Amici Curiae Brief of the International Municipal Lawyers Association and Legal Scholars in Support of Defendants-Appellees in Portland Pipeline Operators, et al. v. City of South Portland, et al. (State of Maine Supreme Judicial Court) (July 7, 2020)

42 Pages Posted: 14 Jan 2021

See all articles by Sarah Fox

Sarah Fox

Northern Illinois University - College of Law

Sara C. Bronin

Cornell University - College of Architecture, Art & Planning; Cornell University - Law School

Nestor M. Davidson

Fordham University School of Law

Keith H. Hirokawa

Albany Law School

Ashira Pelman Ostrow

Hofstra University - Maurice A. Deane School of Law

Dave Owen

UC Hastings Law

Laurie Reynolds

University of Illinois College of Law

Jonathan D. Rosenbloom

Albany Law School

Sarah Schindler

University of Denver Sturm College of Law

Date Written: July 7, 2020

Abstract

This brief to the Maine Supreme Judicial Court was filed in support of the City of South Portland by the Amici Curiae, including the International Municipal Lawyers Association and legal scholars, to provide the Court with a background on the role of local governments in land use planning, and to explain why the City of South Portland’s Clear Skies Ordinance falls easily within the City’s authority and was not preempted by state legislation.

After studying the potential for bulk loading of crude oil within its boundaries, the City of South Portland concluded that the infrastructure requirements and environmental impacts of the activity posed a threat to public health and welfare and were incompatible with the community’s vision of itself for the future. The City therefore decided to enact the Clear Skies Ordinance, which prohibits the storing and handling of petroleum or petroleum products for the bulk loading of crude oil onto any marine tank vessel in specified zoning districts. Litigation followed, with plaintiffs arguing that the City lacked authority to enact the Ordinance and that, even if it had such authority in the first instance, that authority had been preempted by other state law. Defendants prevailed on summary judgment in the U.S. District Court for the District of Maine, and during the course of an appeal to the United States Court of Appeals for the First Circuit, the Circuit certified several questions to the Maine Supreme Judicial Court. This brief was filed in support of the City with regard to those certified questions.

The brief begins by discussing how central the role of local governments is in making land use decisions, emphasizing the highly localized impacts of land use decisions for public health and welfare. It then describes the zoning mechanisms by which local governments exercise their land use power, and discusses why the zoning power is so important for protecting public health and environmental quality, and responding to the changing needs of communities.

Next, the brief explains the legal underpinnings of the City of South Portland’s home rule authority. The Constitution of the State of Maine contains a broad grant of home rule authority that is further strengthened by a statutorily imposed rebuttable presumption of validity for exercises of that authority. Local exercises of zoning authority are consistent within this home rule grant, and the brief discusses why the Clear Skies Ordinance falls squarely within the local zoning power. Finally, the brief explains why the Ordinance has not been expressly or impliedly preempted by state law. For all of those reasons, the brief concludes that the City’s enactment of the Ordinance was valid in the first instance and should not be overturned.

Keywords: Zoning, Land Use, Air Quality, Maine, Preemption, Home Rule, Environmental Law

Suggested Citation

Fox, Sarah and Bronin, Sara C. and Davidson, Nestor M. and Hirokawa, Keith H. and Ostrow, Ashira Pelman and Owen, Dave and Reynolds, Laurie and Rosenbloom, Jonathan D. and Schindler, Sarah, Amici Curiae Brief of the International Municipal Lawyers Association and Legal Scholars in Support of Defendants-Appellees in Portland Pipeline Operators, et al. v. City of South Portland, et al. (State of Maine Supreme Judicial Court) (July 7, 2020) (July 7, 2020). Albany Law School Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3761241 or http://dx.doi.org/10.2139/ssrn.3761241

Sarah Fox (Contact Author)

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

Sara C. Bronin

Cornell University - College of Architecture, Art & Planning ( email )

Ithaca, NY
United States

Cornell University - Law School

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Nestor M. Davidson

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

Keith H. Hirokawa

Albany Law School ( email )

80 New Scotland Avenue
Albany, NY 12208
United States

Ashira Pelman Ostrow

Hofstra University - Maurice A. Deane School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States

Dave Owen

UC Hastings Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

Laurie Reynolds

University of Illinois College of Law

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

Jonathan D. Rosenbloom

Albany Law School ( email )

80 New Scotland Avenue
Albany, NY 12208
United States

Sarah Schindler

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
41
Abstract Views
393
PlumX Metrics