The Portland Pipe Line Corp. says an Act 250 land-use coordinator didn’t give the company a fair shake when issuing a jurisdictional opinion saying the board has oversight of a prospective project. The company’s attorney also says the decision was based on “misleading” and “incorrect” information.
The Act 250 opinion in question determined that Portland Pipe Line would need a state land-use permit if it wished to reverse the flow of its pipeline to pump tar sands oil from Canada through Vermont “because it is a substantial change to a pre-existing development.”
Portland Pipe Line filed a motion with the coordinator, Kirsten Sultan, to reconsider the decision. Peter Van Oot, the company’s attorney with Downs Rachlin Martin, is very familiar with Act 250, the state’s governing land-use law that oversees commercial developments across the state. Van Oot previously chaired the board to which he is now appealing.
Portland Pipe Line owns the Portland-Montreal pipeline, which runs through the northeast corner of Vermont and can connect Montreal oil refineries to Portland, Maine. Although the company is currently pumping oil from Portland to Montreal, its CEO, Larry Wilson, has expressed a strong interest in piping tar sands oil to Portland, although there are no contracts in place to do so.
Canada’s Enbridge Oil has applied to the Canadian National Energy Board to reverse the flow of oil along a stretch of pipeline between Ontario and Montreal. Enbridge wants to pump oil from Alberta tar sands to Montreal refineries, and this development has piqued Portland Pipe Line’s interest.
But Portland Pipe Line isn’t the only one taking note. The jurisdictional opinion in question stems from a request filed by a coalition of environmental groups and residents in Vermont’s Northeast Kingdom. The coalition sought to verify that if the Portland Pipe Line Corp. was prepared to pump tar sands oil along its Portland-Montreal pipeline, it must first receive the approval of an Act 250 land-use commission.
The Act 250 commission confirmed this request, but Portland Pipe Line says that it did so “wrongly.”
In his motion, Van Oot argues: “The District Coordinator wrongly states and assumes that PPLC is actively seeking to convey ‘tar sands oils’ through a pending flow reversal project,” as the company “has no specific plans or agreements to implement a flow reversal project.” He also writes, “The district coordinator failed to give sufficient weight to the evidence submitted by PPLC,” arguing that the coordinator paid more attention “to the alleged characteristics and spill impacts of ‘tar sands oil’” presented by the environmental groups than by Portland Pipe Line.
Van Oot further argues that “without any evidentiary basis, the district coordinator found that older pipelines are at greater risk of failure.” This is pertinent because the Portland Pipe Line has been open since 1941. Van Oot claims that “the coordinator wrongly concluded that the project constitutes a substantial change … (or) includes cognizable changes,” which would trigger Act 250 review.
Environmental opponents to Portland Pipe Line pumping tar sands oil argue that diluted bitumen, as the product is termed, is more difficult to clean up than common crude oil, and they say that burning it emits far more carbon dioxide. They point to the ExxonMobil pipeline that spilled more than 200,000 gallons of the substance in Arkansas earlier this year and the more-than 800,000-gallon spill in a Kalamazoo River tributary. The cost of that tar sands oil spill surpassed $800 million. More than two years after the incident, federal officials were still ordering further cleanup of the Michigan site.
The end result of the Act 250 proceeding could influence the Vermont General Assembly next year.
Senate bill 58, which passed out of the Senate, would have required pipelines to undergo review by an Act 250 environmental commission in case of any “cognizable physical change to the pipeline or associated facilities, unless the change is solely for the purpose of repair.”
The House Fish and Wildlife Committee decided to vote down the bill four days after the Act 250 coordinator issued her jurisdictional opinion that Portland Pipe Line needed a state permit for the prospective project. The committee wanted to see whether the opinion would stand.
Rep. David Deen, who introduced parallel legislation to S.58 in the House and who chairs House Fish and Wildlife, said that if this decision is concluded by the time the Legislature reconvenes for the second half of its legislative biennium next year, the bill could be back on the table. It all depends on the outcome.
Updated at 9:56 on May 21, 2013.
Clarification: The Jurisdictional Opinion Portland Pipe Line Corporation is questioning was issued by the coordinator for the Act 250 District 7 Commission, Kirsten Sultan, and the company’s appeal is with the coordinator, not the entire board, as the original story indicated.
