Foley Hoag Secures Victory for City of South Portland Upholding the Clear Skies Ordinance

On July 15, 2021, Foley Hoag LLP obtained an important victory for its client, the City of South Portland, by securing the voluntary dismissal of a lawsuit brought by Portland Pipe Line Corporation and the American Waterways Operators (collectively, “PPLC”) that sought to overturn the City’s Clear Skies Ordinance.  The Ordinance prohibits the bulk loading of crude oil onto marine tank vessels in the City’s harbor. Following more than six years of litigation, PPLC filed a Dismissal Agreement with the U.S. Circuit Court of Appeals for the First Circuit (the “First Circuit”), effectively upholding the Clear Skies Ordinance and ending their lawsuit.

“We commend the City Council for having the courage and commitment to defend its principles and its Clear Skies Ordinance against an aggressive challenge,” said Jonathan Ettinger, a partner at Foley Hoag LLP and lead attorney on the case. “This case confirms that state and local governments across the country may exercise important police powers to regulate oil pipeline and terminals to protect air quality, scenic vistas, and quality of life.  It has already been cited in litigation addressing similar challenges elsewhere.”

The dismissal follows the City’s victory in the U.S. District Court for the District of Maine; the City’s victory in the Supreme Judicial Court of Maine sitting as the Law Court, which ruled on questions of Maine state law certified by the First Circuit; and the filing last month of a brief amicus curiae in the First Circuit by the U.S. Department of State, U.S. Department of Transportation, U.S. Coast Guard, and other federal agencies agreeing with the City’s arguments that the Clear Skies Ordinance is constitutional and not in violation of any federal laws or foreign policies.

In 2014, responding to concerns of the citizens about efforts by PPLC to reverse the flow of crude oil to carry crude oil from Montreal to South Portland, including oil from western Canada’s tar sands formation, the City Council enacted the Clear Skies Ordinance. In 2015, PPLC sued to overturn the Clear Skies Ordinance, bringing a nine-count complaint in the U.S. District Court for the District of Maine. In December 2017, the Court ruled in the City’s favor on eight of nine counts – that the ordinance was not preempted by the federal Pipeline Safety Act, the federal Ports and Waterways Safety Act, or the Maine Oil Discharge Prevention Law; it was not preempted by federal powers over foreign affairs or maritime commerce; it did not violate Portland Pipe Line’s due process or equal protection rights; and it was not inconsistent with the City’s Comprehensive Plan – but found that a trial was needed on a claim based upon the U.S. Constitution’s Commerce Clause. After four days of trial in August of 2018, the Court ruled in the City’s favor on the final claim, finding that the ordinance “does not discriminate against interstate or foreign commerce on its face, in effect, or in purpose.”

PPLC appealed the judgment to the U.S. Circuit Court of Appeals for the First Circuit, which then certified three questions to the Supreme Judicial Court of Maine, sitting as the Law Court. In November of 2020, the Law Court held that Maine’s Coastal Conveyance Act does not preempt the Clear Skies Ordinance. The case returned to the First Circuit, which solicited the views of the United States government. The United States filed a brief amicus curiae supporting the City’s position in late June 2021.

“I applaud the decision to dismiss by Portland Pipe Line, which will allow both them and our community to move forward,” said South Portland Mayor Misha Pride. “I am proud of our community for having the fortitude to stand up for what we believed to be right, and to invest the time and financial resources necessary to defend ourselves.  That effort has now finally paid off.”

“This is a very good outcome for our community,” Pride added.  “The Ordinance enacted by a prior City Council will stand, and I hope we can also rebuild our relationship with PPLC.  It is in both of our interests to work together on future plans for their various properties in South Portland.”

Mayor Pride also thanked the City’s lawyers for their commitment to defending the City.  The team consisted of Foley Hoag attorneys Jonathan Ettinger (who led the team), Jesse Alderman, Euripides Dalmanieras, Stephen Bartlett, and Aaron Lang, and Sally Daggett and Mark Bower of Jensen Baird Gardner & Henry of Portland.