Opinion
No. 01 C 4696
June 21, 2002
MEMORANDUM OPINION AND ORDER
Will County passed a pipeline ordinance and has, by a lawsuit filed in Will County state court, determined to apply it to plaintiff's pipeline as it is installed in Will County. The principal difference between the ordinance and the FERC certification, it appears, is that the ordinance requires five feet of cover and the FERC certificate requires four feet.
Plaintiff has removed the state court action and also seeks a preliminary injunction directing Will County not to impose requirements that conflict with the FERC certificate. Will County takes great issue with the removal, contending that federal preemption is a defense to its claims in state court and that, therefore, this court has no subject matter jurisdiction to entertain the state action. And it is probably correct.
But the motion for preliminary relief arises in this case, in which this court has both subject matter and personal jurisdiction over the claims and the parties. It is clear, beyond any dispute, that the FERC certificate trumps the county ordinance, Schneidewind v. ANR Pipeland Co., 485 U.S. 293 (1988); National Fuel Gas Supply Corp. v. Public Service Commission of New York, 894 F.2d 571 (2d Cir. 1990), and Will County does not try to argue otherwise. We hereby preliminarily enjoin Will County and its agents, officers and employees from seeking to impose pipeline installation and construction requirements that conflict with the requirements of the FERC certificate, or to delay or impede the installation and construction. What Will County wishes to do is contrary to the prior order of this court authorizing plaintiff to proceed pursuant to the FERC certificate and thus is subject to restraint pursuant to the All Writs Act, 28 U.S.C. § 1651. Further, the customary standards for granting preliminary relief are all favorable to plaintiff. It will prevail on the merits and Will County will not; plaintiff is on a tight schedule with construction supposedly already commenced in Will County; changing construction requirements would obviously impose additional burdens, expenses and delays; and the public interest is served by requiring parties to adhere to controlling law.