307 A.2d 1 (Me. 1973), Portland Pipe Line Corp. v. Environmental Imp. Com'n

Citation307 A.2d 1
Opinion JudgePOMEROY,
Party NamePORTLAND PIPE LINE CORPORATION v. ENVIRONMENTAL IMPROVEMENT COMMISSION et al., and AMERICAN OIL COMPANY et al., v. ENVIRONMENTAL IMPROVEMENT COMMISSION et als.
AttorneyPierce, Atwood, Scribner, Allen & McKusick, by Gerald M. Amero, Fred C. Scribner, Jr., Bruce A. Coggeshall, Portland, for plaintiffs. E. Stephen Murray, John M. R. Paterson, Asst. Attys. Gen., Augusta, Covington & Burling by Roberts B. Owen, Washington, D. C., William H. Allen, Arlington, Va., Ri...
Judge PanelBefore DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.
Case DateJune 04, 1973
CourtSupreme Judicial Court of Maine

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307 A.2d 1 (Me. 1973)

PORTLAND PIPE LINE CORPORATION

v.

ENVIRONMENTAL IMPROVEMENT COMMISSION et al.,

and

AMERICAN OIL COMPANY et al.,

v.

ENVIRONMENTAL IMPROVEMENT COMMISSION et als.

Supreme Judicial Court of Maine.

June 4, 1973

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Pierce, Atwood, Scribner, Allen & McKusick, by Gerald M. Amero, Fred C. Scribner, Jr., Bruce A. Coggeshall, Portland, for plaintiffs.

E. Stephen Murray, John M. R. Paterson, Asst. Attys. Gen., Augusta, Covington & Burling by Roberts B. Owen, Washington, D. C., William H. Allen, Arlington, Va., Richard B. Herzog, Washington, D. C., for defendants.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

POMEROY, Justice.

In the period from about 1960 to 1973 peoples throughout the world have wakened to the awful truth that if man continues random destruction of his natural environment, his natural environment will ultimately destroy him.

This destruction of the environment is not confined to the land alone, or the sea alone or the air alone.

Inspired by this sudden consciousness of the perils of pollution, legislative bodies everywhere have passed legislation designed to diminish pollution of our environment. Our Maine Legislature has been in the forefront of those seeking to control, and where necessary abate, threats of environment destruction.

In 1970, recognizing and declaring that,

'. . . the transfer of oil, petroleum products and their by-products between vessels and vessels and onshore facilities and vessels within the jurisdiction of the State and state waters is a hazardous undertaking; that spills, discharges and escape of oil, petroleum products and their by-products occurring as a result of procedures involved in the transfer and storage of such products pose threats of great danger and damage to the marine, estuarine and adjacent terrestrial environment of the State; . . .'

38 M.R.S.A. § 541

the Legislature of Maine passed the Oil Discharge Prevention and Pollution Control Act of 1970.

Plaintiffs in these cases being directly affected by the operation of the Act have, by appropriate procedure, presented the Act to us that we may test it, that assurance may result that neither the Act, nor any portion thereof, offends the proscriptions of the Constitution of the United States and/or the Constitution of the State of Maine.

We shall never cease to be amazed by the genius of the little band of men who in 1787 conceived and penned the Charter which has endured all these many years. Our admiration is no less for the equally small group who in 1820, conceived and adopted the Charter of the State of Maine. Although there have been relatively minor amendments to both documents, both have

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remained viable and substantially unchanged with the passing years.

Amazing though it may seem to those unfamiliar with the American system, those two marvelous instruments, born of another age, are still, in this year 1973, the Plimsoll line demarking that which legislative bodies may do and that which they cannot do.

Though the economic, social and political conditions today are as dissimilar from the economic, social and political conditions existing in 1787 and 1820 as night is from day, the principles so plainly and concisely laid down in the two great Charters are as applicable to problems of the atomic age as to the age when the United States was a tiny nation nestled along the Atlantic Coast.

Because in 1803 Mr. Chief Justice Marshall in the landmark decision Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60, declared:

'It is emphatically the province and duty of the judicial department to say what the law is.'

it is our duty, when called upon to do so by appropriate procedure, to test laws passed by lagislative bodies to see that such laws are not wanting when measured against the proscriptions of our Charters.

'If, then, the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.'

Marbury v. Madison, supra.

In the performance of our judicial duty we now proceed to examine 38 M.R.S.A. §§ 541-557 to see if our Legislature in enacting this law has done what the Constitution of Maine or the Constitution of the United States has forbidden it to do.

These cases are before this Court pursuant to Rule 72(b) M.R.C.P. upon request of all parties appearing and upon agreement as to all material facts, for us to render such decision as the rights of the parties require. The cases contain some factual differences. However, since the cases have many common issues of law, we shall treat them jointly.

Plaintiffs in these actions seek declaratory judgments determining that Chapter 572 of the 1969 Public Laws of Maine, An Act Relating to Coastal Conveyance of Petroleum, 1 violates various provisions of the United States and Maine Constitutions.

We find that within the factual framework here before us the statute is not unconstitutional on its face and as applied to these plaintiffs.

The Legislature has made an extensive statement of the purpose of the Act. 2

'The Legislature finds and declares that the highest and best uses of the seacoast of the State are as a source of public and private recreation and solace from the pressures of an industrialized society, and as a source of public use and private commerce in fishing, lobstering and gathering other marine life used and useful in food production and other commercial activities.

'The Legislature further finds and declares that the preservation of these uses is a matter of the highest urgency and priority and that such uses can only be served effectively by maintaining the coastal waters, estuaries, tidal flats, beaches and public lands adjoining the seacoast in as close to a pristine condition as possible taking into account multiple use accommodations necessary to provide the broadest possible promotion of public and private interests with the least possible conflicts in such diverse uses.

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'The Legislature further finds and declares that the transfer of oil, petroleum products and their by-products between vessels and vessels and onshore facilities and vessels within the jurisdiction of the State and state waters is a hazardous undertaking; that spills, discharges and escape of oil, petroleum products and their by-products occurring as a result of procedures involved in the transfer and storage of such products pose threats of great danger and damage to the marine, estuarine and adjacent terrestrial environment of the State; to owners and users of shoreline property; to public and private recreation; to citizens of the State and other interests deriving livelihood from marine-related activities; and to the beauty of the Maine coast; that such hazards have frequently occurred in the past, are occurring now and present future threats of potentially catastrophic proportions, all of which are expressly declared to be inimical to the paramount interests of the State as herein set forth and that such state interests outweigh any economic burdens imposed by the Legislature upon those engaged in transferring oil, petroleum products and their by-products and related activities.

'The Legislature intends by the enactment of this legislation to exercise the police power of the State through the Environmental Improvement Commission by conferring upon said Commission the exclusive power to deal with the hazards and threats of danger and damage posed by such transfers and related activities; to require the prompt containment and removal of pollution occasioned thereby; to provide procedures whereby persons suffering damage from such occurrences may be promptly made whole; and to establish a fund to provide for the inspection and supervision of such activities and guarantee the prompt payment of reasonable damage claims resulting therefrom.

'The Legislature further finds and declares that the preservation of the public uses referred to herein is of grave public interest and concern to the State in promoting its general welfare, preventing disease, promoting health and providing for the public safety, and that the State's interest in such preservation outweighs any burdens of absolute liability imposed by the Legislature upon those engaged in transferring oil, petroleum products and their by-products and related activities.'

The substantive provisions of the Act contain a prohibition of the discharge of oil into or upon coastal waters and adjoining land and waters that drain into coastal waters. 3 The activities of both oil terminals and the vessels which serve them are regulated and such terminals are required to obtain a license. 4 Persons who discharge oil into or upon coastal waters are charged with the duty of cleaning up the spill to the satisfaction of the Commission and the Commission is empowered to effect a clean-up if the person responsible fails to do so or if the person responsible is unknown (the so-called 'mystery spills.') 5

The sections of the Act which create the Coastal Protection Fund and provide for expenditures from it and reimbursements to it (sections 551 and 552), are the critical sections of the Act insofar as the questions raised in these actions are concerned.

Section 551 creates the Fund and defines its uses. The Fund is a 'non-lapsing, revolving fund' limited to four million dollars. The initial funding is effected by the imposition of an annual license fee determined on the basis of one-half cent per barrel of petroleum products transferred over water during the licensing period. The license fee is imposed on 'oil terminal

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