Sabal officials: FERC ruling pre-empts local zoning

ALBANY — Officials with the company that will build the Alabama-to-Florida Sabal Trail natural gas pipeline answered questions Tuesday concerning the use of land in southwest Dougherty County as a staging site for construction equipment that will be utilized in building the portion of the 465-mile pipeline that runs through the county.

Dougherty County Commissioner Harry James said he’d talked with Dougherty County Attorney Spencer Lee and Albany/Dougherty Planning Services Director Paul Forgey about the legality of using the land off Flowing Well Road to store “millions of dollars worth of construction equipment.”

“What I understand is that, according to our zoning laws, since that land is zoned AG, it cannot be used as a construction site,” James said. “Mr. Forgey has confirmed that, but there is question as to whether Sabal Trail is exempt from local zoning ordinances.”

Forgey confirmed that use of AG-zoned property as a construction staging site is not allowed under Dougherty County code, but he said that since the pipeline project has been federally approved, there is question whether county zoning laws apply.

“On the face of if, that usage is not allowed,” Forgey said. “But my understanding is (Lee) has been told by Sabal Trail’s attorney that there is an exemption, so we’re working to clarify that issue before we take any action.”

Lee said he had been in contact with Sabal Trail attorney Matt Calvert, and Calvert assured Lee that the pipeline company is within its rights to use the land without application of local zoning laws. Calvert forwarded Lee applicable law late Tuesday afternoon.

“If there was no federal pre-emption, which has been explained to me, then certainly (Sabal Trail) would be in violation of local ordinances and we would immediately issue a cease and desist order,” Lee said Tuesday afternoon. “But Matt Calvert has promised to send me the certification from FERC (the Federal Energy Regulatory Commission, which gave final approval for the pipeline project).

“I’m not a utilities attorney or a federal law attorney, so I don’t know off-hand what law applies here. I am waiting to hear from Matt now.”

In his response to Lee, Calvert wrote:

“Based on federal preemption, any local zoning classification that might otherwise apply to the land on which Contractor Yard #2-5 is being installed does not inhibit Sabal Trail’s use of the property, in accordance with FERC’s authorization. The leading federal case applying the preemption doctrine is Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300-301 (1988). There, the U.S. Supreme Court held that ‘[t]he NGA confers upon FERC exclusive jurisdiction over the transportation and sale of natural gas in interstate commerce for resale,’ and ‘FERC exercises authority over the rates and facilities of natural gas companies used in this transportation and sale through a variety of powers.’

“… I have attached a copy of the Schneidewind decision, as well as FERC’s Order entered on January 28, 2016 in Algonquin Gas Transmission, LLC Docket No. CP14-96-001, which notes at page 13, paragraph 35: ‘If a conflict arises between the requirements of a state or local agency and the Commission’s certificate conditions, the principles of preemption will apply and the federal authorization will preempt the state or local requirements.’”

Sabal Trail spokeswoman Andrea Grover told The Herald in an email message that federal approval has been granted for use of the land for the construction staging area.

“On June 28th and August 10th, FERC authorized Sabal Trail to mobilize its construction contractors and begin pre-construction activities at certain areas along the project in advance of construction,” Grover wrote. “The contractor yard in Dougherty County was approved on June 28th. As Sabal Trail is a federally certificated project, any local zoning classifications do not apply.

“Sabal Trail has sought and received clearances from all necessary permitting agencies including FERC, U.S. Fish and Wildlife, Georgia Department of Natural Resources and State Historic Preservation Organization.”

Grover said the pipeline company had forwarded all information concerning the construction site to local authorities.

“Sabal Trail has communicated this information with the County in the past and understand they are in agreement with what is needed to utilize the location,” she said, adding that construction in the county will start immediately following Labor Day. “Sabal Trail is currently performing preconstruction activities across the project and plans to start clearing and grading construction activities after Labor Day.”

James, meanwhile, said he’d had a conversation with FERC’s John Peconum, and the federal official informed him he did not remember the Flowing Well site being mentioned in Sabal Trail documentation.

“Even if a federal project is not held to local zoning standards, you’d think that because of the sensitivity of this project that all of this would have been cleared up ahead of time,” the District 5 commissioner said. “In speaking with (Peconum), he said he can’t remember that site being mentioned in any documentation. He’s going to check to see if it is, and if so, that’s not a problem.

“My only goal now is to make sure, if this project is to move forward, that all i’s are dotted and all t’s are crossed.”