Portland Pipe Line Corp. v. City of S. Portland

• Citation: 288 F.Supp.3d 321
• Decision Date: 29 December 2017
• Docket Number: 2:15–cv–00054–JAW
• Parties: PORTLAND PIPE LINE CORPORATION, et al., Plaintiffs, v. CITY OF SOUTH PORTLAND, et al., Defendants.
• Court: U.S. District Court — District of Maine

288 F.Supp.3d 321

PORTLAND PIPE LINE CORPORATION, et al., Plaintiffs,

v.CITY OF SOUTH PORTLAND, et al., Defendants.

2:15–cv–00054–JAW

United States District Court, D. Maine.

Signed December 29, 2017

Catherine R. Connors, Matthew D. Manahan, Eric J. Wycoff, John J. Aromando, Nolan L. Reichl, Pierce Atwood LLP, Portland, ME, for Plaintiffs.

Mark A. Bower, Sally J. Daggett, Jensen Baird Gardner & Henry, Portland, ME, Jesse Harlan Alderman, pro hac vice, Jonathan M. Ettinger, pro hac vice, Foley Hoag LLP, Boston, MA, for Defendants.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE

A pipeline operator challenges a local ordinance prohibiting loading crude oil onto tankers and new structures for that purpose on the grounds that it is preempted under numerous federal and state laws, that it violates the Commerce Clause of the United States Constitution, that it violates the business's civil rights, its due process rights, its right to avoid improper delegation, its right to equal protection under the law, and that it violates the City's own comprehensive plan.

Before the Court are Plaintiffs' Motion for Summary Judgment (ECF No. 87) and Defendants' Motion for Summary Judgment (ECF No. 88). The Court denies summary judgment as to the commerce clause issues, grants the Defendants' motion as to the federal and state preemption questions, due process, excessive delegation, and equal protection issues, civil rights claims, and questions about inconsistency with the City's comprehensive plan, and the Court denies the pipeline operators' motion for summary judgment in its entirety. In accordance with the positions of the parties, the Court dismisses as premature the claims for attorney's fees and costs under 42 U.S.C. § 1983.

I. PROCEDURAL POSTURE

A. The Complaint, Motion to Dismiss, and Answer

On February 6, 2015, Portland Pipe Line Corporation (PPLC) and the American Waterways Operators (AWO) (collectively, Plaintiffs) filed a nine-count complaint in this Court against the city of South Portland (South Portland or City) and Patricia Doucette in her official capacity as the code enforcement officer of South Portland (collectively, Defendants). The Complaint contains nine counts: (1) Supremacy Clause preemption of the Ordinance by the Pipeline Safety Act (PSA), 49 U.S.C §§ 60101 et seq. ; (2) Supremacy Clause preemption of the Ordinance under the President's foreign affairs power; (3) Supremacy Clause preemption of the Ordinance by the Ports and Waterways Safety Act, 33 U.S.C. Ch. 25 and 46 U.S.C. Ch. 37; (4) preemption of the Ordinance under Article III, Section 2 of the United States Constitution and the Constitution's embedded principle of federal maritime governance; (5) violation of the Commerce Clause of the Constitution; (6) violation of the Due Process and Equal Protection Clauses; (7) deprivation of rights under the Civil Rights Act, 42 U.S.C. § 1983 ; (8) inconsistency of the Ordinance with South Portland's comprehensive plan under Maine law, 30–A M.R.S. § 4352 ; and (9) preemption of the Ordinance by Maine's Oil Discharge Prevention Law, 38 M.R.S. § 556. Compl. for Declaratory and Injunctive Relief (ECF No. 1) (Compl. ).¹

On March 31, 2015, the Defendants filed a motion to dismiss the Complaint. Defs.' Mot. to Dismiss the Compl. Pursuant to Rule 12(b)(1) (ECF No. 16); Mem. of Law in Supp. of Defs.' Mot. to Dismiss Pursuant to Rule 12(b)(1) (ECF No. 17). The Court denied the motion to dismiss on February 11, 2016. Order on Defs.' Mot. to Dismiss (ECF No. 29). Accordingly, the Defendants filed an answer to the Complaint on February 29, 2016. Answer of Defs. City of South Portland and Patricia Doucette (ECF No. 30).

On September 8, 2016, the Plaintiffs filed a notice of intent to move for summary judgment. Pls.' Renewed Notice of Intent to Seek Summ J. and Req. for Loc. R. 56(h) Conf. (ECF No. 75). The following day, the Defendants likewise filed a notice of intent to move for summary judgment. Defs.' Notice of Intent to Seek Summ. J. and Req. for Loc. R. 56(h) Conf. (ECF No. 77). The Court held a Local Rule 56(h) conference on November 2, 2016. Min. Entry (ECF No. 83).

B. The Motions for Summary Judgment

On November 17, 2016, the Plaintiffs filed a motion for summary judgment and a statement of undisputed material facts. Pls.' Mot. for Summ. J. (ECF No. 87) (Pls.' Mot. ); Pls.' Statement of Material Facts (ECF No. 89) (PSMF). That same day, the Defendants filed a consolidated motion to dismiss pursuant to Rule 12(b)(1) and a cross motion for summary judgment, along with a corresponding statement of material facts. Defs.' Consolidated Mot. to Dismiss Pursuant to Rule 12(b)(1) and Mot. for Summ J. (ECF No. 88) (Defs.' Mot. ); Defs.' Rule 12(b)(1) and Loc. R. 56(b) Statement of Undisputed Material Facts [Unredacted Version] (ECF No. 96) (DSMF).

On December 20, 2016, the Defendants filed an opposition to the Plaintiffs' motion for summary judgment, a responsive statement of material facts, and an additional set of material facts. Defs.' Opp'n to Pls.' Mot. for Summ. J. (ECF No. 123) (Defs.' Opp'n ); Defs.' Loc. R. 56(c) Opposing Statement of Material Facts and Additional Statement of Facts at 1–52 (ECF No. 124) (DRPSMF); id. at 53–85 (DSAMF). Also on December 20, 2016, the Plaintiffs filed an opposition to the Defendants' motion to dismiss and cross motion for summary judgment, a responsive statement of material facts, and an additional set of material facts. Pls.' Mem in Opp'n to Defs.' Mot. to Dismiss and for Summ. J. (ECF No. 127) (Pls.' Opp'n ); Pls.' Loc. R. 56(c) Opposing Statement of Material Facts and Additional Statement of Facts at 1–74 (ECF No. 128) (PRDSMF); id at 75–85 (PSAMF).

On January 13, 2017, the Plaintiffs filed a reply memorandum and a reply statement of facts. Pls.' Reply in Supp. of Their Mot. for Summ. J. (ECF No. 140) (Pls.' Reply ); Pls.' Reply Statement of Material Facts (ECF No. 141) (PRDSAMF). That same day, the Defendants filed their own reply memorandum and reply statement of facts. Reply to Pls.' Opp'n to Defs.' Consolidated Mot. to Dismiss and Mot. for Summ. J. (ECF No. 142) (Defs.' Reply ); Defs.' Loc. R. 56(d) Resp. to Pls.' Additional Statement of Facts (ECF No. 143) (DRPSAMF).

On December 12, 2017, the Court denied the Defendants' Renewed Motion to Dismiss under Rule 12(b)(1), and it is now able to turn to the cross-motions for summary judgment. Order on Defs.' Consolidated Mot. to Dismiss Under Rule 12(b)(1) (ECF No. 185) (Consolidated Order ).

C. Amici Curiae

Meanwhile, the Court received requests for leave to file amicus briefs on behalf of both the Plaintiffs and the Defendants. On January 9, 2017, the Court granted the motions of the amici curiae. Order on Mots. to File Briefs as Amici Curiae (ECF No. 135). On behalf of the Plaintiffs, the Chamber of Commerce of the United States filed a brief on January 9, 2017, Brief of the Chamber of Commerce of the U.S.A. as Amicus Curiae in Supp. of Pls.' Mot. for Summ. J. (ECF No. 136); the American Fuel and Petrochemical Manufacturers, the American Petroleum Institute, the Association of Oil Pipe Lines, and the International Liquid Terminals Association filed a brief on January 11, 2017, Amici Curiae Brief of the Am. Fuel & Petrochem. Mfrs, the Am. Petro. Inst., the Ass'n of Oil Pipe Lines, and the Int'l Liquid Terminals Ass'n in Supp. of Pls.' Mot. for Summ. J. (ECF No. 138); and Portland Pilots, Inc., the Maine Energy Marketers Association, and the Associated General Contractors of Maine filed a brief on January 11, 2017. Brief of Amicus Curiae Portland Pilots, Inc., Maine Energy Mkt'rs Ass'n, and Associated Gen. Contractors of Me. in Supp. of Pls.' Mot. for Summ. J. (ECF No. 139). For the Defendants, the Conservation Law Foundation filed a brief on January 10, 2017. Brief Amicus Curiae of the Conserv. Law Found. (ECF No. 137).

On January 23, 2017, the Plaintiffs and the Defendants each filed a response to the amicus briefs. Pls.' Mem. of Law in Resp. to Amici Briefs (ECF No. 145); Defs.' Resp. to Briefs Amicus Curiae (ECF No. 146).

II. SUMMARY JUDGMENT FACTS²

A. The Pipelines

In 1941, PPLC and its parent company, Montreal Pipe Line Limited (MPLL), began constructing and operating a twelve-inch crude oil pipeline stretching from the harbor in South Portland, Maine, through New Hampshire and Vermont, and into Quebec, Canada, terminating at oil refineries in Montreal East. PSMF ¶¶ 1–2; DRPSMF ¶¶ 1–2; DSMF ¶ 9; PRDSMF ¶ 9. The sole owner of PPLC is MPLL; MPLL in turn is owned by three Canadian companies: Shell Canada Limited, Suncor Energy Inc., and Imperial Oil Limited.³

DSMF ¶ 7; PRDSMF ¶ 7; DSAMF ¶ 203; PRDSAMF ¶ 203. Imperial is ExxonMobil's Canadian subsidiary. PRDSAMF ¶ 203; PRDSMF ¶ 203.

PPLC added to its pipeline system in 1950 by constructing and then operating an eighteen-inch pipeline. PSMF ¶ 3; DRPSMF ¶ 3; DSMF ¶ 5; PRDSMF ¶ 5. PPLC added to its pipeline system again in 1965 by constructing and then operating a twenty-four-inch pipeline. PSMF ¶ 4; DRPSMF ¶ 4; DSMF ¶ 5; PRDSMF ¶ 5. PPLC decommissioned and ceased operating the original twelve-inch line in 1982. PSMF ¶ 10; DRPSMF ¶ 10. PPLC now uses the twelve-inch line as a sacrificial anode to protect its 18– and twenty-four-inch lines from external corrosion. Id. The nominal capacities of the remaining 18– and twenty-four-inch lines are approximately 192,000 barrels per day and 410,000 barrels per day of crude oil, respectively. DSMF ¶ 6; PRDSMF ¶ 6.

With a few exceptions of short distances, all three of PPLC's pipelines follow the same route, along the same rights of way, and pass largely underground between South Portland and the Montreal East oil refineries. PSMF ¶ 5.⁴ Since the pipeline system began operating in 1941, PPLC has operated the portion of the pipeline that lies within the United States, while MPLL has operated the portion that lies within Canada.⁵ PSMF ¶ 6; DSMF ¶ 3. The only exception was a period from 1987 to 1999, when PPLC and MPLL...