the question is before this court on appeal is narrow city enact an embargo on the transportation of crude oil through a harbor and two hundred miles of a cross  plugging of one end of the pipeline effects and was meant to affect the entire transportation from canada as one of the city councilors said i guess that takes care of the pipeline the pipeline as a physical fact extends from the harbor to montreal if you can't unload at the end of the pipeline you a  to disturb any activity that exists in the city except to stop the reversal of the flow of oil through the pipeline and i think that's not disputed that the purpose of this ordinance is to stop the reversal of the pipeline to prevented from transporting oil from canada so the st question is whether this purpose is to stop the flow to regulate the operation of the pipeline regulate  the transportation of diluted bitumen oil from canada a dangerous article and the trial court said that was fine and the pipeline safety act regulations and acted by the d o t which annex every one of its standards based on the safety analysis allows the transportation of oil through the pipeline in both directions and i specifically looked at whether diluted bitumen needs any additional regulation and said no the trial  standards so the question is and then there's been a whole list of cases that says that means the entire field of safety for pipelines is preempting and there's a ho pipeline safety act also sets out how the d o t engages in the safety analysis to establish standards and in the intervention and the interference in t found that diluted by two men didn't need any additional regulation the trial court said city of south portland could disagree it could deem quote tar sands a quote dangerous article and could enact an ordinance to quote alleviate the risk of transporting it that is a direct believe i don't believe there's any law that addresses this specific question or any regulation i do or also don't believe there is any other case where there has been an attempt to target pipeline operation and effect only apply in operation so that the regulation of the locality is directed to the operation and any rebranding process also require new infrastructure for this area  not necessarily know the ordinance itself bars the loading of ships irrespective of whether there's any new infrastructure irrespective of whether there's a molecule generally applied so that the impact on the pipeline was only incidental we wouldn't be here today that's a laugh out what's not allowed is a regulation by a l and we have nationally uniform regulation needed if we look at the task that's applied for under the one voice doctrine we have five different reasons why the task is met and the foreign affairs doctrine is implicated we have a subject of national security and foreign policy interest the important export of crude and pipelines which the government has called essential to the national economy we have extra territorial impact which reflects upon the need well the question of the task is whether that it rises to a threshold level that has an impact on foreign policy decision making and especially if you look at it in the aggregate  it rejects the lifting of the domestic oil bar embargo by the federal authorities a direct conflict and it also cripples national transportation  construction of structures associated with that land use out of concerns for the health and welfare of the city and its residents now the district court found after a trial and appellants have not challenged the city had concerns about a project to bob load crude oil that loading would be a new use it would if there's a significant difference between unloading and loading when you will when you unload all the oil in the in the port from a ship to the pipeline you don't have to have the air emission protection that you need when you're loading the oil onto a ship because as the ship has vapors in the hold of that ship and as the oil is pumped in the oil rises in the hold of the ship and those vapors have to be displaced and they have to be treated and what portland pipeline proposed was to seventy foot tall smokestacks right on the harbor on a pier blocking views from neighbors and whether or not their project in the future of may or it may or may not contain such structures whatever they happen to do no one knows what they would do in the future but this was what the concern the city and the city was concerned and the judge found that those papers  carcinogenic and otherwise hazardous and there were certainly increased the risk of hospital admissions emergency room visits increased risk of developing cancer and the risk would be particularly acute for the city's vulnerable residents children and the elderly that the city was concerned about the health effects and they were concerned about the redevelopment opportunities the judge but made findings about the proposals that had been for hotels in marina and other developed redevelopment on the waterfront that is currently in historically been used for industrial purposes kind of like the seaport here they want to read they were looking at ways to revitalize a rebuild the waterfront now the judge found that it would have this proposal would interfere with it that's what the city council was faced with when they passed this ordinance and the judge found that the public comments on official legislative history demonstrate that air quality statics and waterfront redevelopment course provided the public in official considerations and that was enacted not because of any animist towards canada but to protect and not to protect businesses in south portland no statute regulation treaty executive order or constitutional provision says the city councils police powers may not be used in that manner in fact to the extent any such documents exist they make plain that neither congress nor the executive branch intended to displace such police powers now the pipeline safety act for example work you were just talking about it does not preempt this ordinance as judge thompson pointed out this doesn't say anything about safety this is the zoning ordinance for it to prohibit the loading of the bog loading of crude oil in a specific area of the city regulate those say you can't have local zoning that congress made a determination it was too difficult to say nuclear power plants because nobody wants them and who can blame them but congress just be determination they were important so congress preempted zoning the didn't do that here now the pipeline safety act itself before i even get to the savings class it doesn't even apply to the facilities that portland pipeline was proposing to build on the pier to try and port to t transportation terminal that are used exclusively to transfer crew look i'm putting the words crude oil between now and pipeline most of transportation or between a non pipeline mode and a pipeline now think about that between two non pipeline modes of transportation trucks trucks one of the other doesn't not covered between a non pipeline mode and a pipeline that's exactly what they proposed to do is to transfer oil it regulates ships too that's not what it regulates congress drew the line and said when it comes out of your pipeline you're transferring it someplace else we're not going to regulate it so what's one reason it doesn't apply the nd reason i that congress intended the city could do exactly what it's doing now the field is construed as narrow in scope and intentionally it's not a safety ordinance is not a safety standard star standard they would like you to believe that this is an ordinance  system that the amount of oil can travel in this pipeline is zero and therefore it's not what it says so you can't build something or use something in this area of the city in any event what is still permitted the at the intent of the people passing the ordinance congress or the city you look at the intent of congress when they passed that they were what they intended to cover that the the argument of proportion pipe i would actually prove a little too much because that would their argument would create a nationwide exemption from zoning for any new construction necessary to transfer the contents of a pipeline anywhere even in residential areas in the city want that there because we think it might blow up and kill the children so we're going to not to allow taxes to these times can do that to the rule that portland pipeline advocates wouldn't allow a extension of time as they were out excuse me they were out trying to solicit interest in to market the product and they weren't finding sufficient interest so they at they asked for a little more time before it would expire in the city extended that another  before that no statute regulation the executive order says you can't do this it applies to foreign affairs as well the legal standard for the foreign affairs preemption is the same as that and the standard is there must be a likelihood that the challenge state legislation will produce something more than an incidental effect in conflict with expressed foreign policy of the federal government and there must be a clear conflict with a federal policy for foreign policy expressed unmistakably in executive agreements signed by the president and consistently supported by the highest in the highest levels of executive branch and that's the garamendi decision and that is balanced against the importance of the local interest of the federal interest  interest but no one can dispute the judge's conclusion here that the core police power of restricting new uses and zoning districts in prohibiting new restrictions associated with those uses is historically important so in that circumstance a much more serious conflict between the clearly expressed foreign policy and the ordinance is necessary in order over to turn the ordinance there isn't such a conflict the this case is about for a little over four years old the summary judgment decision was issued a year and a half ago and the united states government is nowhere in this courtroom they have not intervened they have not filed an amicus brief they have not expressed in any forum here any objection to what this ordinance has done now the clear statement of the federal government is that oil transportation unlike as i said before nuclear power natural gas pipelines tricity transmission lines oil transportation must comply with local zoning requirements that's the law of the land that's the policy of the federal government the presidential permit issued to portland pipeline corp to operate the pipeline we're talking about here requires portland pipeline to quote comply with all our political federal and state laws or regulations and obtain requisite permits from canadian authorities as well as the relevant state local government entities and relevant agencies at that the and the district court found that that expressed the clear intent of the government to get the federal regulation is an additional requirement to the state regulation of the local regulation they were meant to co exist now if that's not enough the transit pipeline agreement there was a count in this case of of the transit pipeline agreement it did not appeal the summary judgment in favor of a city but it is relevant because it's agreement between canada and the us it was treaty was ratified by the senate and signed by the president and it is a treaty that i think doesn't specifically apply to the issue here but it's relevant because even that has a savings class that has a savings clause that says the pipe like pipelines will be subject to regulations by local authorities in various areas including environmental protection so there is no specific statement of federal government to revive their general statement about how important oil is to the national interest and inconsistent statements about cross border pipelines depending upon who sits in the white house president obama said certain things are  department and certain things about the keystone pipeline in rejecting it and the trumpet ministration state departments are different things about the keystone pipeline when when approving it but whatever you get you take from that it's not a clear inconsistent statement of the federal government and i would say that there it there is no national uniformity necessary or intended for this kind of regulation for example portland in capel is a bit mean prohibited all oil operations not just pipelines are oil operations that's it's important that we import oil uniformity is not required nor is it expected and the clear policy of the federal government is that if local regulation like this or it's going to ply i will say briefly this or just the judge found it doesn't target canada doesn't target any foreign nation it applies equally to oil coming from british british columbia as well as bismarck north dakota it applies to oil going to the ordinance will be upheld almost the burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits that's been repeated a one million times by the case law cases can you get a little confused about what standard just goes to apply where with the help and he said none of that was speculative none of that was a pretext for something else they want to do is what they genuinely wanted to protect and the only evidence the court heard on the burden on commerce was that the there was no evidence that others were actually considering it in fact there was testimony that coastal oil facility construction is increasing and has increased since the ordinance was passed i see my time is up thank you your honor st on the issue of where is the government the leading case in the circuit on the foreign affairs doctrine and the foreign commerce clause it's not and the government was it well and one statement my colleagues said was sometimes that in ministration decides that foreign policy means we should encourage certain relations with  pipelines and sometimes another and ministration has a different balancing well the point is it's the administration and its executive that makes this balancing when  president obama decided the initial keystone decision he said canada has said this is going to hurt canadian u s relations but i find  president and looking at foreign policy interests overall that i have waited in this way and to shut down an existing pipeline without understanding this this balancing that the president undertakes and interfering with that it is rises to the level that is undermined by a harbor city that den new use but the important thing is for the president to decide whether the oil should flow across the border and to say that  we believe that the president has presidential impermanent this this and has stated in presidential permitting decisions that what it wants to do is encourage cross border transmission of oil whether any town any harbor city can shut down all maritime transportation in crude oil thank you