2016-11-11 / Front Page

Decision in pipeline lawsuit put off to spring

By Wm. Duke Harrington
Staff Writer

SOUTH PORTLAND — The lawsuit against South Portland over its Clear Skies Ordinance will probably not go before a judge until the spring, based on a pre-filing conference held Nov. 2 in U.S. District Court.

According to U.S. District Judge John Woodcock, that new timeline calls for summary judgment motions on Nov. 17, with responses from each side due to the court by Dec. 20 and follow-up replies by Jan. 13.

A summary judgment motion is a request to have the court decide the case based on legal arguments, where no material facts are in dispute. If successful, this sidesteps the need for a trial.

But the filing will then trigger expert witness motions on Jan. 13, with responses and replies to that due by Feb. 3.

Although the case – in which Portland Pipe Line Corp is suing to overturn the city’s 2014 ban on “tar sands” oil – is far from resolution, Mayor Tom Blake addressed the issue at the Monday, Nov. 7 city council meeting, noting that the defense has cost the city $747,741 as of Nov. 7.

“It has become clear to me during recent debates and community discussions, that we have not always done all that we could to disseminate information to our community regarding the pending lawsuit,” Blake said. “We apologize for the lack of recent updates and will strive to improve communications going forward. It is imperative to remember, however, that we are severely limited in what we can reveal regarding this ongoing and complex litigation.

“To review the internal documents from Portland Pipe Line Corporation that are relevant to our defense of many of the issues in the case, our attorneys were required to sign a protective order that keeps certain information confidential,” Blake said. “ While both the city and our attorneys prefer to defend this lawsuit in the open, this is standard at this phase of the litigation. I can assure the public that the city has excellent legal representation, with Jensen Baird Gardner & Henry and lead counsel Foley Hoag (of Boston) on our team. The city council and city manager receive updates when appropriate and continue to remain involved. At every stage of the litigation, detailed discussions take place and careful evaluation and consideration of available options takes place.”

“Once issued, Judge Woodcock’s decision on the parties’ summary judgment motions may or may not resolve the entire case short of trial,” Blake said. “The decision may simply narrow the issues for trial.

If the case is not fully resolved on the summary judgment motions, the case will proceed to trial. The date for that is unknown at this time. If the case is fully resolved on the parties’ summary judgment motions, the losing party may file an appeal to the First Circuit Court of Appeals in Boston.

“The defense of our Clear Skies Ordinance is neither quick nor inexpensive,” Blake said. “Due to the many variables, we cannot present the citizens with a final cost, nor can we state an end time. The citizens can rest assured that the city has set aside operating funds, donations and other unassigned balances totaling $900,000 to-date for these defense costs.”

At Monday’s meeting, the council accepted $72,580 in private donations earmarked for defense of the Clear Skies Ordinance, bringing total contribution to $102,105.

“As a council, and as a city that values the health and welfare of our citizens, we will continue to defend those values through the defense of the Clear Skies Ordinance,” Blake said. “Our specific arguments will soon be publicly available with the filing of summary judgment motions, and as this case progresses, we will keep the public informed of future actions.”

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