South Portland, Maine: The Mouse That Roared on Canadian Tar Sands

Yves here. The article below illustrates how local communities are throwing spanners in the works of various North American energy plays. For instance, New York State’s highest court (confusingly called the Court of Appeals) ruled that towns have the authority to ban fracking via local ordinance, a decision that sent shivers down the spine of natural gas developers.

Another development that is causing some consternation to energy industry incumbents is an ordinance passed by the city council of South Portland, Maine, which put in place new zoning rules that would prohibit the export of Canadian tar sands through the port. Key sections of the Portland Press Herald account:

The City Council gave final approval Monday night to controversial zoning changes that are expected to block the potential export of Canadian tar sands oil from the city’s waterfront…

The Planning Board voted 6-1 last week to recommend the zoning proposal, which aims to prevent the bulk loading of crude oil, including tar sands, onto marine tank vessels and block construction or expansion of terminals and other facilities for that purpose…

The ordinance changes approved Monday were developed by the Draft Ordinance Committee after city voters rejected a much broader Waterfront Protection Ordinance by a 200-vote margin in November.

In developing its follow-up proposal, the ordinance committee found that loading crude oil onto a ship could increase air pollution, and that the vapor combustion facilities needed to mitigate the problem would have a negative visual impact on the waterfront.

Environmentalists want to block the export of Canada’s tar sands oil because of its potential to contribute to global climate change. They also argue it is difficult to clean if spilled and that export operations would add air pollution to the local environment.

Maine is also a hotbed of other efforts to assert more local authority over commerce, such as the food sovereignity movement, which exempts local growers who sell directly to in-area customers from certain state and national food regulations.

Like the New York State fracking ruling, this dispute has the potential to set new standards. From OilPrice:

Many residents of South Portland, Maine, were ecstatic over a recent decision by the city council to forbid the use of the city’s facilities to export Canadian oil sands.

The council voted 6-1 on July 21 against allowing the use of the 236-mile Portland-Montreal Pipe Line to ship the Canadian oil to South Portland for export. The line is now used to move imported Portland-Montreal Pipe Line in the opposite direction, to Canada.

“This is so exciting,” Mary Jane Ferrier, a spokeswoman for the group Protect South Portland, told the Portland Press Herald. “This is a big thing with impact far beyond our city.”

Opponents were disappointed, though they said the vote didn’t come as a surprise. One, Tom Hardison, vice president of the Portland Pipe Line Corp., issued a statement saying the vote was “predetermined” and “a rush to judgment,” and that the council was “slanted against [the pipeline] and the entire working waterfront since day one.”

Another industry group, the Working Waterfront Coalition, said it would “evaluate all political and legal means available to us to overturn this ordinance. The fight is not over.”

The Canadian oil is a heavy crude mixed with sand that’s found in great quantities in the western Canadian province of Alberta. Oil companies and governments are working on ways to put this oil on the world market, such as the Keystone XL Pipeline, which would move the crude from Canada through the United States to ports on the Gulf of Mexico.

There are no plans now to use the Portland-Montreal line for this, but supporters of the South Portland ban say they fear its flow of oil may one day be reversed and send sand-laden oil to Maine for shipment overseas.

South Portland, with a population of just 25,000, is a scenic port that also serves as the second-largest oil port on the U.S. Atlantic coast, where it offloads crude from tankers and ships it to Canada through the Portland-Montreal Pipe Line.

Although South Portland is no stranger to handling oil, many residents are strongly opposed to the presence of Alberta crude. They argue that oil sands spills, if they occur, would be much more difficult to clean up, that exporting more oil would contribute further to climate change and that loading the crude onto tankers would create unwanted local air pollution.

Len Langer, a lawyer who specializes in maritime issues, told Reuters that the ban could set a nationwide precedent if industry challenges fail.

“The real question here is, can a municipality regulate interstate and foreign commerce?” Langer said. “If the answer is yes, … we’ll see a lot more municipalities more aggressively regulating commerce within their borders.”

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31 comments

  1. John

    Excellent post. Extracting, transporting and selling this type of oil makes C02 emissions, to say nothing about the surrounding environment, worse. Each phase will add to the cocktail C02 mix. As for the environment, this ‘tar’ has to be converted to oil through a messy process that converts wildlife lands into moon landscapes.

    To see the scope, complexity of the pipeline check it out here:
    http://www.watershedsentinel.ca/images/Features/CanadianOilPipelines-Line9Reversal-TransCanadaGasLines-7in300dpi.jpg

    This map makes the Keystone pipeline argument look like an afterthought. The carbon bomb appears to have already imploded.

    Alberta Tar Sands production site:
    http://debra.worldcantwait.net/wp-content/uploads/2011/08/web-alberta-tar-sands-24-2.jpg

    Looking over the map it is clear the US oilmen want to control a large portion of the world oil refineries on US soil.

    1. mellon

      John, the most important issue is that the “Energy Return on Investment” for bitumen (oil sands) projects appears to be VERY low considering its environmental impact. See Two more ethical challenges to Canada’s oil sands This fact appears to now be very controversial here on North America, but bluntly, its what I have heard for decades. So its likely I think to be true.
      Why do it then? Why not invest in renewable energy rather than lower yield fossil energy extraction.

      If the yield on bitumen is so low that its not worth the effort because of the environmental impacts?

      Those investments would be better made on renewable energy research and production. To give us a way out of this madness.

      Also, society should not be asked to pay for the energy companies dubious investments, because of ISDS. ISDS entangles the nation in guaranteeing investments and exposes governments to huge risks for simply doing their jobs. These trade deals involving investments are more huge bailouts waiting to happen.

      Our society is not benefiting from these deals at all. (In fact, its universally predicted that if the heavily lobbied TTIP energy deal is signed, around 2016, energy prices for both consumers and business in the US and Canada will probably soar. Which could heavily impact society.)

      There are serious health risks associated with hydrocarbon extraction. To give an example I am familiar with, chemicals used in the natural gas industry, are endocrine disruptors,

  2. Skeptic

    “Len Langer, a lawyer who specializes in maritime issues, told Reuters that the ban could set a nationwide precedent if industry challenges fail.”

    Why would “industry challenges fail”? The Robbers Court always comes through for the 1%. Then, there is always “national security” and “emergency”. Vermont’s GMO law is in the same boat.

    1. mellon

      Industry is challenging local rulemaking through the EU-US-Canada-Mexico secret TTIP trade deal, which is trying to create a single unitary regulation scheme for environmental, chemical and agribusiness in Europe and North America which will overrule all local state and national laws. See Leaked: US And EU Chemical Lobbies Fighting To “Freeze” Industry Regulation

      Also, the free trade agreements use ISDS, standstill and ratchet to create a chilling effect on all new government action of any kind that “adversely effects” corporate profits. For example, look at the Lone Pine v. the government of Canada case.

      Also, numerous energy-industry friendly loophole laws exist. For example, here in the US the energy industry is already exempted from the Clean Water Act . Also, often chemicals used can be kept secret, so people who are sickened by them cannot even find out what is making them ill.

  3. lyman alpha blob

    The oil industry will pull out all the stops to be sure. They spent several hundred thousand last year to defeat an earlier initiative in the November elections but my take is that if that ordinance and this new one weren’t legally sound, they wouldn’t have wasted the money fighting it. They would have just let it pass and then have it thrown out in court. But people in South Portland did their homework when drafting the ordinances.

    That doesn’t mean the fight is over by a long shot though. The head of the state Dept of Environment Protection is a former oil industry lobbyist appointed by our Tea Party governor. You can imagine how much ‘protecting’ she does.

  4. wbgonne

    “Len Langer, a lawyer who specializes in maritime issues, told Reuters that the ban could set a nationwide precedent if industry challenges fail. ‘The real question here is, can a municipality regulate interstate and foreign commerce?’ Langer said.”

    That is what we call a loaded question. Since the Constitution specifically empowers the Federal government to regulate interstate and international commerce, and because the Supremacy Clause precludes local authorities from countermanding Federal regulation in this area, the answer to the maritime lawyer’s question — as he knows well, I suspect — is absolutely not. However, that is not the only way to pose the question. The real question, one might argue, is whether local communities can enact protective land-use and environmental policies even if those laws affect interstate and international commerce in a manner contrary to Federal policy. In a sense, this is a precursor to the coming battles over trade deals that surrender national sovereignty to transnational business interests under the guise of regulating international commerce. Despite the Right Wing’s superficial deference to local control, the Supreme Court’s recent property cases suggest that Big Oil and its Federal sycophancy will triumph over local communities trying to protect themselves. But it is a very interesting issue and one that may well determine how rapidly the U.S. standard of living declines as the Shock Doctrine is implemented by our craven and traitorous elected politicians.

    1. wbgonne

      In any case, huge kudos to South Portland and all those in active resistance. We can still win.

    2. JEHR

      I am reminded here about how the individual states tried to stop the fraud in mortgages and were stymied by the Federal government:

      “Predatory lending was widely understood to present a looming national crisis. This threat was so clear that as New York attorney general, I joined with colleagues in the other 49 states in attempting to fill the void left by the federal government. Individually, and together, state attorneys general of both parties brought litigation or entered into settlements with many subprime lenders that were engaged in predatory lending practices. Several state legislatures, including New York’s, enacted laws aimed at curbing such practices.

      “What did the Bush administration do in response? Did it reverse course and decide to take action to halt this burgeoning scourge? As Americans are now painfully aware, with hundreds of thousands of homeowners facing foreclosure and our markets reeling, the answer is a resounding no.

      “Not only did the Bush administration do nothing to protect consumers, it embarked on an aggressive and unprecedented campaign to prevent states from protecting their residents from the very problems to which the federal government was turning a blind eye. ” ( http://www.washingtonpost.com/wp-dyn/content/article/2008/02/13/AR2008021302783.html )

      Is it possible that the Federal Government could pass laws that would supersede state law concerning the transportation of tar sands oil?

      1. wbgonne

        “Is it possible that the Federal Government could pass laws that would supersede state law concerning the transportation of tar sands oil?”

        It certainly can. That, at least, would smoke out Obama from behind the curtain. Unfortunately, Obama has proven to be 100% teflon when it comes to any challenge from the Progressive side (mainly because Progressives never challenge him). Still, Obama much prefers behind the wizard behind the curtain and he would rather pretend that the Invisible Hand is running everything perfectly in our neoliberal dystopia.

        The crucial legal question is whether localities can protect themselves even if those protections conflict with Federal policy on commerce. Local land use regulation and zoning are the bulwark against national neoliberalism and are now the centerpiece of the battle. It is perhaps ironic that Progressives and Liberals now find themselves clamoring for local authority to supersede national governance, while Cons and so-called Libertarians will seek refuse in Federal authority.

        I don’t think the legal prospects looks good with the current makeup of the Federal judiciary. But resistance is far from futile because, ultimately, these questions will be decided politically.

        1. mellon

          The TTIP trade pact’s secretive energy deal would be irreversible, except at huge cost (it would be the biggest “baliout” scam ever) overruling national laws.

          This article makes a number of good points about it’s potential gotchas. TTIP of the iceberg for energy: growing expectation gaps for EU-US trade deal

          Its clear that despite the fact that energy production would probably double or triple, energy prices here would also double or triple or more, which could heavily impact industry and jobs here in North America, many of which depend on our much lower than average energy prices to be viable.

          Also, they are lying if they say the energy will all go to the EU, the US-EU relationship is being used to sell the deal to Americans but I think its not unlikely that WTO, etc. rules on non-discrimination would lead to most of the exported energy going to Asia, where there is even higher demand, not Europe, given that the rapidly growing Asian economies currently are paying much more.

          EU Wants “Free Access” To US Fossil Fuels, Lift Ban On Oil Exports In TTIP Agreement

        2. lyman alpha blob

          The Feds may well try that but at this point I’m more worried about the state passing laws that would supersede the local ordinance and I’m quite sure the oil industry has been lobbying for it.

          Despite numerous denials by oil industry types that there are “no current plans” to bring tar sands through Maine those are clearly weasel words and the plans will become ‘current’ as soon as someone gives them the OK. If there are no plans, why fight an ordinance that prohibits something you aren’t currently doing and don’t plan to ever do? However the city council was presented with email documentation between local oil industry executives and the state DEP (headed by a former oil industry lobbyist) setting up a meeting to discuss explicitly the best way to move this product through Maine.

          You’d think it would be a no-brainer that a community has the right to protect the health of its citizens but I’m sure it won’t be long until the oil industry sues the town to find out if this is really the case or not, even if only to delay the matter.

          Not to long ago a hacker that was set up by the FBI got hold of some oil industry documents which lay out the delay, delay, delay strategy the oil companies are counseled to use to fight back against grass roots efforts like these. I believe that was mentioned on this site and of the documents revealed, one was contracted by one of the oil companies in the chain of ownership of the Portland Pipeline Company.

          1. wbgonne

            “The Feds may well try that but at this point I’m more worried about the state passing laws that would supersede the local ordinance and I’m quite sure the oil industry has been lobbying for it.”

            That also might happen. But the state would not have a Federal Constitutional basis for overriding local regulation because the state is not empowered to regulate interstate and international commerce, while the Federal government is. How state courts would resolve such a state versus municipality challenge is, I think, an open question and may well be decided state-by-state. The issue is coming up right now, however, in Texas and Louisiana where even those otherwise freedom and oil-loving citizens have had enough and are demanding protection and — can you believe the nerve!? — potable water.

        3. Demeter

          Oh, the Progressives challenge Obama, but he throws them under his capacious bus, and then the Third Way Democrats stomp all over them.

          It’s no fun, being a democrat these days.

      2. Vatch

        JEHR:

        Is it possible that the Federal Government could pass laws that would supersede state law concerning the transportation of tar sands oil?

        If local people get too uppity, it’s more than possible; it’s very likely. And local folks will have an uphill battle if this happens. See Article VI, Clause 2 of the U.S. Constitution:

        This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

        Big Oil, like Big Finance, Big Ag, and Big Pharma, owns the government.

    3. lyman alpha blob

      The reason this became an issue is because for decades the pipeline company had piped oil delivered by ship to Maine on to Canada. Canada doesn’t seem to need this oil anymore but does need to export the tarsands. This ordinance does not prohibit current use – oil can still be sent from Maine to Canada .

      Federal regulations were taken into account when this ordinance was drafted. The Federal government has jurisdiction over what goes through pipelines so the town can’t regulate that and the ordinance does NOT ban the oil companies from piping tar sands through their pipeline.

      But they need to put it somewhere once it gets to the end of the line and that is what the ordinance forbids – it is illegal to load the oil onto ships once it gets to the port. Also, in order to get the tarsands to flow through a pipeline lots of toxic chemicals need to be added. These need to be burned off before the oil can be loaded on to ships and the ordinance prohibits the construction of smokestacks.

  5. human

    Doesn’t anyone else see the incredible irony of the oil moving in both directions? Not only that, but, the fact that the oil doesn’t even benefit Portland, or even US, citizens other than a few jobs!

    1. mellon

      TiSA is supposed to include fracking, so its likely it includes other energy contract jobs as well. Subcontracting intelligently, allows the big companies like BP to escape liability completely, that’s a key part of the TTIP energy deal. So those jobs would go to the international low bidders, and their employees, who would get special work visas. Also, the trade deals are very, very, very strict about national treatment, and against local source requirements. They are designed from the bottom up to protect against discrimination by countries in favor of their local suppliers. That is one of their top goals. So, I would not expect big increases in local jobs for nationals of the high wage countries. See the first link in this post. Service industries will all be liberalised. Jobs can no longer be reserved for locals. (Which is the norm in most countries now) So they might well decrease. Promising jobs are just how they sell these (irreversible) agreements.

  6. Eclair

    Lest US citizens feel smug about “Canadian” tar sands, the Canadian corporation, U.S. Tar Sands, has already begun scraping away the top soil in a remote area in NE Utah, Ute nation territory, near the Book Cliffs, in preparation for turning the plateau and canyons into another Desolation of Athabasca.

    The State has built the corporation a 50 mile superhighway linking the oil and gas town of Vernal to the mining area. The directions from the test pit to Vernal: drive for 50 miles and turn right at the stop sign.

    Corporate and state officials swear that the area is a semi-arid wasteland of scrub sage, with no water, fit only for the extreme extraction planned. Having just spent 10 days camping in a canyon there … drinking cold clear water from a constantly running spring, watching families of deer emerge from aspen groves to browse on grasses, turkey families grazing in the early dawn, red tailed hawks riding the air currents on the ridges and fending off black bears who have developed a taste for shepherd’s pie and granola, I can assure you that the area has a vibrant ecosystem. An ecosystem that will die if the Utah Tar sands project is allowed to proceed.

    On Monday, a coalition of anti-tar sands groups mounted a protest, locking themselves to the heavy machinery and blocking the equipment cage with their bodies. 21 were arrested.

    http://www.sltrib.com/sltrib/news/58206716-78/sands-tar-utah-oil.html.csp

  7. trish

    “local communities are throwing spanners in the works of various North American energy plays.”

    Better be careful with those spanners…the corporate state might start labeling metaphorical “damage to property” as terrorism.

  8. LillithMc

    California is slowing down. Fracking is putting chemicals in our almost depleted water supply. The state stopped that. Trains with the possibility of exploding are planned to go through major populated areas like Sacramento generating reaction. Tracks pass 11 elementary schools. The fault lines are difficult to frack due to the expanse of rock that smashed into each other. Those areas are not economical to frack. Also concerns about earthquakes. Time to get more serious about green energy.

      1. LillithMc

        I remember when NAFTA passed and a company tried to pollute in San Diego County based on their rights with NAFTA. CA ran them out of the state and nothing further was done. Those secret trade agreements are perhaps the most serious attacks on local rights of anything else in the past 30 years.

        1. mellon

          Those kinds of arguments do often succeed when a country “changes the rules in the middle of the game”. (when after the FTA is signed, a country enacts some piece of legislation that effects the property (the market) and therefore the profits of an multinational investor) But the case would not be brought in a California courtroom, it would be brought in an international arbitration court.

          Do you remember their name and/or which country were they from, Canada or Mexico?

    1. jrs

      The chemicals in the non-existent water supply are plenty disturbing.

      California is also trying to assert local authority over commerce – the “California Alternative Currencies Act”, the “California Homemade Food Act” and so on. It’s not Maine, but it’s harder to turn around a state the size of a country that’s never in reality actually seemed all that liberal overall to me.

      1. mellon

        A state entity seems to me to probably be prohibited under the FTAs from discriminating against foreign suppliers of a product such as a food, or a service, such as a construction of a public works project..

        Trading away localization in TTIP

        The anti-localization agenda in TTIP

        Leaked document reveals US-EU trade agreement threatens public health, food safety (Document: http://www.iatp.org/files/2014.07_TTIP_SPS_Chapter_0.pdf )

        TTIP/TiSA/TPP build upon the restrictions in GATS, the WTO services agreement, which have been in place for a number of years..

        From Global to Local – GATS Impacts on Canadian Municipalities-

  9. Justicia

    “The real question here is, can a municipality regulate interstate and foreign commerce?” Langer said.

    No, the question is can local government protect the health of the local population, environment and economy. Historically, zoning authority has been the part of local government. Let’s see how Scalia’s gang (for it’s sure to end up with the Supremes)) stand this on its head in the name of limited-government-unless-corporate-interests-dictate-otherwise.

    1. mellon

      The Supreme Court, Canadian Supreme Court, European Union court, have all made it clear that the international investment cases are private matters of contract law between the investors and the state given that the country signed the contract. Its out of their hands at that point. if you want to put a carve out into those pending FTAs the time is now. Get on over to Brussels or Vancouver or Geneva or wherever the relevant FTA is meeting this week (keep in mind they might change the city at the last minute) Assuming you are a corporate lobbyist. If you are just a person, you don’t have standing.

  10. different clue

    Somewhat upthread someone commented that certain features in TTIP would double or triple the price of energy if enacted. Perhaps that is a reason to support TTIP after all . . . if doubling or tripling the price of energy would drive the use of energy down to 2 or 3 times smaller than what that usage is today. The only way to force energy conservation is through punishing energy use, and the only way to punish energy use is through punitive pricing.

    Should I be rethinking my opposition to TTIP if I could be SURE that TTIP really WOULD INcrease the price of energy by 2 or 3 times? Does TTIP really offer that promise of energy demand-destruction through punitive costing?

  11. mellon

    I wonder what the effect of a drought on groundwater contaminated with fracking chemicals nationally? My guess is that the chemicals would not go away but the water would. The concentration of chemicals might increase a lot or the chemicals might move higher or lower with the water table. If they were lighter than water, the lowering of the water table might bring chemicals which had previously gone upwards away from wells, down into the wells.

    This could end up being a real disaster if the global warming increases the demand for water a lot as I would expect it to. (small increases in temperature bring significant increases in evaporation so plants need water more frequently)

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