Hackett v. J.L.G. Properties, LLC
Hackett v. J.L.G. Properties, LLC
Opinion of the Court
Opinion
The sole issue in this appeal from a zoning enforcement action is whether the trial court properly rendered judgment in favor of the defendant, J.L.G. Properties, LLC, on the basis of its determination that the zoning regulations of the town of New Milford (town) were preempted by the Federal Power Act (act), 16 U.S.C. § 791a et seq. We affirm the judgment of the trial court.
The relevant facts are undisputed. The defendant owns a commercial marina on the shore of Candlewood
Thereafter, Hackett
As a threshold matter, we note that the trial court’s conclusion that the town’s zoning regulations are pre
“The ways in which federal law may pre-empt state law are well established and in the first instance turn on congressional intent. . . . Congress’ intent to supplant state authority in a particular field may be expressed] in the terms of the statute. . . . Absent explicit pre-emptive language, Congress’ intent to supersede state law in a given area may nonetheless be implicit if a scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the [s]tates to supplement it, if the [a]ct of Congress . . . touchfes] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject, or if the goals sought to be obtained and the obligations imposed reveal a purpose to preclude state authority. . . . Even when Congress has not chosen to occupy a particular field, pre-emption may occur to the extent that state and federal law actually conflict. Such a conflict arises when compliance with both federal and state regulations is a physical impossibility ... or when a state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress . . . .” (Citations omitted; internal quotation marks omitted.) Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 604-605, 111 S. Ct. 2476, 115 L. Ed. 2d 532 (1991).
A brief review of the act provides context for our analysis. “The [federal [g]ovemment took its greatest step toward exercising its jurisdiction in [the field of hydroelectric power] by authorizing federal licenses, under the Federal Water Power Act of 1920 . . . for terms of [fifty] years for the development of water power in the navigable waters of the United States. [The Federal Water Power] Act was limited in 1921 by the exclusion from it of water power projects in national parks or national monuments . . . [and] it received the name of the Federal Power Act [in 1935 and] . . . was then made [p]art I of Title II of the Public Utility Act of 1935. . . .
“[The act was further] amended ... so as expressly to require a federal license for every water power project in the navigable waters of the United States. It also made mandatory, instead of discretionary, the filing with the Federal Power Commission of a declaration of intention by anyone intending to construct a project in non-navigable waters over which Congress had jurisdiction under its authority to regulate commerce. It
On appeal, the plaintiff claims that the trial court improperly concluded that the town’s zoning regulations were preempted by the act. Specifically, the plaintiff asserts that neither field nor conflict preemption applies to the present case and that the construction of the defendant’s deck — even though such construction is on property owned by Northeast and subject to federal licensing by the act — must; comply with local zoning regulations. The defendant responds that Congress has demonstrated a clear intent to occupy the field of regulating licensed hydroelectric power projects, including recreational development within those projects. We agree with the defendant and conclude that implied field preemption applies to the present case. Accordingly, we conclude that the defendant did not have to comply
In the present case, the trial court concluded that the town’s zoning regulations are impliedly preempted by the act and therefore inapplicable to structures within the hydropower project. Specifically, the trial court concluded that: (1) the act demonstrates Congress’ intent to occupy the field of hydroelectric power generation; and (2) the town’s zoning regulations actually conflict with the congressional purpose of the act because any development along the shore of the lake would violate the fifty foot setback requirement imposed by the town’s regulations, contrary to the act’s purpose of developing recreational uses within the project. In support of its conclusion, the trial court relied on First Iowa Hydro-Electric Cooperative v. Federal Power Commission, supra, 328 U.S. 152, and California v. Federal Energy Regulatory Commission, 495 U.S. 490, 110 S. Ct. 2024, 109 L. Ed. 2d 474 (1990).
In First Iowa Hydro-Electric Cooperative v. Federal Power Commission, supra, 328 U.S. 156-57, the petitioner applied to the commission’s predecessor, the Federal Power Commission, for a license under the act to construct a power plant on navigable waters in Iowa. The state intervened, claiming that the petitioner’s application should be denied because of its failure to comply with state regulations, which required a state permit to construct a dam on state waters. Id., 159, 161. The United States Supreme Court rejected this argument, concluding that such a requirement “would vest in the [state board] a veto power over the federal project . . . [and that] [s]uch a veto power easily could destroy the effectiveness of the [f]ederal [a]ct.” Id., 164. The United States Supreme Court further noted that, “[i]n the [act] there is a separation of those subjects which remain under the jurisdiction of the [s]tates from those subjects which the [constitution delegates to the
The United States Supreme Court determined that the act was intended to enact “a complete scheme of national regulation which would promote the comprehensive development of the water resources of the [n]ation, in so far as it was within the reach of the federal power to do so . . . .” Id., 180. The court then concluded that “[t]he detailed provisions of the [a]ct providing for the federal plan of regulation leave no room or need for conflicting state controls.” Id., 181.
The court in First Iowa Hydro-Electric Cooperative did recognize, however, that state authority is preserved in one area under the act. Id., 175. Section 27 of the act as originally enacted in 1920, now codified at 16 U.S.C. § 821, provides that “[n]othing contained in this
The United States Supreme Court revisited the federal preemption issue in 1990 in California v. Federal Energy Regulatory Commission, supra, 495 U.S. 498. In that case, the court considered whether a hydroelectric power project licensed by the commission was required to follow federal or state requirements for water flow into the stream. Id., 494-96. The United States Supreme Court acknowledged that “[i]n the [act] . . . Congress clearly intended a broad federal role in the development and licensing of hydroelectric power. That broad delegation of power to the predecessor of [the commission], however, hardly determines the extent to which Congress intended to have the [federal [government exercise exclusive powers, or intended to pre-empt concurrent state regulation of matters affecting federally licensed hydroelectric projects. . . . [Resolution of this] issue turns principally on the meaning of § 27 of [the act], which provides the clearest indication of how Congress intended to allocate the regulatory authority of the [s]tates and the [f]ederal [g]ovemment.” Id., 496-97. Recognizing that this was not an issue of first impression, the United States Supreme Court recalled that in First Iowa Hydro-Electric Cooperative, it had “interpreted § 27’s reservation of limited powers
The plaintiff in the present case asserts that the trial court improperly relied on First Iowa Hydro-Electric Cooperative v. Federal Power Commission, supra, 328 U.S. 152, and California v. Federal Energy Regulatory Commission, supra, 495 U.S. 490, because those cases involved claims related to water flow relevant to a hydroelectric power project and that, therefore, those cases are distinguishable from the present case, which involves a recreational use within a hydroelectric power project. We disagree, and conclude that the two cases relied on by the trial court require us to conclude that the town’s zoning regulations are preempted in the present case.
The United States Supreme Court’s construction of § 27 in First Iowa Hydro-Electric Cooperative v. Federal Power Commission, supra, 328 U.S. 152, and California v. Federal Energy Regulatory Commission, supra, 495 U.S. 490, is not limited to water flow issues, but is instructive on all matters in which states seek to impose requirements on hydroelectric power projects.
Similarly, in Sayles Hydro Associates v. Maughan, 985 F.2d 451, 456 (9th Cir. 1993), the Ninth Circuit Court of Appeals concluded that the permitting regulations of the California state water resources control board (board) were preempted by the act. In that case, the California state board would not issue a permit to the hydroelectric power project until it met the board’s requirements regarding recreation, aesthetics, archaeology, sport fishing, cultural resources, and cost of capital and estimated revenues. Id, 453. The Ninth Circuit recognized that “[t]he Supreme Court has read the broadest possible negative pregnant into this ‘savings clause.’ . . . The rights reserved to the states in this provision are all the states get.” (Citation omitted.) Id. Relying on First Iowa Hydro-Electric Cooperative v. Federal Power Commission, supra, 328 U.S. 152, and California v. Federal Energy Regulatory Commission, supra, 495 U.S. 490, the Ninth Circuit concluded that “the only authority states get over federal power projects relates to allocating proprietary rights in water. First Iowa Hydro-Electric Cooperative said that the separation of authority between state and federal governments does not require two agencies to share in the final decision of the same issue.” (Internal quotation
In a case involving a recreational use, the United States District Court for the District of Vermont concluded that the act preempted the permitting requirements of the state of Vermont’s environmental protection board, even as it pertained to corollary aspects of the project, such as recreational uses. Springfield v. Environmental Board, supra, 521 F. Sup. 249. In doing so, the District Court rejected the state environmental protection board’s “contention that preemption under the act applies only to state regulation of those aspects of a project directly related to the construction and operation of the hydroelectric generating facility but does not extend to the regulation of corollary aspects . . . .” Id. The District Court concluded that “[t]he [a]ct creates no such dichotomy of project elements,” but instead “reflect[s] a clear Congressional intent to bring all aspects of the hydroelectric project within the purview of the federal regulatory scheme.” Id.
Other courts also have recognized the inclusion of recreational uses within the purview of the commission’s exclusive authority. For instance, in Coalition for Fair & Equitable Regulation of Docks on Lake of the Ozarks v. Federal Energy Regulatory Commission, 297 F.3d 771, 778 (8th Cir. 2002), the Eighth Circuit Court of Appeals determined that the commission’s licensee could assess user fees on docks at a lake that was the site of a hydroelectric power project. The plain
In the present case, the plaintiff does not claim that the local zoning regulations relate to the proprietary rights that are reserved to state regulation, but instead claims that the act does not preempt the zoning regulations because they are being applied to a recreational use within the hydroelectric power project. We disagree. The commission licensed Northeast to create a hydroelectric power project on Candlewood Lake, and the defendant’s deck is located on Northeast property within the hydroelectric power project. As part of its license, Northeast was not only authorized to grant permission to use project property for recreational uses, but was required to develop and submit a recreation plan to the commission. Northeast granted the defendant permission to build the deck pursuant to the authority granted to it under that license. The construction of the defendant’s deck, therefore, was within the hydroelectric power project.
The plaintiff claims that 18 C.F.R § 2.7 (2007), which governs recreational development at licensed projects, supports its position that the town zoning regulations are not preempted by the act. Section 2.7 provides in relevant part: “The [c]ommission will evaluate the recreational resources of all projects under [fjederal license or applications therefor and seek, within its authority, the ultimate development of these resources, consistent with the needs of the area to the extent that such development is not inconsistent with the primary purpose of the project. . . . The [c]ommission expects the licensee to assume the following responsibilities . . . (f) (1) [t]o comply with [f]ederal, [s]tate and local regulations for health, sanitation, and public safety, and to cooperate with law enforcement authorities in the development of additional necessary regulations for such purposes. . . .” 18 C.F.R § 2.7 (2007).
The plaintiff asserts that the town’s zoning regulations at issue in the present case fall within the “[federal, [sjtate and local regulations for health, sanitation and public safety” enumerated in 18 C.F.R. § 2.7. The plaintiffs cursory argument is based on the principle that the general purpose of zoning regulations includes the protection of public health and safety, and § 2.7 therefore requires compliance with local zoning laws. We do not read that section so broadly.
“According to the [doctrine] of ejusdem generis, unless a contrary intent appears, where general terms are followed by specific terms in a statute, the general terms will be construed to embrace things of the same
Moreover, as the United States Supreme Court concluded in First Iowa Hydro-Electric Cooperative v. Federal Power Commission, supra, 328 U.S. 168-69, “[w]here the [fjederal [government supersedes the state government there is no suggestion that the two agencies both shall have final authority. ... A dual final authority, with a duplicate system of state permits and federal licenses required for each project, would be unworkable. ‘Compliance with the requirements’ of such a duplicated system of licensing would be nearly as bad. Conformity to both standards would be impossible in some cases and probably difficult in most of them. The solution adopted by Congress . . . permits the [commission to secure from the applicant ‘[s]uch
The judgment is affirmed.
In this opinion BORDEN, NORCOTT and PALMER, Js., concurred.
The action initially was filed by Hackett, however, Kathy Castagnetta, the New Milford zoning enforcement officer, was later substituted for Hackett pursuant to General Statutes § 52-108 and Practice Book § 9-19. References herein to the plaintiff are to Castagnetta.
General Statutes § 8-3 (f) provides: “No building permit or certificate of occupancy shall be issued for a building, use or structure subject to the
General Statutes § 8-12 provides: “If any building or structure has been erected, constructed, altered, converted or maintained, or any building, structure or land has been used, in violation of any provision of this chapter or of any bylaw, ordinance, rule or regulation made under authority conferred hereby, any official having jurisdiction, in addition to other remedies, may institute an action or proceeding to prevent, such unlawful erection, construction, alteration, conversion, maintenance or use or to restrain, correct or abate such violation or to prevent the occupancy of such building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises. Such regulations shall be enforced by the officer or official board or authority designated therein, who shall be authorized to cause any building, structure, place or premises to be inspected and examined and to order in writing the remedying of any condition found to exist therein or thereon in violation of any provision of the regulations made under authority of the provisions of this chapter or, when the violation involves grading of land, the removal of earth or soil erosion and sediment control, to issue, in writing, a cease and desist order to be effective immediately. The owner or agent of any building or premises where a violation of any provision of such regulations has been committed or exists, or the lessee or tenant of an entire building or entire premises where such violation has been committed or exists, or the owner, agent, lessee or tenant of any part of the building or premises in which such violation has been committed or exists, or the agent, architect, builder, contractor or any other person who commits, takes part or assists in any such violation or who maintains any building or premises in which any such violation exists, shall be fined not less than ten nor more than one hundred dollars for each day that such violation continues; but, if the offense is wilful, the person convicted thereof shall be fined not less than one hundred dollars nor more than two hundred and fifty dollars for each day that such violation continues, or imprisoned not more than ten days for each day such violation continues or both; and the Superior Court shall have jurisdiction of all such offenses, subject to appeal as in other cases. Any person who, having been served with an order to discontinue any such violation, fails to comply with such order within
The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we subsequently transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
The defendant built the lighthouse years prior to building the deck, and there is no evidence in the record indicating whether Northeast ever issued the defendant permission to build the lighthouse. The record does indicate, however, that Northeast did not object to its presence. We conclude, and the parties agree, that the lighthouse should be treated in the same manner as the deck.
Concurring Opinion
concurring. I agree with the majority that the Federal Power Act (act), 16 U.S.C. § 791a et seq.,
The majority opinion sets forth the facts in some detail. I emphasize the following facts for purposes of this discussion. Pursuant to 16 U.S.C. § 797 (e) of the act, the commission issued a license to the company to generate hydroelectric power on Northeast’s property at Candlewood Lake. Northeast thereafter granted permission to the defendant to construct a deck for recreational purposes on a portion of the property encompassing the lake. The deck is located entirely below the “440 foot contour line” or a line demarcating the boundary, above water level, of land used for a federal hydroelectric power project. The town’s zoning regulations call for a fifty foot setback from the property line for structures such as the deck. The shore, however, is only approximately ten to twenty feet wide. The defendant never obtained a zoning permit before commencing construction of the deck. The town thereafter denied the defendant’s application for a zoning permit and a building permit was never issued.
As always in cases of preemption under the supremacy clause; U.S. Const., art. VI; the ultimate question is whether Congress manifested an intent for federal legislation to preempt state and local law. Cox Cable Advisory Council v. Dept. of Public Utility Control, 259 Conn. 56, 62, 788 A.2d 29, cert. denied, 537 U.S. 537, 123 S. Ct. 95, 154 L. Ed. 2d 25 (2002). As the majority recognizes, state or local law may be preempted by federal legislation in three ways: expressly; impliedly; or by means of a conflict. Crosby v. National Foreign
These categories, however, are not ’’rigidly distinct.” English v. General Electric Co., supra, 496 U.S. 79 n.5. Indeed, “[b]ecause a variety of state laws and regulations may conflict with a federal statute, whether because a private party cannot comply with both sets of provisions or because the objectives of the federal statute are frustrated, field pre-emption may be understood as a species of conflict pre-emption . . . .” (Internal quotation marks omitted.) Crosby v. National Foreign Trade Council, supra, 530 U.S. 372 n.6. Similarly, within a broader preempted field, a particular provision of state law and a particular provision of federal law actually may conflict with each other. See NE Hub Partners, L.P. v. CNG Transmission Corp.,
The text of the pertinent provisions under the act is the starting point for our inquiry.
These provisions speak to a broad role for the commission in determining and evaluating numerous aspects of hydroelectric power projects, including the protection and provision of recreational opportunities. By contrast, the savings clause does not reserve expressly any authority to the states to regulate uses on property owned by hydroelectric power plants. None of these provisions alone, however, expressly addresses whether Congress intended to preempt local zoning regulations. California v. Federal Energy Regulatory Commission, supra, 495 U.S. 496-97 (although scheme set forth by Congress is quite broad, that “broad delegation of power to the predecessor of [the commission], however, hardly determines the extent to which Congress intended to have the [fjederal [government exercise exclusive powers, or intended to pre-empt concurrent state regulation of matters affecting federally licensed hydroelectric projects”). Indeed, there is nothing in the statute that would indicate that the development or “protection” of recreational opportunities could not occur in harmony with local zoning regulations, particularly in view of the directive to consider the recommendations of state agencies exercising administration over recreation.
In answering this question, we do not write on a blank slate. The United States Supreme Court already has interpreted the act and its legislative history in the context of the preemption question. Although I agree with the majority that two cases are of particular significance, in my view, these cases do not require us to decide this question on the grounds of field preemption.
In First Iowa Hydro-Electric Cooperative v. Federal Power Commission, 328 U.S. 152, 157, 66 S. Ct. 906, 90 L. Ed. 1143 (1946), the plaintiff challenged the decision
In construing the act, the court applied a mixture of field and conflict preemption principles. Id., 167-76. It determined that the act had created a dual system of authority between the federal government and the states, but permitted no concurrent authority in any area. Id., 167-68. Because the court concluded that the federal government has exclusive authority over licensing hydroelectric power projects, it determined that requirements of Iowa law could not act as a condition precedent to a federal permit unless the federal government expressly added those specific requirements to federal statutes or regulations. Otherwise, such a condition precedent could permit the state to veto a federal project and thereby conflict with federal requirements.
The court went on to conclude, however, that the act left to the states their “traditional jurisdiction . . . .” Id., 171. It noted that the act included a savings clause; 16 U.S.C. § 821; which serves as the “primary, if not exclusive reference” to state proprietary rights over the “control, appropriation, use or distribution of water [used] in irrigation or for municipal or other uses . . . .” (Emphasis added.) First Iowa Hydro-Electric Cooperative v. Federal Power Commission, supra, 328 U.S. 175-76. “[The savings clause] strengthens the argument that, in those fields where rights are not thus ‘saved’ to the [s]tates, Congress is willing to let the supersedure of the state laws by federal legislation take its natural course.” Id., 176. In light of these statements, it seems unclear whether the savings clause is the exclusive or merely primary measure of state authority under the act, or whether the other questions of preemption unrelated to such proprietary rights would be left to another case.
The Supreme Court again took up the issue of preemption under the act in California v. Federal Energy
As the majority notes, on the basis of these cases, some federal courts have interpreted the impliedly preempted field under the act broadly, determining all aspects of the project to fall within the preempted field, except those expressly reserved to the states in the savings clause. See, e.g., Sayles Hydro Associates v. Maughan, 985 F.2d 451, 455-56 (9th Cir. 1993); Springfield v. Environmental Board, 521 F. Sup. 243, 248-49 (D. Vt. 1981). As the Supreme Court recognized in California v. Federal Energy Regulatory Commission, supra, 495 U.S. 497, however, this interpretation can be at odds with the assumption under preemption jurisprudence that, in areas traditionally left to the states, Congress must manifest a clear intent to preempt state law; a presumption that the Supreme Court and this court have applied in other cases. See, e.g., Bates v. Dow Agrosciences, LLC, 544 U.S. 431, 449, 125 S. Ct. 1788, 161 L. Ed. 2d 687 (2005) (“[bjecause the [sjtates are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly preempt state-law causes of action” [internal quotation marks omitted]); Serrano v. Serrano, 213 Conn. 1, 6, 566 A.2d 413 (1989) (“ [t]he United States Supreme Court has repeatedly held that, because the field of domestic relations has traditionally been regulated by the states,
In view of this inconsistency, I am disinclined to make such a sweeping determination about the boundaries of the preempted field, particularly when there is a real question about whether the Supreme Court has explicitly determined the field to be so broad. Both First Iowa Hydro-Electric Cooperative v. Federal Power Commission, supra, 328 U.S. 152, and California v. Federal Energy Regulatory Commission, supra, 495 U.S. 490, dealt with circumstances wherein the federal and state requirements actually conflicted. Both cases involved state requirements that dealt in a direct way with the construction and operation of a hydroelectric power project. Although I acknowledge that a few other
In the present case, the disputed zoning regulation requires a fifty foot setback from the property line. The shore of the lake is at most twenty feet wide. Thus, as the trial court concluded, it would be impossible to build the deck as authorized by a federal license and still comply with the local zoning regulation.
Accordingly, I respectfully concur.
“For the purposes of the [supremacy [cjlause, the constitutionality of local ordinances is analyzed in the same way as that of statewide laws.” Hillsborough County v. Automated Medical Labs, 471 U.S. 707, 713, 105 S. Ct. 2371, 85 L. Ed. 2d 714 (1985).
Although the majority does not cite to the act’s text in its analysis, in my view, in the absence of clear textual evidence, it seems counterintuitive to suppose that federal law addressing hydroelectric power would preempt a local zoning authority from regulating recreational use of property that in no way impacts hydroelectric power.
The “ ‘project’ ” that the commission is charged with regulating broadly is defined as: “complete unit of improvement or development, consisting of a power house, all water conduits, all dams and appurtenant works and structures (including navigation structures) which are a part of said unit, and all storage, diverting, or forebay reservoirs directly connected therewith, the primary line or lines transmitting power therefrom to the point of junction with the distribution system or with the interconnected primary transmission system, all miscellaneous structures used and useful in connection with said unit or any part thereof, and all water-rights, rights-of-way, ditches, dams, reservoirs, lands, or interest in lands the use and occupancy of which are necessary or appropriate in the maintenance and operation of such unit . . . 16 U.S.C. § 796 (11).
“The [commission] may reject a state agency’s recommendation as inconsistent with the [act] only after attempting to resolve the inconsistency, giving due weight to the recommendations, expertise and statutory responsibilities of state agencies. 16 U.S.C. § 803 (j) (2). If, after such an attempt, the commission does not adopt a recommendation of a state agency in whole or in part, it must publish findings that adoption of such recommendation is inconsistent with the purpose and requirements of the [act] or other applicable laws and that the conditions selected by the commission comply with the statute’s requirements for fish and wildlife protection.” Wisconsin Valley Improvement Co. v. Meyer, 910 F. Sup. 1375, 1378 (W.D. Wis. 1995).
In the present case, the parties and the majority focus on the commission’s regulation at 18 C.F.R. § 2.7 (2007), which provides in relevant part: “The [c]ommission will evaluate the recreational resources of all projects . . . and seek . . . the ultimate development of these resources .... The [cjommission expects the licensee to assume the following responsibilities . . .
“(e) To cooperate with local, [s]tate, and [fjederal [government agencies in planning, providing, operating, and maintaining facilities for recreational use of public lands administered by those agencies aijjacent to the project area.
“(f) (1) To comply with [fjederal, [s]tate and local regulations for health, sanitation, and public safety, and to cooperate with law enforcement authori
Because this regulation does not prescribe the specific requirements under the town’s zoning regulation, it would seem to present a similar situation to that in First Iowa Hydro-Electric Cooperative in that, although state and local laws may be relevant to a determination of the commission, they cannot be a vehicle through which the state could, in effect, veto a federal decision as to some aspect of a hydroelectric power project, nor may they be permitted to supplant federal law and regulations in the event of a conflict.
Specifically, the court concluded that First Iowa Hydro-Electric Cooperative had limited the savings clause to issues of “control, appropriation, use or distribution of water in irrigation or for municipal or other uses of the same nature.” (Emphasis in original.) California v. Federal Energy Regulatory Commission, supra, 495 U.S. 498. Thus, if the state law did not fit within the savings clause, and it conflicted with the federal requirements, it could not stand. See id., 498, 506-507.
As the amicus curiae point out, “the defendant’s ‘deck’ is not one of the ‘recreational enhancements’ to be provided by [the] [licensee as set forth in the license to [Northeast] from [the commission].” Even if we were to assume that the company was not acting on authority conferred by the commission, however, under these circumstances the commission would have no option to approve the deck because it would be impossible to comply with any such approval of the commission and the local regulation. Much like in First Iowa Hydro-Electric Cooperative v. Federal Power Commission, supra, 328 U.S. 164, wherein the plaintiff had not submitted evidence of compliance with Iowa law, requiring evidence of actual compliance with the state law “would vest in the [state] a veto power over the federal project.”
Reference
- Full Case Name
- Thomas Hackett v. J.L.G. Properties, LLC
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- 19 cases
- Status
- Published