The Supremacy Clause of the U.S. Constitution explicitly specifies that federal law is the "supreme law of the land”. Accordingly, under the doctrine of preemption, federal law preempts state or local law, particularly when state or local laws regulate within a field also regulated by federal law or where the state or local law conflicts with federal law. The doctrine has been applied in a wide range of situations, ranging from regulation of sports betting to products liability to application of the Second Amendment.

Preemption also plays a vital role in the successful completion of many federally regulated construction projects in the State of New Jersey, particularly linear ones. Rutter & Roy lawyers have decades of experience, both with the interpretation of the Supremacy Clause and its application. This knowledge is invaluable to our clients and is essential in allowing projects to be completed on time, on budget and without unnecessary impediments.

More specifically, courts have held that when a pipeline project is regulated by the Federal Energy Regulatory Commission (“FERC”), FERC’s determinations supersede those of the municipalities through which the pipeline crosses. While state authorities are permitted to regulate interstate projects under their authority under the Clean Air Act, Clean Water Act and the Coastal Zone Management Act, the boundaries of this authority are regularly being tested.  There is a growing body of case law in this area, but actual application often demands considerable experience, grounded in a deep understanding both of the legal landscape and the political, economic and practical realities of each situation.

Having advised many clients on the role preemption plays in their projects, our lawyers understand the process well and provide actionable, hands-on guidance for clients who may be unfamiliar with the most effective application of the principle. Typically, in a wide range of scenarios, New Jersey municipalities will attempt to regulate or exert legal authority over a broad spectrum of undertakings, ranging from the actual construction of a project to the replacement of equipment. Often, this happens in the context of zoning, noise ordinances or applications for building permits.

Rutter & Roy lawyers are deeply informed in managing these situations. We file applications for building permits well in advance, which gives the client enough time to work through any issues with the municipality or run to court if the need arises.  These proven strategies prevent delay at critical points in a construction schedule.

For instance, Rutter & Roy successfully litigated a federal preemption lawsuit on behalf of a client against a municipality.  In that case, the municipality denied the client’s application for building permits on the grounds that the FERC-approved project was not a permitted use within the zone.  Rutter & Roy filed a complaint in the federal district court in Camden, New Jersey, and received a judgment against the municipality, all without affecting the client’s construction schedule.

Managing these situations requires experience, political savvy and a hands-on understanding of the legal and practical methodology for managing stakeholders while keeping the project moving forward as rapidly as possible. The unique combination of knowledge and experience our attorneys bring to the process is a major asset for our clients.

Similar to the project itself, the process of maneuvering a new pipeline, transmission line or other project through New Jersey’s complex, sometimes volatile and occasionally political landscape requires the guidance of an experienced, practical and tested advisor. Rutter & Roy’s attorneys provide just that experience, helping our clients complete projects smoothly, quickly and without undue complication.

Contact us today if we may be of service.