Agenda - Planning Commission - 04/05/2018

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March 10, 2018 I Volume 12 I Issue 5 Zoning Bulletin sions of PWSA such that preemption could be implied." (See 33 U.S.C.A. § 1221 et seq.; 46 U.S.C.A. § 3701 et seq.) Moreover, the court found that even if the Ordinance was a "stricter safety regulation on transfer facilities than provided for in the PWSA, Congress expressly indicated that states and localities retained their power to enact such restrictions, and no provision of the PWSA suggested an intent to remove local control over the siting of transfer facilities." (See 33 U.S.C.A. § 1221 et seq.; 46 U.S.C.A. § 3701 et seq.) The court also held that, although the City Ordinance allegedly had the practical effect of preventing the Operator from importing oil from Canada, the Ordinance was not preempted by the federal foreign affairs power since: the Ordinance "did not explicitly target any particular foreign country"; "federal policy around tanker loading facilities explicitly contemplated stricter local regulations"; "federal policy on cross border pipelines was inconsistent"; "federal policy embodied in the Transit Pipeline Agreement between Canada and United States was one of anti -discrimination that did not implicate [the] [O]rdinance"; and the "State Department permit requirement for cross border pipelines did not indicate an intent to displace state and local authority over ports and oil transfer facilities." (See 42 U.S.C.A. § 7511b(f)(4); 28 U.S.T. 7449.) The Court further concluded that the City Ordinance was not preempted under federal maritime law since the Ordinance "only restricted on -shore fa- cilities and conduct and did not regulate activity of tankers or sailors at sea." (See U.S. Const. art. 3, § 2, cl. 1.) Moreover, the court found that the Ordinance "did not impermissibly ban federally licensed coastwise trade," or "ban or wholly exclude licensed vessels from using its waterway." Rather, the court found that the Ordinance "imposed the same restrictions on all vessels that might carry crude oil," and thus "could not discriminate against federal licensees in favor of local vessels." (See 46 U.S.C.A. § 9101; 46 C.F.R. Part 154, Subpart E.) Finally, in finding that the City Ordinance was not preempted by the Maine Oil Discharge Prevention and Pollution Control Law, the court explained that the state statute "expressly contemplate[d] local restrictions consistent with the purposes of coastal protection unless there is a `direct conflict' with the statute, regulation, or `order.' " While the Operator received a license from Maine's Department of Environmental Protection ("DEP"), that license did not constitute a DEP "order" within the meaning of the preemption provision of the statute, found the court. If such a license did have a preemptive effect, noted the court, there would be "virtually no room for local regulation," which would contradict the state statute's savings clause, which contemplates local restrictions in addition to state conditions imposed through licenses. More- over, the court concluded that its conclusion was "bolstered by the fact it [was] not impossible to comply with both the Ordinance and the License." While the License certified that the Operator's transfer equipment complied with the state requirements on transfer operations, either to unload or load oil products, the Ordinance only permitted loading or unloading of refined oil, and the unloading of crude oil. (See 38 Me. Rev. Stat. § 541 et seq.) See also: Philip Morris Inc. v. Harshbarger, 122 F.3d 58 (1st Gil: 1997). 10 © 2018 Thomson Reuters