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Portland Pipe Line Corp. v. City of South Portland

United States Court of Appeals, First Circuit

January 10, 2020

CITY OF SOUTH PORTLAND; MATTHEW LECONTE, in his official capacity as Code Enforcement Director of South Portland, Defendants, Appellees.


          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.

          David 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.

          Twain 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.

          Samuel 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.

          Maura 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, amici curiae.

          Sarah 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.

          Sean 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.

          Before Torruella, Thompson, and Barron, Circuit Judges.

          PER CURIAM.

         This 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 constitutional law.

         In 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.

         I. Background

         We 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 system.

         Beginning 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.[1] 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 CCA.[2] 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 ...

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