Jensen Baird Obtains Victory for City of South Portland in Lawsuit Over Clear Skies Ordinance

In July of 2021, Jensen Baird obtained an important victory for its client, the City of South Portland, by securing the voluntary dismissal of a lawsuit brought by Portland Pipe Line Corporation and the American Waterways Operators (collectively, “PPLC”) that sought to overturn the City’s Clear Skies Ordinance.  The Ordinance prohibits the bulk loading of crude oil onto marine tank vessels in South Portland.  Following more than six years of litigation, PPLC filed a Dismissal Agreement with the U.S. Circuit Court of Appeals for the First Circuit, effectively upholding the Clear Skies Ordinance and ending the lawsuit.

In 2014, responding to concerns of the citizens about efforts by PPLC to reverse the flow of crude oil to carry crude oil from Montreal to South Portland, including oil from western Canada’s tar sands formation, the South Portland City Council enacted the Clear Skies Ordinance.  In 2015, PPLC sued to overturn the Clear Skies Ordinance, bringing a nine-count complaint in the U.S. District Court for the District of Maine. 

In December 2017, the Court ruled in the City’s favor on eight of nine claims – that the ordinance was not preempted by the federal Pipeline Safety Act, the federal Ports and Waterways Safety Act, or the Maine Oil Discharge Prevention Law; it was not preempted by federal powers over foreign affairs or maritime commerce; it did not violate Portland Pipe Line’s due process or equal protection rights; and it was not inconsistent with the City’s Comprehensive Plan – but found that a trial was needed on a claim based upon the U.S. Constitution’s Commerce Clause.  After four days of trial in August of 2018, the Court ruled in the City’s favor on the final claim, finding that the ordinance “does not discriminate against interstate or foreign commerce on its face, in effect, or in purpose.”

PPLC appealed the judgment to the U.S. Circuit Court of Appeals for the First Circuit, which then certified three questions of State law to the Maine Law Court.  In November of 2020, the Law Court held that Maine’s Coastal Conveyance Act does not preempt the Clear Skies Ordinance.  The case returned to the First Circuit, which solicited the views of the United States government.  In June of 2021, the United States filed an amicus curiae brief supporting the City’s position that the Clear Skies Ordinance is constitutional and not in violation of any federal laws.

“I applaud the decision to dismiss by Portland Pipe Line, which will allow both them and our community to move forward,” said South Portland Mayor Misha Pride.  “I am proud of our community for having the fortitude to stand up for what we believed to be right, and to invest the time and financial resources necessary to defend ourselves.  That effort has now finally paid off.”  “This is a very good outcome for our community,” Pride added.”

Mayor Pride also thanked the City’s lawyers for their commitment to defending the City.  The City’s legal team included Sally Daggett of Jensen Baird’s Government Services Practice Group and the Boston law firm of Foley Hoag LLP. Sally serves as Corporation Counsel for the City of South Portland.