Court sets the stage for a challenge to Portland’s “Clear Skies” ordinance

Court sets the stage for a challenge to Portland’s “Clear Skies” ordinance

By: Sarah Hunter Didlake

Edited By: Andrew Lifsey

Portland Pipe Line Co. v. City of South Portland, No. 2:15-cv-00054-JAW, 2016 WL 589857;2016 U.S. DIST. LEXIS 17870 (D. Me. Feb. 11, 2016)

In a suit pending before the United States District Court for the District of Maine, Portland Pipe Line Corporation (“PPLC”) and The American Waterways Operators (“AWO”) filed a nine-count complaint for both declaratory and injunctive relief against the City of South Portland (“the City”). PPLC seeks to enjoin the City’s exercise of its 2014 “Clear Skies” ordinance, which prohibits the loading of crude oil in Portland Harbor. In response, the City— arguing that the suit was non-justiciable—moved to dismiss on the grounds that the suit was unripe, that PPLC lacked standing, and that a ruling on the merits would constitute an impermissible advisory opinion.

The court provided a well-detailed account of the history of the ordinance and potential conflicting federal laws and international treaties. In short, the ordinance was not only adopted a mere eight months after voters rejected a similar initiative, but was also so legally controversial that the City established a defense fund soliciting donations in anticipation of legal challenges.According to the court, the measure was intended to “regulate interstate and international commerce so as to preclude the importation of Canadian products derived from oil sands,” a goal which was based upon the “objective of affecting United States foreign policy.” As a crucial matter for this case, in both purpose and effect, the ordinance prohibits PPLC from reversing the flow of its existing pipeline to bring oil from Canada to South Portland.In denying the instant motion to dismiss, the court first found that the case was ripe for review—notwithstanding the fact that PPLC had not presented the requisite, current plans to reverse the flow of any existing pipelines. Instead, the court agreed that the company “cannot market a service that is illegal” and was satisfied with PPLC’s capability and prior history of modifying their infrastructure to allow reversal. Accordingly, the court held that “but for the ordinance, PPLC would commence plans to reverse the flow” to meet the changing market conditions.  Similarly, the court found that the plaintiffs had standing because, as a result of the ordinance, PPLC and the trade association had suffered injury, which would be redressed by invalidation of the challenged ordinance. Finally, the court concluded that its finding of a “substantial controversy admitting specific relief of a conclusive character” would not render a ruling on the merits an unconstitutional advisory opinion.Although the motion was decided on procedural grounds, the court in dictum repeatedly expressed concern over the local ordinance’s ability to restrict interstate and international commerce as well as the potential “precedential impact of the ordinance, if copied in other United States harbor municipalities.” This concern will likely be addressed in further proceedings, as the plaintiffs’ nine claims directly challenge the ordinance by arguing preemption not only by state and federal laws, but also by international treaties and agreements.Ultimately, the court found the City’s justiciablility arguments unavailing and denied the defendant’s motion to dismiss.