Maine’s Supreme Court could decide a nearly five-year-old court battle between South Portland and Portland Pipe Line Corp. The U.S. Circuit Court of Appeals in Boston has asked the Maine Supreme Judicial Court to determine whether the city’s Clear Skies Ordinance conflicts with state law. The pipeline company filed a federal lawsuit in 2015 challenging the ordinance. Shawn Patrick Ouellette / Portland Press Herald

SOUTH PORTLAND — The latest battle in a legal case spanning five years between the city of South Portland and the Portland Pipe Line Corp. may ultimately boil down to the definition of one word: order.

That was a key point of discussion during opening arguments between both parties before the seven justices of the Maine Supreme Judicial Court on Wednesday morning. The city is arguing against the oil pumping operation, staying that it creates an environmental hazard.

The pipeline was once part of an operation to send crude oil to Canada, but that work has ceased and the company has been considering since 2009 the option of reversing the pipeline and resuming operations, this time bringing oil into the country.

In 2014, the city passed an ordinance, dubbed the Clear Skies Ordinance, that effectively blocked the operation. At the time, officials created the ordinance to halt the import of tar sands oil, which environmentalists argue contributes to climate change.

The company sued in 2015, first going to federal court, then deferring to a January 2020 order from the 1st U.S. Circuit Court of Appeals in Boston to address the issue on the state level first.

The core of the state-level argument, discussed Wednesday morning, surrounds a law within the Maine Coastal Conveyance Act that indicates nothing can stop the city from having such an ordinance, as long as the ordinance is not “in direct conflict with … any rule or order” issued at the state level.

Nolan Reichl, of the Portland law firm Pierce Atwood, represented the Portland Pipe Line Corp. He told the court that the state Department of Environmental Protection has already issued the company a license to operate. That, he argued, constituted an “order” and thus means the Clear Skies Ordinance conflicts with state law. Therefore, he said, allowing the city’s ordinance to stand means allowing the city’s authority to supersede the state’s.

“That means, according to the city, that any municipality at any time can effectively veto any license issued by the DEP,” Reichl told the court.

The proceedings were streamed live via audio, with no indication of which justices were speaking, but when questioning Reichl, one justice defined a license as permission, not an order.

“It doesn’t order (the company) to do anything,” he said. “It sets out conditions if they decide to go to that location (in South Portland). It doesn’t order them to build and it doesn’t order the municipality to do anything.”

Reichl disagreed with the justice’s interpretation, saying, “I would best characterize it as a layman’s definition of the word ‘order.’ In a legal context, ‘order’ takes on a different meaning.”

Jonathan Ettinger, an attorney with the Boston law firm Foley Hoag, represented the city. He argued that a license is not an “order” and disagreed that the state law prevents the city from enacting its own ordinances.

“There’s nothing in the language of the statute or anywhere else that suggests the legislature intended to preempt the City Council’s authority,” Ettinger said.

Ettinger added that a DEP license is not related to the issues that led to the city creating the ordinance.

“The state determined only that the facility met the technical requirements that would permit it to issue a license,” Ettinger said. “The city has made a separate determination that that activity is not appropriate in that location and that is a determination that not only didn’t the state make, it’s not permitted to make it. It’s not given the authority to make that decision and that’s a key distinction.”

The justices said they would take the arguments under advisement and issue a ruling at a later date. If they rule in favor of the company, the ordinance would be struck down and the case will end. If not, the company will continue its appeal on the federal level.

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