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A vote to formally create the legal war chest will come at the Aug. 18 Council meeting.
By Duke Harrington
The council agreed at its Aug. 11 workshop to set up the fund and
solicit donations to it following a formal vote to establish the account at its
Aug. 18 meeting. Any money donated to the defense pool will sit inside South
Portland’ existing legal reserve fund, said Finance Director Greg L’Heureux,
who described it as a “reserve within the reserve.”
According to councilors, by establishing a fund to which
individuals and environmental groups can donate, they hope to avoid drawing the
ire of taxpayers, already deeply divided over the yearlong tar sands debate.
“At any point, 49 to 51 percent of the residents of this city are
opposed to this ordinance [banning tar sands], and they are not going to want
their tax dollars spent defending it,” said Linda Cohen, adding, “I’ve already
begun to receive some comment in that regard.”
“We are really trying to avoid spending any property tax dollars
on this,” agreed Mayor Gerard Jalbert, who made reference at several times
during Monday’s workshop to a recent battle over public access to Goose Rocks
Beach in Kennebunkport.
“That was a local issue and still almost a million dollars was
spent on legal defense there,” he said. “My overall concern is, these things
can get very expensive very quickly. If we spend a lot of tax dollars on this,
this ordinance can lose community support. I think we have to be very careful
of that.”
Concern for a lawsuit stems from a 6-1 vote on July 21 to adopt a
so-called Clear Skies Ordinance. That zoning amendment bans bulk loading of all
crude oil onto ships anywhere along the South Portland waterfront, as well as
the construction of infrastructure needed for that purpose. The council vote
followed several months of work by a three-person draft ordinance committee
created in the wake of a close vote last November, which sent a similar
citizen-initiated ban down to defeat.
Local
activists began the drive to block tar sands early 2014, fearing that Portland
Pipe Line Corp., which normally pump crude oil up its 236-mile long pipeline
for processing in Montreal, might reverse the flow of the line and begin
importing tar sands crude, squeezed from shale rock in Alberta. Because a host
of chemicals such as benzene are added to tar sands in order to make the thick,
goopy substance thin enough to push through a pipeline — chemicals which would
need to be burned off on arrival in South Portland — activists have raised ref
flags over air quality concerns, even though such activity would be regulated
by state and federal environmental agencies. Fear of a pipeline break also has
fueled the fight against tar sands, which is notoriously difficult and
expensive to clean up when accidents to happen.
However,
unable to overstep federal prerogatives on international trade by banning the
specific product of a specific company, South Portland took a more general
approach to local zoning. That has left seven petroleum companies operating
along the South Portland waterfront fuming, based on the belief that the
council action has crippled their ability to respond to the marketplace.
Although none currently load crude oil onto ships, dealing instead primarily in
refined products, that doesn’t mean they may not have to at some point, whether
or not they deal in products derived on tar sands.
The
new ban went into effect Monday, a fact noted by Jalbert.
“A lot of doom and gloom was predicted,” he said, “but to the best
of my knowledge no jobs looses took place today on the South Portland waterfront.”
The deadline also passed Monday for the submission of a citizen’s
petition to overturn the new ordinance. Even so, the dust has yet to settle on
tar sands ban, and a lawsuit to overturn it is predicted.
“My God, I don’t know about the rest of you, but I read in the
papers and I hear on the radio the fact that the oil companies are gearing up,”
Councilor Maxine Beecher told her peers.
But there are internal indications that legal action is imminent,
Beecher said, noting that Portland Pipe Line Corp. has “been asking for
information from our city computers.”
According to City Manager Jim Gailey, he has been fielding “daily”
requests for documents, filed under Maine’s Freedom of Access Act.
“Every weekday the attorney from Portland Pipe Line sends a letter
to Jim, and copies me, and says he wants everything form the day before,” said
city attorney Sally Daggett.
“We know without question there is going to be some kind of
lawsuit,” said Beecher. Luckily, she said, several environmental groups, including
the Conservation
Law Foundation, have expressed interest in joining
the battle on South Portland’s behalf, hence the need for a legal defense fund
to which they can contribute.
“If we don’t have a vehicle or them to help with this, then we’re
in the soup,” said Beecher.
According to Daggett, a contribution to the defense fund by any
organization will not make it a party to a lawsuit filed against the city.
That, she said, “will be up to a judge.” Daggett declined to answer a question
from Councilor Patti Smith about whether Portland Pipe Line could sue for
damages instead of, or in addition to, simply suing to overturn the new zoning
amendment.
“I’m not going to give somebody who wants to challenge the
ordinance a roadmap,” said Daggett, adding, “It all depends on how the lawsuit
gets drafted and what the claims are against the city.”
Certain claims could get referred to the city’s insurance agent,
said Daggett, although she cautioned, “The MMA [Maine Municipal Association]
risk pool does not defend some things.”
Although the council was unanimous in the need to create the new
fund, it was less sanguine about soliciting funds to it. There was talk of
creating a city webpage for collecting donations via credit and debit cards.
“I’m a little uncomfortable with that,” said Councilor Melissa
Linscott. “It feels a little awkward to be directing city staff to actively go
out and solicit the money. It doesn’t fell like our place to do that to me for
some reason.”
Gaily said the webpage will not go live “in the next week,” in
part because issues of the payment of credit card processing fees have to be
worked out.
While he supported creation of the defense fund, Councilor Tom
Blake, alone among his peers, predicted it would never need to be tapped.
“I’m not convinced we’re going to be sued,” he said. “To even have
discussion about being sued is like saying, ‘Okay, we’ve done something wrong,
come and sue us.’ Well, I don’t think we’ve done anything wrong. We were
transparent about everything and we had a every legal right to do what we did.”
That said, Blake said reaching out to Portland Pipe Line to try
and mend fences, to see how the city can help secure its future, apart from
allowing it to deal in tar sands, might be more than good public relations. It
might make a good legal strategy.
“That will be a feather in our cap if we do get sued,” he said.
“If we do go to court, the judge will say, okay, we did try to work with
Portland Pipe Line.”
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