Attorneys were back in federal court Tuesday arguing about a lawsuit brought by the Portland Pipe Line Corp. against the City of South Portland over its Clear Skies Ordinance.
In August, U.S. District Judge John Woodcock rejected the city’s request to dismiss the lawsuit. But the city says last month’s cancellation of a massive pipeline project in Canada has undermined the company’s case.
The Portland Pipe Line Corp. would like to reverse the flow of its 236-mile pipeline and send crude oil from Montreal to South Portland. But the city’s Clear Skies Ordinance, adopted with broad support from residents three years ago, effectively prohibits that. It bans the bulk loading of crude onto marine tankers.
The company says the ordinance is unconstitutional, a violation of the Interstate Commerce Clause. But before the judge can consider that question, Sean Mahoney of the Conservation Law Foundation says he must decide whether the company has been harmed by the ordinance.
“What the city has argued, which we support, is that there is no harm because there’s no likelihood that they’re going to be able to actually even try to switch the flow of oil in the pipeline,” he says.
Attorneys for the city told the judge on Tuesday that their position has been bolstered by the recent decision of TransCanada to cancel plans for its massive Energy East pipeline that would have carried tar sands oil from western Canada, across the country to Montreal and St. John, New Brunswick. They say without being able to secure some of that oil for its own interests, the Portland Pipe Line Corp. has no need and no way to pay for necessary improvements to reverse the flow of its pipeline or to build required air pollution infrastructure to burn off volatile organic compounds.
City attorneys therefore say the lawsuit should be dismissed.
“They need to have people willing to put oil in the pipeline from Montreal to South Portland in order to get the financing to make the necessary changes that they’re going to have to do, both in the pipeline itself and in adding the two huge air pollution control structures that they’re going to have to put in on the wharf,” Mahoney says.
An attorney for the Portland Pipe Line Corp. declined to talk on tape. But attorney John Aromando pointed to a written declaration from the company’s president entered into the court record last week in which company President Thomas Hardison says TransCanada’s decision does not change the company’s intention to pursue its flow reversal project in the event the court eventually rescinds the ordinance.
“Although the cancellation of the Energy East project affects the options PPLC has for obtaining a supply of crude oil,” Hardison says, “it also preserves PPLC’s status as the only pipeline operator in North America capable of shipping Canadian crude oil to the Atlantic coast.”
Members of a citizens’ group called Protect South Portland are watching the case closely.
“People ought to be able to demand clean air,” says Louise Tate, who joined other ordinance supporters outside the federal courthouse in Portland. “I have COPD. I can’t live there if there’s not clean air. So, why isn’t that even being mentioned in the courtroom, clean air?”
Tate and others said the judge seemed more concerned about the pipeline company’s bottom line than the health or environmental concerns of residents who support the ordinance.
“What we’ve seen is, over and over again, an emphasis of what this means to the oil industry and protecting the interests of the oil industry,” says Sarah Lachance of the group 350.org.
Instead, Lachance says there should be more emphasis about how to keep fossil fuels in the ground in the face of climate change.
The judge left open when he might rule on the city’s request to dismiss the lawsuit.
This story was originally published Nov. 21, 2017 at 4:06 p.m. ET.