Attorneys for the Portland Pipe Line Corp. filed a notice of appeal Wednesday in Portland, announcing that the company will seek to overturn the U.S. District Court ruling that upheld South Portland’s “Clear Skies” ordinance.

The appeal will be heard by the 1st U.S. Circuit Court of Appeals in Boston. A court date has not been set.

In August 2018, a judge for the U.S. District Court in Portland ruled that South Portland has a right to enact zoning ordinance amendments that prohibit an activity that has never occurred in the city – the bulk loading of foreign crude oil onto tankers.

The ordinance, which was adopted in 2014, effectively blocked the company from reversing the flow of a 236-mile pipeline that has carried foreign crude from harbor terminals in South Portland to refineries in Montreal since World War II.

District Court Judge John A. Woodcock Jr. ruled that the ordinance does not violate the Foreign Commerce clauses, due process, or equal protection clauses of the U.S. Constitution and is consistent with the city’s Comprehensive Plan.

The company issued a statement Wednesday explaining why it filed the appeal.

“Portland Pipe Line Corporation continues to believe that the city of South Portland’s so-called Clear Skies ordinance is preempted by state and federal law and otherwise violates the United States Constitution,” company President Thomas Hardison said in the statement.

Hardison asserts that the purpose of the city’s ordinance and its effect is to prevent the interstate and international transportation of crude oil in the company’s pipeline for shipment to interstate and international markets.

“This sort of patchwork local regulation, if allowed here and in other U.S. ports, will adversely impact the national and international crude oil trade,” Hardison said. “As the length of the trial court’s proceedings and written decisions indicate, the issues involved in this case are difficult and important, not just to the parties but throughout the country.”

APPEAL DISAPPOINTS CITY

South Portland and its attorney issued a statement Wednesday evening that said the city is “disappointed” by the company’s decision to appeal Woodcock’s ruling.

“We have every confidence that the 1st Circuit will agree with the painstaking and thoroughly reasoned decision of the District Court and uphold the Clear Skies ordinance,” Jonathan Ettinger, who serves as South Portland’s lead counsel, said in the statement. Ettinger works for Foley Hoag LLP, a Boston-based law firm.

“After three years of litigation, hundreds of pages of briefings and five days of trial, Judge Woodcock wrote a comprehensive decision that affirms the city’s right to protect its residents from the harmful effects of crude oil loading,” Ettinger said.

POSSIBLE FLOW REVERSAL

South Portland Mayor Linda Cohen also weighed in.

“We have said from Day 1 that the city can prohibit the industrialization of our coastline and neighborhoods to load hundreds of thousands of barrels of crude oil in the same manner the city could prohibit a slaughterhouse or a refinery,” Cohen said. “We were delighted with the District Court’s decision and we look forward to a quick resolution of the appeal.”

Portland Pipe Line is a Canadian-owned subsidiary of ExxonMobil, Shell and Suncor Energy. During a bench trial in June, the company testified that tanker deliveries of crude oil to terminals in South Portland had essentially stopped and that the company’s future depended on reversing the flow of the pipeline. The city said allowing tankers to load crude oil would flout the city’s comprehensive plan and further stunt economic development in a region that’s otherwise booming.

Rather than off-loading oil in South Portland and transporting it through the pipeline to Montreal, Portland Pipe Line has expressed interest in shipping tar sands oil from Canada to South Portland, where the oil could be loaded onto tankers and shipped to other markets.

The notice of appeal names the Portland Pipe Line Corp. and The American Waterways Operators as plaintiffs in the case. The Pierce Atwood law firm in Portland represents the companies.

Dennis Hoey can be contacted at 791-6365 or at:

[email protected]

filed under: