The trial to determine if South Portland’s so-called Clear Skies ordinance violates the commerce clause of the U.S. Constitution is set to begin Monday before a federal judge in Portland.
U.S. District Judge John Woodcock in December dismissed claims that the local law is preempted by federal law, but left open the question of whether it interferes with interstate and international commerce.
The ordinance, passed in 2014, bans the bulk loading of crude oil into tankers in the city, effectively stopping the pipeline from reversing its south-to-north flow in the future. The pipeline has carried oil north across New England since the 1940s to refineries in Montreal, Canada.
Portland Pipe Line Corp., which owns the pipeline, sued South Portland in February 2015 in U.S. District Court over the ordinance.
The company claims that the only purpose for the ordinance was to stop Canadian oil sands from being exported from Montreal through the harbor when and if the pipeline flow is reversed.
“As one city councilor noted: ‘When I read [the ordinance], I said I guess that would take care of tar sands because if you can’t load it, why have it shipped here?’” attorneys for the pipeline company said in their pre-trial brief. “The city’s suggestion that Canadian crude oil could be transported through the pipeline from Montreal, then further transported when it arrived in the city by means other than ship, such as rail, is unsupported by reality. Such an activity is commercially unfeasible and irrational.”
South Portland attorneys said in their pre-trial brief that the city council did not intend to favor in-state businesses over out-of-state ones.
“[The ordinance] applies to crude oil whether it is extracted in Canada or Caribou,” the brief said. “The ordinance is neutral and applies to all companies that would load crude regardless of the domicile of the company or the geographic origin of the oil.”
The trial is expected to last all week. There is no timetable under which the judge must issue his decision.
South Portland has spent more than $1.55 million on legal fees defending the ordinance, according to City Manager Scott Morelli. Nearly $170,000 has been raised to offset those costs by the Clear Skies Legal Defense Fund.
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