Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 1 of 31 PageID #: 4 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA (Charleston Division) MOUNTAIN VALLEY PIPELINE, LLC, Plaintiff, 2:17-cv-04377 CIVIL ACTION NO. ___________ v. 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. VERIFIED COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF. For its Complaint against 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 (collectively the “Fayette County Commission”), Plaintiff Mountain Valley Pipeline, LLC (“MVP”) states as follows: Introduction. 1. MVP will spend approximately $3.5 billion (including more than $800 million directly in West Virginia) to construct the proposed Mountain Valley Pipeline project (“MVP Project”), a natural gas pipeline system that will span approximately 303 miles from northwestern {B3417048.5} Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 2 of 31 PageID #: 5 West Virginia to southern Virginia, transporting supplies of natural gas produced from the Marcellus and Utica Shale formations in West Virginia to markets in the Northeast, Mid-Atlantic and Southeast regions of the U.S. The MVP Project has been carefully designed to utilize existing gas and electric transmission corridors when possible, avoid sensitive areas, limit surface disturbance, and minimize the overall environmental footprint. 2. Because of friction and elevation changes that cause pressure drops, natural gas traveling in a pipeline must be periodically compressed to ensure consistent pressure and efficient delivery. For the MVP Project, MVP engineers identified the need for three (3) compressor stations along the pipeline route in order to transport the natural gas to its delivery point. One of those proposed compressor stations is named the Stallworth Compressor Station (“Stallworth Station”), which is to be built on a relatively secluded tract of land in southwest Fayette County, West Virginia, and is the focus of this civil action. 3. Since it involves the interstate transportation of natural gas, the MVP Project is subject to the Natural Gas Act, 15 U.S.C. 717 et seq. (“NGA”), and it could not be built without the issuance of a certificate of convenience and necessity by the Federal Energy Regulatory Commission (“FERC”) pursuant to the NGA. With limited exceptions (not applicable here), issuance of such a certificate under the NGA completely preempts any state or local law or regulation that would affect the construction and/or operation of a FERC-authorized gas transportation project. 4. The Pipeline Safety Act, 49 U.S.C. § 60101 et seq. (“PSA”), authorizes the U.S. Department of Transportation (“DOT”) to prescribe and enforce federal safety standards for pipeline facilities and persons engaged in the transportation of gas. With the exception of qualified state damage prevention laws (not at issue here), the PSA expressly preempts state and local {B3417048.5} 2 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 3 of 31 PageID #: 6 authorities from regulating the safety standards or practices of interstate gas pipeline facilities. 49 U.S.C. § 60104(c). FERC-jurisdictional gas transmission lines are interstate gas pipeline facilities under the PSA. 49 U.S.C. § 60101(a)(6). 5. On October 13, 2017, FERC issued a certificate of public convenience and necessity to MVP, authorizing the construction and operation of the MVP Project (the “MVP Certificate”).1 The MVP Certificate specifically authorizes construction and operation of the Stallworth Station (including access roads) on land owned by MVP, located at MP 154.5 in Fayette County, West Virginia (the “Stallworth Property”). MVP Certificate, pp. 3, 103. As noted in the MVP Certificate, alternative locations for the Stallworth Station were evaluated as a part of the preparation of an Environmental Impact Statement for the MVP Project. The Stallworth Property was selected because it was far superior to other potential sites in terms of topography, site access, surrounding land use (including population density and distance from residences) and overall environmental considerations. It will require significantly less cut and fill to achieve a buildable site, is easily accessible from the nearby County Route 29, and is located on the top of a hill with dense deciduous forest all around it. 6. Consistent with FERC policy (addressed further below), beginning in July, 2017, MVP representatives have proactively attempted to work with Fayette County officials in a way that would satisfy (to the extent reasonably possible) the requirements of Fayette County ordinances that would (but for NGA preemption) apply to the construction and operation of the Stallworth Station. As a part of that cooperative effort, MVP submitted an application (“Rezoning Application”) for the rezoning of the Stallworth Property. MVP also provided considerable amounts of supplemental information addressing such matters as the consistency of the Stallworth 1 A complete copy of the 110-page MVP Certificate, along with appendices, is available at: https://elibrary.ferc.gov/idmws/file_list.asp?accession_num=20171013-4002. {B3417048.5} 3 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 4 of 31 PageID #: 7 Station with the Fayette County Comprehensive [Zoning] Plan; emergency response and safety features and plans; federal Clean Water Act compliance and permitting; air emissions and controls; erosion and sediment control; noise mitigation and modeling; lighting and visual impacts; and economic benefits. In addition to other communications and submissions, MVP participated in a pre-application meeting with the Fayette County Zoning Officer and Resource Coordinator, two public hearings before the Fayette County Planning Commission, and three public hearings before the Fayette County Commission. 7. Despite these efforts, at the conclusion of its public hearing on November 17, 2017, the Fayette County Commission denied MVP’s Rezoning Application (the “Rezoning Denial”). Even if MVP pursues a legal challenge to that decision (which, as explained below, involves an uncertain procedural course), the Rezoning Denial will result in an unreasonable delay in the construction of the Stallworth Station that will increase MVP’s expenses, diminish its revenue, and delay the delivery of the significant benefits that the MVP Project will bring to the public. 8. MVP therefore brings this action in order to seek a declaratory judgment that the Fayette County Unified Development Code, Rev. 01 (Nov. 2005) (the “Fayette County Zoning Ordinance”)2, insofar as it would otherwise apply to the Stallworth Station, is preempted by the NGA and by the PSA. MVP also seeks a permanent injunction preventing the Fayette County Commission from attempting to enforce or rely on the Fayette County Zoning Ordinance to interfere with or prevent MVP’s construction of the Stallworth Station, a federally regulated and approved natural gas pipeline compressor station to be built in Fayette County, West Virginia. 2 The Fayette County Zoning Ordinance may be accessed at: http://fayettecounty.wv.gov/zoning/Pages/default.aspx. {B3417048.5} 4 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 5 of 31 PageID #: 8 Jurisdiction and Venue. 9. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331 because this action arises under the laws of the United States, including but not limited to the NGA and the PSA, and this Court’s equitable powers. 10. Venue is proper in this Court under 28 U.S.C. § 1391 because the events giving rise to MVP’s claims occurred in Fayette County, West Virginia, which is located in the Southern District of West Virginia. Parties. 11. MVP is a Delaware limited liability company organized and existing under the laws of the State of Delaware with its principal place of business in Pittsburgh, Pennsylvania. MVP will be a “natural gas company” as that term is defined by the NGA, 15 U.S.C. § 717a(6) and subject to the certificate requirements of the NGA, because upon completion of the MVP Project it will transport natural gas in interstate commerce. 15 U.S.C. 717f (c)(1)(a). MVP is also the owner or operator of an “interstate pipeline facility” and a person engaged in “interstate pipeline transportation” as those terms are used in the PSA’s preemption provision, 49 U.S.C. § 60104(c), because the MVP Project is an interstate gas pipeline facility used to transport gas and subject to the jurisdiction of FERC under the NGA. 49 U.S.C. § 60101(a)(6). 12. The Commission is a county commission created under W. Va. Code § 7-1-1 et seq., and possesses such powers as are granted to county commissions under the West Virginia Constitution and West Virginia statutes. {B3417048.5} 5 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 6 of 31 PageID #: 9 Federal Law Applicable to Interstate Gas Pipeline Projects. 13. Under the NGA, FERC has exclusive jurisdiction over the transportation and sale of natural gas in interstate commerce, including the siting, design, construction, and operation of natural gas pipelines and related facilities used to transport natural gas in interstate commerce. Before a natural gas company may construct a natural gas pipeline or related facilities, it must obtain a certificate of public convenience and necessity (“Certificate”) from FERC. See 15 U.S.C. § 717f (c), § 717f (e). With the exception of state or local laws implementing the requirements of the federal Clean Air Act, 42 U.S.C. 7401, et seq., the federal Clean Water Act, 33 U.S.C. 1251, et seq., or the Coastal Zone Management Act of 1972, 16 U.S.C. 1451, et seq., issuance of such a Certificate preempts any local ordinance that would otherwise apply to the siting, design, construction, and operation of such natural gas transportation facilities, including compressor stations. Dominion Transmission, Inc. v. Town of Myersville Town Council, 982 F.Supp.2d 570, 577 (D. Md. 2013). 14. The PSA authorizes DOT to prescribe and enforce federal safety standards for pipeline facilities and persons engaged in the transportation of gas. 49 U.S.C. § 60101 et seq. With the exception of qualified state damage prevention laws, the PSA expressly preempts state and local authorities from regulating the safety standards or practices of FERC-jurisdictional, interstate gas pipeline facilities. 49 U.S.C. § 60104(c). DOT has established comprehensive federal safety standards for interstate gas pipeline facilities (49 C.F.R. Part 192), and those safety standards apply to the design, construction, testing, operation, and maintenance of compressor stations. See, e.g., 49 C.F.R. §§ 192.163-192.173. {B3417048.5} 6 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 7 of 31 PageID #: 10 FERC’s Pre-Filing Process. 15. Approximately seven to eight months prior to applying to FERC for a certificate of public convenience and necessity, an applicant may file a request with FERC to use the pre-filing procedures set forth in 18 C.F.R. § 157.21(b) (“Pre-Filing Process”). Id. 16. If FERC approves a Pre-Filing Process request, it will issue a docket number for the Pre-Filing Process establishing an official public record for the proposed project. 17. The Pre-Filing Process is part of the regulatory process that begins FERC’s early project review pursuant to its obligations under the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq. In addition, FERC established the Pre-Filing Process to encourage natural gas companies to engage with the relevant members of the public and government agencies early in the process of project development. 18. Once FERC approves the request to use the Pre-Filing Process, the applicant must notify all stakeholders – including state, local, and other federal agencies, and potentially affected property owners – about the proposed project so that the applicant and FERC staff may provide a forum to hear stakeholder concerns. The applicant must also engage in various other activities, such as studying potential project sites, making project information publically available for comment, coordinating with federal and state environmental agencies, and holding open houses for stakeholders to discuss the project. 19. Throughout the Pre-Filing Process, the applicant refines its pipeline route studies, field survey activities, and reviews and responds to comments in order to diminish environmental impacts and develop the comprehensive exhibits that are needed for a Certificate application. 20. FERC’s staff participates in the open houses. FERC also publishes in the Federal Register a Notice of Intent for Preparation of an Environmental Assessment or an Environmental {B3417048.5} 7 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 8 of 31 PageID #: 11 Impact Statement (see 40 CFR § 1508.22), opening a scoping period to seek public comments. In addition, FERC consults with interested stakeholders, including government agencies, and holds public scoping meetings and site visits in the proposed project area. The MVP Project. 21. MVP proposes to construct and operate the MVP Project in order to provide up to 2,000,000 dekatherms (Dth) (2 billion cubic feet (Bcf)) per day of firm transportation service from Wetzel County, West Virginia to Transco’s Compressor Station 165 in Pittsylvania, Virginia, enabling its shippers to access markets in the Northeast, Mid-Atlantic, and Southeast regions. See MVP Certificate, p. 3, ¶ 6. EQT Midstream Partners, LP, a subsidiary of EQT Corporation and a parent of MVP, will operate the project. MVP Certificate, p. 4, ¶ 8. 22. MVP’s shippers for the MVP Project include EQT Energy, LLC; Roanoke Gas Company; USG Properties Marcellus Holdings, LLC; WGL Midstream, Inc.; and Consolidated Edison of New York, Inc. MVP Certificate, p. 5-6, ¶10. The project is fully subscribed – meaning that it has entered into binding precedent agreements for the use of all transportation capacity that will be available on the MVP Project system. Id. at p. 5, ¶ 9. 23. The MVP Project consists of the following facilities: (a) An approximately 303.5 mile-long, 42-inch-diameter greenfield natural gas pipeline (the “Mountain Valley Pipeline”) extending from Wetzel County, West Virginia to Braxton County, West Virginia, and then to Pittsylvania County, Virginia; (b) {B3417048.5} Three new compressor stations in West Virginia: (i) Bradshaw Compressor Station, located at MP 2.7 in Wetzel County; (ii) Harris Compressor Station, located at MP 77.4 in Braxton County; and 8 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 9 of 31 PageID #: 12 (iii) (c) Stallworth Compressor Station, located at MP 154.5 in Fayette County; Four new interconnections (located in Wetzel, Harrison, and Braxton Counties in West Virginia and Pittsylvania County in Virginia); (d) Four new meter and regulating stations, one at each of the new (e) Three new taps located in Wetzel County, West Virginia and Montgomery interconnects; and Franklin Counties in Virginia; and (f) Related appurtenant facilities, such as eight pig launchers and receivers; 36 mainline block valves, cathodic protection, and communication towers. Id. at pp. 3-4. 24. As noted, the facility at issue in this litigation is the Stallworth Station. All of the Stallworth Property (on which the Station will be built) is owned by MVP. 25. Compressor stations are necessary facilities located at various points along a pipeline system. A compressor station performs the essential task of compressing natural gas as it travels throughout the pipeline system to maintain adequate pressures that are necessary to meet the company’s service obligations. Compressor stations act in concert with each other in balancing the overall system pressure to adjust to the variable factors of supply and demand. The Stallworth Station is an integral and essential part of the MVP Project. The MVP Project Pre-Filing Process. 26. On October 31, 2014, FERC granted MVP’s request to use FERC’s Pre-Filing Process for the construction and operation of the MVP Project. Docket No. PF15-3-000. MVP Certificate, p. 49, ¶ 122. {B3417048.5} 9 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 10 of 31 PageID #: 13 27. On April 17, 2015, FERC issued a Notice of Intent to Prepare an Environmental Impact Statement for the Planned Mountain Valley Pipeline Project, Request for Comments on Environmental Issues, and Notice of Public Scoping Meetings (the “NOI”). 28. The NOI was published in the Federal Register on April 28, 2015, and mailed to 2,846 entities, including federal, state, and local government representatives and agencies; elected officials; regional environmental groups and non-governmental organizations; Indian Tribes and Native Americans; affected property owners; other interested entities; and local libraries and newspapers. MVP Certificate, p. 49, ¶ 122. 29. FERC also conducted six public scoping meetings between May 4 and 13, 2015, in Pine Grove, Weston, Summersville, and Lindside, West Virginia, and Ellison and Chatham, Virginia. A total of 169 people presented oral comments at the pre-filing public scoping meetings. MVP Certificate, p. 50, ¶ 122 n.152, 123. MVP Project – Certificate Proceeding. 30. On October 23, 2015, MVP filed its application with FERC for a certificate of public convenience and necessity to construct and operate the MVP Project. MVP Certificate, p. 1, ¶ 1. 31. In a Certificate proceeding, FERC considers a number of factors relating to the proposed project. Among other things, FERC examines the need for the project, the project’s environmental impacts, land use issues, and any conditions or other measures related to the safe construction and operation of the pipeline and any related facilities, including compressor stations. See MVP Certificate, Part IV, pp. 11-107. {B3417048.5} 10 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 11 of 31 PageID #: 14 32. DOT has established comprehensive federal safety standards for interstate gas pipeline facilities, and those standards apply to the design, construction, testing, operation, and maintenance of compressor stations. See, e.g., 49 C.F.R. §§ 192.163-192.173. The PSA requires each applicant seeking a certificate of public convenience and necessity from FERC under the NGA to certify that an interstate gas transmission line will be designed, installed, inspected, tested, constructed, operated, replaced, and maintained in accordance with DOT’s gas pipeline safety standards, 49 U.S.C. § 60104(d)(2). In obtaining the MVP Certificate, MVP provided such a certification to FERC. 33. FERC can only issue a Certificate “if it is found that the applicant is able and willing properly to do the acts and to perform the service proposed and to conform to the provisions of the [NGA] and the requirements, rules, and regulations of [FERC]…, and that the proposed service, sale, operation, construction, extension, or acquisition, to the extent authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied.” 15 U.S.C. § 717f (e). The FERC Environmental Impact Statement for the MVP Project. 34. Environmental review of a proposed project typically is one of FERC’s primary areas of focus in the certificate application process, and pursuant to the NGA, FERC acts as the lead agency for NEPA purposes for all projects for which FERC certification is sought. See 18 C.F.R. §§ 157.14(f); 380.3; 380.12 (addressing environmental information and report required as part of NGA certificate application). {B3417048.5} 11 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 12 of 31 PageID #: 15 35. NEPA requires federal agencies to prepare an environmental impact statement (“EIS”) before taking any major federal action to approve an activity or project “significantly affecting the quality of the human environment….” 42 U.S.C. § 4332(2)(C); 18 C.F.R. § 380.6(b). 36. On September 16, 2016, FERC issued a draft EIS for the MVP Project, addressing the issues raised during the scoping period and up to the date of publication. Notice of the draft EIS was published in the Federal Register on September 27, 2016, establishing a 90-day comment period ending on December 22, 2016. The draft EIS was mailed to the environmental mailing list for the MVP Project, including interested entities that were added since issuance of the NOI. MVP Certificate, p. 51, ¶ 127. 37. FERC held seven public comment sessions between November 2 and 9, 2016, in the areas of the MVP Project to take comments on the draft EIS. Over 260 speakers provided oral comments. Between the issuance of the draft EIS on September 16 and the end of the comment period on December 22, 2016, FERC received 1,237 written or electronically filed letters. MVP Certificate, p. 51, ¶ 127. 38. In October 2016, after issuance of the draft EIS, MVP filed a number of minor route modifications to address recommendations in the draft EIS, avoid sensitive environmental areas, accommodate landowner requests, or for engineering design reasons. On January 17, 2017, FERC mailed letters to 45 newly-affected landowners, requesting comments on the route modifications during a supplemental comment period that ended February 21, 2017. In response, three landowners filed letters. MVP Certificate, pp. 51-52, ¶ 128. 39. On June 23, 2017, FERC issued the final EIS (“FEIS”). FERC filed notice of the FEIS in the Federal Register on June 29, 2017.3 The FEIS addressed timely comments received 3 The complete FEIS (with appendices) is available on FERC’s website, at https://www.ferc.gov/industries/gas/enviro/eis/2017/06-23-17-FEIS.asp. {B3417048.5} 12 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 13 of 31 PageID #: 16 on the draft EIS. The FEIS was mailed to the same entities as the draft EIS, as well as to newlyidentified landowners and any additional entities that commented on the draft EIS. MVP Certificate, p. 52, ¶ 129. 40. The FEIS addresses geological hazards such as landslides, earthquakes, and karst terrain; water resources including wells, streams, and wetlands; forested habitat; wildlife and threatened, endangered, and other special status species; land use, recreational areas; visual resources; socioeconomic issues such as property values, environmental justice, tourism, and housing; cultural resources; air quality and noise impacts; safety; cumulative impacts; and alternatives. MVP Certificate, p. 52, ¶ 129; See FEIS, Executive Summary (ES1 – ES16). 41. The FEIS concludes that impacts on most environmental resources from the MVP Project would be temporary or short-term. With the exception of tree clearing, all such impacts will be reduced to less-than-significant levels with the implementation of mitigation measures proposed by MVP and other mitigation measures recommended by Commission staff and included as environmental conditions addressed by the MVP Certificate. MVP Certificate, p. 52, ¶ 130; FEIS, pp, ES16 – ES18. In fact, FERC adopted most of the recommended environmental conditions from the FEIS in the MVP Certificate. MVP Certificate, p. 54, ¶ 134; Appendix C. FERC Issues a Certificate for the MVP Project. 42. As noted, on October 13, 2017, FERC issued the MVP Certificate authorizing MVP to construct and operate the MVP Project, including the Stallworth Station. MVP Certificate, p. 1.4 4 The Order Issuing Certificates and Granting Abandonment Authority was issued in both CP16-10-000 and CP1613-000 as it addresses the application filed by MVP as well as an application filed by Equitrans, L.P. (“Equitrans”). The Equitrans application was seeking authorization to construct and operate system modifications necessary to enable Equitrans to provide an additional 600,000 Dth per day of north-to-south firm transportation service from western {B3417048.5} 13 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 14 of 31 PageID #: 17 43. FERC concluded that, “[S]ince the proposed facilities will be used to transport natural gas in interstate commerce and the facilities to be abandoned have been used to transport natural gas in interstate commerce subject to the jurisdiction of [FERC], the proposed abandonment, construction, and operation of the facilities are subject to subsections (b), (c), and (e) of section 7 of the NGA.” MVP Certificate, p. 11-12, ¶ 29. 44. In the MVP Certificate, FERC applied the criteria in its “Certificate Policy Statement” and balanced the evidence of public benefits to be achieved against the residual adverse effects. MVP Certificate, p. 12, ¶ 31. In doing so, FERC addressed numerous substantive comments related to the MVP Project. MVP Certificate, pp. 12 – 28. FERC concluded: the benefits that the MVP Project will provide to the market outweigh any adverse effects on existing shippers, other pipelines and their captive customers, and landowners or surrounding communities. Consistent with the criteria discussed in the Certificate Policy Statement and NGA section 7(e), and subject to the environmental discussion below, we find that the public convenience and necessity requires approval of Mountain Valley’s proposal, as conditioned in this order. MVP Certificate, p. 28, ¶ 64. 45. FERC also specifically addressed environmental issues related to the MVP Project. See MVP Certificate, pp. 49 – 107. In its analysis, FERC addressed substantive comments pertaining to, inter alia, the following areas: (1) geologic resources; (2) water resources; (3) vegetation, forested land, and wildlife; (4) threatened, endangered, and other special status species; (5) land use, recreation, and visual resources; (6) cultural resources; (7) air quality and noise impacts; (8) safety; (9) cumulative impacts; (10) downstream greenhouse gas emissions; and (11) alternatives to the project. (Id.). FERC concluded: Pennsylvania to an interconnect with the MVP Project in Wetzel County, West Virginia and to abandon a compressor station in Greene County, Pennsylvania. {B3417048.5} 14 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 15 of 31 PageID #: 18 Based on our consideration of this information and the discussion above, we agree with the conclusions presented in the final EIS and find that the project, if constructed and operated as described in the final EIS, are environmentally acceptable actions. Further, for the reasons discussed throughout the order, as stated above, we find that the projects are in the public convenience and necessity. MVP Certificate, p. 107, ¶ 308. 46. Importantly, the MVP Certificate expressly states: 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 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. MVP Certificate, p. 107, ¶ 309 (emphasis added) (citing 15 U.S.C. § 717r(d); Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 310 (1988) (state regulation that interferes with FERC’s regulatory authority over the transportation of natural gas is preempted); and Dominion Transmission, Inc. v. Summers, 723 F.3d 238, 245 (D.C. Cir. 2013) (noting that state and local regulation is preempted by the NGA to the extent it conflicts with federal regulation, or would delay the construction and operation of facilities approved by the Commission). 47. Before MVP is issued a “Notice to Proceed” with construction by FERC, it must, among other things, provide proof that it has received all applicable authorizations required under federal law (or evidence of waiver thereof) for the applicable construction activity for the MVP Project. MVP Certificate, Appendix C (Environmental Conditions), ¶ 9. MVP is confident that it will have received all such federal authorizations, and will have satisfied all other requirements necessary to request and receive a partial Notice to Proceed (allowing manual tree removal, for access road construction) by no later than the middle of December, 2017. By early January, 2018, MVP expects to receive a full Notice to Proceed from FERC. Thus, MVP reasonably anticipates {B3417048.5} 15 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 16 of 31 PageID #: 19 that it will be in a position to begin access road construction for the Stallworth Station (tree removal) by mid-December, 2017, and full construction of the Stallworth Station, by early January, 2018. Fayette County Zoning Ordinance Procedures. 48. The Fayette County Zoning Ordinance establishes zoning districts for Fayette County, West Virginia. The Fayette County Zoning Ordinance further establishes a list of permitted uses and “special uses” for each zoning district. See generally Fayette County Zoning Ordinance, Article 1005. 49. An owner who desires to have property rezoned into a different type of district must file its request on a prescribed form with the Zoning Enforcement Office (a subdivision of the Fayette County Commission). The Zoning Enforcement Officer makes a formal review of the application, and the Planning Commission (a subdivision of the Fayette County Commission) will then hold a public hearing on the request. Following its hearing, the Planning Commission makes a recommendation on the rezoning request to the Fayette County Commission, and within fifteen (15) days after the Planning Commission hearing, the County Commission will hold a public hearing to consider the request. Fayette County Zoning Ordinance, Article 1007.III.A. The County Commission will then endeavor to issue its decision on the rezoning request (taking into account the Planning Commission’s recommendation) within ten (10) days after its hearing. Id. 50. Although its legal validity is uncertain at best, if a rezoning request is denied, one part of Fayette County Zoning Ordinance states that an applicant who receives a denial of a rezoning request may appeal such a denial to the Board of Zoning Appeals (“BZA”). Fayette County Zoning Ordinance, Article 1007.III.A.7. Should the BZA deny the appeal, then the {B3417048.5} 16 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 17 of 31 PageID #: 20 applicant may appeal that decision to the Fayette County Circuit Court and ultimately to the West Virginia Supreme Court of Appeals. Id. 51. On the other hand, a different part of the Fayette County Zoning Ordinance states that the BZA does not have jurisdiction to consider County Commission decisions on rezoning. Fayette County Zoning Ordinance, Article 1008, Section V (stating that BZA may only hear an appeal from an “order, requirement, decision or determination made by the County Planning Commission or Zoning Enforcement Officer charged with enforcement” of the Zoning Ordinance.) This provision is consistent with the controlling statute authorizing the creation of Boards of Zoning Appeals, at W.Va. Code 8A-8-9. 52. Assuming that a request to rezone property is approved (either initially or after a challenge to a County Commission denial), then an owner who desires to construct an improvement (including a “business, structure or building”) on its property must file an application for either an “Improvement Location Permit” or a “Special Use Permit.” A Special Use Permit is required if the proposed use of property is not included on the list of specifically “permitted uses” in the applicable zoning district. 53. An applicant for a Special Use Permit must request a pre-application conference with the Zoning Enforcement Office, and following receipt of initial comments from that office, it may file a formal Special Use Permit application. Fayette County Zoning Ordinance, Article 1007.III.C. The Zoning Enforcement Office will then conduct another review of the application and refer it to the BZA for a public hearing. Public notice must be published in the local newspaper at least fifteen (15) days prior to the hearing before the BZA. Should the BZA deny the application, {B3417048.5} 17 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 18 of 31 PageID #: 21 the applicant may appeal to the Circuit Court of Fayette County, West Virginia and ultimately to the West Virginia Supreme Court of Appeals. Id.5 54. The Fayette County Zoning Ordinance also adopts the State Building Code. Fayette County Zoning Ordinance, Article 5000. As a result, before an owner of property may erect any structure it must also obtain a Building Permit from the Building Code Official for Fayette County. Id. No Building Permit may be issued unless the Fayette County Zoning Office certifies that any proposed structure is in compliance with the zoning provisions of the Fayette County Zoning Ordinance.6 The MVP Rezoning Application. 55. The Stallworth Property is currently zoned in an “R-R” or “Rural-Residential” district under the Fayette County Zoning Ordinance. R-R Districts are designed to accommodate single-family housing in areas within the County that may not be served by public sewer facilities and are not yet appropriate for development at higher densities. The Stallworth Compressor Station does not fall within any of the listed “permitted uses” or listed “special uses” within the R-R Residential District classification. Fayette County Zoning Ordinance, Article 2001. 56. Accordingly, to comply with the Fayette County Zoning Ordinance, the Stallworth Property would need to be rezoned as an “H-1 District.” H-1 Districts permits a number of industries and commercial uses that include both permitted uses and designated special uses. Fayette County Zoning Ordinance, Article 4002. One of those recognized uses that is eligible for 5 This “appeal” is actually a review by certiorari in the circuit court, and may be filed by any “aggrieved person.” W.Va. Code § 8A-9-1. This means that either the disapproval or approval of a Special Use Permit by the BZA may be challenged in State court. 6 See “Assessor and Zoning Form,” part 2 of “Fayette County Electric and Building Permit Application,” available at http://fayettecounty.wv.gov/building/Documents/2011BuildingPermit.pdf. {B3417048.5} 18 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 19 of 31 PageID #: 22 issuance of a Special Use Permit within an H-1 District includes “…gas or oil transmission lines, pumping stations and appurtenances….” Id. 57. On August 2, 2017, MVP filed a completed “Change in Land Classification” application form (the Rezoning Application) with the Office of Zoning Enforcement for Fayette County (along with all required enclosures), requesting that the Stallworth Property be rezoned from an R-R district to an H-1 district.7 Before that submission, MVP representatives had met on July 20, 2017 with the Fayette County Zoning Officer and received direction as to specific information that the Zoning Office wished to have submitted in support of the Rezoning Application. 58. In accordance with the request made by the Fayette County Zoning Department during the July 20, 2017 pre-application meeting, at the same time it filed the Rezoning Application MVP also submitted a summary letter describing the nature of the MVP Project and the FERC certificate process, and addressing the following topics: Safety Overview; Emergency Response Plan; Regulatory Compliance Overview; Project Construction; Construction Techniques and Information; Pre-Construction Noise Study; Noise Mitigation; Compressor Station Lighting; Estimated Truck Traffic; and Economic Benefits. Several exhibits were enclosed with that letter, namely: (1) Mountain Valley Pipeline Project Map; (2) Stallworth Compressor Station Site Plan; (3) an example Emergency Response Plan; (4) WVDEP Natural Streams Preservation Act Permit; (5) Registration under WVDEP General Permit No. WV0116815 (regulating “Stormwater Associated with Oil and Gas Related Construction”); (6) WVDEP State Section 401 Water Quality MVP proceeded with the Rezoning Application because it had not yet received the FERC Certificate for the MVP Project. However, it is MVP’s position that once the FERC certificate was issued on October 13, 2017, the Fayette County Zoning Ordinance became preempted and the need for the rezoning became moot. Nevertheless, MVP has attempted to continue to cooperate with the Fayette County Commission even after the MVP Certificate was received (while preserving its right to assert that no such approval is legally required). 7 {B3417048.5} 19 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 20 of 31 PageID #: 23 Certification; (7) WVDEP, Division of Air Quality – R13 Permit to Construct and Operate; (8) West Virginia Department of Highways (“DOH”) – Permit No. 09-2017-0205; (9) West Virginia Division of Natural Resources (“WVDNR”) – Right of Entry LS-16:IV/10-1576; (10) WVDNR License and Right of Entry P-16-IV/10-1575; (11) WVDNR – License and Right of Entry: P-17IV/10-348; (12) Erosion and Sediment Control Plan for Permanent Above-Ground Facilities; (13) Stallworth Compressor Station Pre-Construction Noise Study; (14) a report on “Economic Benefits of the MVP Project in West Virginia”; and (15) a report on “Economic Benefits of the MVP Project to Fayette County.” 59. The Fayette County Planning Commission held two (2) duly noticed public hearings on the Rezoning Application, one on August 28, 2017 and a second on September 7, 2017. At both hearings, several representatives of MVP were present for the purpose of making presentations and responding to questions pertaining to the different subject matter areas addressed in the materials submitted to the Zoning Office. 60. At the August 28, 2017 hearing before the Planning Commission, the Zoning Enforcement Office’s Resource Coordinator, Kelly Jo Drey, submitted and read into the record her report entitled “Rezoning Review,” recommending that MVP’s Rezoning Application be denied. Although Ms. Drey had reportedly worked on her report since August 2, 2017 and had talked with various third parties in preparing it, MVP was never made aware of her efforts and did not know that any such report was being prepared. In addition, MVP was not given the opportunity to provide responses to the “Rezoning Review” report at the August 28, 2017 meeting, even though several of MVP’s subject matter specialists were willing and able to do so. Instead, the Planning Commission scheduled another day of hearing for September 7, 2017, and at that time MVP was {B3417048.5} 20 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 21 of 31 PageID #: 24 permitted to submit its detailed letter responding to the “Rezoning Review” report.8 At the conclusion of the September 7, 2017 hearing, the members of the Planning Commission voted unanimously to recommend that the Fayette County Commission approve the Rezoning Application. 61. The Fayette County Commission held three public hearings on the Rezoning Application, on September 8, 2017, September 15, 2017, and November 17, 2017. At the September 8, 2017 hearing, Commission President Wender asked that MVP prepare written responses to a number of questions or issues that had been raised during the public comment portion of the hearing and by individual Commissioners. MVP’s September 15, 2017 letter providing detailed responses to those questions was submitted at the Commission’s September 15, 2017 hearing.9 62. At the conclusion of its hearing on September 15, 2017, the Fayette County Commission announced that it would schedule a further hearing to render a decision on the MVP Application after: (a) FERC had issued a decision on MVP’s application for a certificate for the MVP Project; and (b) the WVDEP had issued a determination regarding the status of the MVP Project under the federal Clean Water Act (“CWA,” 33 U.S.C. § 1251, et seq.), including in particular CWA §401 (governing water quality certifications).10 There was no mention of the County Commission’s obligation to attempt to issue a decision on the Rezoning Application within 10 days of the close of hearing, as set forth in the applicable ordinance.11 A copy of MVP’s September 7, 2017 letter is attached as Exhibit 1. A copy of MVP’s September 15, 2017 letter is attached as Exhibit 2. 10 On August 7, 2017, in the context of a legal challenge pending before the U.S. Court of Appeals for the Fourth Circuit, the WVDEP voluntarily withdrew and “remanded” to itself the water quality certification it had previously issued to MVP pursuant to Clean Water Act § 401, based on concerns with inadequate documentation of its antidegradation review process. See “Consent Motion for Voluntary Remand,” Appeal No. 17-1714 (4th Circuit, Sept. 13, 2017). 11 The County Commission’s refusal to render a decision until issuance of the FERC Certificate and the receipt of information regarding the WVDEP’s position on CWA § 401 certification evidences an intent to delay and obstruct 8 9 {B3417048.5} 21 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 22 of 31 PageID #: 25 63. As noted, on October 13, 2017, FERC issued the MVP Certificate. 64. On November 1, 2017, WVDEP issued letters advising the United States Army Corps of Engineers and FERC that it had waived the requirement that MVP obtain an individual Water Quality Certification pursuant to Section 401 of the federal Clean Water Act and by Special Condition A of the U.S. Army Corps of Engineers Nationwide 12 Permit. On the same day, the WVDEP issued an order that rescinded a previously imposed suspension of MVP’s approved registration under WVDEP General NPDES Permit No. WV0116815 (“Stormwater Associated with Oil and Gas Related Construction Activities”) for the MVP Project.12 65. On November 3, 2017, an MVP representative e-mailed and mailed a letter to the Fayette County Zoning Enforcement Officer and the County Commission, notifying them that the MVP (FERC) Certificate had been issued and that the 401 Water Quality Certification requirement had been waived by the WVDEP. 66. The Fayette County Zoning Enforcement Officer had advised MVP that the BZA meets once per month, on the first Monday of the month. MVP had further been informed by the Zoning Enforcement Officer that in order for MVP to submit an application for a Special Use Permit for the Stallworth Station that could be heard on the BZA’s next meeting date on December 4, 2017, MVP needed to submit that application by no later than November 9, 2017. 67. Accordingly, by letter dated November 3, 2017, MVP asked that the County Commission schedule a special hearing for November 9, 2017, to render a decision on the Rezoning Application. MVP representatives sent follow-up e-mails to the Zoning Officer and County Commission representatives later on the same day (November 3, 2017), and again on completion of the Stallworth Station on grounds that have no bearing on any issue that is within the Commission’s purview under the Fayette County Zoning Ordinance. 12 Copies of the WVDEP’s November 1, 2017 letters and order are collectively attached as Exhibit 3. {B3417048.5} 22 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 23 of 31 PageID #: 26 November 6, 2017. 13 Without any specific comment regarding MVP’s request for an accelerated hearing, the Commission declined to schedule a special meeting for its consideration of the Rezoning Application. 68. As noted, as the conclusion of its hearing on November 17, 2017, the Fayette County Commission voted to deny MVP’s Rezoning Application. Actual and Threatened Injury from Application of the Fayette County Zoning Ordinance to the MVP Project. 69. The MVP Project includes approximately 303 miles of new 42-inch-diameter natural gas pipeline from Wetzel County, West Virginia to Pittsylvania County, Virginia, three new compressor stations, four new meter and regulation stations and interconnections, and other appurtenances. 70. MVP plans to construct the MVP Project and place it into service (including the Stallworth Compressor Station) by December 2018, and the success of the project is dependent upon its timely completion. One reason that it is critical for the Project be completed in a timely manner is because under the firm commitment agreements that have been entered into for the sale of the transported gas, the shippers’ obligations are not binding until the entire MVP Project is constructed. In order to have the full capacity of the MVP Project available as authorized by the MVP Certificate, it is essential that the Stallworth Station be in service by December, 2018. 71. To meet its construction schedule, the MVP Project will be constructed simultaneously across nine pipeline segments, and there will be separate construction spreads for each compressor station. Construction of the pipeline itself is planned to be completed along the full length of the pipeline by December 2018, with meters being placed in late November or 13 A copy of MVP’s November 3, 2017 letter and related e-mail printouts are collectively attached as Exhibit 4. {B3417048.5} 23 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 24 of 31 PageID #: 27 December 2018. However, the construction of the compressor stations (including the Stallworth Station) will take longer than construction of the pipeline segments, and therefore it is important that construction of the Stallworth Station begin before pipeline construction is commenced. 72. In order to meet the project construction schedule for the Stallworth Compressor Station, site activities (manual tree clearing) must begin by mid-December, and all other construction (access road, etc.) must begin by early January, 2018. 73. Should MVP engage in any site activities (including only tree clearing) with the purpose of constructing the Stallworth Station before the Rezoning Denial has been reversed and a Special Use Permit has been granted to MVP, the Fayette County Commission would take steps to bring an enforcement action against MVP for violating the Fayette County Zoning Ordinance. Such enforcement activity could include arrests by law enforcement officials and civil actions seeking to enjoin those activities. See Fayette County Zoning Ordinance, Article 1003(VI), 1003(VII). 74. For the following reasons, it is now impossible for the Stallworth Station to be constructed as a permitted project under the Fayette County Zoning Ordinance without causing substantial harm to MVP and the MVP Project: a. In order to challenge the Rezoning Denial, MVP will be forced to both file an appeal of that denial with the Fayette County BZA and file a challenge of the denial with the Fayette County Circuit Court, as the Fayette County Ordinance grants the BZA the jurisdiction to hear such an appeal. Although MVP believes the ordinance granting the BZA such appellate authority exceeds the County Commission’s authority under W.Va. Code § 8A-8-9, until a court has issued a ruling finding that provision to be invalid, MVP would be required to adhere to its required procedure {B3417048.5} 24 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 25 of 31 PageID #: 28 and file an appeal with the BZA. Seeking such a clarification of the proper route for mounting a challenge to the Rezoning Denial would in and of itself require significant additional time, adding to the time required for seeking a decision on the merits of such a challenge. a. Regardless of which entity would ultimately hear the merits of such an appeal, the proceedings to hear MVP’s challenge to the Rezoning Denial would undoubtedly require a significant time before a decision was issued, and would have the effect of delaying the construction of the Stallworth Station for an indeterminate time. Moreover, challenges to rezoning decisions in West Virginia are subject to the “fairly debatable” standard, under which the judiciary will not interfere with such a decision “where the question [of] whether they are arbitrary or unreasonable is fairly debatable….” Prete v. City of Morgantown, 456 S.E.2d 498, 500 (W.Va. 1995). As a general matter, it would therefore be quite difficult to convince the Fayette County Circuit Court to reverse the Rezoning Denial. b. Even if MVP is successful in obtaining a reversal of the Rezoning Denial, the County Commission and/or interested third parties who had been permitted to intervene could appeal any such decision to the West Virginia Supreme Court of Appeals, which would require a significant time before a decision was issued, and would have the effect of delaying the construction of the Stallworth Station for an additional indeterminate time. c. Even if MVP is successful in obtaining a reversal of the Rezoning Denial, it would still have to submit an application for a Special Use Permit to construct and operate the Stallworth Station, and MVP’s application for a Special Use Permit would not {B3417048.5} 25 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 26 of 31 PageID #: 29 be addressed by the BZA until the first Monday of the calendar month following such a reversal. Given the steps that MVP will be required to take to challenge the Rezoning Denial (and the possibility of third party appeals if MVP is successful), it is reasonable to expect that such a hearing before the BZA would not take place prior to March 5, 2018. d. Even if the Rezoning Denial is reversed and the BZA issues a Special Use Permit to MVP, it is likely that one or more opponents of the MVP Project would file a writ of certiorari, challenging the issuance of a Special Use Permit in the Fayette County Circuit Court. It is also likely that any such appellant would seek a stay of the Special Use Permit from the circuit court in order to preserve its rights during the appeal process. This would have the effect of delaying the construction of the Stallworth Station for an indeterminate time. 75. While MVP has attempted in good faith to cooperate with the Fayette County Commission (consistent with the requirement imposed by the MVP Certificate), the Fayette County Commission has now delayed the local permitting process so much that MVP’s construction schedule will be unreasonably delayed if MVP continues to seek issuance of a rezoning approval (through the filing of challenges to the Rezoning Denial) and required permits under the Fayette County Zoning Ordinance. As explained in the MVP Certificate, MVP is not required under federal law to cooperate with the Fayette County Commission if such cooperation will unreasonably delay construction of the MVP Project. 76. If construction of the Stallworth Station is delayed in the manner described above, MVP will be unable to work according to its construction schedule and will incur additional delay fees and contractor costs. {B3417048.5} 26 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 27 of 31 PageID #: 30 77. If construction of the Stallworth Station is delayed in the manner described above, the public benefits that are associated with construction of the MVP Project as a whole will be postponed, MVP’s costs will be unnecessarily increased, and this will result in the loss of substantial revenue to MVP based on its inability to sell the transported gas under the binding agreements that have been entered into for the gas to be transported by the project. COUNT I – FEDERAL PREEMPTION (DECLARATORY JUDGMENT – 28 U.S.C. § 2201) 78. MVP repeats the allegations set forth in paragraphs 1 -77 as if fully set forth herein. 79. Under the NGA, FERC has exclusive jurisdiction over the transportation and sale of natural gas in interstate commerce, including over construction and operation of the Stallworth Compressor Station. FERC conducted a comprehensive review of the potential effects on the environment, public safety, and other externalities from the construction and operation of the Stallworth Compressor Station and determined that the Stallworth Compressor Station is an environmentally acceptable action; is in the public convenience and necessity; and that the benefits that the MVP Project will provide to the market outweigh any adverse effects on existing shippers, other pipelines and their captive customers, and landowners or surrounding communities. FERC’s determination that the construction and operation of the Stallworth Compressor Station serves the public interest cannot be challenged in this Court. 80. MVP’s construction and operation of the Stallworth Compressor Station is not subject to the Fayette County Zoning Ordinance because the NGA and PSA preempt the Fayette County Zoning Ordinance and all other state and local laws, regulations, and ordinances that purport to regulate the construction and operation of all natural gas pipeline facilities that are used {B3417048.5} 27 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 28 of 31 PageID #: 31 in the transportation of natural gas in interstate commerce, including but not limited to compressor stations that are essential parts of such systems. 81. MVP’s construction and operation of the Stallworth Compressor Station is not subject to the Fayette County Zoning Ordinance because the PSA expressly preempts all state and local safety standards for interstate natural gas pipelines and related facilities, including compressor stations. 82. By denying MVP’s Rezoning Application for the Stallworth Property, the Fayette County Commission is seeking to implement and enforce county laws in a manner that conflicts with federal law, because that denial would delay and stand as an obstacle to the NGA and PSA’s exclusive federal regulation over the siting, construction, and operation of facilities for the interstate transportation of natural gas, including the Stallworth Compressor Station as authorized by the MVP Certificate. 83. An actual controversy exists between MVP and the Fayette County Commission with respect to the preemptive effect of the NGA and PSA on the Fayette County Zoning Ordinance with respect to the Stallworth Station. 84. MVP has standing to seek declaratory relief because it is being subjected to a preempted law, i.e. the Fayette County Zoning Ordinance, and will suffer actual and threatened harm should that preempted law be applied to the construction and operation of the Stallworth Compressor Station. 85. This controversy is ripe for review because the Fayette County Commission’s intentional delays and ultimate denial of MVP’s Rezoning Application will delay the siting, construction, and operation of the Stallworth Station and cause MVP to suffer the harms described above. {B3417048.5} 28 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 29 of 31 PageID #: 32 86. The controversy is further ripe for review because if MVP fails to obtain a reversal of the Rezoning Denial, and approval of a Special Use Permit, prior to beginning construction of the Stallworth Station, it faces the realistic threat of an enforcement action against it for violation of the Fayette County Zoning Ordinance. In fact, MVP representatives were informed early in the consultation process with Fayette County officials that the Fayette County Zoning Office would seek to have the County Prosecutor bring an enforcement action against MVP if work was undertaken at the Stallworth Property without fully complying with the Fayette County Zoning Ordinance. COUNT II – PERMANENT INJUNCTION 87. MVP repeats the allegations set forth in paragraphs 1 - 86 as if fully set forth herein. 88. A plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: “(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary 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.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156-57 (2010). 89. For the reasons described above, if a permanent injunction is not granted, MVP will suffer irreparable injury through unnecessary time and resources spent attempting to comply with the Fayette County Zoning Ordinance and, more importantly, through unreasonable and unnecessary delays, which will ultimately cause MVP to incur additional costs and suffer from losses of revenue by delaying the date upon which the MVP Project can be brought fully online. {B3417048.5} 29 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 30 of 31 PageID #: 33 90. If a permanent injunction is not granted, MVP will suffer damages for which there are no adequate remedies at law. As explained above, the Fayette County Commission’s delays and the Rezoning Denial will cause unreasonable delays in construction that will ultimately result in increased expenses and reduced revenue to MVP. There is no legal mechanism under which MVP may seek monetary damages or relief against the Fayette County Commission for any such financial losses. Likewise, MVP cannot pass along any contractual damages it may suffer to its customers. Accordingly, MVP cannot be adequately compensated for the injuries that the Fayette County Commission has caused and will continue to cause if a permanent injunction is not granted. 91. Considering the balance of hardships between MVP and the Fayette County Commission, a permanent injunction is warranted. The Fayette County Commission seeks to enforce the Fayette County Zoning Ordinance which is preempted by federal law. Given the Fayette County Commission’s lack of jurisdiction, it simply cannot argue that it will face any hardship if a permanent injunction is issued. MVP, however, has already suffered lost time and resources and will continue to suffer the same if a permanent injunction is not granted. 92. The public interest will not be disserved if a permanent injunction is granted. In fact, the public interest will be disserved if a permanent injunction is refused. As explained by FERC in the MVP Certificate, the public convenience and necessity requires approval and implementation of the MVP Project. (MVP Certificate, p. 28, ¶ 64). WHEREFORE, MVP requests the following relief: 1. A judgment declaring that insofar as it applies to the MVP Project (including the Stallworth Station), the Fayette County Zoning Ordinance is preempted by the Natural Gas Act and the Pipeline Safety Act; {B3417048.5} 30 Case 2:17-cv-04377 Document 2 Filed 11/17/17 Page 31 of 31 PageID #: 34 2. A permanent injunction enjoining the Fayette County Commission from, directly or indirectly seeking to enforce the Fayette County Zoning Ordinance in connection with MVP’s design, construction, and operation of the Stallworth Compressor Station; and 3. Maintenance of jurisdiction over this action in the event that the Fayette County Commission and/or any third party attempts to, directly or indirectly, enforce the Fayette County Zoning Ordinance in connection with the MVP Project, including without limitation MVP’s design, construction, and operation of the Stallworth Compressor Station; and 4. For such other relief that the Court deems to be appropriate or necessary. Mountain Valley Pipeline, LLC By Counsel /s/ Timothy M. Miller Timothy M. Miller (W. Va. Bar No. 2564) Christopher B. Power (W. Va. Bar No. 4286) Jennifer J. Hicks (W. Va. Bar No. 11423) Babst Calland Clements and Zomnir, P.C. BB&T Square 300 Summers Street, Suite 1000 Charleston, WV 25301 Phone: (681) 205-8888 Fax: (681) 205-8814 tmiller@babstcalland.com cpower@babstcalland.com jhicks@babstcalland.com {B3417048.5} 31