David Beats Goliath: City of South Portland's 'Clear Skies' Ordinance Survives Legal Challenge from Pipeline Company

The Environmental & Natural Resources Law Clinic at Vermont Law School worked with local advocates on this "powerful tool" to protect their community from fossil fuel infrastructure.

In a decision that could have broad implications for local authorities that seek to protect citizens from fossil fuel infrastructure, the Maine Federal District Court has upheld the constitutionality of a coastal Maine city’s ordinance that prohibits the bulk loading of crude oil onto tankers within the city limits.

The City of South Portland’s “Clear Skies Ordinance” was adopted in 2014, effectively blocking the Portland Pipe Line Corporation from reversing the flow of its 236-mile Portland-Montreal Pipe Line in order to ship diluted tar sands oil from Canada to South Portland for export. The company—a Canadian owned subsidiary of ExxonMobil, Shell, and Suncor Energy—sued the city in 2015, calling the ordinance a violation of the Dormant Commerce and Foreign Commerce clauses of the U.S. Constitution.

On Friday, after a four-day bench trial, Judge Woodcock, a George W. Bush appointee, upheld the ordinance, writing that “the local ordinance does not violate the Dormant Commerce Clause or the Foreign Commerce Clause of the United States Constitution.”

City officials and local advocates argued that the ordinance was both lawful and necessary to prevent emissions of carcinogenic fumes from a crude tanker loading terminal and to move the city towards a greener, less-industrialized character.

“This decision is an important one,” said Ken Rumelt, a Professor of Law and Senior Attorney at the Environmental and Natural Resources Law Clinic at Vermont Law School. “It gives communities a powerful tool to fight big energy projects that have serious local consequences.”

The Environmental and Natural Resources Law Clinic at Vermont Law School has worked closely with a local advocacy group, Protect South Portland, on the ordinance and this case. The Clinic worked with Protect South Portland, other local environmental groups, and the Maine chapter of the Conservation Law Foundation to develop the legal strategy, draft the ordinance, advise client groups during the local political debate, and to provide strategic legal assistance during the litigation. Many Vermont Law School students have worked on this project over the past five years, conducting legal research and advising clients in South Portland.

"This shows the potential strength of a small group of citizens growing into a formidable grassroots effort with wide support, working to protect the health of our community,” said Protect South Portland’s Roberta Zuckerman. “We are very grateful to Ken Rumelt and the Vermont Law School Environmental & Natural Resources Law Clinic for all their work and support."

“Protect South Portland knew from the beginning that opposing the plans of any Big Oil entity would be a David and Goliath matchup,’ added Mary Jane Ferrier of Protect South Portland. “Consequently, you can imagine how tremendous this victory in Federal Court feels to all of us who worked so hard to bring it about. And that means all the citizens of South Portland who came out again and again to make known their will to our City Council. This is a sweet victory, to say the least, even if we face an appeal. 

“This case was another example of the great working relationship CLF has with Vermont Law School and specifically the Environmental and Natural Resources Law Clinic, and of the tangible benefits for the people of New England that stem from that relationship,” said Sean Mahoney of the Conservation Law Foundation. “It also was a great learning experience for VLS students—not only about the legal issues, but also the opportunity to interact with members of a particularly passionate and committed local group, Protect South Portland.”