Foley Hoag Secures Victory for City of South Portland in Maine Supreme Judicial Court International Pipeline Case Challenging its Clear Skies Ordinance

November 4, 2020

Foley Hoag LLP successfully represented the City of South Portland (the City) before the Maine Supreme Judicial Court sitting as the Law Court in a lawsuit seeking to overturn the City’s Clear Skies Zoning Ordinance. The Law Court issued a decision on Thursday October 29, 2020, finding that the local zoning ordinance, which prohibits the bulk loading of crude oil onto ships in certain districts on South Portland’s harbor, is not preempted by Maine’s Coastal Conveyance Act.

Portland Pipe Line Corporation (PPLC) sued to overturn the Clear Skies Ordinance in 2015, bringing a nine-count complaint in the U.S. District Court for the District of Maine.  After three years of litigation, including a 4-day trial in 2018, Foley Hoag secured victory on all nine counts for the City.  PPLC appealed the ruling to the United States Court of Appeals for the First Circuit, which certified three questions of law to the Law Court. The questions generally asked whether the Clear Skies Ordinance was preempted by the Coastal Conveyance Act as local rule in “direct conflict” an “order” issued by the state Department of Environmental Protection.  PPLC argued that the Oil Terminal Facility Renewal License it received from the Department in 2010 was “order” in “direct conflict” with the Clear Skies Ordinance.

The Law Court disagreed, ruling that the Oil Terminal Facility Renewal License is a “permission,” not an “order.” The Court noted “[t]hat the license was not an “order” is demonstrated by the fact that PPLC, although authorized in 2010 to reverse the flow of oil in the pipeline, did not do so, but rather ‘[chose] instead to wait out the economic decline precipitated by the Great Recession’ . . . If the license were an ‘order,’ PPLC would not have had the option to simply set it aside.”

The Court also held that the Ordinance furthers the legislative purpose of the Coastal Conveyance Act to protect Maine’s coast from oil pollution and does not conflict. The Court also observed that the Coastal Conveyance Act, consistent with Maine’s Constitution, broadly protects the “Home Rule” power of Maine’s cities and towns to pass local zoning ordinances like the Clear Skies Ordinance.

“The City’s passage of a local zoning ordinance prohibiting a harmful use like the bulk loading of crude oil is no different than a zoning rule prohibiting a pig sty or a factory when it would be incompatible with the health, safety, and welfare of the surrounding neighborhood,” said Jonathan Ettinger, a partner at Foley Hoag. “The Law Court appropriately recognized there is nothing in the Coastal Conveyance Act that precluded South Portland’s exercise of this important Home Rule authority.” 

“Faced with the prospect of barrel-after-barrel of crude oil being loaded at an industrial facility on our waterfront, and the significant associated risk to public health and coastal waters and activities, we passed an ordinance to protect future waterfront redevelopment efforts and the health of our residents,” said South Portland Mayor Kate Lewis. “We are very pleased that the Court recognized our right to do so under our home rule authority. We look forward to the final resolution of the case.”

The case now returns to the U.S. Court of Appeals for the First Circuit to rule on the questions of federal law appealed by PPLC. 

Foley Hoag is a Boston-based law firm with a leading environmental law practice. The team representing the City of South Portland was led by Ettinger, and comprised of partners Euripides Dalmanieras and Jesse Alderman. Sally Daggett and Mark Bower of Jensen, Baird, Gardner & Henry in Portland served as co-counsel.

About Foley Hoag LLP

Foley Hoag provides innovative, strategic legal services to public, private and government clients across the globe. We have premier capabilities in the life sciences, healthcare, technology, energy, professional services and private funds fields, and in cross-border disputes. The diverse backgrounds, perspectives and experiences of our lawyers and staff contribute to the exceptional senior level service we deliver to clients ranging from startups to multinational companies to sovereign states. For more information, visit www.foleyhoag.com or follow @FoleyHoag on Twitter.