## Facts

- Dominion Transmission, Inc., sought to construct and operate an interstate natural gas compressor station in Myersville, Maryland.
- Dominion applied to the Federal Energy Regulatory Commission (FERC) for a certificate of public convenience and necessity under the Natural Gas Act (NGA), which FERC issued on December 20, 2012.
- To build and operate, Dominion also needed an air-quality permit from the Maryland Department of the Environment (MDE) under Maryland’s Clean Air Act (CAA) permitting program.
- Maryland law required MDE, before processing an air-permit application, to receive documentation of local zoning/land-use approval or documentation that the source met applicable zoning/land-use requirements.
- Dominion submitted an air-permit application on February 1, 2012; MDE declined to process it, stating the application lacked required zoning documentation.
- Dominion submitted a letter asserting zoning compliance and filed for local zoning approval; the Town of Myersville denied the zoning request in August 2012.
- After receiving the FERC certificate, Dominion refiled its air-permit application on December 21, 2012, arguing federal approval displaced any local zoning barrier.
- MDE again refused to process the application solely due to missing zoning documentation.
- Dominion petitioned the D.C. Circuit for review, challenging MDE’s refusal to process the application as unlawful under the NGA/CAA framework.

## Issues

1. Whether a state air agency may refuse to process a CAA permit application for a FERC-certificated interstate natural gas facility based solely on the applicant’s failure to provide local zoning documentation.
2. Whether such agency inaction is inconsistent with federal law governing the relationship between the NGA’s federal siting authority and the CAA’s state permitting role.
3. What judicial remedy is appropriate when a state agency declines to act on a required permit application in a manner that obstructs a federally authorized project.

## Decision

- The D.C. Circuit granted Dominion’s petition for review.
- The court held that MDE’s failure to act—refusing to process, grant, condition, or deny the permit application—was inconsistent with federal law.
- The court remanded to MDE and directed it to follow a schedule to ensure prompt action on Dominion’s application.
- The court did not order MDE to issue the permit; it required MDE to process the application and reach a decision consistent with applicable federal and state constraints.

## Legal Principles

- The NGA gives FERC exclusive authority over the certification of interstate natural gas facilities; state and local requirements may not operate as an additional veto over a FERC-certificated project.
- The CAA preserves a state role in air permitting for such facilities, but that role must be exercised in a manner consistent with federal law and cannot be used to obstruct federal authorization.
- A state agency may not convert a state-law procedural precondition into a basis to withhold all action on a required CAA permit where the effect is to block a federally approved interstate gas facility.
- When a state air agency improperly refuses to act on a permit application, a court may remand and require prompt agency action (grant, condition, or deny) rather than dictate the substantive permitting outcome.

## Conclusion

The D.C. Circuit required Maryland’s environmental agency to promptly process and decide Dominion’s air-permit application, holding that refusing to act based solely on local zoning documentation unlawfully allowed local land-use opposition to impede a FERC-certificated interstate natural gas project.


Dominion Transmission, Inc. v. Summers, 723 F.3d 238 (D.C. Cir. 2013)