Agenda - Planning Commission - 04/05/2018

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Zoning Bulletin March 10, 2018 I Volume 12 I Issue 5 and the regulations thereunder, volumes 33 and 46 of the Code of Federal Regulations.) The Operator also asserted that the Ordinance was preempted by the exclusive federal authority over foreign affairs because the Ordinance "profoundly interferes" with the federal policy around tanker operations, which "seeks to facilitate trade among nations and reach international solutions." Similarly, the Operator asserted that the Ordinance was "preempted more broadly under Art. III, Section 2 of the [United States] Constitution and the Constitution's embedded principal of federal maritime governance" under which "there is exclusive federal control over maritime activities." Finally, the Operator argued that the Maine Oil Discharge Prevention Law, also referred to as the Coastal Conveyance Act, preempts local ordinances "in direct conflict with this subchapter or any rule or order of the board or com- missioner adopted under authority of this subchapter." The Operator argued that since its license was issued via "[Maine] Department [of Environmental Protection] Order," it therefore qualified as a "rule or order of the board or commissioner" that directly conflicted with the Ordinance. Claiming there were no material issues of fact in dispute, and asking the court to decide the matter on the law alone, the City and the Operator each asked the court to issue summary judgment in their favor on the City's preemp- tion claims. DECISION: Summary judgment granted to the City with regard to the Operator's preemption claims. The United States District Court for the District of Maine held that the City Ordinance —which prohibited loading crude oil onto tankers in the City harbor and building new structures for that purpose —was not preempted by the federal Pipeline Safety Act, the federal Port and Waterways Safety Act, federal foreign affairs power, federal maritime law, or the Maine Oil Discharge Prevention and Pollution Control Law. More specifically, the court concluded that the City Ordinance was not a "safety standard" preempted by the federal PSA. The court explained that the Ordinance's prohibition was not a "standard," and that therefore it was pos- sible to comply with both the PSA and the Ordinance. The court noted that no provision of the PSA or its regulations required pipeline operators to load crude oil. And, the Ordinance did not set competing levels, quantities, or spec- ifications that made complying with both the PSA and the Ordinance more difficult. Furthermore, the court concluded that "Congress did not intend the PSA to preempt state and local authority to prescribe the location or routing of a pipeline facility." (See 49 U.S.C.A. §§ 60104(c), 60104(e).) In holding that the City Ordinance was not preempted by provisions of the federal PWSA and related regulations concerning tankers, the court noted that the Ordinance did not provide any duties or restrictions related to vessel navigation or traffic in ports. Further, the court found that the PWSA's goals of protecting the environment and minimizing accidents was consistent with the Ordinance. While the PWSA preempted a field of regulation with respect to tanker safety standards and operations, the court found that the Ordinance had "at most an indirect effect on tankers and did not conflict with specific provi- © 2018 Thomson Reuters 9