FEDERAL COURT CONFIRMS MUNICIPAL AUTHORITY OVER GAS TRANSMISSION FACILITIES
A federal district court recently denied a request by Texas Midstream Gas Services (TMGS) to stop the City of Grand Prairie from enforcing the city’s unified development code against a TMGS compressor station.
The city code requires a specific use permit, and various other permits, for the construction of a compressor station in certain zoning districts. The code also establishes conditions for the issuance of the permits, including minimum setbacks, roof pitch, building material requirements, architectural design compatible with surrounding development, noise limitations, and a “security fence” of at least eight feet in height to enclose the area.
TMGS sued the city, claiming that the federal Pipeline Safety Act (PSA) and state law preempt the city’s requirements. The PSA prescribes safety standards not only for pipelines but also for related structures, including compressor stations. (State law has similar provisions, but the court did not analyze those.)
The court concluded that, with the exception of the “security fence” requirement, the city code does not address compressor station “safety.” Rather, it relates to general aesthetics and community enhancement and was designed to protect property values. The PSA contains specific provisions relating to fencing, which preempt the city’s code with respect to those requirements. In short, the court concluded that “with respect to compressor stations, the expressly preempted domain of safety is not coextensive with the domain of design and construction.”
The opinion does not go so far as to confer on a city the authority to regulate the route or location of gas transmission facilities, including pipelines. But, “[w]hile entities with eminent domain power [such as TMGS] have the right to select the location for their intended public use—even if such use is not permitted in the zoning district—they may still be subjected to other applicable zoning regulations.” In other words, a city code may not “zone out” compressor stations from the district in which an operator’s land is located.
A group of cities will likely seek to repeal the state law that prohibits a city from regulating the route of gas transmission pipelines in the upcoming legislative session, and the League will support those efforts. However, it appears that federal law may still limit city authority in the area.