SOUTH PORTLAND — The city has lost the first procedural battle in its attempt to defend the Clear Skies Ordinance in court.
The ordinance, which was passed by the City Council in the summer of 2014, effectively bans the importation of bulk crude oil into South Portland.
Although the local rule makes no reference to it, the purpose of the ordinance is to prevent tar sands oil from being piped from Canada to the city by Portland Pipe Line Corp. Residents objected on a variety of environmental and health concerns to the possibility of tar sands coming through the city.
Several months after the ban was approved, Portland Pipe Line sued the city in federal court, making several claims, including that South Portland had overstepped in trying to control elements of international commerce.
Portland Pipe Line owns two pipelines that currently pump oil from South Portland to Montreal, Quebec, where the oil is then refined.
However, the company has repeatedly said that under current market conditions it makes better economic sense to reverse the flow and bring Canadian crude oil to South Portland.
The city responded to the lawsuit with several motions of its own, including a motion to dismiss the claims altogether.
In its motion, South Portland argued the pipeline company had acted precipitously in filing the suit because it had no immediate plans or capability to bring in tar sands oil from Canada, and several steps would be required before the company was even in a position to reverse the flow.
But, in a ruling on Aug. 24, Judge John Woodcock, chief judge of the U.S. District Court in Maine, denied South Portland’s motion to dismiss the lawsuit, finding that the pipeline’s challenge to the legality of the Clear Skies Ordinance is justiciable.
“The premise of the lawsuit is that (the company) has concrete plans to reverse the flow of oil in its pipeline and that the current South Portland Clear Skies ordinance prohibits (those plans) … thereby effectively barring the pipeline reversal,” Woodcock found.
In other words, the judge said Portland Pipe Line would reverse the flow of oil if it could.
In fact, in testimony before Woodcock on Aug. 9, Thomas Hardison, president of Portland Pipe Line, “presented the reversal as a matter of corporate life or death,” the judge said.
“He described (the company) as being on life support and he said that (the pipeline) needed the reversal project for its very survival as a business,” Woodcock added.
The judge accepted as true that the pipeline was shipping 275,000 barrels of oil per day to Montreal in 2013 and in 2016 it was down to shipping only 23,000 barrels per day.
In a statement issued after the judge’s ruling, Scott Morelli, South Portland city manager, said the “decision does not involve the judge reaching the merits of (the pipeline’s) challenges to the city’s Clear Skies ordinance.”
Morelli said the merits of the case, including whether South Portland’s local ordinance is even legal, are still to be decided. And, he said, the city has one more chance to get the case thrown out before a full trial can be held.
Morelli was referring to motions for summary judgment now pending before Woodcock, which, he said, would likely be decided in the next few weeks.
For its part, Portland Pipe Line said the company is “pleased with the court’s decision,” and “our challenge of the so-called Clear Skies ordinance will continue.”
Portland Pipe Line’s lawsuit challenging the legality of South Portland’s ordinance banning the importation of bulk crude oil can continue, a federal judge ruled last week.