PORTLAND PIPE LINE CORPORATION; THE AMERICAN WATERWAYS OPERATORS, Plaintiffs, Appellants,
CITY OF SOUTH PORTLAND; MATTHEW LECONTE, in his official capacity as Code Enforcement Director of South Portland, Defendants, Appellees.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. John A. Woodcock, Jr., U.S. District Judge]
Catherine R. Connors, with whom John J. Aromando, Matthew D.
Manahan, Nolan L. Reichl, and Pierce Atwood LLP were on
brief, for appellants.
Jonathan M. Ettinger, with whom Euripides Dalmanieras, Jesse
H. Alderman, Foley Hoag LLP, Sally J. Daggett, and Jensen
Baird Gardner & Henry were on brief, for appellees.
H. Coburn, Joshua H. Runyan, and Steptoe & Johnson LLP
were on brief, for American Fuel & Petrochemical
Manufacturers, American Petroleum Institute, Association of
Oil Pipe Lines, International Liquid Terminals Association,
National Association of Manufacturers, and National Mining
Association, amici curiae.
Braden and Thompson Bowie & Hatch, LLC were on brief, for
Portland Pilots, Inc., Maine Energy Marketers Association,
and Associated General Contractors of Maine, amici curiae.
D. Adkisson, Patrick Strawbridge, Consovoy McCarthy Park
PLLC, Steven P. Lehotsky, Michael B. Schon, and U.S. Chamber
Litigation Center were on brief, for U.S. Chamber of
Commerce, amicus curiae.
Healey, Attorney General for the Commonwealth of
Massachusetts, Seth Schofield, Senior Appellate Counsel,
Turner Smith, Assistant Attorney General, and Office of the
Attorney General of Massachusetts were on brief, for
Massachusetts, California, Connecticut, Delaware, Maine,
Maryland, Minnesota, New York, Oregon, Pennsylvania, Rhode
Island, Vermont, Washington, and the District of Columbia,
J. Fox, Northern Illinois University College of Law, Lisa C.
Goodheart, William L. Boesch, C. Dylan Sanders, and Sugarman
Rogers Barshak & Cohen, P.C. were on brief, for
International Municipal Lawyers Association and Legal
Scholars, amicus curiae.
Mahoney, Conservation Law Foundation, Jan E. Hasselman, Earth
Justice, Kenneth J. Rumelt, and Vermont Law School were on
brief, for Conservation Law Foundation, Natural Resources
Council of Maine, and Protect South Portland, amici curiae.
Torruella, Thompson, and Barron, Circuit Judges.
case involves a clash between Portland Pipe Line Corporation
("PPLC"), a Maine corporation engaged in the
international transportation of oil, and the City of South
Portland (the "City"), which enacted a municipal
zoning ordinance prohibiting the bulk loading of crude oil
onto vessels in the City's harbor. The practical effect
of the ordinance at issue, known as the Clear Skies Ordinance
(the "Ordinance"), is to prevent PPLC from using
its infrastructure to transport oil from Montréal,
Québec, Canada to South Portland, Maine via a system
of underground pipelines. On appeal, PPLC and the American
Waterways Operators, a national trade organization whose
industry members employ thousands of seamen (and women) who
would be negatively impacted by the loss of port traffic
associated with PPLC's pipeline system, argue, in part,
that the Ordinance is preempted by Maine's Coastal
Conveyance Act ("CCA") and runs afoul of federal
accordance with well-settled constitutional avoidance
doctrine, see Vaquería Tres Monjitas, Inc.
v. Pagan, 748 F.3d 21, 26 (1st Cir. 2014), we
sidestep the federal quagmire for the moment. This dispute
raises important questions of state law preemption doctrine
and statutory interpretation that (in our view) are
unresolved and may prove dispositive. We therefore certify
three questions to the Maine Law Court. See Fortin
v. Titcomb, 671 F.3d 63, 64 (1st Cir. 2012)
(certifying questions to the Law Court where there were
"no clear controlling [state law] precedents"
(quoting Me. Rev. Stat. tit. 4, § 57)). Some context for
those questions, along with the questions themselves, follow.
begin by reciting the undisputed facts and procedural
background germane to the issues of state law presented
herein. PPLC and its parent company, Montreal Pipe Line
Limited, operate the Portland-Montreal Pipe Line, a mostly
underground pipeline system that primarily transports oil
from South Portland, Maine, through three states, across the
Canadian border, to the system's northern terminus in
Montréal, Québec. In connection with this work,
PPLC has for years obtained the state and federal regulatory
approvals necessary to unload crude oil from tanker vessels
in the City's harbor to be held in above-ground storage
facilities pending transport to Canada via the pipeline
in or around 2007, to accommodate purported changes in
demand, PPLC made efforts to reverse the flow of oil along
the pipeline system such that oil would flow southbound from
Montréal to South Portland, where it would then be
loaded onto tankers in the City's harbor for distribution
in the United States. Over the next few years, PPLC requested
and received permission to proceed with the reversal project
from federal, state, and municipal agencies. On July 18,
2008, for example, the U.S. Department of State approved the
reversal project after concluding it did not represent a
substantial deviation from the work previously approved by
the federal government pursuant to a Presidential Permit
issued to PPLC in 1999. Less than a year later, on August 25,
2009, PPLC obtained an air emissions license from Maine's
Department of Environmental Protection ("MDEP"),
the agency charged with enforcing the state's
environmental laws. Additionally, as is relevant to the
certification questions presented here, on December 20, 2010,
MDEP renewed PPLC's existing oil terminal facility
license under the authority granted to MDEP by the
The license application summary, criteria for renewal,
findings of fact, and formal approval of the renewal license
are memorialized in an MDEP document titled "Department
Order," which acknowledges and approves PPLC's plans
to "reverse one of its underground pipe lines" and
"store [oil] in . . . above ground tanks prior to
being loaded onto vessels at the South Portland pier for