Maryland Transmission CPCN Applicants May Obtain Pre-CPCN Survey Entry Under RP § 12-111 Despite PU § 7-207’s Condemnation Timing

1. Introduction

Case: PSEG Renewable Transmission LLC v. Arentz Family, LP (4th Cir. Aug. 6, 2026).
Parties: PSEG Renewable Transmission LLC (“PSEG”), a transmission developer, versus numerous Maryland property owners (the “Property Owners”).
Project: The Maryland Piedmont Reliability Project (“MPRP”), a ~67-mile high-voltage transmission line across Baltimore, Carroll, and Frederick Counties.
Regulatory setting: The project was selected through PJM’s regional transmission process (with FERC’s interstate-regulatory backdrop), but Maryland retains siting authority and requires a Certificate of Public Convenience and Necessity (“CPCN”) from the Maryland Public Service Commission (“PSC”). The PSC’s completeness review is handled by the Power Plant Research Program (“PPRP”).

The immediate controversy was not final siting approval but a threshold procedural bottleneck: PPRP deemed PSEG’s CPCN application “administratively incomplete” absent field-based environmental and socioeconomic studies. Those studies required entry onto private land along the proposed route. Property owners refused access. PSEG sought a preliminary injunction under Md. Code Ann., Real Prop. § 12-111 authorizing survey entry.

The core legal issue was statutory: whether a developer that cannot yet condemn because it lacks a CPCN under Md. Code Ann., Pub. Util. § 7-207(b)(3)(v) can nevertheless be treated as a “body politic or corporate having the power of eminent domain” for purposes of pre-condemnation survey access under Real Prop. § 12-111(a).

2. Summary of the Opinion

The Fourth Circuit affirmed the preliminary injunction. It held that the district court did not abuse its discretion in concluding that PSEG was likely to succeed on the merits under Maryland law and that the remaining Winter preliminary-injunction factors favored relief. The court’s central move was harmonization: reading Maryland’s survey-entry statute and the CPCN/condemnation statute together to avoid rendering the CPCN process “unworkable.”

The court also held that (i) even if the injunction were “mandatory,” the “exigencies” justified it; (ii) delay-related lost revenues for large-scale energy infrastructure can constitute irreparable harm; (iii) limited survey entry is a narrow intrusion and does not amount to a compensable taking; and (iv) the public interest favors enabling the studies that Maryland’s own PPRP deemed necessary for its statutory duties.

Judge Richardson concurred in the judgment but emphasized a different statutory path: on his reading, PU § 7-207(b)(3)(v) likely confers eminent-domain power subject to a condition on exercise (issuance of a CPCN), which suffices for “having the power” under RP § 12-111(a); he also stressed that “the person” in RP § 12-111(b) refers to the professionals (engineers/surveyors/appraisers), not to PSEG itself.

3. Analysis

3.1 Precedents Cited

A. Preliminary injunction framework and appellate review

  • Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008): Supplied the four-factor test (likelihood of success, irreparable harm, equities, public interest). The Fourth Circuit applied Winter as the governing federal standard for injunctions.
  • Pashby v. Delia, 709 F.3d 307 (4th Cir. 2013): Used for abuse-of-discretion review and the “status quo” definition (“last uncontested status”), shaping the court’s response to the “mandatory injunction” objection.
  • Wetzel v. Edwards, 635 F.2d 283 (4th Cir. 1980): Provided the heightened standard for mandatory injunctions (“exigencies of the situation demand such relief”).
  • E. Tenn. Nat. Gas Co. v. Sage, 361 F.3d 808 (4th Cir. 2004): A key analog on both mandatory relief and irreparable harm; supported the proposition that meeting infrastructure timelines can justify mandatory preliminary relief and that delay-caused losses can be irreparable.
  • Mountain Valley Pipeline, LLC v. 6.56 Acres of Land, Owned by Sandra Townes Powell, 915 F.3d 197 (4th Cir. 2019): Reinforced that large infrastructure projects are vulnerable to cascading delays; delay-related losses, when unrecoverable, can be irreparable; and public interest generally favors advancing energy infrastructure.
  • Real Time Med. Sys., Inc. v. PointClickCare Techs., Inc., 131 F.4th 205 (4th Cir. 2025); Salomon & Ludwin, LLC v. Winters, 150 F.4th 268 (4th Cir. 2025); Roe v. Dep't of Def., 947 F.3d 207 (4th Cir. 2020): Cited to emphasize deference to the district court’s plausible factual account and limits on reweighing evidence during interlocutory review.
  • Gilliam v. Foster, 61 F.3d 1070 (4th Cir. 1995) (en banc): Cited for clear-error review of irreparable harm findings.
  • Jensen v. Md. Cannabis Admin., 151 F.4th 169 (4th Cir. 2025) and United States v. McHan, 386 F.3d 620 (4th Cir. 2004): Cited for the principle that the appellate court may affirm on any ground supported by the record.
  • League of Women Voters of N.C. v. North Carolina, 769 F.3d 224 (4th Cir. 2014): Reiterated the Winter factors in Fourth Circuit form.
  • In re Microsoft Corp. Antitrust Litigation, 333 F.3d 517 (4th Cir. 2003) and Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802 (4th Cir. 1991): Used to test whether alleged harms are too contingent; the court distinguished them because PSEG’s harm stemmed from an immediate inability to complete required studies.
  • Anderson v. City of Bessemer City, 470 U.S. 564 (1985): Supported the district court’s ability to draw plausible inferences on an undeveloped record.
  • Robinson v. Nat'l Collegiate Athletic Ass'n, 172 F.4th 271 (4th Cir. 2026): Cited for the point that likelihood of success does not require certainty.
  • Transcon. Gas Pipe Line Co., LLC v. 6.04 Acres, 910 F.3d 1130 (11th Cir. 2018): Persuasive authority supporting irreparable harm where inability to access land causes delay.
  • Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500 (4th Cir. 2015): Cited for judicial notice principles relevant on interlocutory appeal.

B. Maryland statutory interpretation and eminent domain principles

  • Westminster Mgmt., LLC v. Smith, 312 A.3d 741 (Md. 2024); Lockshin v. Semsker, 987 A.2d 18 (Md. 2010); Whiting-Turner Contracting Co. v. Fitzpatrick, 783 A.2d 667 (Md. 2001); Chesapeake Charter, Inc. v. Anne Arundel Cnty. Bd. of Educ., 747 A.2d 625 (Md. 2000): Provided Maryland’s harmonization canons: interpret statutes as a coherent whole, avoid readings that make schemes unworkable, and consider consequences inconsistent with legislative intent.
  • Md. Overpak Corp. v. Mayor & City Council of Balt., 909 A.2d 235 (Md. 2006): Used for the method of ascertaining contemporaneous dictionary meaning of statutory terms (here, “having”).
  • Lawrence v. State, 257 A.3d 588 (Md. 2021): Cited for Maryland’s rejection of “illogical, unreasonable” statutory constructions.
  • Mayor & City Council of Balt. City v. Valsamaki, 916 A.2d 324 (Md. 2007) and J.L. Matthews, Inc. v. Md.-Nat'l Cap. Park & Plan Comm'n, 792 A.2d 288 (Md. 2002): Grounded the nature of eminent domain (inherent governmental power) and the legislature’s authority to prescribe the mode and prerequisites for its exercise.
  • Davis v. Bd. of Educ. of Anne Arundel Cnty., 170 A. 590 (Md. 1934): Quoted to soften strict construction concerns in eminent-domain-adjacent interpretation where legislative purpose is clear.
  • King v. Mayor & Council of Rockville, 447 A.2d 118 (Md. Ct. Spec. App. 1982): Cited to frame survey access as serving the decision whether to exercise eminent domain.
  • Mackie v. Mayor & Comm'rs of Town of Elkton, 290 A.2d 500 (Md. 1972) and Steuart v. City of Baltimore, 7 Md. 500 (1855): Central to the court’s conclusion that preliminary survey entry does not trigger Maryland’s “taking” prohibition and is a longstanding pre-condemnation measure; also used to distinguish impermissibly invasive geotechnical work.
  • Transource Maryland, LLC v. Scott et al., No. 12-C-18-000549 (Harford Cnty. Cir. Ct. June 24, 2018): Treated as the most analogous state-court decision; supported the proposition that RP § 12-111 authorizes entry before CPCN issuance because otherwise “no other reading makes sense.”

C. Takings and property-rights backdrop

  • Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021) and Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982): Used to explain why this temporary survey entry is not a per se taking—because it aligns with longstanding background restrictions and is far less intrusive than the access regime in Cedar Point.
  • Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602 (1993) and Reichs Ford Rd. Joint Venture v. State Rds. Comm'n of the State Highway Admin., 880 A.2d 307 (Md. 2005): Cited to reject diminution-in-value arguments as constituting an immediate taking; pre-condemnation value impacts are generally addressed, if at all, in later condemnation proceedings.

D. Erie and Maryland purposivism (concurrence)

  • Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938): Cited for applying state substantive law in diversity.
  • Volvo Trademark Holding Aktiebolaget v. Clark Mach. Co., 510 F.3d 474 (4th Cir. 2007): Cited for the proposition that federal courts applying state law must use the state’s interpretive methodology.
  • The concurrence’s purposivist methodology drew on: Berry v. Queen, 233 A.3d 42 (Md. 2020); Montgomery Cnty. v. Phillips, 124 A.3d 188 (Md. 2015); Bd. of Educ. of Balt. Cnty. v. Zimmer-Rubert, 973 A.2d 233 (Md. 2009); Arundel Corp. v. Marie, 860 A.2d 886 (Md. 2004); Elsberry v. Stanley Martin Cos., 286 A.3d 1 (Md. 2022); Anderson v. Council of Unit Owners of Gables on Tuckerman Condo., 948 A.2d 11 (Md. 2008); Stoddard v. State, 911 A.2d 1245 (Md. 2006); Lonaconing Trap Club, Inc. v. Dep't of Env't, 978 A.2d 702 (Md. 2009); and Price v. State, 835 A.2d 1221 (Md. 2003).

3.2 Legal Reasoning

A. The new harmonization holding: survey access must precede CPCN issuance

The majority’s principal interpretive conclusion is functional and structural: if PU § 7-207(b)(3)(v) (no condemnation until CPCN issuance) were read to mean “no eminent-domain power at all until CPCN,” then a developer could be trapped in a loop: it needs field studies to complete the CPCN process, but it needs CPCN to get the power necessary to obtain access to do the field studies. The court held Maryland law disfavors interpretations that make statutory schemes “unworkable,” invoking Maryland’s harmonization canons drawn from Westminster Mgmt., LLC v. Smith, Lockshin v. Semsker, Whiting-Turner Contracting Co. v. Fitzpatrick, and Chesapeake Charter, Inc. v. Anne Arundel Cnty. Bd. of Educ..

The court read the two statutes as addressing different stages:

  • RP § 12-111(a) authorizes limited, temporary entry to gather information “relating to the acquisition or future public use” and “for the purpose of determining whether eminent domain” should be exercised.
  • PU § 7-207(b)(3)(v) restricts condemnation—the actual taking—until the PSC issues a CPCN.

Thus, on the majority’s view, the CPCN is the later “go/no-go” determination for condemnation, not a barrier to pre-decision fact gathering.

B. “Having the power of eminent domain”: timing and source

The majority anchored “having” in its contemporaneous ordinary meaning via Md. Overpak Corp. v. Mayor & City Council of Balt. and a 1963 dictionary, concluding it denotes present possession. But the key was what counts as “present possession” in this permitting posture. The majority accepted that PSEG likely “gained” eminent-domain power for RP § 12-111 access purposes before CPCN issuance, emphasizing the necessity of access to make the CPCN pathway workable.

The opinion then tied that “gain” to PPRP’s direction to complete field studies. PPRP, acting on behalf of Maryland agencies, required field verification; PSEG’s work was characterized as being undertaken “at the direction of” state actors, with PJM’s Designated Entity Agreement lending practical legitimacy to why PSEG (rather than the state) would be conducting the studies.

The court also leaned on Transource Maryland, LLC v. Scott et al. as a closely analogous Maryland trial-court decision reasoning that § 12-111 must authorize pre-CPCN entry or else “no other reading makes sense.”

C. Rejecting the proposed alternatives: PPRP entry and geotechnical surveys

The Property Owners argued the system remains workable because PPRP itself can enter land under NR § 3-305(f)(1). The court responded: the statute authorizes but does not require PPRP to do so; if PPRP declines, the same deadlock returns. It further held PSEG could not compel PPRP to enter because only “an electric company” may request such entry and PSEG is not yet an “electric company” under PU § 1-101(i)(1).

Property Owners also argued the scheme is still unworkable because § 12-111 does not permit geotechnical surveys. The court agreed geotechnical work typically exceeds “minimal incidental damage,” citing Mackie v. Mayor & Comm'rs of Town of Elkton, but found it irrelevant because PSEG did not seek geotechnical authority and the COMAR transmission-line CPCN rules do not expressly require it (contrasting COMAR 20.79.03.03 for generating stations).

D. Mandatory injunction: “exigencies” can justify access orders

The Property Owners argued the injunction was improperly “mandatory.” The Fourth Circuit declined to decide whether it altered the status quo because, even if mandatory, the case met the “exigencies” standard under Wetzel v. Edwards, with E. Tenn. Nat. Gas Co. v. Sage serving as a direct analog: deadlines and cascading project delay can support mandatory preliminary relief.

E. Irreparable harm: unrecoverable delay losses

The court affirmed the district court’s finding of irreparable harm: without access, PSEG could not complete the CPCN process, and construction delay would cause unrecoverable lost revenues. It treated Mountain Valley Pipeline, LLC v. 6.56 Acres of Land, Owned by Sandra Townes Powell and E. Tenn. Nat. Gas Co. v. Sage as establishing that delay-induced economic losses can be “irreparable” when they are not recoverable and when the project can be derailed by obstruction at a single stage. The court distinguished Direx Israel, Ltd. v. Breakthrough Med. Corp. and In re Microsoft Corp. Antitrust Litigation as involving harms dependent on chains of contingencies where later relief could still avert harm.

F. Equities and takings: survey entry is narrow and historically grounded

On equities, the court emphasized the injunction grants only “temporary, limited, non-invasive” entry and that RP § 12-111(c) provides a damages remedy for injury. It rejected the contention that this temporary entry is a compensable “taking,” reasoning that survey entry is a longstanding background limitation recognized in Maryland since Steuart v. City of Baltimore and reaffirmed in Mackie v. Mayor & Comm'rs of Town of Elkton. Under federal doctrine, the court cited Cedar Point Nursery v. Hassid to note that government-authorized invasions consistent with background restrictions are not takings, and that § 12-111 access is far less intrusive than the access at issue in Cedar Point. Diminution-in-value arguments were addressed via Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal. and Reichs Ford Rd. Joint Venture v. State Rds. Comm'n of the State Highway Admin..

G. Public interest: enabling the studies that inform the CPCN decision

The court held the public interest favored allowing the studies that PPRP deemed necessary to discharge its statutory duties. While the Property Owners stressed that pipeline cases involved already-issued federal CPCNs, the court reiterated (citing Mountain Valley Pipeline, LLC v. 6.56 Acres of Land, Owned by Sandra Townes Powell) that a CPCN is not dispositive of public interest and that objections to the project “generally” are distinct from the narrower question of enabling information-gathering to evaluate it.

H. The concurrence’s alternate statutory route

Judge Richardson agreed with the outcome but reframed the statutory logic: he read PU § 7-207(b)(3)(v)(2) as granting condemnation authority (the power of eminent domain) while conditioning exercise on CPCN issuance—so the applicant may “have” the power even before it may use it. He also highlighted a textual point about RP § 12-111(b): “the person” who can seek the order refers to the enumerated professionals (civil engineers/surveyors/appraisers and assistants), but PSEG can seek relief as the “body politic or corporate” on whose behalf they act.

3.3 Impact

  • Unlocking the CPCN record: The decision materially reduces landowner “holdout” leverage at the information-gathering stage. Developers can obtain judicially-enforced access for the specific purpose of producing the environmental/socioeconomic field studies required to complete Maryland’s CPCN process.
  • Clarifying statutory sequencing: The Fourth Circuit’s harmonization approach signals that Maryland’s “no condemnation until CPCN” rule in PU § 7-207(b)(3)(v) is not a general “no pre-CPCN access” rule. It distinguishes between the exercise of condemnation and the preliminary measures needed to decide whether condemnation should ever occur.
  • Procedural template for future transmission projects: Developers likely will (i) submit desktop studies, (ii) receive an incompleteness determination requiring field studies, (iii) request consent for entry, and (iv) seek expedited RP § 12-111 injunctions if refused—using this case to establish likelihood of success and irreparable harm.
  • Limits preserved: The decision reaffirms constraints: § 12-111 does not license invasive geotechnical testing; entry must be narrow, tied to enumerated purposes, preceded by bona fide notice, and subject to damages liability under § 12-111(c).
  • Federal-state coordination: By treating PJM’s selection and a state agency’s (PPRP’s) data demands as relevant context, the opinion may encourage closer synchronization between regional planning milestones and state completeness requirements—while still emphasizing that Maryland retains siting authority.

4. Complex Concepts Simplified

CPCN (Certificate of Public Convenience and Necessity)
A state permission slip from the PSC to build certain utility infrastructure. It reflects a state-level need/siting determination and is a prerequisite to condemnation for this category of transmission line.
Eminent domain vs. condemnation
“Eminent domain” is the underlying government power to take property for public use with compensation. “Condemnation” is the legal process used to exercise that power. A statute can allow an entity to possess a limited eminent-domain power while restricting when condemnation may be filed or completed.
RP § 12-111 survey entry
A Maryland mechanism allowing limited entry onto private land for surveys and information gathering connected to potential public acquisition/use—historically treated as a preliminary measure, not a compensable taking in itself.
“Mandatory” preliminary injunction
An injunction that requires action rather than simply preserving the last uncontested status quo. Even then, Fourth Circuit law allows such relief when circumstances are urgent enough (the “exigencies” standard).
Irreparable harm
Harm that cannot be adequately fixed after final judgment. Here, delay-induced lost revenues were treated as irreparable because the project could not advance at all without access, and those lost opportunities could not be recovered later.

5. Conclusion

PSEG Renewable Transmission LLC v. Arentz Family, LP establishes a practical sequencing rule for Maryland transmission permitting: a developer’s inability to condemn until CPCN issuance under PU § 7-207(b)(3)(v) does not foreclose pre-CPCN survey access under RP § 12-111 when field studies are required to complete the CPCN process. The Fourth Circuit’s emphasis on harmonizing statutes to avoid an “unworkable” scheme, combined with its treatment of delay as irreparable harm and its rejection of takings arguments for narrow survey entry, positions § 12-111 injunctions as a central tool in building the administrative record for major energy infrastructure projects in Maryland.