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South Portland molds tar sands panel; oil industry threatens to sue

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South Portland molds tar sands panel; oil industry threatens to sue

SOUTH PORTLAND — Keep it small, make it quick, and leave it to the experts.

That summarizes the likely charge of a committee that will be asked by the City Council to draft an ordinance to block "tar sands" oil from the city, even though the oil industry is threatening to sue if the city tries to regulate the pipeline used to bring in the Canadian oil from Montreal.

“I would like the ordinance rewritten so we can protect ourselves from tar sands,” Councilor Patti Smith said Wednesday.

The committee was not formally created during a council workshop lasting more than three hours, and Mayor Jerry Jalbert was careful to remind an audience of about 75 people there would be no votes taken during the session.

But the consensus was reached to form a three-person committee with a facilitator, budget, and access to expert opinions. It would draft an ordinance that will prevent the flow of tar sands to and through the city in pipelines owned by Portland Pipe Line Corp.

The ad-hoc committee will not look into health and safety issues, or wider waterfront development questions, although councilors are also expected to form a standing committee early next year to study the future of the working waterfront.

The committee's narrow scope reflects only that the council does not want unrefined tar sands oil imported to the city by Portland Pipe Line Corp.

City Manager Jim Gailey and Mayor Jerry Jalbert sought advice from University of Southern Maine professor Jack Kartez, who teaches at the Muskie School of Public Service.

Kartez suggested the committee have a mediator or facilitator and several neutral parties, while working with a clear task at hand. As councilors discussed the committee Wednesday, former School Board member Jeff Selser, a land use attorney, suggested three to five members be selected if the intent is to legislate, as opposed to studying, tar sands oil.

“If you are looking for regulation, you want drafts people,” Selser said.

He suggested the committee search for a specific element critical to importing tar sands that the city could regulate without conflicting with federal regulations.

Councilor Maxine Beecher, who opposed the Waterfront Protection Ordinance voters rejected in November because she believed it was inconsistent with the revised Comprehensive Plan she stewarded in October 2012, agreed with Smith on an ordinance.

“I don't want unrefined tar sands here, I don't want it sinking to the bottom of Casco Bay," Beecher said.

The committee will be selected by councilors who review applications. Gailey said a request for a facilitator should be posted by the middle of next week. Once formed, the committee will work independently from the council and city staff.

The workshop on the committee came five days before a scheduled Dec. 16 second reading and council vote on a proposed 180-day moratorium on "development proposals involving the loading of oil sands/tar sands products onto marine tank vessels docking in South Portland."

API threat

The moratorium needs five votes to be enacted, and could face a legal challenge from the Washington, D.C.-based American Petroleum Institute, the lobbying organization that provided funding and in-kind services to oppose the WPO.

In a Dec. 3 letter to the City Council and Gailey, Harry Ng, API's vice president, general counsel and corporate secretary said the organization is ready to sue the city on the grounds a moratorium would violate state, federal and international laws and precedents, including the Commerce Clause of the U.S. Constitution.

Ng also claimed the moratorium is "ill-advised, unnecessary and unsupported" and would "create friction in the vital U.S.-Canada relationship."

Maine law allows municipalities to enact moratoriums in the interest of public health and safety. Last month, the U.S. State Department advised Portland Pipe Line Corp., owners of the 236-mile pipeline that could be used to bring tar sands into the city, that it would have to review any proposal to reverse the flow.

“The (API) letter to me was really not threatening,” Jalbert said. He and Councilor Linda Cohen noted it is not uncommon for legal challenges to be threatened concerning council actions.

Ng's letter solidified public opinion at the meeting that Portland Pipe Line has no place on a committee seeking to draft an ordinance banning tar sands, although company treasurer David Cyr again requested the company be part of the process.

Former Planning Board member Don Russell agreed with Cyr and asked for a larger committee and scope.

"The committee charge should be to fully investigate the health and safety concerns. ... The committee should not be predisposed, predetermined, or pre-led," Russell said.

High Street resident Andrew Jones compared oil industry participation to tobacco companies seeking input on anti-smoking ordinances.

“It is clear oil companies don't have the same goals South Portland does,” he said.

Ultimately, a majority of the councilors – Jalbert, Cohen, Beecher and Councilor Michael Pock – expressed support for including the oil industry in the process.

“When we deliberately exclude someone," Jalbert said, "it does not feel like a democracy to me."

David Harry can be reached at 781-3661 ext. 110 or dharry@theforecaster.net. Follow him on Twitter: @DavidHarry8.