By Kate Irish Collins
KeepMEcurrent.com news story
Familiar players are lining up as South Portland faces legal action regarding its tar-sands ordinance.
The citizen-based and environmental groups that played an integral part in getting the South Portland ban on tar-sands oil passed last July are lining up to support the city now that it’s been sued.
Protect South Portland, along with Environment Maine, the Natural Resources Council of Maine and the Conservation Law Foundation, have all publicly voiced their concern regarding the suit, as well as their plans to staunchly defend the new local law, dubbed the “Clear Sky” ordinance, which took effect in August.
Portland Pipe Line Corp. and The American Waterways Operators, the national trade association representing the tugboat, towboat and barge industry, filed a lawsuit in federal court last week arguing that the city’s tar-sands ban is unconstitutional, as well as a violation of several federal and state statutes.
The city has yet to respond to the suit, with both City Manager Jim Gailey and Mayor Linda Cohen saying they could not comment. The City Council held an executive session regarding the lawsuit on Monday, but no official action or vote was taken.
Gailey said this week the city would seek the assistance of outside counsel in defending the lawsuit, adding that he will be working with the Maine Municipal Association to vet potential defense attorneys.
Gailey also said that while the City Council voiced support for the creation of a special reserve account to collect donations in defense of the tar-sands ban this past August, that account was never created.
“Now that the lawsuit has happened,” Gailey said this week, “I can envision the council taking up the concept (at) an upcoming meeting.”
Otherwise, he said, the cost of defending the lawsuit would come out of the city’s general legal fund, which relies on taxpayer dollars.
In an official statement regarding the lawsuit, Protect South Portland spokeswoman Mary-Jane Ferrier said, “We’re disappointed, to say the least. Our whole community came together to stop the threat of smokestacks at Bug Light Park and toxic air pollution (and) we’re ready to come together again to continue protecting South Portland.”
She said it’s the intention of her group to seek intervener status in the lawsuit, adding, “South Portland has spoken. The tar-sands industry is trying to reverse the will of the people and we won’t let that happen.”
Conversely, Jim Merrill, spokesman for Portland Pipe Line, said, “The company believes that the ordinance unfairly infringes upon (its) rights and (those of) other responsible area operators to conduct business.”
Specifically, the suit, which was filed Feb. 6, argues that the ban on tar-sands oil in South Portland violates the supremacy and commerce clauses of the U.S. Constitution, along with the corporation’s due process and equal protection rights.
In addition, the lawsuit claims the ban also violates the federal pipeline safety and port and waterways safety acts, as well as the acknowledged right of the federal government to control maritime activities.
And, the suit argues, South Portland’s local ban on tar sands violates the civil rights of the plaintiffs under Maine’s civil rights act and that the ban is inconsistent with the city’s own comprehensive plan.
The pipeline corporation has asked the federal court for “declaratory and injunctive relief,” which essentially means it wants the judge to prevent the city from enforcing its tar-sands ban, as well as making a judgment on whether the ban is illegal.
The basic claim of the pipeline is that through passage of the tar-sands ban, the city of South Portland has “retarded international and interstate commerce arising out of the trade of crude oil violating multiple provisions of the U.S. and Maine Constitutions, as well as federal and state statutes.”
The suit adds, “The purpose and effect of the (ban) is to hinder international and interstate commerce and to discriminate against Canadian interests by prohibiting the loading of Canadian crude oil at the harbor in South Portland.”
The plaintiffs also argue that the ban on tar sands “could cripple import and export activities nationally and invite reciprocal commerce curtailment from other nations.”
In laying out its claims, the pipeline said that Portland Harbor is the second largest oil port on the East Coast and that it serves as a “key center for shipping.” It also calls South Portland’s waterfront “a critical interstate and international hub for the transportation of petroleum and petroleum products.”
As part of its suit, Portland Pipe Line has admitted that its pipelines are “currently underutilized due to market conditions that favor the transportation of oil south from Canada to the United States, instead of from the harbor north.”
Those lining up to fight the lawsuit said this is really the crux of the issue.
“This action shows (Portland Pipe Line) doesn’t care about the will of the people of South Portland or their health and well-being. They are putting profits first for the company and its parent, Exxon-Mobil,” said Lisa Pohlmann, executive director of the Natural Resources Council of Maine.
But, in its suit, the pipeline corporation makes the case that its “petroleum handling facilities constitute a vital hub for the interstate and international delivery of petroleum products, providing the interstate region with a reliable supply of products necessary for heating homes and businesses, among other uses.”
The plaintiffs argue that the local tar-sands ban puts a wrench in the pipeline’s ability to be fully functional.
“The (ban on tar sands) cripples the commercial activities, not only of the plaintiffs, but of all harbor-related actors,” the lawsuit says. And, “the history of (the ban) reflects that both the purpose and effect is to regulate interstate and international commerce so as to preclude the importation of Canadian products derived from oil sands.”
In arguing against the tar-sands ban, the lawsuit concludes, “It is up to federal authorities, not the city of South Portland, to determine how (Portland Pipe Line Corp.) pipelines should be operated, what product they should carry and whether they should be used for import or export. (And), it is up to federal authorities, not the city of South Portland, to determine what restrictions, if any, should be imposed on the loading and export of product onto ships (in) Portland Harbor.”
But in a statement, Sean Mahoney, vice president of the Conservation Law Foundation, said, “The city of South Portland engaged in a thoughtful, transparent and exhaustive process in exercising its authority to protect the health and well-being of its citizens.”
Mahoney added, “The Clear Skies ordinance is a rational and appropriate response to a proposed industrial activity that had no precedent whatsoever in the city and that would have posed serious health risks to nearby residents.”
Ferrier agreed and said the tar-sands ban is a “well-crafted ordinance based to a great extent on the city’s home rule authority to legislate for the health and well-being of its citizens. The process by which it was put together was incredibly transparent and open.”
That’s why, she said, it is “very frustrating that the oil industry would file this lawsuit after our city has spoken so loudly and clearly. It’s a pity that the pipeline, which has consistently billed itself as a good neighbor, would fly in the face of what is clearly the will of the people.”
Taryn Hallweaver, director of Environment Maine, said, “For almost two years now Portland Pipe Line has repeatedly claimed it has no plans to bring tar sands to South Portland. If this lawsuit isn’t proof enough of their intent, I don’t know what is.”
She added, “It’s hugely disappointing, though unfortunately not surprising, that the oil industry is attempting to reverse the will of the people in South Portland. We’re very proud to be standing with Protect South Portland to defend the Clear Skies ordinance.
“Thousands of people in South Portland came together to protect their community, and won a historic victory against the most powerful industry on the planet. We don’t intend to sit idly by,” Hallweaver said.