2015-02-13 / Community

South Portland sued over tar sands ban

By Duke Harrington
Staff Writer

SOUTH PORTLAND — That sound you just heard? It was the other shoe dropping.

On Friday, Feb. 6, Portland Pipe Line filed suit in U.S. District Court to overturn South Portland’s “Clear Skies Ordinance.” Adopted last July by a 6-1 vote of the city council, that zoning update banned the loading of crude oil onto ships docked at South Portland piers. Although not mentioned in the regulations, the stated aim of the update was to block the flow of diluted bitumen — more popularly known as “tar sands” — through the city. State and local environmentalists have long feared that Portland Pipe Line might reverse the flow of its 236-mile-long connection to Montreal — which since the 1940s has sent crude to Canada for processing — and instead import tar sands produced in Alberta.

If tar sands were imported to the U.S. through Maine, those chemicals, many of which are known carcinogens, would be burned off in South Portland prior to loading the crude onto ships, for transport to refineries located elsewhere.

A legal challenge to South Portland’s tar sands ban has long been anticipated. In fact, shortly after adopting the Clear Skies Ordinance, the city created a special fund to solicit donations in hopes of mitigating the impact of a costly court fight on local taxpayers.

Within hours of Friday’s court filing, local environmental groups, who predicted its imminent arrival, vowed to stand by the city.

“We’re disappointed, to say the least,” said MJ Ferrier, spokesman for Protect South Portland, the grassroots group that championed the Clear Skies Ordinance after its own attempt to regulate tar sands, known as the Waterfront Protection Ordinance, was turned back at the polls by voters in November 2013.

According to a press release, two other groups, Environment Maine and the Natural Resources Council of Maine, will join Protect South Portland to intervene in the lawsuit. Additionally, the Conservation Law Foundation has said it will add its muscle to defend the ordinance.

“For more than a year now, Portland Pipe Line Corporation has been claiming that it has no plans to bring tar sands to Maine,” said Taryn Hallweaver, director of Environment Maine. “If this lawsuit isn’t proof enough of their intent, I don’t know what is. We’re proud to be standing with Protect South Portland and our partners to defend the Clear Skies Ordinance against this attack.”

On Monday, the city council met in executive session with its attorney, Sally Daggett, to discuss the suit. City Manager Jim Gailey has said he is working with the Maine Municipal Association, which insures the city, to fund a law firm to defend its position.

“I am holding all comment until the city can meet with the assigned firm who will be representing the city,” he said.

South Portland Mayor Linda Cohen also has declined to address the lawsuit.

“I will not be commenting at this time,” she wrote in an email Monday.

As of the Sentry’s Wednesday morning deadline, Portland Pipe Line spokesman Chris Gillis, president Tom Hardison and attorney Matthew Manahan had not responded to requests for comment.

Portland Pipe Line is joined in the lawsuit by American Waterways, a national trade association that represents tugboat and barge operators.

In the filing, Portland Pipe Line and American Waterways ask the court to overturn the Clear Skies Ordinance, claiming it violates the supremacy clause of the U.S. Constitution, which gives Congress the prerogative over interstate and international trade. It also says the ordinance conflicts with the due process and equal protection clauses of the Constitution, as well as sections of Maine law, the separation of powers portion of the Maine Constitution, and even South Portland’s own comprehensive plan.

That plan does recommend that existing oil facilities in the city be allowed to “upgrade or expand on parcels that are already used for that purpose,” in the city’s shipyard development district.

“The ordinance attempts to regulate pipeline safety in purpose and effect and intrudes into the federally preempted field of interstate pipeline safety,” reads a portion of the lawsuit. “The ordinance violates the constitutional rights of plaintiffs, and the harms they are suffering and will suffer from its enactment and enforcement are immediate, substantial, and incalculable, entitling them to declaratory and preliminary and permanent injunctive relief.”

This past fall, two new city councilors, Claude Morgan and Brad Fox, were elected with backing from Protect South Portland, based on their strong support of the Clear Skies Ordinance. The only councilor who voted against adoption of the ordinance, Michael Pock, was unseated in that election.

“It’s very frustrating that the oil industry would file this lawsuit after our city has spoken so loudly and clearly,” Ferrier said. “But we’re ready.”

Return to top