Publication Date


Document Type

Not Applicable

Organizational Units

Sturm College of Law


Zoning, Land Use, Air Quality, Maine, Preemption, Home Rule


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.

Rights Holder

Sarah J. Fox, Sara C. Bronin, Nestor M. Davidson, Keith H. Hirokawa, Ashira Pelman Ostrow, Dave Owen, Laurie Reynolds, Jonathan D. Rosenbloom, Sarah Schindler


Received from author

File Format



English (eng)


42 pgs

File Size

2.1 MB

First Page


Last Page