Posted by: Patricia Salkin | January 29, 2020

First Circuit Court of Appeals Finds Certification of Question Whether Maine’s Coastal Conveyance Act (CCA) Expressly or by Implication Preempted City Ordinance was Warranted

This post was authored by Matthew Loeser, Esq.
Portland Pipe Line Corporation (“PPLC”) was a Maine corporation engaged in the international transportation of oil. The City of South Portland enacted a municipal zoning ordinance, known as the Clear Skies Ordinance, which prohibited the bulk loading of crude oil onto vessels in the City’s harbor. Thus, thee Clear Skies Ordinance prevented PPLC from using its infrastructure to transport oil from Montréal, Québec, Canada to South Portland, Maine by way of a system of underground pipelines. On appeal, PPLC and the American Waterways Operators, a national trade organization whose industry members would be negatively impacted by the loss of port traffic associated with PPLC’s pipeline system, contended that the Ordinance was preempted by Maine’s Coastal Conveyance Act (“CCA”) and violated federal constitutional law.
PPLC first claimed that the renewal of operator’s existing oil terminal facility license by Maine’s Department of Environmental Protection (“MDEP”), issued pursuant to the CCA, were considered orders with preemptive effect. Conversely, the City and the State of Maine, argued that nothing in the text of the MDEP renewal license at issue indicated that it was an order with preemptive effect, and the use of the letterhead “Department Order,” was insufficient by itself to bestow upon a license the power of preemption. The court found that both parties’ attempts to define the term “order” by cherry-picking relevant provisions of the CCA were unavailing. Therefore, the court sought clarification from the Law Court in determining whether interpreting “order” to include MDEP licenses infringed upon “home rule” authority reserved for the state’s municipalities.
The court next sought guidance regarding whether § 556 of the CCA expressly preempted the subject Ordinance. Here, the parties disagreed as to whether the license was an order such that §556 applied, and whether the terms of §556 were such that the Ordinance was expressly preempted if it was an order. Furthermore, even if express preemption was not required, the question remained of whether the CCA impliedly preempted the Ordinance. The court noted that ordinances are preempted by implication only where “state law is interpreted to create a comprehensive and exclusive regulatory scheme inconsistent with the local action” or where “the municipal ordinance prevents the efficient accomplishment of a defined state purpose.” As there were no clear controlling precedents, the court held that the state law preemption questions required certification.
Portland Pipe Line Corporation v. City of South Portland, 947 F.3d 11 (1st Cir CA 2020)

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