By Kelley Bouchard, Staff Writer
Portland Press Herald news story
The group posts a video requesting donations as the city’s legal costs head toward $1 million in the ‘Clear Skies’ ordinance case.
SOUTH PORTLAND — A local environmental group has ramped up efforts to help the city defend its so-called Clear Skies ordinance in federal court, launching a crowdfunding video campaign Tuesday to raise at least $25,000 toward legal costs that are nearing $1 million.
The professionally produced video, posted on Fundrazr.com and shared on Protect South Portland’s Facebook page, had raised more than $1,700 by Tuesday evening, drawing support from donors outside the city who favor the ordinance banning oil exports from South Portland.
The unusual appeal for private donations to defend a city in court intends to tap broader concern that the Portland Pipe Line Corp. might reverse its 236-mile pipeline to export Canadian crude oil known as tar sands.
Meanwhile, the city is preparing for oral arguments next week before the Maine Supreme Judicial Court on an appeal aimed at forcing its insurer, a risk pool of Maine Municipal Association members, to cover its legal costs in defending the ordinance against the pipeline company’s lawsuit.
The video campaign comes at a critical and opportune time as the city braces for the pro-petroleum policy changes indicated by President-elect Donald Trump and following the decision this week by the U.S. Army Corps of Engineers to deny an easement for the nearly complete Dakota Access oil pipeline in North Dakota.
The timing of the video campaign, on the heels of victory for thousands of pipeline protesters who camped out for months on the Standing Rock Sioux Reservation, is a “happy coincidence” that Protect South Portland hopes to build on, said Mary Jane Ferrier, spokeswoman for the grassroots group.
“We have two goals,” Ferrier said Tuesday. “To mobilize support, financial and otherwise, for our efforts and to help people realize just how wide that support is. A lot of people believe in our cause.”
VIDEO TARGETS OIL COMPANIES
Approved by the City Council in July 2014, the Clear Skies ordinance banned the loading of crude oil into tankers on South Portland’s waterfront and effectively blocked the Portland Pipe Line Corp. from potentially reversing the flow of its South Portland-to-Montreal pipeline.
The company filed a lawsuit in February 2015, claiming that the ban is unconstitutional because it interferes with interstate trade, discriminates against Canadian interests, devalues the pipeline and infringes on areas of regulation.
The fundraising video, titled “Big Oil’s Wealth vs. Community Health,” targets the Canadian-owned pipeline as a subsidiary of ExxonMobil and Suncor Energy, which operates a refinery in Montreal. The 75-year-old pipeline has been largely dormant for about a year because Canadian refineries have had little demand for foreign crude in the wake of increased tar sands oil production in Alberta. The pipeline’s inactivity has heightened local concern that the company might try to reverse its flow to allow the export of Canadian tar sands oil through South Portland.
The Fundrazr page seeks donations to the city’s Clear Skies Legal Defense Fund, saying “We wish to send a strong message to the courageous city of South Portland that people support the battle to protect our air, water and health.”
The page claims that the company “is suing to overturn an airtight ordinance South Portland passed to protect our air from the toxic fumes that would be spewed out during the burning off of chemicals needed to move tar sands through South Portland for export.”
The company didn’t respond to a call for comment Tuesday.
The city is acting “to protect the health and welfare of its residents and visitors and traditional land use authority to promote future development consistent with the comprehensive plan,” according to court documents. The Clear Skies ordinance cites concerns about air pollution associated with the bulk loading of crude oil into tankers.
DISPUTE OVER IMPACT OF TAR SANDS
Environmentalists have argued that exporting oil from the United States would accelerate global climate change. They particularly oppose the tar sands oil produced in Canada because it requires more energy extract and is more difficult to clean up in the event of a spill. However, petroleum industry representatives have said the oil is no more damaging than other crude oil.
Last month, lawyers for the city and the pipeline company submitted summary judgment motions that could allow U.S. District Judge John Woodcock Jr. to decide the case as early as February, thereby avoiding a trial. However, if any facts are in dispute, the judge could decide that all or part of the lawsuit should proceed to trial in the spring, which some city officials expect to be the result.
Whatever the outcome in U.S. District Court in Portland, the case will likely wind up in the U.S. Court of Appeals for the 1st Circuit in Boston, further driving up legal costs that have worried some city officials and taxpayers from the start.
The city has spent about $750,000 of the nearly $1 million that the council has set aside in the Clear Skies Legal Defense Fund. The city’s defense team includes its local attorney, Sally Daggett of Jensen Baird Gardner & Henry in Portland, and Foley Hoag, a prominent Boston law firm with environmental expertise.
CITY APPEALS INSURER LIABILITY RULING
Hoping to reduce the city’s legal costs, Daggett is pursuing a Superior Court complaint, filed in May 2015, that charged the Maine Municipal Association Property & Casualty Pool with breaching its duty by refusing to pay for the Clear Skies defense. In February, the court decided in favor of the MMA pool, made up of municipalities across Maine, finding that it had no duty to defend the ordinance because the pipeline company isn’t seeking damages.
The city appealed the decision to the state’s highest court. Daggett and MMA attorney James Bowie are scheduled to deliver oral arguments on the appeal next Wednesday before the Supreme Judicial Court in Portland.
Daggett declined to comment on the appeal. Bowie said the MMA risk pool is set up to cover legal fees related to relatively predictable claims for personal injury and property damage, not lawsuits seeking declaratory judgments or injunctive relief, like the pipeline case.
“The municipalities in the pool aren’t trying to cover each other’s political decisions,” Bowie said. The limits of the risk pool’s coverage have been challenged occasionally in the past, he said, but most municipalities understand that the pool is set up to cover incidents such as a public works vehicle damaging a building or injuring a person.
“The Superior Court correctly ruled that absent a claim for damages (by the pipeline company), the MMA risk pool had no responsibility to assist in the city’s defense (of the Clear Skies ordinance),” Bowie said.
NON-TAXPAYER DONORS, FILM FUNDRAISER
Just over $100,000 of the city’s defense fund has come from non-taxpayer-funded sources, including recent anonymous contributions of $20,000 and $50,000, $718 previously raised by Protect South Portland and $250 from Sebago Lake Anglers, according to the city manager’s office.
The fundraising video, produced by Betsy Carson of South Portland, was made using a $550 anonymous donation and the help of a committee that includes group members Roberta Zuckerman, Meg Braley, Abby Huntoon, Judy Kline, Sarah Lachance and Vanessa Sylvester.
Supporting organizations include Physicians for Social Responsibility, Maine State Nurses Association/National Nurses United, Natural Resources Council of Maine, 350 Maine, Environment Maine, Maine Association of Naturopathic Doctors, Toxics Action Center and Conservation Law Foundation, said Ferrier, of Protect South Portland.
The group is holding a separate fundraiser at 7 p.m. Wednesday with a showing of the film “This Changes Everything” at the Nickelodeon Cinema in Portland. Based on Naomi Klein’s international nonfiction bestseller, the film highlights communities around the globe that are fighting corporate interests to stop carbon pollution and climate change. All donations will go to the Clear Skies Legal Defense Fund.