Local Land Use Laws Protect the Environment – A Look to the City of South Portland

by Mackenzie Peet

The City of Portland enacted the Clear Skies Ordinance in July of 2014.  The ordinance makes the storing and handling of petroleum and/or products for the bulk loading of crude oil onto any marine tank vessel a prohibited use in the Commercial and Shipyard zoning districts in the City of Portland.  The Ordinance further states that, “there shall be no installation, construction, reconstruction, modification, or alteration of new or existing facilities, structures, or equipment, including but not limited to those with the potential to emit air pollutants, for the purpose of bulk loading crude oil onto any marine vessel in the Commercial, Shipyard, or Shoreland overlay zoning districts.”[1]  The Ordinance restricts the erection, alteration, rebuilding, or use of premises for “bulk loading of crude oil onto marine tank vessels’ in the Industrial and Nonresidential zoning districts.”[2]

In a recent case, Portland Pipe Line Corp. v. City of South Portland, a pipeline operator and trade association brought an action against the City of South Portland, challenging the ordinance’s validity.  The court upheld the ordinance, finding that the ordinance was not preempted by federal law and authority including the: (1) Pipeline Safety Act (PSA); (2) Port and Waterways Safety Act (PSA); (3) federal foreign affairs power; (4) federal maritime law.[3]   The court also found that the ordinance was not void for vagueness, did not violate the operator’s equal protection rights, was consistent with the City’s comprehensive plan, and was not preempted by Maine’s Oil Discharge Prevention and Pollution Control Law.[4]

This holding is significant, especially in the current deregulatory regime.  Local land use laws protect the environment in a bottom-up approach rather than through top-down federal level regulatory regimes.  Home Rule, “gives local governments governing authority to a wide range of legislative decisions that have not been addressed by the state,” allowing local governments to “promote policies that have traditionally been legislated in the state capitals.”[5]  Maine’s Clear Skies Ordinance survived challenge by the pipeline operators and trade association, serving as an example of a municipality using their home rule authority to protect the environment and the health of the residents and to encourage redevelopment of the waterfront.[6]

[1]Portland Pipe Line Corp. v. City of South Portland, 288 F. Supp.3d 321, (D.ME. 2017)

[2]Id.

[3]Id.

[4]Id.

[5]Hon. Jon D. Russel & Aaron Bostrom, Federalism, Dillon Rule and Home Rule, ACCE White Paper (Jan. 2016), https://www.alec.org/app/uploads/2016/01/2016-ACCE-White-Paper-Dillon-House-Rule-Final.pdf.

[6]Randy Billings, South Portland’s Clear Skies’ ordinance survives challenge as federal judge finds it constitutional (Aug. 24, 2018), https://www.pressherald.com/2018/08/24/federal-court-rules-south-portland-ordinance-does-not-violate-u-s-constitution/.

3 comments

  1. This is a great example of local land use law stepping up to protect the environment when federal or state law does not. It is reassuring to see local towns, villages, and cities fighting a global climate crisis at home and winning.

  2. With Trump’s announcement of his intention to withdraw from the Paris Climate Agreement in 2017 and the resulting lapse in federally-sponsored climate change mitigation initiatives, it is very encouraging to see municipalities using their land use authority to contribute to fossil fuel divestment. I look forward to seeing other localities follow suit.

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