate.”
PPL EnergyPlus, 753 F.3d at 478 (quotation marks omitted)
(quoting Nw. Cent. Pipeline, 489 U.S. at 517-18); see also
Algonquin LNG, 79 F. Supp. 2d at 52 (concluding that the NGA and
FERC conflict preempted local zoning regulations of whether a
natural gas company could expand a jurisdictional facility).
The Commissioners contend that “[Mountain Valley] can
clearly comply with both the NGA and the UDC by receiving
rezoning approval for the Stallworth location or by having a
denial overturned.”
(Comm’rs Resp. 17-18.)
Thus, they suggest
that compliance with both the certificate and the Fayette Zoning
Code is not impossible.
(See id. 16-18.)
27
For example, the
Case 2:17-cv-04377 Document 34 Filed 08/29/18 Page 28 of 35 PageID #: 583
Commissioners note that Mountain Valley could have appealed the
decision to deny its re-zoning application since there is no
outright ban on re-zoning a parcel from R-R Rural Residential to
H-1 Heavy Industrial.
(See id.)
Impossibility of compliance with both federal and
local regulation is not, however, the only measure of conflict
preemption.
As explained above, the Commissioners’ denial of
Mountain Valley’s re-zoning application pursuant to the Fayette
Zoning Code impedes Congress’s objectives in enacting the NGA
and charging FERC with its implementation.
The Commissioners also invoke FERC’s rule of reason
described above, suggesting that pursuit of approval of the rezoning application is within reason since FERC granted Mountain
Valley three years to place the project into service;
alternatively, the Commissioners insist that there is a genuine
factual dispute as to whether the Fayette Zoning Code
unreasonably delays construction of the Stallworth Station.
(See Comm’rs Resp. 18.)
Additionally, the Commissioners insist
that the Stallworth Property “is merely [Mountain Valley’s]
preferred location,” noting that Mountain Valley considered
alternate locations for its compressor station.
omitted).)
28
(Id. (emphasis
Case 2:17-cv-04377 Document 34 Filed 08/29/18 Page 29 of 35 PageID #: 584
Again, the rule of reason is more suggestion than
mandate, and it is nevertheless only tangentially related to
preemption.
Furthermore, the three-year deadline is merely the
outer limit on placing the project into service, while economic
and pragmatic planning considerations compel completion as soon
as practicable and any unnecessary impediments will be at
Mountain Valley’s unrecoverable expense.
And whether Mountain
Valley chose the Stallworth Property as a matter of preference
is beside the point: FERC concluded that the public convenience
and necessity requires construction there rather than any
possible alternatives.
Accordingly, the Fayette Zoning Code is preempted
insofar as it applies to Mountain Valley’s FERC-approved
activities in connection with the Stallworth Station because it
conflicts with congressional purposes and objectives outlined in
the NGA and by FERC.
C. Permanent Injunction
The scope of Mountain Valley’s requested injunctive
relief informs the permanent injunction analysis.
An
injunction’s scope should be restricted to only that which is
“necessary to provide complete relief to the plaintiff.”
PBM
Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 128 (4th Cir.
29
Case 2:17-cv-04377 Document 34 Filed 08/29/18 Page 30 of 35 PageID #: 585
2011) (quoting Kentuckians for Commonwealth v. Rivenburgh, 317
F.3d 425, 436 (4th Cir. 2003)).
cannot be overbroad.
In other words, an injunction
Kentuckians for Commonwealth, 317 F.3d at
436; accord McCormack v. Hiedeman, 694 F.3d 1004, 1019 (9th Cir.
2012).
Here, the injunctive relief sought is commensurate with
the court’s declaratory judgment: Mountain Valley seeks to
enjoin the Commissioners from enforcing the Fayette Zoning Code
against it insofar as the Fayette Zoning Code applies to its
FERC-approved activities in connection with Stallworth Station.
(See Verified Compl. WHEREFORE Clause Pt. 2.)
Importantly, Mountain Valley does not request an
injunction directing the Commissioners to re-zone the entire
Stallworth Property to H-1 Heavy Industrial, (see Mountain
Valley Reply 19), which would be more than necessary to build
the Stallworth Station, (see Cooper Decl. ¶ 7).
It also bears
re-emphasis that Mountain Valley’s activities, including those
associated with the Stallworth Station, are circumscribed by
FERC’s regulation and oversight.
So, enjoining the
Commissioners from enforcing the Fayette Zoning Code against the
Stallworth Station would not give Mountain Valley carte blanche
to do whatever it wants: Mountain Valley can do only what FERC
authorizes, just like the Fayette Zoning Code is preempted by
only what FERC authorizes.
30
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With the requested injunction’s scope in mind, the
court finds that a commensurate injunction naturally flows from
a declaration that an enforced local law is preempted by federal
law.
In practical effect, Mountain Valley’s requested
injunction will simply enjoin the Commissioners from enforcing a
law to the extent that they are already not allowed to enforce
pursuant to the declaratory judgment entered herein.
Some
courts have awarded injunctive relief as an incident to
declaratory judgment in similar circumstances.
See Valley View
Health Care, Inc. v. Chapman, 992 F. Supp. 2d 1016, 1033, 1050
(E.D. Cal. 2014); Ass’n of Banks in Ins., Inc. v. Duryee, 55 F.
Supp. 2d 799, 813 (S.D. Ohio 1999); Sandhills Ass’n of Realtors
v. Village of Pinehurst, No. 1:98CV00303, 1999 U.S. Dist. LEXIS
19094, at *49 (M.D.N.C. Nov. 8, 1999); cf. Hickory Fire Fighters
Ass’n v. Hickory, 656 F.2d 917, 922 (4th Cir. 1981) (stating
that “appropriate injunctive relief . . . is in order” if the
district court on remand finds that “city council meetings are
presently dedicated as public forums at certain times” that the
city council forbade certain individuals to speak).
Nevertheless, to obtain a permanent injunction, a
plaintiff must prove four elements “[a]ccording to wellestablished principles of equity”:
(1) that it has suffered an irreparable injury; (2)
that remedies available at law, such as monetary
31
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damages, are inadequate to compensate for that injury;
(3) that, considering the balance of hardships between
the plaintiff and defendant, a remedy in equity is
warranted; and (4) that the public interest would not
be disserved by a permanent injunction.
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006); see
also EQT Prod. Co. v. Wender, 191 F. Supp. 3d 583, 589 (S.D. W.
Va. 2016) (quoting eBay).
Although “[s]atisfying these four
factors is a high bar,” SAS Inst., Inc. v. World Programming
Ltd., 874 F.3d 370, 385 (4th Cir. 2017) (citing and quoting
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010),
and Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)), the
circumstances described above portend Mountain Valley’s ready
success.
First, this court has recently recognized that
Mountain Valley’s harms - economic losses unrecoverable at the
end of litigation, construction scheduling modifications, and
tarnished business reputation, (see Cooper Decl. ¶¶ 12-21) - are
irreparable.
Mountain Valley Pipeline, LLC v. An Easement, 2018
U.S. Dist. LEXIS 28755, at *32-33.
Second, like Mountain Valley
contends, (Mountain Valley Resp. 23), legal remedies are
unavailable to it because the Commissioners are immune from suit
under The Governmental Tort Claims and Insurance Reform Act.
See W. Va. Code Ann. §§ 29-12A-3 (commission is a county
subdivision under this article), -5(a)(1) (political subdivision
32
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immune from liability for legislative or quasi-legislative
functions), -5(a)(9) (political subdivision immune from
liability for exercise of licensing powers) (LexisNexis 2018).
Third, the balance of hardships counsels in favor of equitable
relief since Mountain Valley possesses a certificate of public
convenience and necessity from FERC and accrues harm from delay,
while the Commissioners would simply be prohibited from
enforcing a local law to the extent that they are already not
allowed to enforce it.
And fourth, the Fourth Circuit maintains
“that a certificate is imbued with the public interest pursuant
to the authority granted under the NGA.”
Mountain Valley
Pipeline, LLC v. An Easement, 2018 U.S. Dist. LEXIS 28755, at
*35 (citing E. Tenn. Nat. Gas Co. v. Sage, 361 F.3d 808, 830
(4th Cir. 2004)).
Accordingly, Mountain Valley is entitled to a
permanent injunction preventing the Commissioners from enforcing
the Fayette Zoning Code insofar as it applies to Mountain
Valley’s FERC-approved activities in connection with the
Stallworth Station.
33
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IV. Conclusion
For the foregoing reasons, it is ORDERED that Mountain
Valley’s motion for summary judgment be, and hereby is, granted.
It is further ORDERED as follows:
1. The parties are directed to furnish within twenty days of
the entry of this memorandum opinion and order proposed
language for a judgment order granting Mountain Valley
declaratory and injunctive relief.
The parties may jointly
file such language to the extent they can agree.
2. As an attachment to its proposed judgment order language,
Mountain Valley is directed to furnish a plat or survey,
together with a metes and bounds description, providing
definition to the area affected by the declaratory and
injunctive relief.
3. Mountain Valley is directed to notify the court once
construction of the Stallworth Station is complete and
Mountain Valley has begun occupying the approximately seven
acres needed for the operation of the Stallworth Station.
34
Case 2:17-cv-04377 Document 34 Filed 08/29/18 Page 35 of 35 PageID #: 590
The Clerk is directed to transmit copies of this
memorandum opinion and order to all counsel of record and to any
unrepresented parties.
ENTER: August 29, 2018
John T. Copenhaver, Jr.
United States District Judge
35
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