The Supremacy Clause Should Not Always Be Supreme: When Federal Preemption of State Law Puts Citizens at Risk

By: Andrew Mackanin

Imagine turning the corner to drive down your street and seeing a massive pillar of flame shooting into the sky; then you are shocked to find out that the natural gas line behind your house exploded, destroying everything you own. Despite the sensationalization, the threat of a gas line explosion is a very real, known only too well by the residents of Sissonville, West Virginia; San Bruno, California; and Allentown, Pennsylvania. In each of these places, natural gas pipelines have exploded, destroying property, and at times taking the lives of the people caught in their path.

Natural gas is one of the most important resources in the United States today and there has been an expansion in its use across the country. Natural gas has half the carbon dioxide emissions when compared to coal and produces very small amounts of waste.  Also the production of natural gas produces no solid waste with very small amount of liquid waste. When contrasted with coal, this is a vast improvement on the impact to the environment for energy producers. By 2040 the U.S. is projected to have reached energy independence. This achievement will be directly influenced by rising natural gas production that eventually will allow the U.S. to become a natural gas exporter. For these reasons natural gas is of the utmost importance to U.S. energy infrastructure.

Natural gas does not exist everywhere and must be transported across state lines by natural gas companies, and entering into interstate commerce. The cultivation and implementation of natural gas pipelines are an important part of our energy infrastructure and should not be hindered. Pipelines are considered to be one of the safest modes for transporting natural gas but tight regulations on safety and oversight must be in place to prevent tragedy. Simply safety measures such as automatic shutoff valves, stricter regulations, and a higher frequency of inspections could help prevent these tragedies. Hitting close to home for Washington D.C. and Baltimore residents, this dangerous situation has now made its way to Maryland and a fight has begun in the Maryland State Senate as Columbia Gas endeavors to build a pipeline through the state.

The concept of federal preemption of state law is based in the Supremacy Clause of the U.S. constitution, Article VI Section 2. There are three types of preemption theories applied under the Supremacy Clause, but in the realm of interstate pipeline regulation the only theory at issue is of Congressional intent to preempt state law. Traditionally the areas of health and safety have been left to the states in our federal system but Congress, under the Natural Gas Act (NGA), has specifically acted with the intent to preempt state law so as create a comprehensive, nationwide plan for federal regulation of interstate gas pipelines. The NGA fostered the creation of the Federal Energy Regulation Commission (FERC) which is charged with executing the NGA by overseeing interstate pipeline scheme, including safety. However, because of this legislation, state powers have been eroded. The states have lost power to protect their citizens, and instead their safety is left up to a federal scheme designed to promote the transportation of natural gas rather than the safety of the people who live, work, and travel in the vicinity of these pipelines.

In the State of Maryland, natural gas companies are currently attempting to secure property from people in the Owings Mills area to build a pipeline. Ironically, the natural gas transported through the proposed pipeline will not be going to anyone in the state. This purely interstate pipeline does not benefit the citizens of Owings Mills, who will incur all of the risks of the pipeline exploding but will not be receiving the benefit. Yet, even if the pipeline would benefit the people of Maryland in a primary or secondary way, should the state be prevented from setting the standard of safety that would the people living with a bomb running through their backyard?

Currently members of the Maryland State Senate are trying to push state legislation that directly conflicting with the intent of NGA and would be preempted. There are multiple bills introduced dealing with safety issues but Senate Bill 907 is the main bill introduced by Senator Zirkin from the 11th district. SB 907 requires the Public Safety Commission of Maryland to implement and enforce the safety standards set but all of the other bills. Currently all of the legislation has been reviewed in the Finance committee of the State Senate and is waiting to be voted favorable or unfavorable by the committee. The natural gas companies were present for the hearings, lobbying the Senate members and making sure they knew that the courts have found the NGA preempts all state law specifically regarding pipeline safety. Thus, even if the state legislation is passed, it will go straight into court where it will likely be overturned.

Why does Maryland want to push forward with the state legislation when they are armed with the knowledge the legislation will probably be tossed out as preempted under the Supremacy Clause?  Because the incidents have been numerous, with death,  and billions of dollars in property damage occurring across the United States. There are pipelines all over the country that are old and in need of repair and/or replacement and it is not coming fast enough. States need to have the ability to protect their citizens if FERC is not willing to force the natural gas companies to do it themselves. The Maryland legislation is the only way that a state can take a visible stand against this costly erosion of their rights.

By taking a stand, Maryland will likely not get the federal law amended; however, state representatives are duty-bound to fight for their citizens’ safety.  Up against the federal government, if our representatives don’t fight for our safety in this area who will? Even though this legislation will probably be preempted, it is good for public policy and constitutional jurisprudence. Changes to the Constitution through the courts or constitutional amendments have always had a driving force that pushes our society forward towards necessary adaptations and this legislation is part of that push.

Sources:

http://www.csmonitor.com/Environment/2012/1212/West-Virginia-gas-pipeline-explosion-just-a-drop-in-the-disaster-bucket

http://abcnews.go.com/US/death-toll-remains-san-bruno-explosion/story?id=11617009

http://www.forbes.com/sites/kensilverstein/2013/01/29/pipeline-explosion-rattles-natural-gas-industry/

http://www.manhattan-institute.org/html/ir_17.htm

http://abcnews.go.com/Business/pennsylvania-natural-gas-explosion-leaves-dead/story?id=12883552

http://www.baltimoresun.com/news/maryland/politics/blog/bal-zirkin-pipeline-effort-runs-into-pdv-ambivalence-20130312,0,4551689.story

Schneidewind v. ANR Pipeline Co., 485 U.S. 293 (1988).

Southern Blasting Services, Incoporated v. Wilkes County, North Carolina, 288 F.3d 584 (2002).

http://www.epa.gov/cleanenergy/energy-and-you/affect/natural-gas.html

http://www.epa.gov/cleanenergy/energy-and-you/affect/coal.html

http://www.usatoday.com/story/news/nation/2012/12/05/usa-energy-independence-renewable/1749073/

http://mgaleg.maryland.gov/2013RS/fnotes/bil_0007/sb0907.pdf

 

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