Portland Pipe Line Corp. v. City of S. Portland (288 F. Supp. 3d 321, 2017)

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. ).

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 FACTS

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. 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. 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. PSMF ¶ 6; DSMF ¶ 3. The only exception was a period from 1987 to 1999, when PPLC and MPLL leased the eighteen-inch line to Granite State Gas Transmission, Inc. (Granite State), which operated the line for natural gas transmission. PSMF ¶ 18; DRPSMF ¶¶ 6, 18.

In South Portland, PPLC maintains "Pier 2," an oceanfront pier located near Portland Breakwater Light on the harbor where tanker vessels historically have docked to deliver crude oil. PSMF ¶ 8; DRPSMF ¶ 8; DSMF ¶ 7; PRDSMF ¶ 7. PPLC transports oil from Pier 2 to Montreal East through PPLC's above-and below ground infrastructure, including storage tanks in South Portland, utilizing six pumping stations across Maine, New Hampshire, and Vermont to move oil along the pipeline route. PSMF ¶ 9; DRPSMF ¶ 9. Specifically, the crude oil is offloaded from marine tank vessels at Pier 2 and transported to crude oil storage tanks in the City, four of which are located on two parcels in close proximity to Pier 2 (the Waterfront Tanks) and nineteen of which are located at the "Main Tank Farm" on Hill Street, approximately 2.7 miles inland from Pier 2. DSMF ¶ 8; PRDSMF ¶ 8. PPLC's eighteen-inch and twenty-four-inch pipelines move the crude oil northward from the South Portland tank farm to refineries in Montreal. DRPSMF ¶ 8. Since 1999, both PPLC's eighteen-inch and twenty-four-inch pipelines have been configured primarily for the northbound transportation of crude oil from South Portland to Canada. PSMF ¶ 11. The eighteen-inch and twenty-four-inch pipelines do not extend to Pier 2; the Main Tank Farm and Pier 2 are connected by three subsurface lines running under Broadway, and other streets, and Mill Cove in the City. DSMF ¶ 154; PRDSMF

¶ 154. The eighteen-inch and twenty-four-inch pipelines originate (or terminate in the case of reversal) at the Main Tank Farm. DSMF ¶ 158; PRDSMF ¶ 158; DSAMF ¶ 195. According to PPLC, access to the harbor has been integral to its success and longevity. PSMF ¶ 12.

The harbor is able to accommodate ships with up to 52 feet of draft and up to 170,000 deadweight tons of cargo. PSMF ¶ 13; DRPSMF ¶ 13. The harbor has all-season ice free conditions, which permits shipment of cargo in and out of the harbor year round. PSMF ¶ 14; DRPSMF ¶ 14. As recently as 2010-the last year the eighteen-inch line was in active service-PPLC accepted 132 deliveries from tankers. PSMF ¶ 15; DRPSMF ¶ 15. That year, PPLC transported 27,969,719 barrels of crude oil northward to Montreal East through its eighteen-inch pipeline, for an average of 76,629 barrels per day, as well as 72,231,154 barrels of crude oil northward to Montreal East through its twenty-four-inch pipeline, for an average of 197,894 barrels per day. Id. According to PPLC's president, Thomas Hardison, "PPLC has operated continuously since 1941 in part due to its ability to respond and adapt to changing market conditions." , PSMF ¶ 16.

B. Geography

The City is a municipal corporation organized pursuant to the Constitution and general laws of the state of Maine. DSMF ¶ 1; PRDSMF ¶ 1. The City is governed by a City Council of seven elected members. DSMF ¶ 2; PRDSMF ¶ 2. Pier 2 is located in a district of the City zoned as Shipyard ("S") and within the City's Shoreland Area Overlay District. DSMF ¶ 111; PRDSMF ¶ 111. The Shipyard zoning district was established:

to promote the Shipyard area in South Portland as a robust waterfront center for office complexes, commercial uses, marine uses, and light industrial activities. The Shipyard District S seeks to maintain the conforming status of existing businesses, to prevent residential development and associated land use conflicts, and to minimize the impacts of development on adjacent zoning districts.

DSMF ¶ 112; PRDSMF ¶ 112.

PPLC owns four above-ground floating roof oil storage tanks proximate to Pier 2 on two separate parcels (the "Waterfront Tanks"), also in the Shipyard zoning district. DSMF ¶ 113; PRDSMF ¶ 113. Pier 2 abuts Bug Light Park, a public waterfront park on Casco Bay. DSMF ¶ 114. Bug Light Park features a lighthouse on Casco Bay, parking facilities and green space for dog walking, children's activities and general waterfront recreation. DSMF ¶ 115; PRDSMF ¶ 115. The Waterfront Tanks abut residential neighborhoods, which are zoned for residential use and designated by the City's Zoning Ordinance as Residential ("G"). DSMF ¶ 116; PRDSMF ¶ 116. The Vapor Combustion Units (VCUs), or smokestacks, PPLC considered constructing in 2008-2009 would have been constructed on the "approach segment" (landward portion) of Pier 2. DSMF

¶ 117.

The Main Tank Farm occupies a 102-acre parcel at 30 Hill Street on which are situated 19 above-ground floating roof oil storage tanks. DSMF ¶ 118; PRDSMF ¶ 118. The Main Tank Farm is located in a district of the City zoned as Commercial "C." DSMF ¶ 119; PRDSMF ¶ 119. The Main Tank Farm is generally surrounded by residential neighborhoods, schools, day-care centers, athletic facilities, and churches that are zoned as "Residential Districts A & G." DSMF ¶ 120; PRDSMF ¶ 120. In addition to residences, the Kaler and Dyer Elementary Schools, South Portland High School, South Portland Church of the Nazarene, and the South Portland Community Center are proximate to the Main Tank Farm. DSMF ¶ 121. The 23 above-ground floating roof oil storage tanks in the City were all constructed between 1941 and 1971, with 17 of them built before 1957. DSMF ¶ 122; PRDSMF ¶ 122.

C. 1986 and 1999 Changes to the Pipeline Flow

In 1986, PPLC and MPLL reconfigured the eighteen-inch line for natural gas transmission from Canada to South Portland and leased the line to Granite State. PSMF ¶¶ 18-19; DRPSMF ¶¶ 18-19. In order to reconfigure the eighteen-inch line for natural gas, PPLC took steps to remove crude oil from the line. PSMF ¶ 17. In particular, PPLC emptied the portion of the pipeline stretching from Sutton Station, Vermont, to Montreal East, Quebec, by pumping to Montreal East any crude oil remaining in the pipeline. Id. From Sutton Station southward to South Portland, however, PPLC pumped the remaining crude oil contents of the pipeline south, into the storage tanks in South Portland. Id. On August 10, 1987, the Federal Energy Regulatory Commission (FERC) issued a permit to Granite State authorizing the company to use the eighteen-inch pipeline to transport natural gas south from Canada to South Portland. PSMF ¶ 19; DRPSMF ¶ 19. In 1999, PPLC reversed the direction and production orientation of its eighteen-inch line again, such that it again would be able to transport crude oil north to Montreal East. PSMF ¶ 20; DRPSMF ¶ 20.

Despite these line clearing operations, the City Council determined that the pipelines have never carried crude oil in the southward direction, and PPLC has never loaded crude oil onto marine tank vessels. DSMF ¶ 130. The City Council also determined that crude oil has never been loaded onto marine tank vessels anywhere in the City. DSMF ¶ 131.

D. The 2008-2009 Oil Sands Proposed Project

During the approximately one-decade period beginning in 1999, when PPLC reversed the flow of its eighteen-inch line back to a northbound orientation and began again shipping crude oil in that line, through 2008, when PPLC began pursuing the flow reversal project, PPLC moved an average volume of 394,000 barrels per day ("b/d") of crude oil through its pipeline system. PSAMF ¶ 243; DRPSAMF ¶ 243. In 2007-2008, PPLC determined that demand for transportation of crude oil from the Harbor to the Montreal East refineries was likely to decline because the boom in crude oil production in Alberta's "oil sands" fields meant that Montreal East refiners would need less foreign oil. PSMF ¶ 24. Crude oil derived from "oil sands" is sometimes referred to as "tar sands" or "tar sands oil." PSMF ¶ 25; DRPSMF ¶ 25. In 2007-2008, PPLC moved to reverse the flow of its eighteen-inch pipeline, but not its twenty-four-inch pipeline, in order to enable the company to transport crude oil from Montreal to the South Portland harbor and to load crude oil onto tanker vessels for shipment to both United States and international destinations. PSMF ¶ 26; DSMF ¶ 33. Leading up to and over the course of 2007 and 2008, PPLC determined that increased Canadian production would create substantial demand for transportation systems to move crude oil out of Canada. PSMF ¶ 27. In 2007-2008, PPLC determined that, upon reversing the flow of its eighteen-inch pipeline, PPLC would be the only market actor of any kind capable of importing, exporting, or otherwise handling Canadian oil sands crude to South Portland. PSMF ¶ 28. Moreover, PPLC determined that, upon reversing the flow of its eighteen-inch pipeline, PPLC would be the only terminal on the United States east coast capable of importing and exporting Canadian oil sands crude. PSMF ¶ 29. During this period, PPLC invested substantial money and effort in advancing its flow reversal project, spending approximately $5 million on consultants to determine the necessary changes to its infrastructure, to model the economics, and to identify any necessary permits for the project to proceed. PSMF ¶ 30; DRPSMF ¶ 30.

At the time of the 2008-2009 Project, Thomas Hardison, was the Director of Operations for PPLC, having previously been Loss Control Manager. DSAMF ¶ 204; PRDSAMF ¶ 204. He was Vice President from 2014-2015 and become President and CEO in 2015. Id. For the 2008-2009 Project, Mr. Hardison was not "involved in any way in determining market demand." DSAMF ¶ 205; PRDSAMF ¶ 205. Mr. Hardison "wasn't part of the decision-making" for the 2008-2009 Project. DSAMF ¶ 206. Mr. Hardison's role in the 2008-2009 Project was "contributing, from an operations and maintenance perspective, making recommendations and providing input on the-and review of engineering design for piping and valve installations, right-of-way access, things that would typically be associated with the operations and the maintenance of the pipeline." DSAMF ¶ 207.

1. Marketing the 2008-2009 Reversal Project

In 2007-2008, PPLC began implementing its flow reversal project by marketing its ability to transport oil from Canada to South Portland. PSMF ¶ 31; DRPSMF ¶ 31. PPLC conducted a traditional "open season" process, whereby PPLC presented the details of its pipeline capacity to interested shippers-i.e. oil companies who wished to move their Canadian oil to the South Portland harbor-in order to secure conditional offers for committed volumes of crude oil. PSMF ¶ 32; DRPSMF ¶ 32; DSMF ¶ 12; PRDSMF ¶ 12. During the open season process, PPLC asked shippers to sign non-disclosure agreements to protect the confidentiality of PPLC's plans, and many did. PSMF ¶ 33. During the open season process, numerous shippers expressed interest in PPLC's project. PSMF ¶ 34. PPLC intended to obtain contractual commitments from interested shippers to move specific volumes of oil. PSMF ¶ 35. PPLC's intention, consistent with industry practice, was to use the contractual commitments to obtain financing to complete the infrastructure changes associated with reversing the flow. PSMF ¶ 36.

Enbridge Pipelines, Inc. ("Enbridge") operates the Enbridge Line 9 ("Line 9") pipeline between Sarnia, Ontario and Montreal, Quebec, which between 1998 and 2015 flowed east to west. DSMF ¶ 10. On September 12, 2008, Enbridge Pipelines, Inc., Enbridge Energy, Limited Partnership, and PPLC executed a Memorandum of Understanding ("MOU") which:

(a) stated the parties' mutual intent to reverse the direction of the flow of both PPLC's 18-inch pipeline and Line 9 first for one-stream operation (e.g., one type of crude oil, either "light" or "heavy") during an initial two-year period and thereafter for two stream operation (e.g., both "light" and "heavy" crude); and

(b) required PPLC to have received sufficient commercial support for the reversal of its 18-inch pipeline in the form of Conditional Offers providing for committed volumes under an Open Season and thereafter that such conditional offers be subject to execution of Transportation Services Agreements with the committed crude oil shippers in advance of a targeted in-service date of May 1, 2010 for both the Line 9 and PPLC 18-inch pipeline reversals.

DSMF ¶ 11.

In late 2008, the financial crisis that caused the Great Recession occurred, which crippled financial markets and caused worldwide economic activity to decline precipitously. PSMF ¶ 39; DRPSMF ¶ 39. PPLC halted work on the flow reversal project as a result of the financial crisis. PSMF ¶ 40; DRPSMF ¶ 40. It concluded the open season process on December 30, 2008. DSMF ¶ 12; PRDSMF ¶ 12. On December 31, 2008, PPLC sent a letter to Enbridge notifying Enbridge pursuant to the Memorandum of Understanding that PPLC did not receive a level of firm volume commitment from crude oil shippers required to proceed with the project to reverse the flow of the eighteen-inch pipeline. DSMF ¶ 13. PPLC's written notice of lack of commercial support from crude oil shippers terminated the MOU with Enbridge. DSMF ¶ 14; PRDSMF ¶ 14.

2. Permitting the Proposed Reversal Project

In addition, PPLC began gathering necessary permits in order to implement its flow reversal project. PSMF ¶ 31; DRPSMF ¶ 31. Those permits that PPLC did receive for the 2008-2009 Project were received in 2009. DSAMF ¶ 209; PRDSAMF ¶ 209.

PPLC contacted the State Department concerning permits for the flow reversal project. PSMF ¶ 37; DRPSMF ¶ 37; DSMF ¶ 32. The eighteen-inch line has operated under a permit since July 29, 1999, when the United States Department of State issued PPLC a permit "Authorizing Portland Pipe Line Corporation to Convert an Existing Pipeline Crossing the International Boundary Line Between the United States and Canada from Natural Gas Service to Crude Oil Service" (Presidential Permit). PSMF ¶ 21; DRPSMF ¶ 21; DSMF ¶ 160; PRDSMF ¶ 160. The twenty-four-inch pipeline was the subject of a prior Presidential Permit issued on January 13, 1965. DSMF ¶ 159; PRDSMF ¶ 159. The President of the United States issued this Permit concerning the construction and operation of PPLC's twenty-four-inch pipeline under his authority to regulate cross-border segments. PSMF ¶ 112. The Presidential Permit for the eighteen-inch pipeline states: "Permittee shall comply with all applicable Federal and State laws and regulations regarding the construction, operation, and maintenance of the United States facilities and with all applicable industrial codes. The permittee shall obtain requisite permits from Canadian authorities, as well as the relevant state and local governmental entities and relevant federal agencies." DSMF ¶ 161; PRDSMF ¶ 161. The Presidential Permit for the twenty-four-inch pipeline focuses on the pipeline segment from "the vicinity of North Troy, Vermont, to the international boundary line between the United States and Canada ..." and not pipeline and its facilities south of the border crossing. DSMF ¶ 162.

On July 18, 2008, the State Department responded that PPLC's pipeline reversal plan did "not constitute a substantial change from the scope of the authorization" set forth in the Presidential Permit previously issued to PPLC in 1999.

PSMF ¶ 37; DSMF ¶ 34; PRDSMF ¶ 34. As such, the State Department informed PPLC that is was "not required to seek a new or amended Presidential [P]ermit" in connection with the pipeline reversal project; however, the State Department reserved the right to rescind its decision if PPLC deviated significantly from the scope of its plan. Id.

On June 19, 2009, PPLC applied to the City's Planning Board for Site Plan and Shoreland Area zoning approval for various work associated with the 2008-2009 Project, including:

(a) At the Main Tank Farm, PPLC sought the City's approval to construct a new building housing a 2,400 square-foot pump station, outdoor electrical switchyard and various related infrastructure for use as a "ship loading system."

(b) At Pier 2, PPLC sought the City's approval to drive new pilings, construct concrete deck extensions and make other modifications to the pier structure in order to create a new Pier fendering system so that Pier 2 could berth smaller articulated tank barges (ATBs) and Handysize tank vessels (approximately 45,000-50,000 dead weight tons) than the larger Aframax (approximately 100,000 dead weight tons) and Suezmax (approximately 150,000 dead weight tons) vessels that Pier 2 was designed to accommodate.

(c) At Pier 2, PPLC also sought the City's approval to construct two new skid-mounted vapor combustion units (alternatively VCUs or smokestacks) on the approach segment of Pier 2 for the purpose of combusting volatiles contained in the vapor stream displaced from the holds of the marine tank vessels during the loading of crude oil.

DSMF ¶ 40.

PPLC sought the City's approval to install the VCUs in an approximately 30 by 120 foot area enclosed by a chain-link fence that would be located approximately 125 feet west of an existing guard house on the pier approach. DSMF ¶ 41; PRDSMF ¶ 41. The VCUs are used to control emissions. PSAMF ¶ 199; DRPSAMF ¶ 199. As part of the 2009 proposed pipeline reversal project, oil would be loaded onto a marine vessel, which would cause air in the vessel's tanks to be displaced. PSAMF ¶ 202; DRPSAMF ¶ 202. Because the displaced air would contain petroleum vapors, regulatory agencies would require that steps be taken to remove pollutants before the displaced air is released into the atmosphere. PSAMF ¶ 203. Some vessels have their own air emissions control equipment. PSAMF ¶ 204; DRPSAMF ¶ 204. The combustion stacks for the VCUs at Pier 2 were to be 70 feet tall and 12 feet in diameter. DSMF ¶ 42; PRDSMF ¶ 42.

PPLC received zoning approval from the City's Planning Board for the work at Pier 2 and the Main Tank Farm on August 25, 2009, which approval expired on August 25, 2012. DSMF ¶ 43. At no time during the City's processing of PPLC's application for site review approval for the pipeline flow reversal project during 2009 did City of South Portland Planning and Development Director Charles Haeuser express any concern about or objection to the VCUs proposed by PPLC as part of that project. PSAMF ¶ 207. As part of the site planning approval process, he indicated that the VCUs could be an attraction in their own right, and said he had "no concerns" about the proposed VCUs. PSAMF ¶ 208.

Because crude oil unloading operations do not require the release of volatile hydrocarbon vapors from ship holds through VCUs, the 2008-2009 Project required a New Source Review Air Emission License and an amendment to PPLC's existing Part 70 Air Emissions License, both from Maine DEP, to permit the increase in emissions from the proposed VCUs. DSMF ¶ 44; PRDSMF ¶ 44. PPLC applied for the New Source Review Air Emission License and an amendment to PPLC's existing Part 70 Air Emissions License to permit increased air emissions from the two VCUs in February of 2009. DSMF ¶ 45; PRDSMF ¶ 45. Maine DEP issued an Air Emissions License to PPLC

permitting additional air emissions from the two VCUs on August 25, 2009 (the "2009 Air License"). DSMF ¶ 46; PRDSMF ¶ 46; PSAMF ¶ 198; DRPSAMF ¶ 198. The 2009 Air License:

(a) authorized PPLC to construct two "John Zink" brand VCUs, each approximately 12 feet in diameter and 70 feet high that would use thermal oxidization technology to combust hydrocarbon vapors.

(b) stated that annual throughput capacity of the marine tank vessel loading terminal would be limited by the 18-inch pipeline's capacity to handle 180,000 b/d of Syncrude (a light crude) or 140,000 barrels per day of Cold Lake crude (a heavy crude).

(c) established emissions limits by analyzing the maximum throughput volumes (180,000 b/d and 140,000 b/d respectively) of Syncrude and Cold Lake Crude and the emissions control technology of the John Zink thermal oxidization VCUs.

DSMF ¶ 47; PRDSMF ¶ 47. PPLC voluntarily surrendered and voided the 2009 Air Emissions License without commencing construction. DSMF ¶ 48. Since 2009, the U.S. Environmental Protection Agency (EPA), pursuant to the Clean Air Act, has adopted new Sulfur Dioxide (SO2) and Nitrogen Oxides (NO2) Primary National Ambient Air Quality Standards (NAAQS), which would apply to any future project that emitted SO2or NO2from the loading of crude oil onto marine tank vessels in the City. DSMF ¶ 49.

PPLC also identified other environmental permits it would need to acquire, including: authorization from the U.S. Army Corps of Engineers for activities that will occupy navigable waters under Section 10 of the Rivers and Harbors Act of 1899; authorization from the U.S. Army Corps of Engineers to discharge dredged or fill materials into waters of the United States under Section 404 of the Clean Water Act; approval of an amendment to PPLC's existing Oil Terminal Facility License from Maine DEP; a Natural Resources Protection Act Permit from Maine DEP; a Water Quality Certification pursuant to Section 401 of the CleanWater Act from Maine DEP; a Stormwater Management Permit, Site Law Permit and Construction General Permit from Maine DEP; an Aboveground Storage of Flammable and Combustible Liquids permit from the Maine Fire Marshall pursuant to 25 Me. Rev. Stat. § 2481 ; building permits and street opening permits from the City; a Rule 13 Work Permit from the Board of Harbor Commissioners of the Port of Portland; building permits from the Towns of Raymond and North Waterford, Maine; a Water Quality Certification pursuant to Section 401 of the of the Clean Water Act from the New Hampshire Department of Environmental Services; a Freshwater Wetlands Permit from the New Hampshire Department of Environmental Services; an Act 250 Permit from the State of Vermont pursuant to 10 Vermont Stat. Ann. § 608(1)(b); a Water Quality Certification pursuant to Section 401 of the of the Clean Water Act from the Vermont Department of Environmental Conservation; a Wetland Conditional Use Determination form the Vermont Department of Environmental Conservation; a Public Building Construction Permit from the Vermont Department of Public Safety; approval from the National Energy Board of Canada; zoning approval and building permits for a pump station in Dunham, Quebec from La Commission de protection du territoire agricole du Québec (CPTAQ); Province of Quebec environmental permits from the Ministère du Développement durable, de l'Environnement (MDDEP) in Quebec, Canada; certificate of compliance from the MDDEP; a building permit from Montreal East, Quebec; and an air permit from la Communauté métropolitaine de Montréal. DSMF ¶ 51.

The National Energy Board of Canada (NEB) is an independent federal regulatory agency that regulates pipelines, energy development and trade in the Canadian public interest with a charge to consider economic, environmental, and social factors in its decision-making. DSMF ¶ 53; PRDSMF ¶ 53. The eighteen-inch pipeline could not have transported oil from Montreal to the Vermont border without approval from the NEB. DSMF ¶ 54. PPLC never applied to the NEB to reverse the flow of its pipeline(s). DSMF ¶ 55; PRDSMF ¶ 55.

PPLC's 2008-2009 Project included construction of a new pump station in Dunham Quebec (north of Vermont) to carry a dual stream of the heavy and light crudes over higher elevations south of Quebec. DSMF ¶ 56; PSAMF ¶¶ 236-37. To construct the new pump station in Dunham, Quebec, PPLC required land use approval from the CPTAQ, which it initially received. DSMF ¶ 57. The CPTAQ approval was appealed to the Tribunal administratif du Québec ("TAQ"), which rescinded the CPTAQ approval and remanded the matter to the CPTAQ. DSMF ¶ 58; PRDSMF ¶ 58. The TAQ decision rescinding CPTAQ approval was affirmed by the Court of Quebec. DSMF ¶ 59; PRDSMF ¶ 59. Following the TAQ decision rescinding CPTAQ approval, PPLC chose not to continue to pursue approval for the Dunham, Quebec pump station. DSMF ¶ 60; PRDSMF ¶ 60. At some point after June 17, 2013, PPLC released the Option Agreement it held with the owner of the property on which PPLC proposed to build the Dunham Quebec pump station. DSMF ¶ 61; PRDSMF ¶ 61.

PPLC's 2008-2009 Project required a certificate of compliance from the MDDEP in Quebec, Canada. DSMF ¶ 62. PPLC applied for a certificate of compliance from the MDDEP for the Project, but the MDDEP asked for additional information before processing the application for approval or denial. DSMF ¶ 63; PRDSMF ¶ 63. Before providing all responsive information, PPLC suspended the 2008-2009 project and advised MDDEP that it was no longer seeking a certificate of compliance. DSMF ¶ 64; PRDSMF ¶ 64.

In 2009, PPLC received a Jurisdictional Opinion from the Vermont Natural Resources Board that the construction in Vermont that was required for the 2008-2009 Project did not require a permit or review pursuant to the state's Land Use and Development Act (Act 250). DSMF ¶ 65; PRDSMF ¶ 65. In Vermont, PPLC's pipelines pass through three large tracts of public land owned by the State of Vermont (Victory State Forest, Victoria Basin Wildlife Management Area, and the Willoughby State Forest), as well as the Connecticut River, the Missisquoi River, tributaries to Crystal Lake and multiple other streams, lakes, and wetlands. DSMF ¶ 66. On April 15, 2013, the Vermont Natural Resources Board issued a new Jurisdictional Opinion, # 7-274 that superseded the 2009 Jurisdictional Opinion obtained by PPLC, concluding that the work required in Vermont for the 2008-2009 project or "similar" work (e.g., valve replacements on the pipeline and "reconfiguration of valves and piping" at pump stations in Vermont) "requires an Act 250 Permit under 10 V.S.A. § 6081(b) because it is a substantial change to a pre-existing development." DSMF ¶ 67; PRDSMF ¶ 67. PPLC filed a motion for reconsideration, but the Vermont Natural Resources Board reaffirmed Jurisdictional Opinion # 7-274. DSMF ¶ 68; PRDSMF ¶ 68.

PPLC applied for a Permit by Notification in 2009 to engage in construction within wetlands in Randolph, N.H. associated with the 2008-2009 Project. DSMF ¶ 69; PRDSMF ¶ 69. PPLC sought the permit in connection with a pipeline modification project necessary for PPLC to accommodate pipeline inspection tools. PSAMF ¶ 241. PPLC later ceased its pursuit of the permit as a result of the financial crisis. PSAMF ¶ 240. PPLC never received the permit for pipeline construction within wetlands in Randolph, N.H. for which it applied in 2009. DSMF ¶ 70; PRDSMF ¶ 70. New pipeline inspection technology is available that would allow for PPLC to inspect the pipeline without the modifications it initially pursued in Randolph, New Hampshire, and thus PPLC will not need any NHDES permit for this work in the future. PSAMF ¶ 242.

In 2009, without having obtained all of the necessary permits, PPLC suspended further permitting on the project to reverse the flow of the eighteen-inch pipeline and load crude oil onto marine tank vessels in South Portland. DSMF ¶ 52; PRDSMF ¶ 52. During the 2008-2009 process, no permitting authority denied PPLC any of the permits it sought, but it did not seek all the permits that would have been required and it did not receive approval for a pump station it proposed in Dunham, Quebec. PSAMF ¶ 233. Of the 13 permits PPLC initially sought, relevant authorities granted 10 of them and PPLC voluntarily ceased its pursuit of the other 3 when PPLC halted its work on the project. PSAMF ¶ 234. When PPLC first sought to reverse the flow in 2008-2009, it did not seek approval from the NEB because it ceased work on the flow reversal project before NEB approval became necessary. PSAMF ¶ 235.

E. The 2012-2013 Flow Reversal Project

As economic conditions improved in 2012 and 2013, and as PPLC determined that its prior forecasts concerning the future of Canadian oil production increasingly had proved accurate, PPLC once again began to consider reversing the flow of oil. PSMF ¶ 41.

1. Design Differences

In 2011 and 2012, PPLC analyzed and considered several different design and engineering characteristics of a "hypothetical potential project" to reverse the flow of either the eighteen-inch or twenty-four-inch pipeline and load crude oil onto marine tank vessels in the City. DSMF ¶ 71; PRDSMF ¶ 71. PPLC considered:

(a) using the 24-inch pipeline instead of the 18-inch pipeline for a potential future project.

(b) a project with a "single stream light line [of crude oil]," instead of a design that would be capable of carrying both heavy crude oil and light crude.

(c) developing a project that had a "low likelihood of [needing] the [Dunham] pump station" that was planned for the 2008-2009 Project and for which PPLC never obtained approval from Canadian regulatory authorities.

(d) using a vapor recovery system to capture hydrocarbon vapors during the loading process, which would use different technology and have different dimensions than the formerly proposed two 70-foot-tall John Zink VCUs.

(e) developing a project for which there would be "no need to upgrade Pier 2 to handle small tankers and barges," such as the smaller ATBs or Handysize tank vessels that the 2008-2009 Project was designed to accommodate.

DSMF ¶ 72.

From "an engineering perspective," it is "feasible" to physically interconnect Rigby Yard, a large rail facility in the City, and PPLC's Main Tank Farm. DSMF ¶ 74; PRDSMF ¶ 74; DSAMF ¶ 194; PRDSAMF ¶ 194. In 2012, PPLC studied a potential project that would transport only "Bakken/other U.S. sourced crude" by rail into Rigby Yard in the City. DSAMF ¶ 192. The rail proposal would have connected the Rigby Yard rail terminal with PPLC's Main Tank Farm on Hill Street by a short newly constructed pipeline on the Railroad's existing Right of Way. DSAMF ¶ 193. In 2013, PPLC considered transporting crude oil by rail to the Main Tank Farm and then loading crude oil onto marine tank vessels in the City. DSMF ¶ 73.

PPLC has not proposed any changes to pipeline or storage tank capacity or throughput as part of any flow reversal project, as compared to historical levels. PSAMF ¶ 200.

2. Marketing the 2012-2013 Project

PPLC again began soliciting interest in its flow reversal project from potential shippers and requesting that shippers sign non-disclosure agreements concerning the flow reversal project. PSMF ¶ 42. In 2011-2012, PPLC held discussions with numerous potential crude oil shippers, including Irving, Valero, Shell, Keyera, Repsol, Suncor, Global, Imperial Oil, and others, to attempt to obtain contractual volume commitments on a reversed eighteen-inch or twenty-four-inch pipeline and tracked potential interest on internal documents. DSMF ¶ 15; PRDSMF ¶ 15; PSAMF ¶ 252; DRPSAMF ¶ 252. PPLC's marketing efforts came on the heels of a potential announcement by Enbridge to reverse its Line 9 to carry oil from west to east. DSMF ¶ 16. In 2011-2012, PPLC solicited interest from potential crude oil shippers for committed volumes of crude oil to be carried southward either on the eighteen-inch or the twenty-four-inch pipeline. DSMF ¶ 17. In 2011-2012, PPLC did not move forward with the reversal project on either the eighteen-inch or twenty-four-inch pipeline. DSMF ¶ 18. In 2011 and 2012, PPLC was under less pressure to reverse the flow of its pipeline system because it still was doing enough business shipping crude oil northbound that flow reversal had not become an urgent necessity. PSAMF ¶ 253.

In 2013, PPLC again solicited interest from potential crude oil shippers for committed volumes of crude oil to be carried southward on the eighteen-inch or twenty-four-inch pipeline. DSMF ¶ 19. In 2013, PPLC received positive indications of interest from potential shippers, many of whom executed non-disclosure agreements. PSMF ¶ 43. In April of 2013, PPLC sought to "[s]ecure shareholder endorsement for [PPLC] to seek expressions of interest from potential shippers concurrent with the [TransCanada PipeLines Limited's] Energy East Open Season currently underway. DSAMF ¶ 183; PRDSAMF ¶ 183. In 2013, PPLC's Board of Directors did not have interest in pursuing a formal Open Season. DSAMF ¶ 184.

PPLC did not move forward with any reversal project due to a variety of reasons, including insufficient market interest. DSMF ¶ 20; DSAMF ¶ 181. Sometime after April 2013 and before June 17, 2013, PPLC decided to: "Postpone seeking commercial support [for any project to load crude oil in the City] until success of Canadian projects are assured;" "Archive learnings;" "Consider write-off of part or all of $6.5 million work-in-progress from 2008 project;" and "Apply asset impairment rules to $6.5 million Investment and Work with Audit Committee to finalize." DSAMF ¶ 187. The only portion of PPLC's initial multi-million dollar investment that it wrote off concerned an approximate $150,000 (Canadian) investment related to PPLC's work on the Dunham, Quebec pump station. PSAMF ¶ 257. PPLC monitored the progress of the Enbridge Line 9 reversal project, which did not begin operating until December 2015. PSAMF ¶ 254; DRPSAMF ¶ 254.

3. Permitting the 2012-2013 Project

On February 26, 2012, seventeen (17) members of Congress including U.S. Rep. Chellie Pingree of Maine and then-U.S. Rep. Michael Michaud of Maine, as well as the entire Vermont Senate and House delegation, wrote a letter to the Secretary of State requesting that the State Department require a "a new Presidential Permit and conduct a comprehensive Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act should the Portland Pipe Line Corporation (PPLC) seek to transport Canadian tar sands oil through the Portland Montreal Pipe Line (PMPL) running through Maine, New Hampshire and Vermont." DSMF ¶ 36; PRDSMF ¶ 36. On February 27, 2012, a spokesman for Maine Senator Susan Collins stated "[s]hould anyone actually seek approval, Senator Collins would expect that an appropriate environmental impact review be completed." DSMF ¶ 37. On March 6, 2014, Maine Senator Angus King wrote a letter to the Department of State stating "[s]hould the PPLC seek to reverse their line, and pipe diluted bitumen southward, it is my request that the State Department require a new Presidential Permit and prepare a comprehensive Environmental Impact Statement pursuant to the National Environmental Policy Act." DSMF ¶ 38; PRDSMF ¶ 38. On April 18, 2014, all four members of the New Hampshire congressional delegation-including then U.S. Senator Kelly Ayotte and U.S. Senator Jeanne Shaheen-wrote a letter to the Department of State stating that "[t]he transport of diluted bitumen southward through the Portland-Montreal pipeline would be a substantial shift from the pipeline's current use. Such changes also pose risks to our constituents' health, the environment and wildlife ...." and requested "that a new Presidential Permit be required in order to allow for complete review of" a change in direction of the "Portland-Montreal pipeline." DSMF ¶ 39; PRDSMF ¶ 39.

On August 13, 2013, a representative of the United States Department of State sent a letter to counsel for PPLC stating that the "Department made a determination that the reversal of pipeline flow and the work necessary to implement that reversal, as described in [PPLC's] letter of July 15, 2008, may not constitute a substantial change from the scope of authorization set forth in the Presidential Permit issued [on July 29, 1999]." PSMF ¶ 22A; DRPSMF ¶ 22A; DSMF ¶ 35; PRDSMF ¶ 35. Further, the letter explained that it was the State Department's "understanding that [PPLC] has no current plans to change the operation of either pipeline" and instructed PPLC to provide information for the Department to review and consider before executing any plans to change the operation of either pipeline. Id. More recently, another cross-border pipeline project, The Keystone XL Pipeline, would have transported western Canadian crude oil from Hardisty, Alberta to Steele City, Nebraska, but President Obama and the State Department rejected the Keystone proposal in part because they determined it would negatively impact foreign policy and national security. DSMF ¶ 165.

On December 20, 2010, the Maine DEP issued a "Department Order" granting PPLC an "Oil Discharge Prevention and Pollution Control Act Renewal License." PSMF ¶ 22; DRPSMF ¶ 22. On September 11, 2015, the Maine DEP again issued a "Department Order" granting PPLC an "Oil Discharge Prevention and Pollution Control Act Renewal License." PSMF ¶ 23; DRPSMF ¶ 23. PPLC did not require nor seek a new or amended oil facility terminal license from Maine DEP pursuant to 38 Maine Rev. Stat. § 556, et. seq. (the Coastal Conveyance Act) prior to loading crude oil in the City because the license covers "transfer between ship and shore" and "doesn't particularly care which direction you are transferring." DSMF ¶ 179; PRDSMF ¶ 179. PPLC wrote to Maine DEP acknowledging that approval did not absolve it of seeking "required licenses from all applicable federal, state, and local agencies ...." DSAMF ¶ 215.

PPLC ultimately ceased work on the 2012-2013 flow reversal project in 2013. PSMF ¶ 45; DRPSMF ¶ 45.

F. The Waterfront Protection Ordinance

In 2013, PPLC began to observe political opposition to the flow reversal project from environmental interest groups and the South Portland City Council. PSMF ¶ 44; PSAMF ¶ 244. It became apparent to PPLC that environmental interest groups would seek a referendum in South Portland that would bar PPLC from reversing the flow of the pipeline. PSMF ¶ 45. Advocates opposing the flow reversal project obtained sufficient signatures to place the so-called "Waterfront Protection Ordinance" ("WPO") on the November 2013 ballot in South Portland. PSMF ¶ 46.

In 2013, Portland Pipe Line Corporation ("PPLC") sent an "Open Letter to the Residents of South Portland" that stated:

Perhaps you signed a petition to get the [Waterfront Protection Ordinance ("WPO") ] on the ballot, because you were told the WPO is designed to "stop tar sands" and "smokestacks". These misleading references relate to a prior proposal which was never initiated or completed, and are designed to scare you into thinking that our company has an imminent project to bring tar sands to South Portland or smokestacks to Bug Light Park. Let us be clear-there is no such project proposed, pending or imminent. In fact, recently, as a good faith measure, we took the rare step of voluntarily surrendering our final permit relating to that prior proposal, as further reassurance to the community we care so deeply about that there is no tar sands project.

DSAMF ¶ 180.

The City Council opposed the WPO by a vote of 5-1 on August 19, 2013. DSAMF ¶ 217; PRDSAMF ¶ 217. City Councilor Gerald Jalbert publicly campaigned against passage of the WPO. DSAMF ¶ 219.

On November 5, 2013, South Portland residents voted against passage of the WPO by a 4453 to 4261 margin, or 51.1% to 48.9%. PSMF ¶ 63.

G. The Moratorium

On November 6, 2013, the South Portland City Council held a workshop to discuss a moratorium on the importation of oil sands crude into South Portland. PSMF ¶ 65.

At that November 6, 2013 workshop, Councilor Melissa Linscott stated: "I don't want to see tar sands here, I'll say it." PSMF ¶ 66. She also said: "I feel like I'm walking a fine line right now, but in my mind, the issue with the Waterfront Protection Ordinance as it was written had to do with the language and restrictions on other businesses, other activities, that we did not want to take place." Id.

At that November 6, 2013 workshop, Councilor Linda Cohen stated that "whether or not tar sands, oil sands, whatever it is, is coming in to this city tomorrow, next week, or next year, there's a real fear in our, in our city by at least half the people who voted yesterday." PSMF ¶ 67. She also said, " "In the end what I want to see come out of this is a process that, or an ordinance that, makes the City of South Portland as safe as it possibly can be ...." PSMF ¶ 68.

At that November 6, 2013 workshop, Mayor Blake stated:

I'm certainly in favor of a moratorium. We've used them several times in the past, always successfully. There's a reason why state statutes allow us this sort of activity, it's for things like this. And the second reason that they allow it is because of the inadequate ordinances to protect the health and safety of our community. And that's where I think we're at and that's why I support the moratorium.

PSMF ¶ 69. He also stated, "I think we want to be specific enough to cover any tar sands product, period. No matter what stage it's in. If it comes from the Alberta tar fields, regardless of what stage, what refined position it's in." PSMF ¶ 70. He also said that, for legal reasons, "we can't say tar sands in pipelines." , PSMF ¶ 72.

At that November 6, 2013 workshop, Councilor Jalbert said:

Maybe we're missing some of the big point here. That, if there's a reversal of the flow, it's the onboarding of a ship which is really the conduit to make this all work per say. Maybe there's a way we can look at the wording of this as it deals with, with oil sands or tar sands and the onboarding. So I'll ask again for help from Corporation Counsel. We need to go to the part where it talks about the onboarding of ships.

PSMF ¶ 71.

At that November 6, 2013 workshop, Councilor Livingston stated: "You just said a phrase there, reverse the flow. That's similar to, you know, that's what gets at what you're talking about, as far as, a little bit of refinement in Montreal, it has to be reversed to get down here." PSMF ¶ 73.

At a December 3, 2013 meeting of the South Portland Planning Board South Portland Corporation Counsel Sally Daggett stated:

If you look at two points, number one on page 2 of the proposed ordinance, the eighth whereas clause down, there's a specific definition of the term oil sands/tar sands products. It says, 'is used in this article to describe petroleum products derived from oil sands/tar sands that are still in an unrefined state including bitumen, diluted bitumen, synthetic crude, synbit and dilsynbit.' So it's limited to those products and then it's also further limited just to development proposals involving the loading of oil sands/tar sands products onto marine vessels docking in South Portland.

PSMF ¶ 74.

At that December 3, 2013 planning board meeting, South Portland Planning and Development Director Tex Haeuser stated:

We've already, you know, in the places along the waterfront where you don't have, say, the condominiums so close, you know, to the area. We already have them. If someone came forward with a new one there'd probably have to be a planning board, likely there'd have to be a planning board hearing as an amendment to an existing plan for that to happen. For it to happen on the waterfront here in, you know, in the eastern waterfront, there would have to be a, you would think there would have to be a pipeline reversal and that's what the moratorium's going to prevent, so. I kind of, I don't know if it's that big a concern.

PSMF ¶ 75.

In a manner that the City believed was consistent with Maine law, 30-A M.R.S. § 4356, on December 16, 2013, the City Council approved a "Moratorium on Development Proposals Involving the Loading of Oil Sands/Tar Sands Products onto Tank Vessels Docking in South Portland." , PSMF ¶ 76, ¶ 220. A stated goal of the temporary Moratorium was to allow the City Council:

time to seek: such professional advice and assistance as it deems necessary and appropriate, [to] study the Code of Ordinances to determine the land use, environmental and other regulatory implications of future proposed development proposals involving the loading of oil sands/tar sands products onto marine tank vessels docking in South Portland and consider what regulations might be appropriate for such activity.

DSAMF ¶¶ 220-21.

H. The Draft Ordinance Committee

The South Portland City Council created a "Draft Ordinance Committee" (DOC) charged with recommending ordinance amendments to

protect the public health and welfare from adverse or incompatible land uses, or adverse impacts to local air, water, aesthetic, recreational, natural, or marine resources, that could result from modifications to existing storage, handling, or processing facilities, or construction or installation of new facilities or equipment intended to allow the exportation of unrefined petroleum products, including the loading of unrefined petroleum products onto marine tank vessels docking in South Portland."

PSMF ¶ 79; DRPSMF ¶ 79; DSMF ¶ 146; DSAMF ¶ 223. In a Request for Qualifications the City sought "a consulting firm or individual to prepare and facilitate a committee based process to explore the development of ordinance language to address development proposals involving oil sands/tar sands products." Id.

David Cyr, the then-president of PPLC, sent a letter to the Mayor of the South Portland City Council asking for a representative of PPLC to be included as a member of any ordinance amendment study committee. PSMF ¶ 80; DRPSMF ¶ 80. The City appointed three individuals to be members of the DOC: including Russell Pierce, a Portland attorney and commercial litigator at Norman Hanson & DeTroy who represented the Natural Resources Council of Maine; Michael Conathan, the Director of Ocean Policy at the Center for American Progress a former staff member to Sen. Olympia Snowe and the Republican majority on the U.S. Senate Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard within the Committee on Commerce, Science, and Transportation, and Director of Ocean Policy at the Center for American Progress; and David Critchfield, a financial professional, environmental compliance manager at manufacturing facilities and timber sites, and former environmental regulatory specialist for International Paper, including at the Androscoggin Mill. PSMF ¶ 81; DRPSMF ¶ 81; DSAMF ¶ 222; PRDSAMF ¶ 222.

The City did not appoint any representative of PPLC to the DOC and no PPLC representative in fact served on the DOC. PSMF ¶ 82; DRPSMF ¶ 82. The DOC invited PPLC to participate in the hearings and to provide it with comments and relevant information, but PPLC refused "to serve as a resource for the Draft Ordinance Committee," and "engage with the Committee" because it believed the committee had prejudged the issue and their motives were pretextual. DSMF ¶ 176.

The DOC held its first meeting on February 6, 2014. PSMF ¶ 93; DRPSMF ¶ 93. The DOC "reconfirm[ed]" its charge from the City Council by drafting a written mission statement. PSMF ¶ 94; DRPSMF ¶ 94.

At a March 4, 2014 meeting of the DOC, the DOC heard testimony from South Portland Fire Chief Kevin Guimond. PSMF ¶ 99. Of the six oil terminals in the City, at least two-CITGO/Irving and Gulf-are designed to and do load refined oil products onto marine tank vessels. DSAMF ¶ 197. In response to a request to participate in the proceedings of the DOC, CITGO reported to the DOC that "[t]he terminal consists of a marine dock capable of handling ships and barges, a 5 bay truck loading rack, 10 tanks, various buildings for administration, maintenance, foam house, drivers' rooms etc. and a vapor combustion system. The dock is designed to off load or load vessels and product is delivered out of the terminal by truck." DSAMF ¶ 198; PRDSAMF ¶ 198. Jamie Py, the President of the Maine Energy Marketers Association, who provided information and consultation to the DOC, reported to the DOC:

Last week I was asked by the DOC to ask Gulf if Gulf had the ability and or experience to be able to load marine vessels. I have been told that: Gulf Oil does have the capability to load product from its South Portland waterfront terminal onto marine vessels. We have in fact done so in the past, and we anticipate the continuing need to do so in the future.

DSAMF ¶ 199.

In executing its fact-finding charge, the DOC considered numerous documents relating to air emissions, land use priorities, and community aesthetics, including a Report from the American Lung Association, Air Emission Inventory Reports, documents related to evaporative emissions from crude oil storage tanks, and documents from oil terminal operators in the City, environmental groups, and the Maine DEP. DSAMF ¶ 224; PRDSAMF ¶ 224. In testimony to the City Council, the American Lung Association explained that Cumberland County received a "C" air quality grade (likely a "D" if current criteria were used). DSAMF ¶ 225; PRDSAMF ¶ 225. The American Lung Association further testified to its view with regard to crude oil loading: "[w]e should be reducing the amount of air pollution in this area, not increasing it." Id. The American Lung Association also informed the DOC that the area already has some of the highest rates of respiratory ailments and lung disease in the state. Id.

The first two drafts of the ordinance at issue included a recital stating that "the reversal of the [PPLC] pipeline ... would still result in significant adverse impacts" that were "not addressed by ... federal or state laws" and could be addressed only by "the City's exercise of its broad home rule authority." PSMF ¶ 101.

1. Comments by the City Councilors

At a February 3, 2014, meeting of the South Portland City Council, Councilor Linda Cohen stated:

My understanding was that we want this committee to come up with language that will keep unrefined tar sands, is that where we are, out of the City of Portland, uhh, South Portland, Portland too, they're hoping the same thing, but that was, that was my understanding, that's what I want, I also in the meantime don't want to put businesses on the waterfront that are currently in existence out of business. So we have to keep in mind the viability of our current businesses and economy in South Portland but I don't want oil sands in South Portland.

PSMF ¶ 85.

At that February 3, 2014 council meeting, Councilor Blake stated that the City should develop a new ordinance that would "keep tar sands out completely." PSMF ¶ 86. He also said, "Everyone knows I don't have a great deal of faith in the petroleum industry, so we need to develop something that cannot be circumvented." PSMF ¶ 87.

At that February 3, 2014 council meeting, Councilor Patricia Smith stated: "I think we do have a health and safety issue that's potential with, with tar sands coming into our community." PSMF ¶ 88.

At that February 3, 2014 council meeting, Councilor Maxine Beecher stated:

I just want to add that in fact when this ordinance is done that it has and includes federal and state law, so that we're not caught in the courts for the next hundred years, w