State won’t pay legal costs for group opposed to Searsport gas terminal

Posted Dec. 30, 2013, at 5:38 p.m.
A ship is guided into the Sprague Energy Terminal at Mack Point by tugboats off Searsport.
A ship is guided into the Sprague Energy Terminal at Mack Point by tugboats off Searsport. Buy Photo

SEARSPORT, Maine — The opposition group that fought against construction of a liquid propane gas terminal and storage tank project in Searsport’s Mack Point industrial zone will not have some of its legal costs paid by the Maine Department of Environmental Protection.

The Maine Supreme Judicial Court last week dismissed Thanks But No Tank’s appeal of an earlier judgment by the Maine Superior Court that affirmed the Maine DEP’s decision to grant the Denver-based developers a permit to construct the terminal. Last April, after the Searsport Planning Board determined in initial deliberations that DCP Midstream’s proposed $40 million project did not meet the town’s ordinances, the developers withdrew their application.

But Thanks But No Tank already had filed suit against the Maine Department of Environmental Protection. When DCP Midstream voluntarily surrendered its permit, that company also filed a motion to dismiss the appeal, which was granted by the Maine Supreme Judicial Court in May.

But the opposition group urged the law court to vacate that dismissal, either because the decision was made moot by the events or because the Maine DEP lacked jurisdiction to accept DCP Midstream’s petition to surrender the permit because it was under pending judicial review. The Maine Supreme Judicial Court requested legal briefing on whether Thanks But No Tank was entitled to legal costs for its appeal and also whether the high court should vacate the Superior Court’s ruling.

Ultimately, the law court found that in both cases the answer is “no.”

“[Thanks But No Tank] argues that it is a prevailing party … and is therefore entitled to recover the costs of its appeal,” Justice Joseph Jabar wrote in the Dec. 24 decision. “We disagree and dismiss this appeal without awarding costs.”

He noted that while the opposition group argued that it is a prevailing party because its actions “led to the Searsport Planning Board’s decision to deny the permit, which ultimately resulted in this appeal becoming moot,” the connection between the Searsport Planning Board’s decision to deny the permit and the merits of Thanks But No Tank’s appeal “is too tenuous to sustain an award of costs.”

Jessamine Logan, director of communications for the Maine Department of Environmental Protection, said that her agency is pleased with the law court’s decision.

“DEP staff work hard each and every day to ensure each application we receive is thoroughly reviewed within all appropriate and applicable regulations and statutes before a timely decision is made, which is exactly the process we followed in this instance,” she wrote Monday in an email to the BDN.

The legal jargon of the high court’s decision may represent the final chapter in the long saga of the tank, which split a community and created tension within the region. Some people favored industrial development in Searsport as a way to bring commerce, jobs and tax dollars into the region. Others opposed it, fearing dangerous explosions, increased truck traffic, decreased property values near the project and the creation of what they saw as a 14-story eyesore along Penobscot Bay.

The Searsport Planning Board held 11 public hearings in late 2012 and early 2013 about the project, many of which were contentious. After DCP Midstream withdrew its application, opponents told the BDN they were relieved.

“We fought long and hard for this,” Steve Hinchman, attorney for Thanks But No Tank, said last April. “Congratulations to [DCP] for doing the right thing.”

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