Agenda - Planning Commission - 04/05/2018

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March 10, 2018 I Volume 12 I Issue 5 Zoning Bulletin ing ordinance prohibiting the loading of crude oil onto tankers in the city harbor and the building of new structures for that purpose was preempted by federal and state laws including: the federal Pipeline Safety Act, the federal Port and Waterways Safety Act, federal foreign affairs power, federal mari- time law, and the Maine Oil Discharge Prevention and Pollution Control Law. The Background/Facts: Since 1941, Portland Pipe Line Corporation (the "Operator") has operated crude oil pipelines that stretch from the harbor in South Portland, Maine (the "City"), through New Hampshire and Vermont, and into Quebec, Canada, terminating at oil refineries in Montreal East. In 2007-2008, the Operator began proposing a "flow reversal project," marketing its ability to transport oil from Canada to South Portland. Due to economic conditions, the proposed project was put on hold, but then revived again in 2012-2013. In 2014, the City Council passed the "Clear Skies Ordinance" (the "Ordinance" or the "City Ordinance")). Among other things, the City Ordinance made the "storing and handling of petroleum and/or petroleum products" for the "bulk loading of crude oil onto any marine tank vessel" a prohibited use in the Commercial "C" and Shipyard "S" zoning districts in the City. The Ordinance further prohibited the construction, reconstruction, or alteration of facilities, structures, or equipment "for the purpose of bulk load- ing of crude oil onto any marine tank vessel" in the Commercial "C" zoning district, Shipyard "S" and Shoreland Area Overlay zoning districts in the City,. as well as in the Industrial "I" and Non -Residential Industrial "INR" zoning districts in the City. The Ordinance effectively stood as "as an obstacle to [the Operator's] ef- forts to obtain permits and credibly market its services to transport crude oil from north to south." Accordingly, the Operator challenged the validity of the Ordinance. (Joining the Operator in this challenge was the American Waterways Operators ("AWO")—a nationwide trade organization that advocates for the interests of United States tugboat, towboat, and barge own- ers and operators.) Among other things, the Operator maintained that the Ordinance was preempted by various federal and state laws, including: the federal Pipeline Safety Act; the federal Port and Waterways Safety Act; federal foreign affairs power; federal maritime law; and the Maine Oil Discharge Prevention and Pollution Control Law. Specifically, the Operator argued that Congress preempted the entire field of interstate pipeline safety through the Pipeline Safety Act ("PSA") and its regulations. (See 49 U.S.C.A. §§ 60101 et seq., and 49 C.F.R. Part 195.) The Operator claimed that the Ordinance was preempted by the PSA "because the purpose of the Ordinance is regulating pipeline safety, which is a field covered by the PSA." Alternatively, the Operator claimed that, at the least, the Ordinance was preempted by the PSA because the Ordinance effectively impacted "pipeline operations and related safety measures" because it directly regulated "how oil should be transported through the pipeline system." The Operator argued that the Ordinance was also preempted by the Port and Waterways Safety Act because that Act "occupies the entire field of 'the operation of marine tanker vessels in U.S. harbors, including the loading and unloading of their cargo.' " (See Title II of the PWSA, 46 U.S.C.A. Ch. 37, 8 ©2018 Thomson Reuters