PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AES SPARROWS POINT LNG, LLC;
MID-ATLANTIC EXPRESS, LLC,
Plaintiffs-Appellants,
v.
JAMES T. SMITH, JR., County No. 07-1615
Executive, Baltimore County;
WILLIAM J. WISEMAN, III, Zoning
Commissioner, Baltimore County;
BALTIMORE COUNTY, MARYLAND,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(1:07-cv-00325-RDB)
Argued: January 30, 2008
Decided: May 19, 2008
Before WILLIAMS, Chief Judge, SHEDD, Circuit Judge, and
Liam O’GRADY, United States District Judge
for the Eastern District of Virginia,
sitting by designation.
Reversed and remanded by published opinion. Judge Shedd wrote the
opinion, in which Judge O’Grady joined. Chief Judge Williams wrote
a separate opinion concurring in the judgment.
2 AES SPARROWS POINT LNG v. SMITH
COUNSEL
ARGUED: Jeffrey A. Lamken, BAKER BOTTS, L.L.P., Washing-
ton, D.C., for Appellants. John Edward Beverungen, County Attor-
ney, BALTIMORE COUNTY OFFICE OF LAW, Towson,
Maryland, for Appellees. ON BRIEF: James W. Bartlett, III, Scott
H. Phillips, SEMMES, BOWEN & SEMMES, Baltimore, Maryland;
Randolph Q. McManus, Mark Cook, Michael G. Pattillo, Jr., Adam
J. White, Rachel M. McKenzie, BAKER BOTTS, L.L.P., Washing-
ton, D.C., for Appellants. Jeffrey Grant Cook, Assistant County
Attorney, BALTIMORE COUNTY OFFICE OF LAW, Towson,
Maryland, for Appellees.
OPINION
SHEDD, Circuit Judge:
AES Sparrows Point LNG, LLC and Mid-Atlantic Express, LLC
(together, "AES") brought this suit against Baltimore County, Mary-
land, its executive, and its zoning commissioner (together, "the
County") seeking a declaration that County Bill 9-07, which prohibits
the siting of any liquefied natural gas ("LNG") terminal in the Coun-
ty’s Chesapeake Bay Critical Area, is preempted by the Natural Gas
Act ("NGA"). The district court granted summary judgment to the
County, concluding that Bill 9-07 is saved from preemption because
it "is within the delegated authority of the State of Maryland and the
County under the Coastal Zone Management Act" ("CZMA") and "is
enforceable as part of the State of Maryland’s Coastal Management
Program." J.A. 271, 284. AES now appeals. We hold that Bill 9-07
is not part of Maryland’s federally approved Coastal Zone Manage-
ment Plan ("CMP"), and therefore is not saved from preemption as an
exercise of Maryland’s rights under the CZMA. Accordingly, we
reverse the judgment of the district court and remand for further pro-
ceedings.
I
Before turning to the facts of this case, we describe briefly the rele-
AES SPARROWS POINT LNG v. SMITH 3
vant statutory framework. The Natural Gas Act, 15 U.S.C. §§ 717 et
seq., requires a party seeking to construct an LNG terminal to first
obtain authorization from the Federal Energy Regulatory Commission
("FERC"). 15 U.S.C. § 717b(a). In order to do so, applicants must
comply with the NGA’s requirements as well as complete FERC’s
extensive pre-filing process. See 18 C.F.R. § 157.21. FERC must then
consult with the appropriate state agency on numerous state and local
issues. See 15 U.S.C. § 717b-1(b). The NGA also contains two provi-
sions, added in 2005, that are pertinent to this appeal. The first pro-
vides that "[FERC] shall have the exclusive authority to approve or
deny an application for the siting, construction, expansion, or opera-
tion of an LNG terminal." 15 U.S.C. § 717b(e)(1).1 The second (the
"Savings Clause") provides that "nothing in the [NGA] affects the
rights of States under" the CZMA and two other federal statutes.2 15
U.S.C. § 717b(d).
The CZMA, 16 U.S.C. §§ 1451, et seq., was designed "to encour-
age states to develop land-use planning programs that will preserve,
protect, and restore the environment of their coastal zones." Shanty
Town Assocs. Ltd. P’ship v. EPA, 843 F.2d 782, 793 (4th Cir. 1988).
To that end, the CZMA authorizes states to create CMPs setting forth
the state’s "objectives, policies, and standards to guide public and pri-
vate uses of lands and waters in the coastal zone." 16 U.S.C.
§ 1453(12). The CZMA sets forth detailed requirements that a CMP
must meet in order to obtain federal approval. See 16 U.S.C. §§ 1454-
55. Once a state’s CMP is approved by the National Oceanic and
Atmospheric Administration ("NOAA"),3 the state is eligible to
1
The NGA defines "LNG terminal" to include:
[A]ll 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 ves-
sel.
15 U.S.C. § 717a(11).
2
The Clean Air Act (42 U.S.C. §§ 7401, et seq.) and the Federal Water
Pollution Control Act (33 U.S.C. §§ 1251, et seq.). Neither statute is rele-
vant to this appeal.
3
The CZMA vests this approval authority with the Secretary of Com-
merce, who has in turn delegated it to NOAA. See Dep’t of Commerce
Organizational Order 10-15, § 3.01(u) (May 28, 2004).
4 AES SPARROWS POINT LNG v. SMITH
receive federal grants for the purpose of administering its coastal zone
management programs. 16 U.S.C. § 1455. In addition, the CZMA
requires that any federal agency activity affecting the state’s coastal
zone "be carried out in a manner which is consistent to the maximum
extent practicable with the enforceable policies of approved [CMPs]."
16 U.S.C. § 1456(c)(1). The CZMA therefore gives states with
approved CMPs the right to engage in "consistency review," permit-
ting them to conditionally veto federally permitted projects that are
not consistent with "the enforceable policies of the state’s approved
[CMP]," subject to a final override by the Secretary of Commerce. 16
U.S.C. § 1456(c)(3)(A); see generally Cal. Coastal Comm’n v. Gran-
ite Rock Co., 480 U.S. 572, 590-91 (1987) (explaining consistency
review). Finally, the CZMA specifies the procedures a state must fol-
low in order to amend its CMP, which include presentation of any
such amendment to NOAA for approval. See 16 U.S.C. § 1455(e).
II
The facts of this case are not disputed. To meet the demand for nat-
ural gas in the Mid-Atlantic region, AES proposes to build an LNG
import terminal with the necessary transmission pipeline at Sparrows
Point, a heavily industrialized coastal area on the Chesapeake Bay in
the County. LNG, which is natural gas that has been cooled to -260°
Fahrenheit to form a liquid, occupies one six-hundredth of the volume
of natural gas in its gaseous state. AES’ proposed terminal would
receive LNG, store it, and regasify it for transportation and delivery
to residential, commercial, and industrial end users. Because LNG can
be economically transported by sea from gas-producing areas world-
wide to many domestic and foreign markets, LNG import terminals
are typically sited in coastal areas with shipping access to foreign
countries.
In 2006, responding to public opposition to the siting of an LNG
terminal at Sparrows Point, the County Council approved Bill 71-06,
which amended the County’s Zoning Regulations to provide that an
LNG terminal can only be constructed with a "special exception" and
must be located at least five miles from residential zones and 500 feet
from businesses. J.A. 79. This zoning amendment would have pre-
vented AES from constructing an LNG facility at Sparrows Point.
AES SPARROWS POINT LNG v. SMITH 5
Following passage of Bill 71-06, AES brought suit in federal court,
arguing that Bill 71-06 was preempted under the Supremacy Clause
of the United States Constitution by the NGA’s grant of exclusive
authority to FERC to site LNG terminals. The district court agreed
and enjoined the County from enforcing the zoning ordinance. See
AES Sparrows Point LNG, LLC v. Smith, 470 F. Supp. 2d 586, 601
(D. Md. 2007)("AES I").
The County responded in 2007 by passing Bill 9-07, which takes
a different approach to banning LNG facilities at Sparrows Point.
Instead of restricting LNG terminal siting based on proximity to resi-
dential and commercial areas, Bill 9-07 makes the restriction on LNG
facilities a matter of coastal concern by amending the County’s Zon-
ing Regulations to include LNG terminals among the prohibited uses
in the Chesapeake Bay Critical Area.4 Because the proposed Sparrows
Point site is located within the County’s Chesapeake Bay Critical Area,5
Bill 9-07 prevents AES from constructing an LNG facility there.
AES then filed the present suit, seeking essentially the same
injunctive and declaratory relief as in AES I. The County responded
by requesting that Maryland’s Critical Area Commission for the
Chesapeake and Atlantic Coastal Bays (the "Critical Area Commis-
sion") amend the County’s Chesapeake and Atlantic Coastal Bays
Critical Area Protection Program ("CAPP") to include Bill 9-07’s
restriction on LNG terminal siting in coastal areas. The CAPP was
enacted pursuant to Md. Code Ann., Nat. Res. §§ 8-1801 et seq., and
is one of over 50 state laws identified in Maryland’s CMP as effectu-
ating Maryland’s coastal management policies.6 Before the district
4
Bill 9-07’s definition of "Liquefied Natural Gas Facility" is substan-
tially the same as that of the NGA. See J.A. 107.
5
The Chesapeake Bay Critical Area includes, subject to certain statu-
tory exclusions, "[a]ll waters of and lands under the Chesapeake Bay and
its tributaries to the head of tide as indicated on the State wetlands maps,
and all State and private wetlands designated under Title 16 of the Envi-
ronment Article" and "[a]ll land and water areas within 1,000 feet
beyond the landward boundaries of State or private wetlands and the
heads of tides designated under Title 16 of the Environment Article."
Md. Code Ann., Nat. Res. § 8-1807(a).
6
NOAA approved Maryland’s CMP in 1978, and in 1986 approved an
amendment to the CMP to incorporate the CAPP. Prior to its purported
amendment by Bill 9-07, Maryland’s CMP contained no ban on the sit-
ing of LNG terminals in coastal zones.
6 AES SPARROWS POINT LNG v. SMITH
court rendered its decision, the Critical Area Commission approved
the adoption of Bill 9-07 into the CAPP. Maryland, however, never
presented Bill 9-07 to NOAA for approval by that agency, pursuant
to the CZMA’s procedures for amending state CMPs.
The district court concluded that Bill 9-07 was not preempted by
the NGA. Reasoning that by adopting Bill 9-07 into the County’s
CAPP, Maryland also had incorporated it into its CMP, the district
court concluded that Bill 9-07 represented an exercise of Maryland’s
"delegated authority" under the CZMA and was thus saved from pre-
emption by the NGA’s Savings Clause. The district court also held
that Bill 9-07 does not facially discriminate against or unduly burden
interstate and foreign commerce in violation of the Commerce Clause
of the United States Constitution. Accordingly, the district court
denied AES’ request for declaratory and injunctive relief and granted
summary judgment in favor of the County. This appeal followed.
III
AES’ primary contention on appeal, as below, is that Bill 9-07 is
preempted by the NGA. We review this legal question de novo. Cox
v. Shalala, 112 F.3d 151, 153 (4th Cir. 1997).7
A.
The Supremacy Clause of the United States Constitution provides
that "[t]his Constitution, and the Laws of the United States which
shall be made in Pursuance thereof . . . shall be the supreme Law of
the Land . . . any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. Under the
Supremacy Clause, state law that conflicts with federal law is "with-
out effect." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516
7
We find no merit in the County’s contention that AES has failed to
exhaust its administrative remedies before bringing suit. The doctrine of
exhaustion requires parties to exhaust "prescribed administrative remed-
[ies]" prior to seeking relief in a federal court. See Woodford v. Ngo, 126
S. Ct. 2378, 2385 (2006) (emphasis added). The County identifies no
mandatory administrative remedy that AES has failed to exhaust in this
case.
AES SPARROWS POINT LNG v. SMITH 7
(1992) (internal quotation omitted). Nevertheless, in evaluating argu-
ments based on the Supremacy Clause, we begin with "the assump-
tion that the historic police powers of the States [are] not to be
superseded by . . . Federal Act unless that [is] the clear and manifest
purposes of Congress." Id. (internal quotation and citation omitted).
As always, we look first to the language of a statute to determine
Congress’ intent. Sprietsma v. Mercury Marine, 537 U.S. 51, 62-63
(2002). When that intent is "explicitly stated in the statute’s lan-
guage," conflicting state law is expressly preempted. Cipollone, 505
U.S. at 516 (internal quotation omitted).
B.
The NGA provides that FERC "shall have the exclusive authority
to approve or deny an application for the siting, construction, expan-
sion, or operation of an LNG terminal." 15 U.S.C. § 717b(e)(1)
(emphasis added). Viewed in isolation, this grant of exclusive author-
ity to FERC leaves state and local governments with no residual
power to site LNG terminals or to take actions that would effectively
approve or deny such siting. See AES I, 470 F. Supp. 2d at 598.
Accordingly, unless a state law prohibiting the siting of LNG termi-
nals is exempted from § 717b(e)(1)’s preemptive effect by some other
provision of federal law, it is unenforceable under the Supremacy
Clause.
The County argues that the NGA’s Savings Clause operates to save
Bill 9-07 from preemption by § 717b(e)(1). Specifically, the County
contends that because Bill 9-07 is part of Maryland’s Critical Area
Laws, which in turn are one component of the state’s CMP, the Coun-
ty’s ban on the siting of LNG terminals in the Chesapeake Bay Criti-
cal Area is the exercise of its rights under the CZMA.
We reject the County’s argument. The Savings Clause exempts
"rights of States under" the CZMA from the preemptive force of
FERC’s exclusive authority to site LNG terminals. The mechanism
the CZMA provides for the exercise of those rights — whatever their
content or source — is a federally approved CMP. Thus, the County
has no authority under the CZMA to enact a ban on LNG terminals
unless, at a minimum, that ban is enacted pursuant to the procedures
8 AES SPARROWS POINT LNG v. SMITH
established by the CZMA. Accordingly, our inquiry must focus first
on whether Bill 9-07 has been incorporated into Maryland’s CMP.
The CZMA specifies the manner by which a state may amend its
approved CMP. Any state wishing to amend its approved plan must
"promptly notify the Secretary [of Commerce] of any proposed
amendment, modification, or other program change and submit it for
the Secretary’s approval." 16 U.S.C. § 1455(e)(1). An amendment
becomes effective only after the Secretary approves it or fails to take
action within the prescribed time. "[A] coastal state may not imple-
ment any amendment, modification, or other change as part of its
approved management program unless the amendment, modification,
or other change is approved by the Secretary." 16 U.S.C.
§ 1455(e)(3)(A). Further, "[a] proposed amendment, modification, or
change which . . . is not finally approved . . . shall not be considered
an enforceable policy" of the CMP. 16 U.S.C. § 1455(e)(3)(B).
The district court concluded that Bill 9-07 did not constitute an
amendment to Maryland’s CMP, but rather only "the implementation
of it at the local level." J.A. 282-83. We disagree. "Amendment" for
purposes of the CZMA is defined in 15 C.F.R. § 923.80(d):
For purposes of this subpart, amendments are defined as
substantial changes in one or more of the following coastal
management program areas:
(1) Uses subject to management;
(2) Special management areas;
(3) Boundaries;
(4) Authorities and organization; and
(5) Coordination, public involvement and the
national interest.
We have no difficulty concluding that Bill 9-07 is an "amendment"
of Maryland’s CMP because it imposes a categorical ban on LNG ter-
AES SPARROWS POINT LNG v. SMITH 9
minals in the Chesapeake Bay Critical Area that the CMP did not pre-
viously contain. This, in our view, constitutes a "substantial change"
in the "uses subject to management" by the CMP. It also implicates
the "national interest" in the "the siting of facilities such as energy
facilities which are of greater than local significance." 16 U.S.C.
§ 1455(d)(8).
The County does not dispute that it has never presented Bill 9-07
to NOAA for approval as required by the CZMA. The CZMA makes
clear, however, that the mere adoption of Bill 9-07 into the County’s
CAPP by Maryland’s Critical Area Commission is not sufficient to
make Bill 9-07 part of Maryland’s CMP.8 Were it otherwise, a state
could unilaterally amend its CMP in violation of the CZMA’s require-
ment of federal approval.
Until NOAA approves Bill 9-07 or fails to take action after being
presented with it, it is not part of Maryland’s CMP and cannot be
saved from preemption by the NGA’s Savings Clause.9 Therefore,
8
Indeed, even "routine program changes" that do not rise to the level
of formal amendments must be presented to NOAA so that NOAA may
ensure they are not in fact amendments. Until a state has done so, even
such routine changes in a CMP cannot serve as the basis for a state’s
conditional veto of a federally permitted project in consistency review.
See 15 C.F.R. § 923.84.
9
We do not reach the question of whether Bill 9-07 would fall within
the Savings Clause if it had been approved by NOAA and were properly
incorporated into Maryland’s CMP, and we express no opinion on this
issue. There is some indication that NOAA would not approve an LNG
terminal ban as an amendment to a state’s CMP, see Coastal Zone Man-
agement Act Federal Consistency Regulations, 71 Fed. Reg. 788, 823-24
(Jan. 5, 2006) (discussing the intersection of the NGA and CZMA and
stating that "NOAA will not approve State policies that on their face con-
tain requirements that are preempted by Federal law."). However, NOAA
could change its position or simply decline to decide at all which state
policies are or are not preempted. Indeed, NOAA has approved LNG ter-
minal bans in CMPs in the past, at least before the NGA was amended
in 2005 to give FERC exclusive authority to site LNG terminals. See
New Jersey v. Delaware, 128 S. Ct. 1410, 1426 (2008) (noting that Dela-
ware’s CMP contains an LNG terminal ban approved in 1979). If NOAA
changes course, we might at that time be called upon to define the mean-
10 AES SPARROWS POINT LNG v. SMITH
Bill 9-07 is preempted by the NGA’s grant of exclusive authority to
FERC "to approve or deny an application for the siting, construction,
expansion, or operation of an LNG terminal," 15 U.S.C. § 717b(e)(1),
and may not be enforced by the County to prevent the construction
of an LNG terminal at Sparrows Point.10
IV
For the foregoing reasons, we reverse the judgment of the district
court and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED
WILLIAMS, Chief Judge, concurring in the judgment:
Because I conclude that Baltimore County Bill 9-07 is expressly
preempted by the Natural Gas Act under the Supremacy Clause, I
would reverse the judgment of the district court. I therefore concur in
the judgment. I do not agree, however, with the suggestion by the
majority that Bill 9-07’s express liquefied natural gas terminal ban,
although "preempted" today, might be "saved" from preemption
tomorrow if approved by the National Oceanic and Atmospheric
Administration as an amendment to Maryland’s Coastal Zone Man-
agement Plan. Majority Op. at 9-10 and n.9. I cannot see how legisla-
tion like Bill 9-07, which expressly bans liquefied natural gas terminal
siting in the Chesapeake Bay Critical Area, can ever be a "right[ ] of
States under" the Coastal Zone Management Act.
ing of "rights . . . under" the CZMA or to decide the question of whether
the NGA’s Savings Clause operates to save an otherwise preempted ban
on LNG terminals. Those questions, however, are not before us today,
and we therefore decline to address them.
10
In light of our conclusion, we need not address AES’ contention that
Bill 9-07 also violates the Dormant Commerce Clause.