November 2, 2013

Lawyers parse South Portland ‘tar sands’ law word by word

If it passes Tuesday, competing interpretations of the Waterfront Protection Ordinance will likely be put to the test in court.

By Matt Byrne mbyrne@pressherald.com
Staff Writer

If South Portland voters approve the controversial Waterfront Protection Ordinance on the city ballot Tuesday, the law will likely end up in court, lawyers and city officials say.

click image to enlarge

In this Oct. 18 file photo, the oil tanker Gagnes Spirit jockeys for position with the help of a couple of tugboats at the Portland Pipeline Corporation dock just behind Bug Light in South Portland. If South Portland voters approve the controversial Waterfront Protection Ordinance on the city ballot Tuesday, the law will likely end up in court, lawyers and city officials say.

Gabe Souza/Staff Photographer

But first, voters who aren’t accustomed to parsing legal arguments will weigh the claims of both sides, which have presented completely different interpretations of the same few paragraphs of law.

Opponents of the proposed ordinance say it would kill waterfront business, prevent growth and scuttle jobs. Advocates say the ordinance would only prevent any future exports of Canadian tar sands oil through the city, and would not affect ongoing businesses.

Before a judge, however, those arguments may not be as simple or clear as voters have been led to believe.

“It’s likely to invite litigation,” said Erik Stumpfel, an attorney with Rudman Winchell in Bangor, who at the request of the Portland Press Herald provided a cursory appraisal of what legal issues and arguments could lie ahead. “That’s clear from the intensity of the debate being waged on both sides.”

The proposed law would change what is allowed in South Portland’s shipyard district, and within a 250-foot ribbon of land that hugs portions of the city’s commercial zones.

The city’s zoning now allows petroleum handling operations, including tank farms and other petroleum-related businesses, in those areas.

The Waterfront Protection Ordinance would add language to the definition of an allowed petroleum use, to more strictly define it as only the off-loading of petroleum from ships docked in South Portland.

The intent, the authors say, is to prevent the export of tar sands oil through the city while preserving the offloading of petroleum the way it has been done on South Portland’s waterfront since the 1940s.

TAR SANDS ISSUE

The Waterfront Protection Ordinance is intended to employ the city’s land use authority to prevent Portland Pipe Line Corp. from using one of its underground pipes to bring Canadian tar sands oil to terminals in South Portland for shipment to faraway refineries.

The oil is a thick form of raw petroleum, mixed with sand and water, that lies in vast reserves under Alberta. Until recent price spikes in the global market, tapping those reserves was considered too costly.

The oil poses unique challenges. At room temperature, it has the consistency of cold molasses, so it must be diluted with chemicals to make it flow easily through a pipeline. The chemicals, some of which would be burned off in the handling process, contain benzene, a known carcinogen, supporters of the ordinance say.

Referendum supporters have called the threat of tar sands oil imminent if the ordinance is not passed, and framed the vote as a public health issue. They say that a spill from the pipeline could endanger Casco Bay and the Sebago Lake watershed, which provides drinking water for much of Greater Portland.

Even without a spill, they say, gases emitted in the handling of tar sands oil are harmful and could cause respiratory ailments.

Many also cite the risk of accelerated climate change if the Canadian oil is developed and exported.

Businesses connected to the petroleum industry have spent more than $600,000 so far to defeat the proposed ordinance.

They argue that there is no plan to bring tar sands oil through the city, and that the ordinance language is so broad it would devastate existing businesses that have nothing to do with the controversial crude.

Referendum opponents have commissioned telephone polls, sent glossy mailers to residents, hired costly marketing professionals and paid for an economist to write a study envisioning a waterfront without businesses.

KEY PHRASE DRAWS SCRUTINY

Much of the doubt raised by the law’s opponents has centered on a provision that would prohibit expansion or enlargement of existing petroleum-handling facilities, defined as construction, reconstruction or alteration of a facility that would change its function or capacity.

(Continued on page 2)

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