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Portland Pipe Line Corp. v. City of South Portland

United States District Court, D. Maine

December 29, 2017

CITY OF SOUTH PORTLAND, et al., Defendants.



         A pipeline operator challenges a local ordinance prohibiting loading crude oil onto tankers and new structures for that purpose on the grounds that it is preempted under numerous federal and state laws, that it violates the Commerce Clause of the United States Constitution, that it violates the business's civil rights, its due process rights, its right to avoid improper delegation, its right to equal protection under the law, and that it violates the City's own comprehensive plan.

         Before the Court are Plaintiffs' Motion for Summary Judgment (ECF No. 87) and Defendants' Motion for Summary Judgment (ECF No. 88). The Court denies summary judgment as to the commerce clause issues, grants the Defendants' motion as to the federal and state preemption questions, due process, excessive delegation, and equal protection issues, civil rights claims, and questions about inconsistency with the City's comprehensive plan, and the Court denies the pipeline operators' motion for summary judgment in its entirety. In accordance with the positions of the parties, the Court dismisses as premature the claims for attorney's fees and costs under 42 U.S.C. § 1983.


         A. The Complaint, Motion to Dismiss, and Answer

         On February 6, 2015, Portland Pipe Line Corporation (PPLC) and the American Waterways Operators (AWO) (collectively, Plaintiffs) filed a nine-count complaint in this Court against the city of South Portland (South Portland or City) and Patricia Doucette in her official capacity as the code enforcement officer of South Portland (collectively, Defendants). The Complaint contains nine counts: (1) Supremacy Clause preemption of the Ordinance by the Pipeline Safety Act (PSA), 49 U.S.C §§ 60101 et seq.; (2) Supremacy Clause preemption of the Ordinance under the President's foreign affairs power; (3) Supremacy Clause preemption of the Ordinance by the Ports and Waterways Safety Act, 33 U.S.C. Ch. 25 and 46 U.S.C. Ch. 37; (4) preemption of the Ordinance under Article III, Section 2 of the United States Constitution and the Constitution's embedded principle of federal maritime governance; (5) violation of the Commerce Clause of the Constitution; (6) violation of the Due Process and Equal Protection Clauses; (7) deprivation of rights under the Civil Rights Act, 42 U.S.C. § 1983; (8) inconsistency of the Ordinance with South Portland's comprehensive plan under Maine law, 30-A M.R.S. § 4352; and (9) preemption of the Ordinance by Maine's Oil Discharge Prevention Law, 38 M.R.S. § 556. Compl. for Declaratory and Injunctive Relief (ECF No. 1) (Compl.).[1]

         On March 31, 2015, the Defendants filed a motion to dismiss the Complaint. Defs.' Mot. to Dismiss the Compl. Pursuant to Rule 12(b)(1) (ECF No. 16); Mem. of Law in Supp. of Defs.' Mot. to Dismiss Pursuant to Rule 12(b)(1) (ECF No. 17). The Court denied the motion to dismiss on February 11, 2016. Order on Defs.' Mot. to Dismiss (ECF No. 29). Accordingly, the Defendants filed an answer to the Complaint on February 29, 2016. Answer of Defs. City of South Portland and Patricia Doucette (ECF No. 30).

         On September 8, 2016, the Plaintiffs filed a notice of intent to move for summary judgment. Pls.' Renewed Notice of Intent to Seek Summ J. and Req. for Loc. R. 56(h) Conf. (ECF No. 75). The following day, the Defendants likewise filed a notice of intent to move for summary judgment. Defs.' Notice of Intent to Seek Summ. J. and Req. for Loc. R. 56(h) Conf. (ECF No. 77). The Court held a Local Rule 56(h) conference on November 2, 2016. Min. Entry (ECF No. 83).

         B. The Motions for Summary Judgment

         On November 17, 2016, the Plaintiffs filed a motion for summary judgment and a statement of undisputed material facts. Pls.' Mot. for Summ. J. (ECF No. 87) (Pls.' Mot.); Pls.' Statement of Material Facts (ECF No. 89) (PSMF). That same day, the Defendants filed a consolidated motion to dismiss pursuant to Rule 12(b)(1) and a cross motion for summary judgment, along with a corresponding statement of material facts. Defs.' Consolidated Mot. to Dismiss Pursuant to Rule 12(b)(1) and Mot. for Summ J. (ECF No. 88) (Defs.' Mot.); Defs.' Rule 12(b)(1) and Loc. R. 56(b) Statement of Undisputed Material Facts [Unredacted Verion] (ECF No. 96) (DSMF).

         On December 20, 2016, the Defendants filed an opposition to the Plaintiffs' motion for summary judgment, a responsive statement of material facts, and an additional set of material facts. Defs.' Opp'n to Pls.' Mot. for Summ. J. (ECF No. 123) (Defs.' Opp'n); Defs.' Loc. R. 56(c) Opposing Statement of Material Facts and Additional Statement of Facts at 1-52 (ECF No. 124) (DRPSMF); id. at 53-85 (DSAMF). Also on December 20, 2016, the Plaintiffs filed an opposition to the Defendants' motion to dismiss and cross motion for summary judgment, a responsive statement of material facts, and an additional set of material facts. Pls.' Mem in Opp'n to Defs.' Mot. to Dismiss and for Summ. J. (ECF No. 127) (Pls.' Opp'n); Pls.' Loc. R. 56(c) Opposing Statement of Material Facts and Additional Statement of Facts at 1-74 (ECF No. 128) (PRDSMF); id at 75-85 (PSAMF).

         On January 13, 2017, the Plaintiffs filed a reply memorandum and a reply statement of facts. Pls.' Reply in Supp. of Their Mot. for Summ. J. (ECF No. 140) (Pls.' Reply); Pls.' Reply Statement of Material Facts (ECF No. 141) (PRDSAMF). That same day, the Defendants filed their own reply memorandum and reply statement of facts. Reply to Pls.' Opp'n to Defs.' Consolidated Mot. to Dismiss and Mot. for Summ. J. (ECF No. 142) (Defs.' Reply); Defs.' Loc. R. 56(d) Resp. to Pls.' Additional Statement of Facts (ECF No. 143) (DRPSAMF).

         On December 12, 2017, the Court denied the Defendants' Renewed Motion to Dismiss under Rule 12(b)(1), and it is now able to turn to the cross-motions for summary judgment. Order on Defs.' Consolidated Mot to Dismiss Under Rule 12(b)(1) (ECF No. 185) (Consolidated Order).

         C. Amici Curiae

         Meanwhile, the Court received requests for leave to file amicus briefs on behalf of both the Plaintiffs and the Defendants. On January 9, 2017, the Court granted the motions of the amici curiae. Order on Mots. to File Briefs as Amici Curiae (ECF No. 135). On behalf of the Plaintiffs, the Chamber of Commerce of the United States filed a brief on January 9, 2017, Brief of the Chamber of Commerce of the U.S.A. as Amicus Curiae in Supp. of Pls.' Mot. for Summ. J. (ECF No. 136); the American Fuel and Petrochemical Manufacturers, the American Petroleum Institute, the Association of Oil Pipe Lines, and the International Liquid Terminals Association filed a brief on January 11, 2017, Amici Curiae Brief of the Am. Fuel & Petrochem. Mfrs, the Am. Petro. Inst., the Ass'n of Oil Pipe Lines, and the Int'l Liquid Terminals Ass'n in Supp. of Pls.' Mot. for Summ. J. (ECF No. 138); and Portland Pilots, Inc., the Maine Energy Marketers Association, and the Associated General Contractors of Maine filed a brief on January 11, 2017. Brief of Amicus Curiae Portland Pilots, Inc., Maine Energy Mkt'rs Ass'n, and Associated Gen. Contractors of Me. in Supp. of Pls.' Mot. for Summ. J. (ECF No. 139). For the Defendants, the Conservation Law Foundation filed a brief on January 10, 2017. Brief Amicus Curiae of the Conserv. Law Found. (ECF No. 137).

         On January 23, 2017, the Plaintiffs and the Defendants each filed a response to the amicus briefs. Pls.' Mem. of Law in Resp. to Amici Briefs (ECF No. 145); Defs.' Resp. to Briefs Amicus Curiae (ECF No. 146).


         A. The Pipelines

         In 1941, PPLC and its parent company, Montreal Pipe Line Limited (MPLL), began constructing and operating a twelve-inch crude oil pipeline stretching from the harbor in South Portland, Maine, through New Hampshire and Vermont, and into Quebec, Canada, terminating at oil refineries in Montreal East. PSMF ¶¶ 1-2; DRPSMF ¶¶ 1-2; DSMF ¶ 9; PRDSMF ¶ 9. The sole owner of PPLC is MPLL; MPLL in turn is owned by three Canadian companies: Shell Canada Limited, Suncor Energy Inc., and Imperial Oil Limited.[3] DSMF ¶ 7; PRDSMF ¶ 7; DSAMF ¶ 203; PRDSAMF ¶ 203. Imperial is Exxon Mobil's Canadian subsidiary. PRDSAMF ¶ 203; PRDSMF ¶ 203.

         PPLC added to its pipeline system in 1950 by constructing and then operating an eighteen-inch pipeline. PSMF ¶ 3; DRPSMF ¶ 3; DSMF ¶ 5; PRDSMF ¶ 5. PPLC added to its pipeline system again in 1965 by constructing and then operating a twenty-four-inch pipeline. PSMF ¶ 4; DRPSMF ¶ 4; DSMF ¶ 5; PRDSMF ¶ 5. PPLC decommissioned and ceased operating the original twelve-inch line in 1982. PSMF ¶ 10; DRPSMF ¶ 10. PPLC now uses the twelve-inch line as a sacrificial anode to protect its 18- and twenty-four-inch lines from external corrosion. Id. The nominal capacities of the remaining 18- and twenty-four-inch lines are approximately 192, 000 barrels per day and 410, 000 barrels per day of crude oil, respectively. DSMF ¶ 6; PRDSMF ¶ 6.

         With a few exceptions of short distances, all three of PPLC's pipelines follow the same route, along the same rights of way, and pass largely underground between South Portland and the Montreal East oil refineries. PSMF ¶ 5.[4] Since the pipeline system began operating in 1941, PPLC has operated the portion of the pipeline that lies within the United States, while MPLL has operated the portion that lies within Canada.[5] PSMF ¶ 6; DSMF ¶ 3. The only exception was a period from 1987 to 1999, when PPLC and MPLL leased the eighteen-inch line to Granite State Gas Transmission, Inc. (Granite State), which operated the line for natural gas transmission. PSMF ¶ 18; DRPSMF ¶¶ 6, 18.

         In South Portland, PPLC maintains “Pier 2, ” an oceanfront pier located near Portland Breakwater Light on the harbor where tanker vessels historically have docked to deliver crude oil.[6] PSMF ¶ 8; DRPSMF ¶ 8; DSMF ¶ 7; PRDSMF ¶ 7. PPLC transports oil from Pier 2 to Montreal East through PPLC's above-and below ground infrastructure, including storage tanks in South Portland, utilizing six pumping stations across Maine, New Hampshire, and Vermont to move oil along the pipeline route. PSMF ¶ 9; DRPSMF ¶ 9. Specifically, the crude oil is offloaded from marine tank vessels at Pier 2 and transported to crude oil storage tanks in the City, four of which are located on two parcels in close proximity to Pier 2 (the Waterfront Tanks) and nineteen of which are located at the “Main Tank Farm” on Hill Street, approximately 2.7 miles inland from Pier 2. DSMF ¶ 8; PRDSMF ¶ 8. PPLC's eighteen-inch and twenty-four-inch pipelines move the crude oil northward from the South Portland tank farm to refineries in Montreal. DRPSMF ¶ 8. Since 1999, both PPLC's eighteen-inch and twenty-four-inch pipelines have been configured primarily for the northbound transportation of crude oil from South Portland to Canada.[7]PSMF ¶ 11. The eighteen-inch and twenty-four-inch pipelines do not extend to Pier 2; the Main Tank Farm and Pier 2 are connected by three subsurface lines running under Broadway, and other streets, and Mill Cove in the City. DSMF ¶ 154; PRDSMF ¶ 154. The eighteen-inch and twenty-four-inch pipelines originate (or terminate in the case of reversal) at the Main Tank Farm. DSMF ¶ 158; PRDSMF ¶ 158; DSAMF ¶ 195.[8] According to PPLC, access to the harbor has been integral to its success and longevity.[9] PSMF ¶ 12.

         The harbor is able to accommodate ships with up to 52 feet of draft and up to 170, 000 deadweight tons of cargo. PSMF ¶ 13; DRPSMF ¶ 13. The harbor has all-season ice free conditions, which permits shipment of cargo in and out of the harbor year round. PSMF ¶ 14; DRPSMF ¶ 14. As recently as 2010-the last year the eighteen-inch line was in active service-PPLC accepted 132 deliveries from tankers. PSMF ¶ 15; DRPSMF ¶ 15. That year, PPLC transported 27, 969, 719 barrels of crude oil northward to Montreal East through its eighteen-inch pipeline, for an average of 76, 629 barrels per day, as well as 72, 231, 154 barrels of crude oil northward to Montreal East through its twenty-four-inch pipeline, for an average of 197, 894 barrels per day. Id. According to PPLC's president, Thomas Hardison, “PPLC has operated continuously since 1941 in part due to its ability to respond and adapt to changing market conditions.”[10], [11] PSMF ¶ 16.

         B. Geography

         The City is a municipal corporation organized pursuant to the Constitution and general laws of the state of Maine. DSMF ¶ 1; PRDSMF ¶ 1. The City is governed by a City Council of seven elected members. DSMF ¶ 2; PRDSMF ¶ 2. Pier 2 is located in a district of the City zoned as Shipyard (“S”) and within the City's Shoreland Area Overlay District. DSMF ¶ 111; PRDSMF ¶ 111. The Shipyard zoning district was established:

to promote the Shipyard area in South Portland as a robust waterfront center for office complexes, commercial uses, marine uses, and light industrial activities. The Shipyard District S seeks to maintain the conforming status of existing businesses, to prevent residential development and associated land use conflicts, and to minimize the impacts of development on adjacent zoning districts.

DSMF ¶ 112; PRDSMF ¶ 112.

         PPLC owns four above-ground floating roof oil storage tanks proximate to Pier 2 on two separate parcels (the “Waterfront Tanks”), also in the Shipyard zoning district. DSMF ¶ 113; PRDSMF ¶ 113. Pier 2 abuts Bug Light Park, a public waterfront park on Casco Bay.[12] DSMF ¶ 114. Bug Light Park features a lighthouse on Casco Bay, parking facilities and green space for dog walking, children's activities and general waterfront recreation. DSMF ¶ 115; PRDSMF ¶ 115. The Waterfront Tanks abut residential neighborhoods, which are zoned for residential use and designated by the City's Zoning Ordinance as Residential (“G”). DSMF ¶ 116; PRDSMF ¶ 116. The Vapor Combustion Units (VCUs), or smokestacks, PPLC considered constructing in 2008-2009 would have been constructed on the “approach segment” (landward portion) of Pier 2.[13] DSMF ¶ 117.

         The Main Tank Farm occupies a 102-acre parcel at 30 Hill Street on which are situated 19 above-ground floating roof oil storage tanks. DSMF ¶ 118; PRDSMF ¶ 118. The Main Tank Farm is located in a district of the City zoned as Commercial “C.” DSMF ¶ 119; PRDSMF ¶ 119. The Main Tank Farm is generally surrounded by residential neighborhoods, schools, day-care centers, athletic facilities, and churches that are zoned as “Residential Districts A & G.” DSMF ¶ 120; PRDSMF ¶ 120. In addition to residences, the Kaler and Dyer Elementary Schools, South Portland High School, South Portland Church of the Nazarene, and the South Portland Community Center are proximate to the Main Tank Farm.[14] DSMF ¶ 121. The 23 above-ground floating roof oil storage tanks in the City were all constructed between 1941 and 1971, with 17 of them built before 1957. DSMF ¶ 122; PRDSMF ¶ 122.

         C. 1986 and 1999 Changes to the Pipeline Flow

         In 1986, PPLC and MPLL reconfigured the eighteen-inch line for natural gas transmission from Canada to South Portland and leased the line to Granite State. PSMF ¶¶ 18-19; DRPSMF ¶¶ 18-19. In order to reconfigure the eighteen-inch line for natural gas, PPLC took steps to remove crude oil from the line. PSMF ¶ 17. In particular, PPLC emptied the portion of the pipeline stretching from Sutton Station, Vermont, to Montreal East, Quebec, by pumping to Montreal East any crude oil remaining in the pipeline. Id. From Sutton Station southward to South Portland, however, PPLC pumped the remaining crude oil contents of the pipeline south, into the storage tanks in South Portland.[15] Id. On August 10, 1987, the Federal Energy Regulatory Commission (FERC) issued a permit to Granite State authorizing the company to use the eighteen-inch pipeline to transport natural gas south from Canada to South Portland. PSMF ¶ 19; DRPSMF ¶ 19. In 1999, PPLC reversed the direction and production orientation of its eighteen-inch line again, such that it again would be able to transport crude oil north to Montreal East. PSMF ¶ 20; DRPSMF ¶ 20.

         Despite these line clearing operations, the City Council determined that the pipelines have never carried crude oil in the southward direction, and PPLC has never loaded crude oil onto marine tank vessels.[16] DSMF ¶ 130. The City Council also determined that crude oil has never been loaded onto marine tank vessels anywhere in the City.[17] DSMF ¶ 131.

         D. The 2008-2009 Oil Sands Proposed Project

         During the approximately one-decade period beginning in 1999, when PPLC reversed the flow of its eighteen-inch line back to a northbound orientation and began again shipping crude oil in that line, through 2008, when PPLC began pursuing the flow reversal project, PPLC moved an average volume of 394, 000 barrels per day (“b/d”) of crude oil through its pipeline system. PSAMF ¶ 243; DRPSAMF ¶ 243. In 2007-2008, PPLC determined that demand for transportation of crude oil from the Harbor to the Montreal East refineries was likely to decline because the boom in crude oil production in Alberta's “oil sands” fields meant that Montreal East refiners would need less foreign oil.[18] PSMF ¶ 24. Crude oil derived from “oil sands” is sometimes referred to as “tar sands” or “tar sands oil.” PSMF ¶ 25; DRPSMF ¶ 25. In 2007-2008, PPLC moved to reverse the flow of its eighteen-inch pipeline, but not its twenty-four-inch pipeline, in order to enable the company to transport crude oil from Montreal to the South Portland harbor and to load crude oil onto tanker vessels for shipment to both United States and international destinations.[19] PSMF ¶ 26; DSMF ¶ 33. Leading up to and over the course of 2007 and 2008, PPLC determined that increased Canadian production would create substantial demand for transportation systems to move crude oil out of Canada.[20] PSMF ¶ 27. In 2007-2008, PPLC determined that, upon reversing the flow of its eighteen-inch pipeline, PPLC would be the only market actor of any kind capable of importing, exporting, or otherwise handling Canadian oil sands crude to South Portland.[21] PSMF ¶ 28. Moreover, PPLC determined that, upon reversing the flow of its eighteen-inch pipeline, PPLC would be the only terminal on the United States east coast capable of importing and exporting Canadian oil sands crude.[22] PSMF ¶ 29. During this period, PPLC invested substantial money and effort in advancing its flow reversal project, spending approximately $5 million on consultants to determine the necessary changes to its infrastructure, to model the economics, and to identify any necessary permits for the project to proceed. PSMF ¶ 30; DRPSMF ¶ 30.

         At the time of the 2008-2009 Project, Thomas Hardison, was the Director of Operations for PPLC, having previously been Loss Control Manager. DSAMF ¶ 204; PRDSAMF ¶ 204. He was Vice President from 2014-2015 and become President and CEO in 2015. Id. For the 2008-2009 Project, Mr. Hardison was not “involved in any way in determining market demand.” DSAMF ¶ 205; PRDSAMF ¶ 205. Mr. Hardison “wasn't part of the decision-making” for the 2008-2009 Project.[23] DSAMF ¶ 206. Mr. Hardison's role in the 2008-2009 Project was “contributing, from an operations and maintenance perspective, making recommendations and providing input on the -- and review of engineering design for piping and valve installations, right-of-way access, things that would typically be associated with the operations and the maintenance of the pipeline.”[24] DSAMF ¶ 207.

         1. Marketing the 2008-2009 Reversal Project

         In 2007-2008, PPLC began implementing its flow reversal project by marketing its ability to transport oil from Canada to South Portland. PSMF ¶ 31; DRPSMF ¶ 31. PPLC conducted a traditional “open season” process, whereby PPLC presented the details of its pipeline capacity to interested shippers-i.e. oil companies who wished to move their Canadian oil to the South Portland harbor-in order to secure conditional offers for committed volumes of crude oil. PSMF ¶ 32; DRPSMF ¶ 32; DSMF ¶ 12; PRDSMF ¶ 12. During the open season process, PPLC asked shippers to sign non-disclosure agreements to protect the confidentiality of PPLC's plans, and many did.[25] PSMF ¶ 33. During the open season process, numerous shippers expressed interest in PPLC's project.[26] PSMF ¶ 34. PPLC intended to obtain contractual commitments from interested shippers to move specific volumes of oil. PSMF ¶ 35. PPLC's intention, consistent with industry practice, was to use the contractual commitments to obtain financing to complete the infrastructure changes associated with reversing the flow.[27] PSMF ¶ 36.

         Enbridge Pipelines, Inc. (“Enbridge”) operates the Enbridge Line 9 (“Line 9”) pipeline between Sarnia, Ontario and Montreal, Quebec, which between 1998 and 2015 flowed east to west.[28] DSMF ¶ 10. On September 12, 2008, Enbridge Pipelines, Inc., Enbridge Energy, Limited Partnership, and PPLC executed a Memorandum of Understanding (“MOU”) which:

(a) stated the parties' mutual intent to reverse the direction of the flow of both PPLC's 18-inch pipeline and Line 9 first for one-stream operation (e.g., one type of crude oil, either “light” or “heavy”) during an initial two-year period and thereafter for two stream operation (e.g., both “light” and “heavy” crude);[29] and
(b) required PPLC to have received sufficient commercial support for the reversal of its 18-inch pipeline in the form of Conditional Offers providing for committed volumes under an Open Season and thereafter that such conditional offers be subject to execution of Transportation Services Agreements with the committed crude oil shippers in advance of a targeted in-service date of May 1, 2010 for both the Line 9 and PPLC 18-inch pipeline reversals.

DSMF ¶ 11.

         In late 2008, the financial crisis that caused the Great Recession occurred, which crippled financial markets and caused worldwide economic activity to decline precipitously. PSMF ¶ 39; DRPSMF ¶ 39. PPLC halted work on the flow reversal project as a result of the financial crisis. PSMF ¶ 40; DRPSMF ¶ 40. It concluded the open season process on December 30, 2008. DSMF ¶ 12; PRDSMF ¶ 12. On December 31, 2008, PPLC sent a letter to Enbridge notifying Enbridge pursuant to the Memorandum of Understanding that PPLC did not receive a level of firm volume commitment from crude oil shippers required to proceed with the project to reverse the flow of the eighteen-inch pipeline.[30] DSMF ¶ 13. PPLC's written notice of lack of commercial support from crude oil shippers terminated the MOU with Enbridge. DSMF ¶ 14; PRDSMF ¶ 14.

         2. Permitting the Proposed Reversal Project

         In addition, PPLC began gathering necessary permits in order to implement its flow reversal project. PSMF ¶ 31; DRPSMF ¶ 31. Those permits that PPLC did receive for the 2008-2009 Project were received in 2009. DSAMF ¶ 209; PRDSAMF ¶ 209.[31]

         PPLC contacted the State Department concerning permits for the flow reversal project. PSMF ¶ 37; DRPSMF ¶ 37; DSMF ¶ 32. The eighteen-inch line has operated under a permit since July 29, 1999, when the United States Department of State issued PPLC a permit “Authorizing Portland Pipe Line Corporation to Convert an Existing Pipeline Crossing the International Boundary Line Between the United States and Canada from Natural Gas Service to Crude Oil Service” (Presidential Permit). PSMF ¶ 21; DRPSMF ¶ 21; DSMF ¶ 160; PRDSMF ¶ 160. The twenty-four-inch pipeline was the subject of a prior Presidential Permit issued on January 13, 1965. DSMF ¶ 159; PRDSMF ¶ 159. The President of the United States issued this Permit concerning the construction and operation of PPLC's twenty-four-inch pipeline under his authority to regulate cross-border segments.[32] PSMF ¶ 112. The Presidential Permit for the eighteen-inch pipeline states: “Permittee shall comply with all applicable Federal and State laws and regulations regarding the construction, operation, and maintenance of the United States facilities and with all applicable industrial codes. The permittee shall obtain requisite permits from Canadian authorities, as well as the relevant state and local governmental entities and relevant federal agencies.” DSMF ¶ 161; PRDSMF ¶ 161. The Presidential Permit for the twenty-four-inch pipeline focuses on the pipeline segment from “the vicinity of North Troy, Vermont, to the international boundary line between the United States and Canada . . .” and not pipeline and its facilities south of the border crossing.[33] DSMF ¶ 162.

         On July 18, 2008, the State Department responded that PPLC's pipeline reversal plan did “not constitute a substantial change from the scope of the authorization” set forth in the Presidential Permit previously issued to PPLC in 1999.[34] PSMF ¶ 37; DSMF ¶ 34; PRDSMF ¶ 34. As such, the State Department informed PPLC that is was “not required to seek a new or amended Presidential [P]ermit” in connection with the pipeline reversal project; however, the State Department reserved the right to rescind its decision if PPLC deviated significantly from the scope of its plan. Id.

         On June 19, 2009, PPLC applied to the City's Planning Board for Site Plan and Shoreland Area zoning approval for various work associated with the 2008-2009 Project, including:

(a) At the Main Tank Farm, PPLC sought the City's approval to construct a new building housing a 2, 400 square-foot pump station, outdoor electrical switchyard and various related infrastructure for use as a “ship loading system.”
(b) At Pier 2, PPLC sought the City's approval to drive new pilings, construct concrete deck extensions and make other modifications to the pier structure in order to create a new Pier fendering system so that Pier 2 could berth smaller articulated tank barges (ATBs) and Handysize tank vessels (approximately 45, 000-50, 000 dead weight tons) than the larger Aframax (approximately 100, 000 dead weight tons) and Suezmax (approximately 150, 000 dead weight tons) vessels that Pier 2 was designed to accommodate.
(c) At Pier 2, PPLC also sought the City's approval to construct two new skid- mounted vapor combustion units (alternatively VCUs or smokestacks) on the approach segment of Pier 2 for the purpose of combusting volatiles contained in the vapor stream displaced from the holds of the marine tank vessels during the loading of crude oil.[35]

DSMF ¶ 40.

         PPLC sought the City's approval to install the VCUs in an approximately 30 by 120 foot area enclosed by a chain-link fence that would be located approximately 125 feet west of an existing guard house on the pier approach. DSMF ¶ 41; PRDSMF ¶ 41. The VCUs are used to control emissions. PSAMF ¶ 199; DRPSAMF ¶ 199. As part of the 2009 proposed pipeline reversal project, oil would be loaded onto a marine vessel, which would cause air in the vessel's tanks to be displaced. PSAMF ¶ 202; DRPSAMF ¶ 202. Because the displaced air would contain petroleum vapors, regulatory agencies would require that steps be taken to remove pollutants before the displaced air is released into the atmosphere.[36] PSAMF ¶ 203. Some vessels have their own air emissions control equipment. PSAMF ¶ 204; DRPSAMF ¶ 204. The combustion stacks for the VCUs at Pier 2 were to be 70 feet tall and 12 feet in diameter. DSMF ¶ 42; PRDSMF ¶ 42.

         PPLC received zoning approval from the City's Planning Board for the work at Pier 2 and the Main Tank Farm on August 25, 2009, which approval expired on August 25, 2012.[37] DSMF ¶ 43. At no time during the City's processing of PPLC's application for site review approval for the pipeline flow reversal project during 2009 did City of South Portland Planning and Development Director Charles Haeuser express any concern about or objection to the VCUs proposed by PPLC as part of that project.[38] PSAMF ¶ 207. As part of the site planning approval process, he indicated that the VCUs could be an attraction in their own right, and said he had “no concerns” about the proposed VCUs.[39] PSAMF ¶ 208.

         Because crude oil unloading operations do not require the release of volatile hydrocarbon vapors from ship holds through VCUs, the 2008-2009 Project required a New Source Review Air Emission License and an amendment to PPLC's existing Part 70 Air Emissions License, both from Maine DEP, to permit the increase in emissions from the proposed VCUs. DSMF ¶ 44; PRDSMF ¶ 44. PPLC applied for the New Source Review Air Emission License and an amendment to PPLC's existing Part 70 Air Emissions License to permit increased air emissions from the two VCUs in February of 2009. DSMF ¶ 45; PRDSMF ¶ 45. Maine DEP issued an Air Emissions License to PPLC permitting additional air emissions from the two VCUs on August 25, 2009 (the “2009 Air License”). DSMF ¶ 46; PRDSMF ¶ 46; PSAMF ¶ 198; DRPSAMF ¶ 198. The 2009 Air License:

(a) authorized PPLC to construct two “John Zink” brand VCUs, each approximately 12 feet in diameter and 70 feet high that would use thermal oxidization technology to combust hydrocarbon vapors.
(b) stated that annual throughput capacity of the marine tank vessel loading terminal would be limited by the 18-inch pipeline's capacity to handle 180, 000 b/d of Syncrude (a light crude) or 140, 000 barrels per day of Cold Lake crude (a heavy crude).
(c) established emissions limits by analyzing the maximum throughput volumes (180, 000 b/d and 140, 000 b/d respectively) of Syncrude and Cold Lake Crude and the emissions control technology of the John Zink thermal oxidization VCUs.

DSMF ¶ 47; PRDSMF ¶ 47. PPLC voluntarily surrendered and voided the 2009 Air Emissions License without commencing construction.[40] DSMF ¶ 48. Since 2009, the U.S. Environmental Protection Agency (EPA), pursuant to the Clean Air Act, has adopted new Sulfur Dioxide (SO2) and Nitrogen Oxides (NO2) Primary National Ambient Air Quality Standards (NAAQS), which would apply to any future project that emitted SO2 or NO2 from the loading of crude oil onto marine tank vessels in the City.[41] DSMF ¶ 49.[42]

         PPLC also identified other environmental permits it would need to acquire, including: authorization from the U.S. Army Corps of Engineers for activities that will occupy navigable waters under Section 10 of the Rivers and Harbors Act of 1899; authorization from the U.S. Army Corps of Engineers to discharge dredged or fill materials into waters of the United States under Section 404 of the Clean Water Act; approval of an amendment to PPLC's existing Oil Terminal Facility License from Maine DEP; a Natural Resources Protection Act Permit from Maine DEP; a Water Quality Certification pursuant to Section 401 of the CleanWater Act from Maine DEP; a Stormwater Management Permit, Site Law Permit and Construction General Permit from Maine DEP; an Aboveground Storage of Flammable and Combustible Liquids permit from the Maine Fire Marshall pursuant to 25 Me. Rev. Stat. § 2481; building permits and street opening permits from the City; a Rule 13 Work Permit from the Board of Harbor Commissioners of the Port of Portland; building permits from the Towns of Raymond and North Waterford, Maine; a Water Quality Certification pursuant to Section 401 of the of the Clean Water Act from the New Hampshire Department of Environmental Services; a Freshwater Wetlands Permit from the New Hampshire Department of Environmental Services; an Act 250 Permit from the State of Vermont pursuant to 10 Vermont Stat. Ann. § 608(1)(b); a Water Quality Certification pursuant to Section 401 of the of the Clean Water Act from the Vermont Department of Environmental Conservation; a Wetland Conditional Use Determination form the Vermont Department of Environmental Conservation; a Public Building Construction Permit from the Vermont Department of Public Safety; approval from the National Energy Board of Canada; zoning approval and building permits for a pump station in Dunham, Quebec from La Commission de protection du territoire agricole du Québec (CPTAQ); Province of Quebec environmental permits from the Ministère du Développement durable, de l'Environnement (MDDEP) in Quebec, Canada; certificate of compliance from the MDDEP; a building permit from Montreal East, Quebec; and an air permit from la Communauté métropolitaine de Montréal.[43] DSMF ¶ 51.

         The National Energy Board of Canada (NEB) is an independent federal regulatory agency that regulates pipelines, energy development and trade in the Canadian public interest with a charge to consider economic, environmental, and social factors in its decision- making. DSMF ¶ 53; PRDSMF ¶ 53. The eighteen-inch pipeline could not have transported oil from Montreal to the Vermont border without approval from the NEB.[44] DSMF ¶ 54. PPLC never applied to the NEB to reverse the flow of its pipeline(s). DSMF ¶ 55; PRDSMF ¶ 55.

         PPLC's 2008-2009 Project included construction of a new pump station in Dunham Quebec (north of Vermont) to carry a dual stream of the heavy and light crudes over higher elevations south of Quebec.[45] DSMF ¶ 56; PSAMF ¶¶ 236-37. To construct the new pump station in Dunham, Quebec, PPLC required land use approval from the CPTAQ, which it initially received.[46] DSMF ¶ 57. The CPTAQ approval was appealed to the Tribunal administratif du Québec (“TAQ”), which rescinded the CPTAQ approval and remanded the matter to the CPTAQ. DSMF ¶ 58; PRDSMF ¶ 58. The TAQ decision rescinding CPTAQ approval was affirmed by the Court of Quebec. DSMF ¶ 59; PRDSMF ¶ 59. Following the TAQ decision rescinding CPTAQ approval, PPLC chose not to continue to pursue approval for the Dunham, Quebec pump station. DSMF ¶ 60; PRDSMF ¶ 60. At some point after June 17, 2013, PPLC released the Option Agreement it held with the owner of the property on which PPLC proposed to build the Dunham Quebec pump station. DSMF ¶ 61; PRDSMF ¶ 61.

         PPLC's 2008-2009 Project required a certificate of compliance from the MDDEP in Quebec, Canada.[47] DSMF ¶ 62. PPLC applied for a certificate of compliance from the MDDEP for the Project, but the MDDEP asked for additional information before processing the application for approval or denial. DSMF ¶ 63; PRDSMF ¶ 63. Before providing all responsive information, PPLC suspended the 2008-2009 project and advised MDDEP that it was no longer seeking a certificate of compliance. DSMF ¶ 64; PRDSMF ¶ 64.

         In 2009, PPLC received a Jurisdictional Opinion from the Vermont Natural Resources Board that the construction in Vermont that was required for the 2008-2009 Project did not require a permit or review pursuant to the state's Land Use and Development Act (Act 250). DSMF ¶ 65; PRDSMF ¶ 65. In Vermont, PPLC's pipelines pass through three large tracts of public land owned by the State of Vermont (Victory State Forest, Victoria Basin Wildlife Management Area, and the Willoughby State Forest), as well as the Connecticut River, the Missisquoi River, tributaries to Crystal Lake and multiple other streams, lakes, and wetlands.[48] DSMF ¶ 66. On April 15, 2013, the Vermont Natural Resources Board issued a new Jurisdictional Opinion, #7-274 that superseded the 2009 Jurisdictional Opinion obtained by PPLC, concluding that the work required in Vermont for the 2008-2009 project or “similar” work (e.g., valve replacements on the pipeline and “reconfiguration of valves and piping” at pump stations in Vermont) “requires an Act 250 Permit under 10 V.S.A. § 6081(b) because it is a substantial change to a pre-existing development.” DSMF ¶ 67; PRDSMF ¶ 67. PPLC filed a motion for reconsideration, but the Vermont Natural Resources Board reaffirmed Jurisdictional Opinion #7-274. DSMF ¶ 68; PRDSMF ¶ 68.

         PPLC applied for a Permit by Notification in 2009 to engage in construction within wetlands in Randolph, N.H. associated with the 2008-2009 Project. DSMF ¶ 69; PRDSMF ¶ 69. PPLC sought the permit in connection with a pipeline modification project necessary for PPLC to accommodate pipeline inspection tools. PSAMF ¶ 241.[49] PPLC later ceased its pursuit of the permit as a result of the financial crisis.[50] PSAMF ¶ 240. PPLC never received the permit for pipeline construction within wetlands in Randolph, N.H. for which it applied in 2009. DSMF ¶ 70; PRDSMF ¶ 70. New pipeline inspection technology is available that would allow for PPLC to inspect the pipeline without the modifications it initially pursued in Randolph, New Hampshire, and thus PPLC will not need any NHDES permit for this work in the future.[51] PSAMF ¶ 242.

         In 2009, without having obtained all of the necessary permits, PPLC suspended further permitting on the project to reverse the flow of the eighteen-inch pipeline and load crude oil onto marine tank vessels in South Portland. DSMF ¶ 52; PRDSMF ¶ 52. During the 2008-2009 process, no permitting authority denied PPLC any of the permits it sought, but it did not seek all the permits that would have been required and it did not receive approval for a pump station it proposed in Dunham, Quebec.[52] PSAMF ¶ 233. Of the 13 permits PPLC initially sought, relevant authorities granted 10 of them and PPLC voluntarily ceased its pursuit of the other 3 when PPLC halted its work on the project.[53] PSAMF ¶ 234. When PPLC first sought to reverse the flow in 2008-2009, it did not seek approval from the NEB because it ceased work on the flow reversal project before NEB approval became necessary.[54] PSAMF ¶ 235.

         E. The 2012-2013 Flow Reversal Project

         As economic conditions improved in 2012 and 2013, and as PPLC determined that its prior forecasts concerning the future of Canadian oil production increasingly had proved accurate, PPLC once again began to consider reversing the flow of oil.[55]PSMF ¶ 41.

         1. Design Differences

         In 2011 and 2012, PPLC analyzed and considered several different design and engineering characteristics of a “hypothetical potential project” to reverse the flow of either the eighteen-inch or twenty-four-inch pipeline and load crude oil onto marine tank vessels in the City. DSMF ¶ 71; PRDSMF ¶ 71. PPLC considered:

(a) using the 24-inch pipeline instead of the 18-inch pipeline for a potential future project.
(b) a project with a “single stream light line [of crude oil], ” instead of a design that would be capable of carrying both heavy crude oil and light crude.
(c) developing a project that had a “low likelihood of [needing] the [Dunham] pump station” that was planned for the 2008-2009 Project and for which PPLC never obtained approval from Canadian regulatory authorities.[56]
(d) using a vapor recovery system to capture hydrocarbon vapors during the loading process, which would use different technology and have different dimensions than the formerly proposed two 70-foot-tall John Zink VCUs.
(e) developing a project for which there would be “no need to upgrade Pier 2 to handle small tankers and barges, ” such as the smaller ATBs or Handysize tank vessels that the 2008-2009 Project was designed to accommodate.

DSMF ¶ 72.

         From “an engineering perspective, ” it is “feasible” to physically interconnect Rigby Yard, a large rail facility in the City, and PPLC's Main Tank Farm. DSMF ¶ 74; PRDSMF ¶ 74; DSAMF ¶ 194; PRDSAMF ¶ 194. In 2012, PPLC studied a potential project that would transport only “Bakken/other U.S. sourced crude” by rail into Rigby Yard in the City.[57] DSAMF ¶ 192. The rail proposal would have connected the Rigby Yard rail terminal with PPLC's Main Tank Farm on Hill Street by a short newly constructed pipeline on the Railroad's existing Right of Way.[58] DSAMF ¶ 193.[59]In 2013, PPLC considered transporting crude oil by rail to the Main Tank Farm and then loading crude oil onto marine tank vessels in the City.[60] DSMF ¶ 73.

         PPLC has not proposed any changes to pipeline or storage tank capacity or throughput as part of any flow reversal project, as compared to historical levels.[61]PSAMF ¶ 200.

         2. Marketing the 2012-2013 Project

         PPLC again began soliciting interest in its flow reversal project from potential shippers and requesting that shippers sign non-disclosure agreements concerning the flow reversal project.[62] PSMF ¶ 42. In 2011-2012, PPLC held discussions with numerous potential crude oil shippers, including Irving, Valero, Shell, Keyera, Repsol, Suncor, Global, Imperial Oil, and others, to attempt to obtain contractual volume commitments on a reversed eighteen-inch or twenty-four-inch pipeline and tracked potential interest on internal documents. DSMF ¶ 15; PRDSMF ¶ 15; PSAMF ¶ 252; DRPSAMF ¶ 252. PPLC's marketing efforts came on the heels of a potential announcement by Enbridge to reverse its Line 9 to carry oil from west to east.[63] DSMF ¶ 16. In 2011-2012, PPLC solicited interest from potential crude oil shippers for committed volumes of crude oil to be carried southward either on the eighteen-inch or the twenty-four-inch pipeline.[64] DSMF ¶ 17. In 2011-2012, PPLC did not move forward with the reversal project on either the eighteen-inch or twenty-four-inch pipeline.[65] DSMF ¶ 18. In 2011 and 2012, PPLC was under less pressure to reverse the flow of its pipeline system because it still was doing enough business shipping crude oil northbound that flow reversal had not become an urgent necessity.[66] PSAMF ¶ 253.

         In 2013, PPLC again solicited interest from potential crude oil shippers for committed volumes of crude oil to be carried southward on the eighteen-inch or twenty-four-inch pipeline.[67] DSMF ¶ 19. In 2013, PPLC received positive indications of interest from potential shippers, many of whom executed non-disclosure agreements.[68] PSMF ¶ 43. In April of 2013, PPLC sought to “[s]ecure shareholder endorsement for [PPLC] to seek expressions of interest from potential shippers concurrent with the [TransCanada PipeLines Limited's] Energy East Open Season currently underway. DSAMF ¶ 183; PRDSAMF ¶ 183. In 2013, PPLC's Board of Directors did not have interest in pursuing a formal Open Season.[69] DSAMF ¶ 184.

         PPLC did not move forward with any reversal project due to a variety of reasons, including insufficient market interest.[70] DSMF ¶ 20; DSAMF ¶ 181.[71]Sometime after April 2013 and before June 17, 2013, PPLC decided to: “Postpone seeking commercial support [for any project to load crude oil in the City] until success of Canadian projects are assured;” “Archive learnings;” “Consider write-off of part or all of $6.5 million work-in-progress from 2008 project;” and “Apply asset impairment rules to $6.5 million Investment and Work with Audit Committee to finalize.”[72] DSAMF ¶ 187. The only portion of PPLC's initial multi-million dollar investment that it wrote off concerned an approximate $150, 000 (Canadian) investment related to PPLC's work on the Dunham, Quebec pump station.[73] PSAMF ¶ 257. PPLC monitored the progress of the Enbridge Line 9 reversal project, which did not begin operating until December 2015. PSAMF ¶ 254; DRPSAMF ¶ 254.

         3. Permitting the 2012-2013 Project

         On February 26, 2012, seventeen (17) members of Congress including U.S. Rep. Chellie Pingree of Maine and then-U.S. Rep. Michael Michaud of Maine, as well as the entire Vermont Senate and House delegation, wrote a letter to the Secretary of State requesting that the State Department require a “a new Presidential Permit and conduct a comprehensive Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act should the Portland Pipe Line Corporation (PPLC) seek to transport Canadian tar sands oil through the Portland Montreal Pipe Line (PMPL) running through Maine, New Hampshire and Vermont.” DSMF ¶ 36; PRDSMF ¶ 36. On February 27, 2012, a spokesman for Maine Senator Susan Collins stated “[s]hould anyone actually seek approval, Senator Collins would expect that an appropriate environmental impact review be completed.”[74] DSMF ¶ 37. On March 6, 2014, Maine Senator Angus King wrote a letter to the Department of State stating “[s]hould the PPLC seek to reverse their line, and pipe diluted bitumen southward, it is my request that the State Department require a new Presidential Permit and prepare a comprehensive Environmental Impact Statement pursuant to the National Environmental Policy Act.” DSMF ¶ 38; PRDSMF ¶ 38. On April 18, 2014, all four members of the New Hampshire congressional delegation-including then U.S. Senator Kelly Ayotte and U.S. Senator Jeanne Shaheen-wrote a letter to the Department of State stating that “[t]he transport of diluted bitumen southward through the Portland-Montreal pipeline would be a substantial shift from the pipeline's current use. Such changes also pose risks to our constituents' health, the environment and wildlife . . . .” and requested “that a new Presidential Permit be required in order to allow for complete review of” a change in direction of the “Portland-Montreal pipeline.” DSMF ¶ 39; PRDSMF ¶ 39.

         On August 13, 2013, a representative of the United States Department of State sent a letter to counsel for PPLC stating that the “Department made a determination that the reversal of pipeline flow and the work necessary to implement that reversal, as described in [PPLC's] letter of July 15, 2008, may not constitute a substantial change from the scope of authorization set forth in the Presidential Permit issued [on July 29, 1999].”[75] PSMF ¶ 22A; DRPSMF ¶ 22A; DSMF ¶ 35; PRDSMF ¶ 35. Further, the letter explained that it was the State Department's “understanding that [PPLC] has no current plans to change the operation of either pipeline” and instructed PPLC to provide information for the Department to review and consider before executing any plans to change the operation of either pipeline. Id. More recently, another cross-border pipeline project, The Keystone XL Pipeline, would have transported western Canadian crude oil from Hardisty, Alberta to Steele City, Nebraska, but President Obama and the State Department rejected the Keystone proposal in part because they determined it would negatively impact foreign policy and national security.[76] DSMF ¶ 165.

         On December 20, 2010, the Maine DEP issued a “Department Order” granting PPLC an “Oil Discharge Prevention and Pollution Control Act Renewal License.” PSMF ¶ 22; DRPSMF ¶ 22. On September 11, 2015, the Maine DEP again issued a “Department Order” granting PPLC an “Oil Discharge Prevention and Pollution Control Act Renewal License.” PSMF ¶ 23; DRPSMF ¶ 23. PPLC did not require nor seek a new or amended oil facility terminal license from Maine DEP pursuant to 38 Maine Rev. Stat. § 556, et. seq. (the Coastal Conveyance Act) prior to loading crude oil in the City because the license covers “transfer between ship and shore” and “doesn't particularly care which direction you are transferring.” DSMF ¶ 179; PRDSMF ¶ 179. PPLC wrote to Maine DEP acknowledging that approval did not absolve it of seeking “required licenses from all applicable federal, state, and local agencies . . . .”[77] DSAMF ¶ 215.

         PPLC ultimately ceased work on the 2012-2013 flow reversal project in 2013.[78]PSMF ¶ 45; DRPSMF ¶ 45.

         F. The Waterfront Protection Ordinance

         In 2013, PPLC began to observe political opposition to the flow reversal project from environmental interest groups and the South Portland City Council.[79] PSMF ¶ 44; PSAMF ¶ 244. It became apparent to PPLC that environmental interest groups would seek a referendum in South Portland that would bar PPLC from reversing the flow of the pipeline. PSMF ¶ 45. Advocates opposing the flow reversal project obtained sufficient signatures to place the so-called “Waterfront Protection Ordinance” (“WPO”) on the November 2013 ballot in South Portland. PSMF ¶ 46.[80]

         In 2013, Portland Pipe Line Corporation (“PPLC”) sent an “Open Letter to the Residents of South Portland” that stated:

Perhaps you signed a petition to get the [Waterfront Protection Ordinance (“WPO”)] on the ballot, because you were told the WPO is designed to “stop tar sands” and “smokestacks”. These misleading references relate to a prior proposal which was never initiated or completed, and are designed to scare you into thinking that our company has an imminent project to bring tar sands to South Portland or smokestacks to Bug Light Park. Let us be clear - there is no such project proposed, pending or imminent. In fact, recently, as a good faith measure, we took the rare step of voluntarily surrendering our final permit relating to that prior proposal, as further reassurance to the community we care so deeply about that there is no tar sands project.[81]

DSAMF ¶ 180.

         The City Council opposed the WPO by a vote of 5-1 on August 19, 2013. DSAMF ¶ 217; PRDSAMF ¶ 217. City Councilor Gerald Jalbert publicly campaigned against passage of the WPO.[82] DSAMF ¶ 219.[83]

         On November 5, 2013, South Portland residents voted against passage of the WPO by a 4453 to 4261 margin, or 51.1% to 48.9%.[84] PSMF ¶ 63.

         G. The Moratorium

         On November 6, 2013, the South Portland City Council held a workshop to discuss a moratorium on the importation of oil sands crude into South Portland.[85]PSMF ¶ 65.

         At that November 6, 2013 workshop, Councilor Melissa Linscott stated: “I don't want to see tar sands here, I'll say it.”[86] PSMF ¶ 66. She also said: “I feel like I'm walking a fine line right now, but in my mind, the issue with the Waterfront Protection Ordinance as it was written had to do with the language and restrictions on other businesses, other activities, that we did not want to take place.”[87] Id.

         At that November 6, 2013 workshop, Councilor Linda Cohen stated that “whether or not tar sands, oil sands, whatever it is, is coming in to this city tomorrow, next week, or next year, there's a real fear in our, in our city by at least half the people who voted yesterday.”[88] PSMF ¶ 67. She also said, ““In the end what I want to see come out of this is a process that, or an ordinance that, makes the City of South Portland as safe as it possibly can be . . . .”[89] PSMF ¶ 68.

         At that November 6, 2013 workshop, Mayor Blake stated:

I'm certainly in favor of a moratorium. We've used them several times in the past, always successfully. There's a reason why state statutes allow us this sort of activity, it's for things like this. And the second reason that they allow it is because of the inadequate ordinances to protect the health and safety of our community. And that's where I think we're at and that's why I support the moratorium.[90]

PSMF ¶ 69. He also stated, “I think we want to be specific enough to cover any tar sands product, period. No matter what stage it's in. If it comes from the Alberta tar fields, regardless of what stage, what refined position it's in.”[91] PSMF ¶ 70. He also said that, for legal reasons, “we can't say tar sands in pipelines.”[92], [93] PSMF ¶ 72.

         At that November 6, 2013 workshop, Councilor Jalbert said:

Maybe we're missing some of the big point here. That, if there's a reversal of the flow, it's the onboarding of a ship which is really the conduit to make this all work per say. Maybe there's a way we can look at the wording of this as it deals with, with oil sands or tar sands and the onboarding. So I'll ask again for help from Corporation Counsel. We need to go to the part where it talks about the onboarding of ships.[94]

PSMF ¶ 71.

         At that November 6, 2013 workshop, Councilor Livingston stated: “You just said a phrase there, reverse the flow. That's similar to, you know, that's what gets at what you're talking about, as far as, a little bit of refinement in Montreal, it has to be reversed to get down here.”[95] PSMF ¶ 73.

         At a December 3, 2013 meeting of the South Portland Planning Board South Portland Corporation Counsel Sally Daggett stated:

If you look at two points, number one on page 2 of the proposed ordinance, the eighth whereas clause down, there's a specific definition of the term oil sands/tar sands products. It says, ‘is used in this article to describe petroleum products derived from oil sands/tar sands that are still in an unrefined state including bitumen, diluted bitumen, synthetic crude, synbit and dilsynbit.' So it's limited to those products and then it's also further limited just to development proposals involving the loading of oil sands/tar sands products onto marine vessels docking in South Portland.[96]

PSMF ¶ 74.

         At that December 3, 2013 planning board meeting, South Portland Planning and Development Director Tex Haeuser stated:

We've already, you know, in the places along the waterfront where you don't have, say, the condominiums so close, you know, to the area. We already have them. If someone came forward with a new one there'd probably have to be a planning board, likely there'd have to be a planning board hearing as an amendment to an existing plan for that to happen. For it to happen on the waterfront here in, you know, in the eastern waterfront, there would have to be a, you would think there would have to be a pipeline reversal and that's what the moratorium's going to prevent, so. I kind of, I don't know if it's that big a concern.[97]

PSMF ¶ 75.

         In a manner that the City believed was consistent with Maine law, 30-A M.R.S. § 4356, on December 16, 2013, the City Council approved a “Moratorium on Development Proposals Involving the Loading of Oil Sands/Tar Sands Products onto Tank Vessels Docking in South Portland.”[98], [99] PSMF ¶ 76, ¶ 220. A stated goal of the temporary Moratorium was to allow the City Council:

time to seek: such professional advice and assistance as it deems necessary and appropriate, [to] study the Code of Ordinances to determine the land use, environmental and other regulatory implications of future proposed development proposals involving the loading of oil sands/tar sands products onto marine tank vessels docking in South Portland and consider what regulations might be appropriate for such activity.[100]

DSAMF ¶¶ 220-21.

         H. The Draft Ordinance Committee

         The South Portland City Council created a “Draft Ordinance Committee” (DOC) charged with recommending ordinance amendments to

protect the public health and welfare from adverse or incompatible land uses, or adverse impacts to local air, water, aesthetic, recreational, natural, or marine resources, that could result from modifications to existing storage, handling, or processing facilities, or construction or installation of new facilities or equipment intended to allow the exportation of unrefined petroleum products, including the loading of unrefined petroleum products onto marine tank vessels docking in South Portland.”[101]

PSMF ¶ 79; DRPSMF ¶ 79; DSMF ¶ 146; DSAMF ¶ 223. In a Request for Qualifications the City sought “a consulting firm or individual to prepare and facilitate a committee based process to explore the development of ordinance language to address development proposals involving oil sands/tar sands products.” Id.

         David Cyr, the then-president of PPLC, sent a letter to the Mayor of the South Portland City Council asking for a representative of PPLC to be included as a member of any ordinance amendment study committee. PSMF ¶ 80; DRPSMF ¶ 80. The City appointed three individuals to be members of the DOC: including Russell Pierce, a Portland attorney and commercial litigator at Norman Hanson & DeTroy who represented the Natural Resources Council of Maine; Michael Conathan, the Director of Ocean Policy at the Center for American Progress a former staff member to Sen. Olympia Snowe and the Republican majority on the U.S. Senate Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard within the Committee on Commerce, Science, and Transportation, and Director of Ocean Policy at the Center for American Progress; and David Critchfield, a financial professional, environmental compliance manager at manufacturing facilities and timber sites, and former environmental regulatory specialist for International Paper, including at the Androscoggin Mill.[102] PSMF ¶ 81; DRPSMF ¶ 81; DSAMF ¶ 222; PRDSAMF ¶ 222.

         The City did not appoint any representative of PPLC to the DOC and no PPLC representative in fact served on the DOC.[103] PSMF ¶ 82; DRPSMF ¶ 82. The DOC invited PPLC to participate in the hearings and to provide it with comments and relevant information, but PPLC refused “to serve as a resource for the Draft Ordinance Committee, ” and “engage with the Committee” because it believed the committee had prejudged the issue and their motives were pretextual.[104] DSMF ¶ 176.

         The DOC held its first meeting on February 6, 2014. PSMF ¶ 93; DRPSMF ¶ 93. The DOC “reconfirm[ed]” its charge from the City Council by drafting a written mission statement. PSMF ¶ 94; DRPSMF ¶ 94.

         At a March 4, 2014 meeting of the DOC, the DOC heard testimony from South Portland Fire Chief Kevin Guimond.[105] PSMF ¶ 99. Of the six oil terminals in the City, at least two-CITGO/Irving and Gulf-are designed to and do load refined oil products onto marine tank vessels.[106] DSAMF ¶ 197. In response to a request to participate in the proceedings of the DOC, CITGO reported to the DOC that “[t]he terminal consists of a marine dock capable of handling ships and barges, a 5 bay truck loading rack, 10 tanks, various buildings for administration, maintenance, foam house, drivers' rooms etc. and a vapor combustion system. The dock is designed to off load or load vessels and product is delivered out of the terminal by truck.” DSAMF ¶ 198; PRDSAMF ¶ 198. Jamie Py, the President of the Maine Energy Marketers Association, who provided information and consultation to the DOC, reported to the DOC:

Last week I was asked by the DOC to ask Gulf if Gulf had the ability and or experience to be able to load marine vessels. I have been told that: Gulf Oil does have the capability to load product from its South Portland waterfront terminal onto marine vessels. We have in fact done so in the past, and we anticipate the continuing need to do so in the future.[107]

         DSAMF ¶ 199.[108]

         In executing its fact-finding charge, the DOC considered numerous documents relating to air emissions, land use priorities, and community aesthetics, including a Report from the American Lung Association, Air Emission Inventory Reports, documents related to evaporative emissions from crude oil storage tanks, and documents from oil terminal operators in the City, environmental groups, and the Maine DEP. DSAMF ¶ 224; PRDSAMF ¶ 224. In testimony to the City Council, the American Lung Association explained that Cumberland County received a “C” air quality grade (likely a “D” if current criteria were used). DSAMF ¶ 225; PRDSAMF ¶ 225. The American Lung Association further testified to its view with regard to crude oil loading: “[w]e should be reducing the amount of air pollution in this area, not increasing it.” Id. The American Lung Association also informed the DOC that the area already has some of the highest rates of respiratory ailments and lung disease in the state.[109] Id.

         The first two drafts of the ordinance at issue included a recital stating that “the reversal of the [PPLC] pipeline . . . would still result in significant adverse impacts” that were “not addressed by . . . federal or state laws” and could be addressed only by “the City's exercise of its broad home rule authority.”[110] PSMF ¶ 101.

         1. Comments by the City Councilors

         At a February 3, 2014, meeting of the South Portland City Council, Councilor Linda Cohen stated:

My understanding was that we want this committee to come up with language that will keep unrefined tar sands, is that where we are, out of the City of Portland, uhh, South Portland, Portland too, they're hoping the same thing, but that was, that was my understanding, that's what I want, I also in the meantime don't want to put businesses on the waterfront that are currently in existence out of business. So we have to keep in mind the viability of our current businesses and economy in South Portland but I don't want oil sands in South Portland.[111]

PSMF ¶ 85.

         At that February 3, 2014 council meeting, Councilor Blake stated that the City should develop a new ordinance that would “keep tar sands out completely.”[112] PSMF ¶ 86. He also said, “Everyone knows I don't have a great deal of faith in the petroleum industry, so we need to develop something that cannot be circumvented.”[113] PSMF ¶ 87.

         At that February 3, 2014 council meeting, Councilor Patricia Smith stated: “I think we do have a health and safety issue that's potential with, with tar sands coming into our community.”[114] PSMF ¶ 88.

         At that February 3, 2014 council meeting, Councilor Maxine Beecher stated:

I just want to add that in fact when this ordinance is done that it has and includes federal and state law, so that we're not caught in the courts for the next hundred years, which is a huge issue for us, and I think we're talking about unrefined oil sands/tar sands, whatever that word is that gets kind of interchanged, and it's really about loading it onto ships from the harbor of South Portland versus having it come, come in any other way. I think also one of the things that I want to be sure is that when this is written, that it does not have a negative impact on the working waterfront as we see it today.[115]

PSMF ¶ 90.[116]

         At that February 3, 2014 council meeting, Mayor Gerard Jalbert stated that an ordinance drafted by the DOC might conflict with the “Interstate Commerce Act” and the Pipeline Safety Act.[117] PSMF ¶ 91. He said:

And for anyone at Sanibel Island they would know about this. What that involved was there was a fast food restaurant that wanted to become the first fast food restaurant on Sanibel Island and apparently the citizens weren't really happy about this particular situation. But they really couldn't basically outlaw hamburgers and so what they had to look at instead was what's so important about this business as far as its ability to operate. In that situation, it was apparently the drive-thru window. Without the drive-thru window, the economics didn't make any sense, and so they passed an ordinance in Sanibel Island, I don't know the specifics, but what it did, it basically prevented drive-thrus from occurring and therefore that particular fast food restaurant never got built. That relates here to the City of South Portland . . . [W]e need to look at the infrastructure . . . and what is the infrastructure that would be needed, and how do we provide a land use ordinance that looks at the infrastructure so that we're not gonna get hung up with these issues as far as the Interstate Commerce Act and the Pipeline Safety Act. Some of the other concerns of getting hung up with perhaps the EPA or Clean Water Act, whatever it might be. So if we can avoid those conflicts, but still have something which accomplishes a certain task . . .[118]

PSMF ¶ 92.

         2. Comments by Russell Pierce

         Less than three minutes into the first DOC meeting on February 6, 2014, DOC member Russell Pierce stated:

[O]ne of the concerns here . . . is the federal preemption issues, and we are now engaging in a process of developing a legislative record, and if the ultimate result of this process is a recommended ordinance that's approved, one of the concerns I have is the big elephant in the room here is that whatever we do, will probably be challenged . . .[S]o with that out there, with the prospect of a challenge . . . we have to be careful in generating a legislative record that almost defeats itself, and so for that reason I think it would be helpful for us to draft the mission statement. In drawing on the Mayor's Sanibel Island . . . [a]nalogy . . . [I]t can be done and can be done in a way that . . . best avoids walking into the trap, of, of, of saying, you know we're, I mean, let's be explicit, I was brought up in the planning board session, I think on record someone said why don't you just have an ordinance that says stop tar sands? And the answer is federal preemption problems.[119]

PSMF ¶ 95.

         At a February 20, 2014 DOC meeting, DOC member Russell Pierce stated:

But that said, if ultimately it comes to the point where the City is called upon to defend an ordinance that comes out of this process in Court, it may be helpful to be able to point to a process, a legislative process, that included them - API - and invited comment and invited participation.

PSMF ¶ 97.[120]

         At an April 3, 2014 meeting, Committee member Russell Pierce queried of a presenter to the committee “when you proposed in general as one possible approach for us to look at is just the VOC emission standard, had you considered what impact that may be to other zones in the city, particularly in the industrial zone?” DSAMF ¶ 227; PRDSAMF ¶ 227. He also stated:

We hear a lot, we've heard a lot and gotten some great proposals and the potential solutions to the problem, and we need to hear . . . we have received some guidance . . . so I would say that that is one place where I would like to . . . the whole point that Mike is making is, you know, we're gonna go, we're proposing some approaches here; it would be nice to know beforehand if this is something that the current land use and the owners do not want us to do for some particular reason.

DSAMF ¶ 230; PRDSAMF ¶ 230.

         At the April 24, 2014 meeting of the DOC, committee member Russell Pierce stated:

if one were to look at a VOC emissions approach . . . I'm not so sure it has to be part of the zoning ordinance . . . It could just be sort of a standalone ordinance . . . If it's not in Chapter 27 as a land use ordinance, does it have to be . . . do we even have to worry about it being part of the comprehensive plan, it could just be consistent with the city's own policies, because it's not a specific land use ordinance.

DSAMF ¶ 233; PRDSAMF ¶ 233. Russell Pierce also stated:

I guess what I was saying is that . . . going through this process and the city having gone through this process just reinforces in the legislative history of the city and its implementation of the plan, it reinforces the city's, um, adherence to the principle that there will be . . . that the vision of the city does not include expansion of the current petroleum handling, uh, uses . . . Clearly air emissions is like the ballast waters, it's no question about it, an impact that supports the regulatory land use undertaking in zoning based on loading and unloading and regulating the tank terminal. There's no question about that air emissions are a significant impact . . . that supports the legislation that we are doing . . . because we learned of significant air emissions or air pollution issues, plus that was exacerbated by the fact that you have . . . schools next to the tank farm, and other incompatible uses that are just so juxtaposed.

DSAMF ¶ 236; PRDSAMF ¶ 236.

         At the April 29, 2014 meeting of the DOC, committee member Russell Pierce stated:

[F]or example, I was thinking about, you know, emissions in particular, and just not . . . if at the end of this process, we have no direct ordinance that really addresses the emissions issue as it pertains to this particular land use that we're seeking to prohibit . . . and doesn't sort of squarely address those issues, I'm just concerned . . . I'm concerned that we're not being thorough . . . I acknowledge on the VCU issue that, in isolation, yeah, technology changes . . . but it doesn't change for the short term, and if one of the concerns that has been raised are the visual aesthetics, the height restrictions and the air emissions issues of a new use, that . . . incompatible with the adjacency to the surrounding zones, the adjacency to the college, et cetera, et cetera, that . . . it's okay for us to say, yeah, technology will change, but it's not gonna change tomorrow and we are regulating a new use . . . that is a real threat.

DSAMF ¶ 237; PRDSAMF ¶ 237.

         At the April 29, 2014 meeting of the DOC, committee member Russell Pierce queried:

Is it a given, though, that any reversal of the pipeline project would . . . can we say by a preponderance of the evidence, that would increase the VOC emissions at the tank farm? . . . It strikes me that the way it's zoned now with the marine industrial, is almost like because it didn't fit anywhere else . . . but ignore the fact that it's just a blatant incompatible use to the way that . . . it's no-one's fault, I mean, it's just the way historical development, it's just the way it happened . . . It's just an example of a major incompatible use that the city has that at the very least, we want to come up with a recommendation to the city that says, somehow, stop this from any expansion.

DSAMF ¶ 239; PRDSAMF ¶ 239.

         At the May 7, 2014 meeting of the DOC, committee member Russell Pierce stated:

One was the realization that it's really the . . . the prohibition of loading and isolation, it's really the aesthetics, the change in vision from, you know, from the comprehensive plan's idea of we're going to move away from an industrialized petroleum based export city and aesthetics, and we're setting up all kinds of conflicting uses, but to steer clear of saying anything about a risk of increased oil spill or risk of marine impact because that, that really is covered by federal law.[121]

DSAMF ¶ 239. At the same meeting Russell Pierce also stated:

All of that existing air emissions control equipment, let's say, or structures that we have are related to the handling of refined petroleum products, and so we could say, you know, I mean City of South Portland has a really bad emissions problem, we know that much, and one step, not the only step, but one step towards taking care of that is to say that there won't be any new petroleum uses, like the loading of crude onto marine tank vessels that would be, that would require new VCU control structures, whether their twenty feet high or . . . .

         DSAMF ¶ 241; PRDSAMF ¶ 241. He also stated, “The concern that's left unaddressed is this air emissions issue and the tank farm's locus . . . being adjacent to now four schools, one of them a rejuvenated high school and a community center.” DSAMF ¶ 243; PRDSAMF ¶ 243.

         At the May 7, 2014 meeting of the DOC, committee member Russell Pierce stated:

The idea is, if this is a lot where they could potentially put in a storage tank that's on the pipeline that could be used as part of a pipeline reversal project, that raises the same, you know, new and expanded uses, inconsistent with the city's vision and the comprehensive plan, even doubly so if you look at the particular Broadway lot, and the aesthetics and then the emissions.

DSAMF ¶ 245; PRDSAMF ¶ 245. He also stated: “Obviously there's an emissions problem and if you embark on this outside the scope of this particular committee . . . there'd be some big gaps, there'd be some potential significant gaps that we'd want to make sure we knew and were either no problem or potential problem.”[122] DSAMF ¶ 246. Russell Pierce also stated:

The key is we're prohibiting a use that does not exist now, that would be an expanded use inconsistent with the city's vision . . . That's the added concern, the local concern . . . We're not so sure people want to have their boats in the marina if it's next to a marine tank . . . There are still these other concerns that are local concerns that the city has that are not part of the federal regulatory scheme, and then, you know, this ordinance is intended to address those, and that's aesthetic watershed, increased use, inconsistency with the plan, air emissions.

DSAMF ¶ 248; PRDSAMF ¶ 248.

         At the May 15, 2014 meeting of the DOC, committee member Russell Pierce stated:

I thought that our other recommendation would be that the Hill Street tank farm be designated a non-conforming use . . . The memo that I can do would just be to explain why that makes sense given the city's plan, and given the proximity to the schools . . . and supported by the air emissions.”

DSAMF ¶ 249; PRDSAMF ¶ 249. He also said:

What we're saying as a city, as a municipality, is, regardless of that [areas covered by federal law], or in addition to that, there are these other issues that all of the federal laws don't address that are serious concerns that we have about the health, the safety, well the health and the welfare, and the quality of life that this kind of a project would impose on the city. It's not consistent with the city's vision.

DSAMF ¶ 250; PRDSAMF ¶ 250. Later at the same meeting, Mr. Pierce added:

And just air emissions, and the thirty-nine ton thing, to me, stands out as one of those, and so if we don't have an ordinance that addresses that head on, and says this is one of the local issues, that the problem with the this new industrialization, is, we don't think fits in with the city. It's the emissions. By saying no VCU's, we're saying no, that this kind of project is going to have air emissions that, even if it's, you know, thirty nine tons or whatever it is, that's still not, that's still too much, you know, if we can just chip away at this, at our air emissions problem anyway, that's just one added way of doing that.


         At the May 27, 2014 meeting of the DOC, committee member Russell Pierce stated, “The height restriction goes at another local home rule power, land use, which is the ocean view obstruction.” DSAMF ¶ 251; PRDSAMF ¶ 251. He also said:

What we're doing here is only what the city can do under its broad home rule power, and . . . if the city doesn't do it, no one else will do it. These are the additional impacts that are not taken care of by federal and state laws, and so the focus, our honed focus here of the whole ordinance process, is the city's exercise of home rule power only. These are the issues that won't get taken care of by all of these other state and federal laws . . . So paring down all of the environmental stuff, we don't have to have any environmental impacts, or anything like that, you know, the air emissions stuff, yes, because that's clearly within the scope of the local zoning power, but just to winnow the whereas clauses down to just being dealing with the air quality, ocean scenic views, and the land use, you know, striking the balance with the mixed use of the waterfront community, and just keeping that the focus.

DSAMF ¶ 252; PRDSAMF ¶ 252. He also stated:

What this process has done for me is really honed the ability to back to the council and say, you know, these are all of your concerns, in this process we learned that these environmental concerns, however certainly legitimate they are, are regulated by other state and federal laws . . . And now we're coming back with, these are the places where, if the city does not act in this ordinance, these risks won't get taken care of, and that's the air quality in particular.

DSAMF ¶ 254; PRDSAMF ¶ 254.

         At the May 27, 2014 meeting of the DOC, committee member Russell Pierce stated:

The 2009 application, I think, is the point that puts it in perspective. That's what introduced this new proposed land use . . . These are how the air emissions issues and the other local zoning power issues get triggered . . . There are currently no operations for this, and it has never been done in the entire history of the city, and then, then I just went, the third page is just where I started to in broad strokes go over those, what I see are kind of the three categories: the air quality, the scenic, and just the mixed use, the balance of waterfront community use issues, which ties into the reputation of the city also.

DSAMF ¶ 256; PRDSAMF ¶ 256. He also said, “Still under even normal operations, there would remain significant adverse impacts to air quality and ocean views, and all that.” DSAMF ¶ 257; PRDSAMF ¶ 257.

         At the June 5, 2014 DOC meeting, DOC member Russell Pierce said:

One place that we thought in particular called out for future attention and action was the location of the Hill Street tank farm right now in an area that's surrounded by residential, predominantly single-family residential, areas and schools, not just any schools, the high school, the high school that is undergoing significant renovation and has open fields, and also the city's new community center, relatively new community center, too.

DSAMF ¶ 260; PRDSAMF ¶ 260. He later added, “The plan, I think, in very resounding terms, talks about not expanding the shipyard working waterfront district into these developing mixed-use areas of the city.” Id.

         At the June 5, 2014 DOC meeting, DOC member Russell Pierce gave a PowerPoint slide presentation concerning the ordinance that discussed “Federal Preemption” and the “Dormant Commerce Clause.”[123] PSMF ¶ 105. He said, “Those two constitutional issues, federal preemption and the dormant commerce clause, were part of our thinking throughout this process and the legal backdrop behind it.”[124] PSMF ¶ 106. He also said:

It's the important paragraph [in the whereas clause of the ordinance] that says to the city, you know, if you look at the moratorium, we were thrown, as I said, we were given the kitchen sink, here are all the bad things, so to speak, colloquially speaking, or all the considerations about this reversal of the pipeline issue, and we as a committee, looked at those things and some were already covered by federal and state laws and what we're recommending are changes that can only be addressed under the city's broad home rule authority.

DSAMF ¶ 262; PRDSAMF ¶ 262.

         At a June 18, 2014 meeting of the DOC, DOC member Russell Pierce stated: “We need to be very cognizant of, because of case law out there, really having anything to do with having our charge get into operational pipelines.”[125] PSMF ¶ 102. At the same meeting, he said “I think it creates an ambiguity if we, if we say anything about the operation of the pipeline in the whereas clauses.”[126] PSMF ¶ 103. Pierce also said:

There is a case out there where, you know, the argument was made that even though the facility that was being regulated was, was within the City, that the City was trying to prevent its operation because it was expanding beyond the territory of the jurisdiction . . . I'll admit it was a silly argument, but the judge bought it, so I guess that's the, the only reason why, it just, kind of doesn't hurt, in a way, to make this clear that the ordinance applies to the bulk loading of crude oil onto marine tank vessels in the City of South Portland as opposed to marine tank vessels in the . . . Port of Portland.[127]

PSMF ¶ 104.

         At the June 19, 2014 meeting of the DOC, committee member Russell Pierce stated:

We're not just dealing with VOCs in this whole air quality exercise; it's the HAPs, and in many ways, the hazardous air pollutants are the ones that we're really most succinctly concerned with for this particular ordinance, so I don't have a problem adding to this and emissions from the bulk loading of crude oil onto marine tank vessels would increase such precursor concentrations.

DSAMF ¶ 263; PRDSAMF ¶ 263. He later added:

We're taking emissions from bulk loading and moving that to the VOCs are precursors clause and emphasizing that the emissions would increase such precursor concentrations, and then just having the American Lung Association whereas clause just deal with what that report talks about, which is . . . C grade for ozone, air quality, and then we go to the breathing ozone can cause adverse health effects.


         At the June 19, 2014 meeting of the DOC, committee member Russell Pierce stated:

The importance of the one that's not above thirty nine tons is that it emphasizes HAPs, and it emphasizes the proximity, it's in other areas of the city, including schools and residential areas already located adjacent to crude oil tank farms and their associated air quality effects, so with the recommended changes to that paragraph, I think it clarifies the distinction that . . . there is a little bit of overlap because they both talk about air emissions, but I think they're both worth keeping.

DSAMF ¶ 264; PRDSAMF ¶ 264. He also said:

But I think that the kind of the point I was trying to make in having this is that this first paragraph emphasizes including the 19 tank facility on Hill Street, meaning that the bulk loading of crude oil onto marine tank vessels would likely include an increased use or reusing existing unused capacity at the tank farm, which could increase HAPs, fugitive emissions, related to oil storage facilities.

DSAMF ¶ 265; PRDSAMF ¶ 265. He also said:

So I think what I was kind of saying, you know, I don't know if I said this before, but, you know, one is there will be HAPs emissions, that's not good. There'll be HAPs emissions from the storage facilities, that's not good. Another reason why it's not good is that HAPS emissions from the storage facilities because the storage facilities are adjacent to schools, and residents, and all of that.

DSAMF ¶ 267; PRDSAMF ¶ 267.

         At the June 19, 2014 meeting of the DOC, committee member Russell Pierce stated, “I want to specifically and expressly tie the vision to the plan . . . we need to say this is the waterfront community vision and we need to be expressly clear that this vision is tied to the eastern waterfront, and so that's why we need to quote it- make it clear.” He later added:

The plan identifies the eastern waterfront. The eastern waterfront is divided into a number of subareas-the Ferry Village marine mixed-use area, the marine industrial area, the shipyard district, the Picket Street neighborhood, the shipyard mixed use area, and the SMCC college seashore area-that is what the plan identifies as the eastern waterfront, and this is an area where in the short term, the community vision needs to be carried forward.

DSAMF ¶ 268; PRDSAMF ¶ 268.

         At the June 19, 2014 meeting of the DOC, committee member Russell Pierce commented, “I went to the maps and tried to find the neighborhood centers . . . and I said, including South Portland High School, several other schools . . . preschools and the South Portland community center, and I just want to confirm, I had schools identified, and I recall the record reflecting a preschool.” DSAMF ¶ 270; PRDSAMF ¶ 270. He also said:

There are some things that are not covered by state and federal law; those are the things we've tackled here. But, for me too, there are some overarching points that the council, I would think, needs to know . . . that are related to the policy reasons for the legislation . . . I think the city council needs to know that there is an existing hazardous air pollutant problem from the existing oil storage tank facilities and, you know, using the fugitive emissions just alone . . . we could present a very vivid picture for the councilors, for the legislators here, sort of, this is why you care about the air quality, about the HAPs; this is why you care.

DSAMF ¶ 271; PRDSAMF ¶ 271. He later added:

If you do the calculations on the fugitive emissions, and if you calculate that, that's talking about, whatever it is, three-foot or four-foot hole on top of each tank . . . and then you add all that together, basically it's as though there has been an open barge of crude oil, and now it has been next to a school, and for the lay person, you're like, that can't be. That can't be allowed. Yes, that is what's going on right now.


         At the June 19, 2014 meeting of the DOC, committee member Russell Pierce stated “[w]hat we are regulating is a new, nontraditional use that posed serious air quality and scenic value and land use planning issues.” DSAMF ¶ 272; PRDSAMF ¶ 272. He said, “I disagree that we went to air quality because we could. We went there first because of the policy reasons and the public comment and all of the demonstrations . . . And then the legal analysis was, and that's where we could go after we determined that that was the place.” DSAMF ¶ 273; PRDSAMF ¶ 273. He characterized the Ordinance as “surgically pointed to just regulating the new non- traditional use while maintaining the working waterfront . . . consistent with the way that working waterfront is envisioned in the plan.” DSAMF ¶ 275; PRDSAMF ¶ 275. He queried:

You've been offloading crude oil for eons, to use dramatic terms, so now loading on, what's the big deal about that? The big deal about that is that that requires a 70- foot combustion stack or two or whatever, and that's twelve feet wide and seventy feet high, and that would be the tallest structure in the city on the pier . . . I'm really just raising this as a question, do we need to be driving home these points to the council?

DSAMF ¶ 276; PRDSAMF ¶ 276.

         At a June 25, 2014 special workshop of the South Portland City Council, DOC member Russell Pierce stated:

When we were looking at the issue of land use planning, what is the power of the City of South Portland to exercise its home rule authority to enact zoning ordinances, one of the places where the City is permitted to act is in the regulation of air emissions or in regulations pertaining to the installation or construction of buildings or equipment that may be part of land use activities that result in air emissions. This is one of the key places where the federal government says to the states and the local municipalities, it's okay to regulate in this area, you won't be preempted or prevented from helping the nation with air emissions control regulation, so, cognizant in our mind was the, going into this, was the prospect that because the bulk loading of crude oil involves significant air emission structures and equipment, that that would also be a place where the City of South Portland could go in to regulate.[128]

PSMF ¶ 113. He also said “We can't predict how, if any of this is challenged, whether one, more or all of this will survive a challenge or not. It's, it's, the point is this is the best we can do, let's put as much belt and suspenders out there as we can.”[129] PSMF ¶ 114.

         At a July 1, 2014 DOC meeting, DOC member Russell Pierce stated: “I think our concern was to make sure that you have the preamble at your disposal in the event that there's a challenge to the ordinance.”[130] PSMF ¶ 116.[131]

         3. Comments by Michael Conathan

         In Mr. Conathan's proposal to the City applying to be a DOC member, he said “I am opposed to the use of the pipeline to ship tar sands oil.”[132] PSMF ¶ 84.[133]

         At a February 27, 2014 DOC meeting, the following exchange took place between DOC member Michael Conathan and Bill Sousa, a representative of the petroleum industry:

Michael Conathan: What I'm trying to get at, and it would be helpful to, you know, one of, one of the complaints that we sort of heard in the run up to the WPO vote is, you know, well the, the industry hasn't really been given the opportunity to contribute to the process. Was one of the things that I want to make sure, you know, that we as a committee check the box on that. You know, what are your concerns -
Bill Sousa: Well, I, I -
Michael Conathan: And what are -
Bill Sousa: I can tell you, I don't think you're checking the box on that because you've, I think you all've ignored the one terminal that you're really trying to effect. You've, I think this, this process has put the cart before the horse. There was no, you know, investigating the, the overall issue that people are concerned about and you all have a charter to reach a conclusion that's already set in stone. So, ah, so now you're getting my personal opinion.
Bill Sousa: And so, I think the, I, I, I don't necessarily agree with this, with the whole process of, of the way this is going.[134]

PSMF ¶ 98.

         At an April 3, 2014 meeting of the DOC, committee member Mike Conathan stated:

[G]oing back to this marine industrial use concept, what are the other heavy industrial zoning options that could be applied here and how are they different - it's not a question for Rob necessarily, but, again, it's more of a discussion point for us . . . if there were another classification for this, I don't know what that would get us, or if it would get us anywhere, frankly, but I'm just curious. It's such an anomaly and obviously it's a . . . made for the benefit of the pipeline company and may or may not be an appropriate one given the mixed uses that have grown up around the tank farm.

DSAMF ¶ 226; PRDSAMF ¶ 226.

         At an April 16, 2014 meeting of the DOC, committee member Mike Conathan stated:

[T]he DEP effectively sets these standards and issues these permits, but does the city have a role in participating in that process? Does the DEP consult the city? What's the link? . . . I'm gonna try to drill down a little bit on some of these issues of where do we go with this information that we've got. So, for example, starting with air quality is great . . . I'm appalled by the monitoring alone, the air quality at these facilities, particularly around schools.

DSAMF ¶ 231; PRDSAMF ¶ 231. He also queried of a presenter to the committee

One of the things that you brought up was the odors produced by loading, and obviously we could potentially be talking about significantly higher quantity of loading operations which would, therefore, mean a higher quantity of odor. Is there greater odor produced by loading a tanker versus unloading a tanker?[135]

DSAMF ¶ 231.

         At the April 24, 2014 meeting of the DOC, committee member Mike Conathan stated:

I would potentially put some of the air quality issues in that slot as well, and the monitoring issues in particular. You know . . . the point about monitoring air quality is a good one, but I think if the ultimate goal of the ordinance is to not have the stuff here in the first place, then hopefully there's nothing to monitor.

DSAMF ¶ 235; PRDSAMF ¶ 235.

         At the May 7, 2014 meeting of the DOC, committee member Mike Conathan stated:

Well I think part of what we may have been trying to get at was additional emissions as opposed to new sources, and so we go back to sort of the question about TI or the other emitters, you know, those are existing sources, and say that what we are trying to get at is to not have pipeline sources increased, regardless of whether it comes from refined or unrefined for the purposes of this particular conversation . . . The intent here is to keep emissions from increasing in a part of the city where there are not permanent at the moment, potentially.

DSAMF ¶ 244; PRDSAMF ¶ 244. He also stated:

I think this is sort of what we're getting at with the air emissions piece, and it all basically wraps into a single conversation here and we're just, the three of us, are sort of coming at this same air emissions conversation from a slightly different angle, some kind of language that focuses on regulating the function of the VCRU, that is, the VCU, that being emissions, so I think this is where ultimately we're kind of starting to direct our conversation, also addressing the general concern that we don't want to do anything that impacts new safety equipment or upgraded safety equipment, and lastly to just make a flag on the aesthetic impact issue . . . The seventy foot stack would have an impact on property value as well as general enjoyment of the waterfront views from various points in the city and beyond.

DSAMF ¶ 247; PRDSAMF ¶ 247.

         At the May 27, 2014 meeting of the DOC, committee member Mike Conathan stated “[b]eing a destination, livable walkable neighborhoods, green city, obviously, waterfront community, obviously.” DSAMF ¶ 255; PRDSAMF ¶ 255.

         At a June 19, 2014 DOC meeting, DOC member Michael Conathan stated that he would not want “to try to make the impression that all anyone cares about is air quality” and that, “without any jurisdictional concerns . . . people would be concerned about climate change, people would be concerned about all the other things we have heard people talk about.”[136] PSMF ¶ 107. He also said that air quality was “the nexus between what people care about and what [the DOC] can do.”[137] PSMF ¶ 108.

         4. Comments by David Critchfield

         At an April 3, 2014 meeting of the DOC, Committee member David Critchfield stated:

The regulations say . . . is that for HAPs - which are defined differently from VOCs, some HAPs are a component of a volatile organic compound, but HAPs are a specific list of chemicals - and what the rules say about HAPs is, if you emit more than 10 tons of any one hazardous air pollutant, or 25 tons in the aggregate of hazardous air pollutants, then you jump into the . . . title 5 . . . regime, even if your VOCs are below 40 tons per year . . . The applicant has gotta prove that any single hazardous air pollutant or any family of air pollutants aren't greater than 10 or 10 to 25 tons per year, otherwise they jump to the varsity level of air permits.

DSAMF ¶ 228; PRDSAMF ¶ 228. He also queried, “In any of your reading, did you come onto sort of ozone non-attainment issues?” DSAMF ¶ 229; PRDSAMF ¶ 229.

         At the April 17, 2014 meeting of the DOC, committee member David Critchfield stated:

I think we can probably . . . multiple prongs, but in the discussions yesterday, we had heard from the, from Emily, that the Portland area had been given a grade of C by the American Lung Association and I think that it's our understanding that the state of Maine and EPA considers this in-attainment, so I guess I wanted to sort of square away on the facts there, what's what.

DSAMF ¶ 232; PRDSAMF ¶ 232.

         At the May 7, 2014 meeting of the DOC, committee member David Critchfield stated, “There might be a safety issue to this. There's an O2 concentration level that you're going to have an explosive mix if you're loading.” DSAMF ¶ 242; PRDSAMF ¶ 242.

         At the June 5, 2014 meeting of the DOC, committee member David Critchfield stated, “One thing that came through clear through both the oral as well as the written comments was a concern for public health due to air exposure.” DSAMF ¶ 261; PRDSAMF ¶ 261.

         5. Comments by Jeff Edelstein

         At the February 6, 2014 DOC meeting, DOC Facilitator Jeff Edelstein stated:

I did write down the language that comes out of the moratorium, that's repeated over and over and I think that the council referenced that the language over and over is new development proposals involving the loading of oil sands/tar sands products onto marine tank vessels. It was pretty clear that there are members of the council who want to see that none of these materials move through South Portland. I guess that's how I would characterize where the situation is on the charge.[138]

PSMF ¶ 96. He also stated:

[T]o the extent that it's dealing with the oil tar sands products and that desire to not have them move through the city, I would guess that, from the council's standpoint, they probably don't care what mechanism you use, if you find that it's outside of the industrial or shipyard or, you know, that's your charge is to be the brains to figure that out.[139]

PSMF ¶ 100.

         At the April 24, 2015 meeting of the DOC, committee moderator Jeff Edelstein stated:

[T]he different approaches, sort of generically . . . are to, in some ways within one district, multiple districts, zoning districts, or all zoning districts, to specifically exclude loading of marine tanker vessels as a permitted use, to have that be a non-permitted use . . . Another one is to exclude or limit vapor combustion units or vapor recovery units, and so that could be anything from height restrictions, other sorts of restrictions . . . we're excluding them also . . . .

DSAMF ¶ 234; PRDSAMF ¶ 234.

         At the April 29, 2014 meeting of the DOC, committee moderator Jeff Edelstein queried “[t]he 39 point whatever tons per year of VOCs is for the VCUs at the pier. One of you brought up . . . the question of, with a different material going through the storage tanks, the question is do the calculations change?” DSAMF ¶ 238; PRDSAMF ¶ 238.

         On May 2, 2014, DOC facilitator Jeff Edelstein sent an email to DOC member and attorney, Russell Pierce pointing out the Supreme Court's ruling in Huron Portland Cement Co. v. City of Detroit.[140] PSAMF ¶ 255.

         At the May 27, 2014 meeting of the DOC, committee moderator Jeff Edelstein stated:

You're burying the lead here, your lead is that there is existing pipeline capacity of over 700, 000 barrels per day, which currently does not export any crude whatsoever, and thus you don't have those emissions associated with it. Full use of that pipeline capacity would result in on the order of 200 tons per year . . . It could result in emissions on the order of 200 tons per year based on the estimate of 39-40 tons for 150, 000 barrels per day.

DSAMF ¶ 253; PRDSAMF ¶ 253. He also stated:

How incredibly unique it is to have a community college that sits on the waterfront of the jewel of Casco Bay, you know, Portland Head Light is not in South Portland, but it's spitting distance. Does this convey to somebody that we're not just talking about any waterfront community, but we're really talking about a unique, you know, so everyone talks about recreation and tourism, but, you know, it's for real to say that this is really a unique recreation/tourism place, South Portland, Casco Bay, etc.?”

DSAMF ¶ 258; PRDSAMF ¶ 258.

         At the June 5, 2014 meeting of the DOC, committee moderator Jeff Edelstein stated, “The Committee considered various factors by which to assess which of those would accomplish its charge . . . Is it consistent with the vision of South Portland that was presented by the Comprehensive Plan?” DSAMF ¶ 259; PRDSAMF ¶ 259.

         At the June 19, 2014 DOC meeting, DOC facilitator Jeff Edelstein stated: “It comes down to, under the constitution and Congress passing the Pipeline Safety Act, the feds regulate pipelines, municipalities can regulate air emissions, that's like the crux of it.”[141] PSMF ¶ 109. He also stated:

And I'm not sure it matters if things are repeated, but that point is then made in the paragraph after this one that we're talking about . . . the one that says . . . Whereas the storage tank facility on Hill Street is located adjacent to, etc., and permitting the loading of crude oil onto marine tank vessels would likely require more storage of crude oil. I mean that brings it directly to the school children and area residents.

DSAMF ¶ 266; PRDSAMF ¶ 266. He also said:

I guess what I'm saying is why do ambient concentrations bioaccumulation . . . matter? . . . Isn't that part of the adverse human health effects, not something separate? . . . The regulation of HAPs is not being done based on bioaccumulations in species simply to protect species. The regulation of HAPs is being done because of the human health effects.

DSAMF ¶ 269; PRDSAMF ¶ 269.

         At the June 19, 2014 meeting of the DOC, committee moderator Jeff Edelstein stated:

Okay we recognize that there was a lot of . . . commotion about tar sands and oil sands and all that. But when the committee started asking people, what are the issues? Why are you concerned about this? What you were hearing from the outset was we're concerned about air quality, we're concerned about, what is it, the aesthetics of this, we're concerned about the impacts on our community. And that really was what people were saying their concerns were . . . There was some people who said, you know, well how come you're not addressing spills. But that wasn't really what people were as passionate about. It was about, how is this affecting us as a community if this were to happen?

DSAMF ¶ 274; PRDSAMF ¶ 274.

         I. The City Council Considers the Clear Skies Ordinance

         On July 9, 2014, the City Council held a first reading of the proposed “Clear Skies Ordinance, ” which was attended by the members of the DOC. PSMF ¶ 117; DRPSMF ¶ 117.

         1. Statements by Others to the Councilors

         On February 24, 2014, representatives of the Maine DEP gave a presentation to the South Portland City Council entitled “Overview of Ambient Air Monitoring and Air Quality in Maine and the South Portland Area.” PSAMF ¶ 256; DRPSAMF ¶ 256.

         At a June 25, 2014 Special Workshop of the South Portland City Council, DOC member Russell Pierce stated:

Well, I think one of the most important points is that because we didn't want to impact existing uses on the working waterfront so that's part of what drove the definition of, which originally it was refined petroleum products versus unrefined petroleum products and that's where we got into an issue where we didn't want to just say to, to prohibit the bulk loading of one particular kind of unrefined petroleum products, and not others, and the reason for that is both legal and also factual. I mean, as a practical matter, the, the bulk loading of crude oil, at least in this day and age, we had, when Charlie Colgan and Bill Hastings came and talked to about just the sort of the global market and the transport of crude generally, as a practical matter, the most likely product to come through the pipeline for bulk loading and export to refineries would be the Canadi [sic], the Canada product, but not necessarily so, so, you know, but for a number of other legal reasons you don't want to just carve out one particular kind of product.”[142]

PSMF ¶ 129. He also stated:

One of the places where the city is permitted to act is in the regulation of air emissions or regulations pertaining to the installation or construction of buildings or equipment that may be part of land use activities that result in air emissions . . . [T]he importance here of this slide too, is that not only was this not a traditional land use, it was also a traditional land use that would involve the installation of vapor control systems . . . on the pier.

DSAMF ¶ 281; PRDSAMF ¶ 281.

         At the June 25, 2014 Special Workshop of City Council, DOC moderator Jeff Edelstein stated:

The committee learned that bulk loading of crude oil onto marine tank vessels is neither a traditional marine use nor a traditional light industrial use in South Portland, and it learned that bulk loading of crude oil for export . . . they found it significantly different than offloading . . . particularly due to the emissions of air pollutants . . . also, on that same note, they learned that air quality and its impact on public health, that that's an existing concern that people have that they brought to the committee, and that would be exacerbated by the export of crude oil.

DSAMF ¶ 279; PRDSAMF ¶ 279. DOC member David Critchfield stated

[P]robably the one that is the most complex, and the one that taxes people in my business the most is the air regulations, because it is so complex; it crosses state boundaries . . . and then you're also dealing with, very much unlike water, you're dealing with sort of air sheds that have no riverbanks, if you will. So a public concern in our community or in the state of Maine or in the state of NH can kind of be vague and . . . there's not the kind of ease of gathering data that you would have if the mission was to go out and find out if the . . . river was contaminated based on a sample from a city sewer system or an industrial site or a paper mill.

DSAMF ¶ 280; PRDSAMF ¶ 280.

         At the July 9, 2014 council meeting, DOC member Michael Conathan stated that the committee had sought to “address the potential issue of throughput of crude oil through the City of South Portland.”[143] PSMF ¶ 118. He also said that the draft “Clear Skies Ordinance” did not expressly address Canadian “tar sands, ” despite the City Council's prior charge that the DOC do so, because the DOC determined that it did not have jurisdiction to regulate the handling of that sort of crude oil.[144] PSMF ¶ 121. Jeff Edelstein, the DOC's facilitator, outlined the history and operations of PPLC's pipeline, noting that the pipeline had been “part of this discussion, ” and then stated: “The [DOC] really tried hard to make sure that its intent was built in legally so that there's no ambiguities in this recommended ordinance.”[145] PSMF ¶ 120.

         During the July 9, 2014 meeting of the South Portland City Council, the Alberta representative in the Canadian Embassy spoke against the draft ordinance, noting, among other things, that one-third of the oil imported into the United States comes from Canada; Canada respects the environment and existing regulations are in place; and that the ordinance reflects a misunderstanding of Canada's oil sands product.[146] PSMF ¶ 130.

         At the July 21, 2014 meeting of the South Portland City Council, City Manager James Gailey stated:

The city, under its traditional land use authority and general policing powers, as provided by law, has the authority to impose reasonable restrictions, conditions, and limitations on development for the benefit of the community's public health and welfare. Restrictions and conditions on development that could jeopardize air and water quality and scenic views can be incorporated into the city code. The draft ordinance committee has presented a number of findings, supporting their recommendations and furthering their explanation on how air quality, water quality, and scenic views, whether through emissions, potential spills, or new infrastructure, would be impacted by the loading of crude oil here in South Portland. The draft ordinance committee further concludes that the new and expanded land use and associated facilities for bulk loading would impact the mixed uses along the waterfront, and would be inconsistent with portion of the comprehensive plan.

DSAMF ¶ 285; PRDSAMF ¶ 285. He then added:

Under Chapter 27, Section 111, Purpose, the zoning ordinance is designed for all the purposes of the zoning embraced in Title 30A of the Maine Revised Statutes, and has been drafted as an integral part of the comprehensive plan for the city of South Portland, Maine. Among other things, it is designed to encourage the most appropriate use of land throughout the municipality. There is one assertion in this purpose statement, and that reads: To protect citizens and visitors from harmful effects caused by air pollutants, to implement part 1 of the recommendations of the city council appointed ad hoc draft ordinance committee dated July 1, 2014.


         At the July 21, 2014 meeting of the South Portland City Council, public commenter Ed Miller, Vice President for Public Policy for the American Lung Association in Maine stated:

The air quality, as you heard, in this area is not good. We do an annual report card on air quality, and Cumberland County has received a C. Now C sounds like, you know an okay grade; it's not great. However, that C is using an air quality standard that is woefully out of date, and even the EPA's scientific advisory council has said that it needs to be changed. I guarantee you, once it's changed, that air grade in this area will be D or worse . . . We should be reducing the amount of air pollution in this area, not increasing it. We have high rates of asthma, some of the highest in the country, high rates of chronic lung disease, and high rates of lung cancer, and if you don't happen to have that disease, or any of those diseases, or have loved ones who do, you can also find yourself at risk, even without those diseases.

DSAMF ¶ 286; PRDSAMF ¶ 286.

         When commenting on a draft of the “Clear Skies Ordinance” the City's Corporation Counsel remarked on the “10 pages of findings” appearing in the ordinance and noted that such findings “are not usually part of a Zoning Ordinance.”[147] PSMF ¶ 110.

         South Portland residents voiced their concerns about air quality and city aesthetics to the City Council and DOC in numerous meetings leading up to the ordinance's enactment.[148] DSAMF ¶ 291.

         2. Statements by Councilor Tom Blake

         At the March 24, 2014 meeting of the South Portland City Council, Councilor Tom Blake stated, “And as a 27 year firefighter and paramedic for this community, my main concern always has been and always will remain health and safety. And everything we look at is the health and safety of our citizens.” DSAMF ¶ 278; PRDSAMF ¶ 278.

         At a July 9, 2014 meeting, Councilor Tom Blake criticized PPLC for its effort to bring the “world's dirtiest oil and bring it down our residential streets and our residential neighborhoods.”[149] PSMF ¶ 122. He also stated:

They can't say that this change is going to be more healthy. They can't say it. They can't say it's going to help our education system. They can't say it's aesthetically pleasing. The only thing they can say is jobs. Well, I believe that they've really stretched that . . . What this is really about is health and safety. I spent 27 years as a firefighter/paramedic for this community and the past seven years as your councilor at large. And I inspected all the oil companies on a regular basis. I used to love to go up on the oil tankers and learn. But what I learned mostly about my job is that it's health and safety. That's why we're here. That was my job as a firefighter/paramedic was to take care of our citizenry. And every time I make a decision at the city council level, the first thing that goes through my mind is what's best for our citizens? What is best for the health and safety of our community? And then after that, what's best for all of our people? This is truly about the waters; it's about the air; it's about the soils we stand on so that we can take care of ourselves. It's about Casco Bay, which I believe is in dire jeopardy. That's what this is all about.

DSAMF ¶ 282; PRDSAMF ¶ 282.

         At a July 21, 2014 meeting of the South Portland City Council, Councilor Tom Blake stated:

Priorities change through the generations and through the decades. And this is a very important evening and I'm going to take a couple of minutes and talk about how we have changed. We started to see a change in America and in South Portland ten or twenty years ago, when [sic] the advent of climate change. We took some initial action in 2007 when we enacted the climate change, the mayoral climate change, led by Claude Morgan. That required that we think globally, act locally. That's what this ordinance is doing tonight.[150]

PSMF ¶ 123. He also said “How many Kala, Kalamazoo's do we need? How may Mayflowers do we need? How many people need to die like Lac-Mégantic? We've learned our lesson.”[151] PSMF ¶ 124.

         At the July 21, 2014 meeting of the City Council, Councilor Tom Blake also stated:

In response to Councilor Pock's last-minute attempted amendment changing ‘crude' in the ordinance to ‘non-American crude': This is not about Canada; this is not about America. This is about the health and the safety of our community. I don't care if this crude comes from Timbuktu. What's important to all of us, and apparently Councilor Pock has been missing the message, that this is about our people, our air, our water, the quality of our lives. I support Canada and many things they do, Mr. Pock. But this is very inappropriate this evening. It misses the mark. And I have no interest in supporting this amendment.

DSAMF ¶ 287; PRDSAMF ¶ 287. He later added:

What gives us the right to do this? First of all, what gives us the right to enact this ordinance tonight goes back to 1895, when the city was incorporated as a town, and then three years later, we became a city. And in doing that, we established a city charter, and a city ordinance book . . . The city charter gives us, as elected officials, the right, and more importantly, the responsibility, to represent the people-to take care of your welfare, your health, and your safety. And this is where Councilor Pock is missing the boat. We are here for your health and your safety.


         3. Statements by Councilor Linda Cohen

         At a July 9, 2014 meeting of the South Portland City Council, Councilor Linda Cohen stated:

I voted against the November ballot question. I felt that it was too broad. I've heard from so many people who voted against the November question because they felt it was too broad. Because it, basically, talked about any kind of petroleum product being handled on the waterfront. Well a lot of people do that. A lot of marinas do that, a lot of businesses. So I voted against it. A lot of people told me the same thing, “I voted against it, but I don't want tar sands.” And I don't want tar sands in South Portland. It scares me. And you can't say that it's the same thing as the crude we are using because it's heavier and if there's an accident it's harder to clean up and I think that the people who've seen that happen know that that's true.[152]

PSMF ¶ 119. She also said “[W]hen I read [the ordinance], I said well I guess that would take care of tar sands, because if you can't load it, why have it shipped here?”[153]PSMF ¶ 126. She also said:

I think that many of us live in South Portland, and we know the risks of living here . . . I've owned four houses in this city, and almost every one of them was near some kind of a, either a tank or the railroad, where things can blow up. It's something I accepted when I moved to South Portland. But with all of that, it's always worked. But that does not mean we have to intensify any of the dangers of living here. And I think as city councilors, our responsibility is to protect the citizens of the city, protect the assets of the city. And all the assets of the city include the residents, the businesses, the homes, the land, the water around us- it's beautiful. Why would we want to put more risk here than we already have?

DSAMF ¶ 283; PRDSAMF ¶ 283. She later added:

We're not making any businesses non-conforming. Businesses that are the waterfront that are dealing with petroleum products now will be able to continue to do what they're doing. They will be able to expand what they're doing. They just won't be able to bulk load onto vessels. And I think that it is not unusual for a municipality or a council or a planning board to look at restricting uses that intensify the use on a property-it happens all the time, whether it's a residence or whether it's a business.


         At a July 21, 2014 meeting, Councilor Linda Cohen stated that the City gave the DOC instructions to “keep tar sands out of South Portland.”[154] PSMF ¶ 127. Councilor Cohen also said:

I appreciate all of the businesses in South Portland, every single one of them. We wouldn't be the community that we are without what we've got here. And one of the things that I have always loved about South Portland is the mixture-the businesses at the waterfront, at the mall, all over, big and small have coexisted with the residents of this city for years and years and years, and it has just worked, but that doesn't mean that I want to intensify that use, and I think that, by the council passing this zoning ordinance, and not allowing the pumping of bulk crude onto ships, we're just making sure that we don't intensify the current use.

DSAMF ¶ 288; PRDSAMF ¶ 288.

         4. Statements by Councilor Gerard Jalbert

         At the July 9, 2016 meeting of the South Portland City Council, Gerald Jalbert stated

When you're a city councilor, you don't just come to meetings, listen to debates, and vote. You also have a certain level of responsibility to the community as a whole. And that's to look at the wellbeing of the community. And the wellbeing of the community in South Portland bank in November of last year was not very good at all. So, this council did something very gutsy. We started the moratorium process. We know that was difficult for many people to accept. But we had to take on the responsibility to prevent further referendums. People assumed that we were trying to prevent the Pipeline Corporation from going forward with a certain application, but they had no plans to do so anyways. We couldn't have more referendums. It'd almost be like the Bill Murray movie, Groundhog Day, where you keep doing the same thing over and over and over again. So, we had to make a fundamental change. And that's what's brought us to tonight.

DSAMF ¶ 290; PRDSAMF ¶ 290.

         5. Statements by Councilor Melissa Linscott

         At the July 9, 2014 meeting, Councilor Melissa Linscott stated that “tar sands was just too high of a risk” and praised the draft ordinance for “preventing tar sands and other crude oil products from coming into our City and being exported.”[155] PSMF ¶ 125.

         6. Statements by Councilor Michael Pock

         At a June 25, 2014 meeting of the South Portland City Council, Councilor Michael Pock stated:

I vehemently object to the term clean air ordinance. We had a City council workshop on February 24th and we discussed air quality, quite extensively, we had the Maine DEP come in here and tell us that the air in South Portland is not only clean, but it's cleaner than it has been in years, and considering the restrictions they're put upon us constantly, we keep beating the record so clean air, I, I, I completely object to this whole idea about the clean air, we are not talking about clean air, we are talking about tar sands.[156]

PSMF ¶ 111.

         7. Statements by Councilor Patti Smith

         At the March 24, 2014 meeting of the South Portland City Council, Councilor Patti Smith stated:

The comprehensive plan, which is on, as one consideration. I just also want to mention the Mayoral Climate Protection Agreement that this city is part of, and, although we're just here in local politics, maybe I'm in the wrong place, but I think it is a global issue, and it is far- reaching. And I think, as a city, we signed on to that agreement, and I think there's a lot of excellent, excellent tenets to the agreement, and I think, as a city, as much as we try to follow our comprehensive plan, our comprehensive is very broad, comprehensive plan, whereas I think the Mayoral Climate Protection Agreement is more in keeping with what we're looking at. So, I'd ask the committee to potentially look at that as well.

DSAMF ¶ 277; PRDSAMF ¶ 277.

         At the July 9, 2014 meeting of the South Portland City Council, Councilor Patti Smith stated:

We asked them [the committee] to help protect our city. And as a city councilor, I want to protect everyone that we can-jobs and people. But of course I want to protect everyone's health and safety. Because if we don't have our health or our safety, who cares if we have a job? So that supersedes everything I think about, when I think about this ordinance.

DSAMF ¶ 284; PRDSAMF ¶ 284.

         At a July 21, 2014 meeting, Councilor Patricia Smith stated, “What I see on paper is something that will protect the health and safety of our residents, and potentially, the health and safety of other global residents.” DSAMF ¶ 289; PRDSAMF ¶ 289. She also said the Ordinance “thread[ed] a needle” and would have a positive effect on the “indigenous people of Alberta.”[157] PSMF ¶ 128.

         J. The Clear Skies Ordinance

         Ordinance No. 1-14/15, the “Clear Skies Ordinance” passed the City Council on its first reading on July 9, 2014, by a vote of 6-1, and passed the City Council on its second reading on July 21, 2014, by a vote of 6-1. PSMF ¶ 131; DRPSMF ¶ 131.[158] The City Council made the legislative findings in the Ordinance that:

(a) as a result of the Community Vision as set forth in the Comprehensive Plan, the City intends “to promote future development in harmony with the basic elements of its Community Vision - a vision that embraces a diverse mixed-use waterfront community; a green city that protects its air quality; an education community where schools and a waterfront college campus are not impacted by incompatible adjacent uses, including new or expanded sources of significant air pollution; and a city that is a desirable destination and a desirable, livable community.”
(b) “[i]n the short term, the City's marine terminals and related marine industrial areas are maintained and improved while minimizing their impact on adjacent residential neighborhoods.”
(c) “bulk loading crude oil onto marine tank vessels is neither a traditional marine use nor a light industrial use” because “during the entire history since inception of all of the City's commercial, shipyard, or marine industrial uses and facilities, no such uses or facilities have ever included operations for the bulk loading of crude oil onto marine tank vessels or the related installation of vapor control systems to convey hydrocarbon vapors displaced by marine tank vessel crude oil loading operations to vapor combustion units.”
(d) “the proposed bulk crude oil loading operation would have constituted a new land use, which has never been a traditional land use within the City, and which would have significantly impacted future development of the City's waterfront, air quality, scenic ocean views, and land-use planning vision.”
(e) “air pollutants associated with storage and bulk loading of crude oil onto marine tank vessels include particulate matter, sulfur dioxide, nitrogen oxides, carbon monoxide, hazardous air pollutants (HAPs) [including benzene, ethyl benzene, hexane, ...

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