Background
PSEG Renewable Transmission LLC received federal approval to develop the Maryland Piedmont Reliability Project, a proposed 67-mile, high-voltage transmission line crossing Baltimore, Carroll, and Frederick Counties. Before construction may begin, PSEG must obtain a Certificate of Public Convenience and Necessity from the Maryland Public Service Commission.
Maryland’s Power Plant Research Program found PSEG’s certificate application administratively incomplete because PSEG had submitted desktop studies instead of field-based environmental and socioeconomic studies. PSEG could not conduct the fieldwork because numerous owners along the proposed route refused access to their properties.
PSEG sued under Section 12-111 of Maryland’s Real Property Article and obtained a preliminary injunction permitting limited entry to conduct the required surveys. The property owners appealed, arguing principally that PSEG lacked the eminent-domain power necessary to invoke the statute before receiving a certificate.
The Court’s Holding
The Fourth Circuit affirmed, holding that the district court did not abuse its discretion in granting the preliminary injunction. Applying Maryland statutory-interpretation principles, the majority concluded that PSEG was likely to possess eminent-domain power for the limited purpose of pre-certificate access under Section 12-111 after the state program directed it to complete the field studies. Requiring PSEG to obtain a certificate before gathering information necessary to complete its certificate application would make the statutory scheme unworkable.
The court also upheld the district court’s findings on the remaining preliminary-injunction factors. Without access, PSEG faced indefinite project delay and unrecoverable lost revenue; the authorized surveys were temporary, limited, and noninvasive; and the surveys served the public interest by supplying information needed to evaluate the proposed transmission line. The court further held that this limited access was consistent with longstanding restrictions on property rights and did not constitute a compensable taking.
Judge Richardson concurred in the judgment but used different statutory reasoning. He concluded that Maryland law likely delegates eminent-domain power to eligible transmission-line applicants before certification while conditioning the exercise of condemnation power on the later issuance of a certificate.
Key Takeaways
- An eligible transmission developer may likely use Maryland’s statutory survey-access procedure before receiving the certificate required to condemn property.
- The injunction authorizes only surveys needed for the certificate application, not construction, condemnation, or geotechnical testing that causes more than minimal incidental damage.
- Unrecoverable revenue losses caused by indefinite delay to a large energy-infrastructure project can support a finding of irreparable harm.
Why It Matters
The decision preserves a path for transmission developers to gather field information required during Maryland’s permitting process even when affected owners deny access. It also distinguishes the limited pre-condemnation authority to conduct surveys from the later authority to acquire property by condemnation.
For landowners, the ruling confines access to the preliminary studies authorized by Maryland law and leaves objections to the route, construction, and environmental effects for the state review process. Maryland law also provides a damages action if survey activities injure land or personal property.