by Juliette Laaka
The Forecaster news story
SOUTH PORTLAND — The lawsuit challenging the city’s Clear Skies Ordinance is scheduled to go to trial June 18 in U.S. District Court.
The City Council transferred more than half a million dollars to the ordinance defense fund Tuesday in anticipation of the trial, and approved zoning changes to help advance an affordable housing project proposed for Main Street.
The unanimous vote appropriated more than $546,000 from an unassigned fund balance to the Clear Skies defense fund. The case is slated for a four-day bench trial before Judge John A. Woodcock Jr. June 18-22.
The city has already spend $1.4 million on the litigation filed by Portland Pipe Line Corp., and has received $168,000 in donations to help defend itself. The city’s attorneys are preparing witnesses and exhibits for trial as well as preparing and filing pre-trial motions, according to City Manager Scott Morelli.
In December, Woodcock largely rejected arguments from Portland Pipe Line challenging the legality of South Portland’s municipal ban on crude oil exports.
The suit has been pending for more than three years.
Portland Pipe Line sued in February 2015 to overturn the city ordinance adopted in 2014. It established amendments to the city’s zoning ordinance related to the bulk loading of crude oil onto ships.
The company argued the ban was unconstitutional because it interferes with interstate trade, discriminates against Canadian interests, devalues the pipeline and infringes on areas of regulation best left to the federal government.
The city sought summary judgment in 2017, contending there were no disputed facts that necessitated a trial, and the court could examine the facts and make a decision based on applicable law.
Woodcock in December granted summary judgment in the city’s favor on most of the counts in the complaint, but took no stance on the critical question of the ordinance’s impact on interstate and foreign commerce.
Instead, he wrote that a future “fact finder” – potentially the court – would have to resolve those federal commerce issues given that “the parties disagree both mildly and vigorously about facts critical to the resolution of the Commerce Clause issue.”
“The city claims the ultimate effect of the ordinance is not to block pipeline reversal because crude can be exported by other means, including by rail,” Woodcock said. “(The company) maintains the practical and intended effect is to block its plan for pipeline reversal and therefore block the flow of Canadian oil to other markets. Both parties present evidence … to support their factual claims. There are genuine disputes of material fact as to primary effect and primary purpose of the ordinance. The Council’s primary purpose and intent in enacting the ordinance, as well as its primary practical effect, will have to be resolved by a fact finder.”
The money approved May 1 is the fourth appropriation to the Clear Skies Ordinance Legal Defense Fund and will include $500,000 from unassigned fund balance and $46,505 from additional donations received to date.