Potomac Electric Power Co. v. Montgomery County

GILBERT, Chief Judge. This case asks whether local governing bodies are preempted by statute from regulating the construction of transmission lines carrying in excess of 69,000 volts. We ¹⁰⁹ answer in the affirmative and, consequently, reverse the decision of the Circuit Court for Montgomery County. The Public Service Commission (PSC), created by the General Assembly, is charged with the responsibility of regulating public utilities throughout the State.

Spintman v. C & P Tel. Co., 254 Md. 423, 427 , 255 A.2d 304 (1969). Section 54A of article 78 provides that an electrical utility company must obtain a certificate of public convenience and necessity from the PSC before the utility may “begin the construction in Maryland of a generating station or any overhead transmission line designed to carry a voltage in excess of 69,000 volts, or exercise the right of eminent domain in construction therewith____” The PSC, in March 1980, granted the Potomac Electric Power Company (PEPCO) a certificate of public convenience and necessity for construction of a 500 kilovolt (500,000 volts) transmission line extending from PEPCO’s substation in Montgomery County to the vicinity of the Baltimore Gas and Electric Company’s substation in Howard County. The PSC found: (1) it was in the public interest to construct and operate the proposed overhead transmission line, (2) a need existed for the proposed line, and (3) there was a need for the selected route from the various routes proposed.

The PSC’s decision was appealed by both Howard and Montgomery County to their respective county circuit courts. The action was consolidated in the Circuit Court for Howard County, which upheld the PSC’s decision granting PEPCO a certificate of public convenience and necessity. Thereafter, PEPCO filed petitions for special exceptions with the Board of Appeals for Montgomery County (Board) in connection with the construction of the transmission line. 1 ¹¹⁰ The Board granted the sought exceptions but imposed certain conditions, namely: “1. Petitioner shall be strictly bound by all oral and written testimony, evidence and exhibits in the record. 2.

Petitioner shall submit a revised, detailed site plan with specifics as to the line of construction; number of poles to be constructed; size, height, color and specific locations; and the specific intervals along the line where such poles are to be placed, to the Maryland-National Capital Park and Planning Commission, with copies to this Board and to interested parties in this proceeding. Following consideration by M-NCPPC, petitioner shall file with the Board of Appeals two copies of the approved site plan. 3. Petitioner shall, prior to implementation of the special exceptions S-1413 and S-213-A, secure from the Public Services [sic] Commission a finding that construction of the line authorized, will not endanger the health and safety of persons residing in proximity to the power line. It shall be the responsibility of the petitioner to initiate whatever action is necessary to secure such finding by the PSC and to notify the Board of Appeals when such initiative has been undertaken, as well as a copy of the resulting written findings of the PSC. 4.

The Board of Appeals shall, at periodic intervals of at least three (3) years, conduct review hearings to determine the appropriateness of the continued grant of the special exception. The first review hearing will be held three (3) years following written notification from the petitioner that the special exception has been iniplemented.” PEPCO appealed to the circuit court where the PSC was permitted to intervene as a party/appellant, and it chal ¹¹¹ lenged the Board’s jurisdiction to consider the matter in the light of the PSC’s prior order. The court held that the Board had jurisdiction to decide applications for special exceptions in connection with the construction of transmission lines carrying in excess of 69,000 volts. Nevertheless, the court decided that conditions 2 and 3, as quoted above, warranted reversal because they conflicted with the prior determinations of the PSC.

The Board’s conditions 1 and 4 were allowed by the court to stand. Both the PSC and PEPCO have sought our review. The doctrine of preemption is grounded upon the General Assembly’s right to reserve exclusive dominion over an entire body of the law. Ad + Soil, Inc. v. County Comm’rs, 307 Md. 307, 324 , 513 A.2d 893 (1986).

Local legislative bodies are prohibited from enacting any legislation in the preempted field. Id. The Court of Appeals in City of Baltimore v. Sitnick and Firey, 254 Md. 303 , 255 A.2d 376 (1969), articulated three grounds upon which local legislation might be invalidated because of existing State legislation embracing the same subject. The grounds promulgated by the Court are: (1) the legislation conflicts with public general law, Sitnick, 254 Md. at 310-11 , 255 A.2d 376 ; (2) the legislation deals with matters which are part of an entire subject on which the General Assembly has expressly reserved unto itself the right to legislate, id. at 311 , 255 A.2d 376 ; and (3) the legislation deals with an area in which the General Assembly has acted with such force that an intent to occupy the entire field must be implied, id. at 317 , 255 A.2d 376 .

Nowhere, however, in Md.Ann. Code art. 78 are local governing bodies expressly forbidden to enforce zoning or planning requirements concerning the construction of transmission lines. Since local governments are not expressly forbidden from legislating in the field, the question before us becomes whether preemption by the Legislature is implied in the statute. ¹¹² The focus of our inquiry is: did the General Assembly manifest a purpose to occupy exclusively the regulation of the construction of transmission lines carrying in excess of 69,000 volts? Ad + Soil, Inc. v. County Comm’rs, 307 Md. at 324 , 513 A.2d 893 . In determining if implied preemption is applicable, we inquire: (1) whether specific statutory provisions indicate a legislative intent to confine regulation of 69,000 volt transmission lines to the General Assembly, (2) whether that august body has enacted extensive and comprehensive legislation in the field, and (3) whether dual regulatory schemes could result in confusion.

See County Council v. Montgomery Ass’n, 274 Md. 52, 64 , 325 A.2d 112 (1975). Md.Ann.Code art. 78, § 1 demarcates the PSC’s jurisdiction. Section 1 provides, in pertinent part: “The powers of the Commission shall be liberally construed; and the Commission, shall have the powers specifically conferred by this article and by any other law, and also all implied and incidental powers necessary and proper to carry out effectually the provisions of this article." (Emphasis supplied.) Section 56 of article 78 codifies the PSC’s supervisory and regulatory powers. It provides, in part: “The Commission shall supervise and regulate all public service companies subject to its jurisdiction to assure their operation in the interest of the public and to promote adequate, economical, and efficient delivery of utility services in the State without unjust discrimination, giving consideration to the public safety, the economy of the State, the conservation of natural resources, and the preservation of environmental quality.

To these ends, the Commission shall enforce compliance by such companies with all the requirements of law____ The powers and duties enumerated specifically in this subtitle are not intended to limit the scope of the general powers and duties of the Commission provided for by this article.” (Emphasis supplied.) ¹¹³ The 1968 legislative session saw the enactment of § 54A, which provides, in pertinent part: “No electric company may begin the construction in Maryland of a generating station or any overhead transmission line designed to carry a voltage in excess of 69,000 volts, or exercise the right of eminent domain in connection theremth, without having first obtained from the Commission a certificate of public convenience and necessity for the construction of the station or line. Upon receipt of an application, the Commission shall notify all interested persons____ The Commission shall hold a public hearing on each application for a certificate of public convenience and necessity in the area in which any portion of the construction of a generating station or an overhead transmission line designed to carry a voltage in excess of 69,000 volts is proposed to be located, together with the local governing bodies of each such area, unless any governing body wishes not to participate in the hearing. The Commission shall insure presentation and recommendations from interested State agencies and shall permit representatives of those agencies to sit during hearing of all parties.” (Emphasis supplied.) The purpose of the broad grant of power to the PSC “was to place all ... public utilities under the supervision and control of the Public Service Commission____” Gregg v. Public Service Commission, 121 Md. 1, 30 , 87 A. 1111 (1913); Highfield Water Co. v. PSC, 46 Md.App. 332, 348 , 416 A.2d 1357 (1980). “The legislature,” we said in BG & E v. Public Service Comm’n, 75 Md.App. 87, 99 , 540 A.2d 820 (1988), “has vested the Public Service Commission with powers that are truly awesome.” No Maryland case, it appears, has, since the enactment of § 54A, 2 discussed a ¹¹⁴ local governing body’s right to regulate the construction of overhead transmission