Thanks But No Tank v. Department of Environmental Protection
86 A.3d 1
Me.2013Background
- DCP Midstream applied for state permits in 2011 to build a liquefied petroleum gas terminal in Searsport, involving wetland impacts, a large storage tank, a pier, and associated infrastructure.
- The Maine DEP granted the permit in October 2011; local landowners and residents (Thanks But No Tank, "TBNT") sought judicial review in Superior Court challenging multiple DEP findings and determinations.
- The Superior Court dismissed claims by 19 of 21 TBNT members for lack of demonstrated standing but proceeded to review the merits for two abutting landowners and affirmed the DEP decision.
- After TBNT appealed, DCP petitioned to voluntarily surrender the permit, stating it would not proceed because the Searsport Planning Board would not approve the project; the DEP approved the surrender and DCP relinquished the permit.
- The Maine Supreme Judicial Court dismissed the appeal as moot, reserved briefing only on (1) whether the Superior Court judgment should be vacated because of mootness and (2) whether TBNT is a prevailing party entitled to costs under 14 M.R.S. § 1501.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Superior Court judgment should be vacated because DCP’s voluntary permit surrender rendered the appeal moot (Munsingwear doctrine) | TBNT: Equitable vacatur is appropriate where mootness occurred through happenstance and to avoid giving the judgment preclusive or precedential effect | DEP/DCP: The case is moot; vacatur is not warranted because TBNT has not shown equitable entitlement or public interest favoring vacatur | Court: Declined to vacate. TBNT failed to show entitlement to extraordinary equitable relief; inability to appeal alone insufficient to merit vacatur. |
| Whether TBNT is a "prevailing party" entitled to costs under 14 M.R.S. § 1501 because its opposition led to denial of municipal approval and DCP surrender | TBNT: Its opposition caused the Planning Board to deny the municipal permit, prompting DCP to surrender the state permit — TBNT therefore prevailed | DEP/DCP: The surrender and municipal denial are separate from the DEP permit litigation; TBNT did not obtain relief on the merits in the DEP proceeding | Court: Denied costs. The causal link between TBNT’s suit and DCP’s surrender was too tenuous; TBNT did not prevail on the merits of the action. |
| Whether the DEP lacked jurisdiction to accept DCP’s petition to surrender the permit during a pending judicial review | TBNT: DEP lacked authority to accept surrender because judicial review was pending (relying on York Hosp. principles) | DEP/DCP: DEP lawfully accepted the surrender; DCP had not begun on-site activities and statutory/regulatory surrender procedures applied | Court: Did not find jurisdictional defect persuasive in granting vacatur relief; issue not dispositive because appeal dismissed as moot and vacatur denied. |
| Whether TBNT members had standing to challenge DEP permit | TBNT: Members collectively challenged the permit; local opposition sufficed | DCP: Nineteen of twenty-one members were not abutting owners and thus lacked standing | Superior Court (not disturbed as the basis for appeal): Found evidence insufficient for standing as to 19 members and dismissed their claims; appellate mootness ended further review. |
Key Cases Cited
- United States v. Munsingwear, Inc., 340 U.S. 36 (1950) (equitable vacatur of lower-court judgment is appropriate when an appeal becomes moot through happenstance to allow future relitigation)
- U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994) (party seeking vacatur must show equitable entitlement; courts should consider public interest)
- Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 532 U.S. 598 (2001) (limits on awarding attorney’s fees to so-called "catalyst" plaintiffs who obtain voluntary changes without judicial relief)
- York Hospital v. Department of Health & Human Services, 959 A.2d 67 (Me. 2008) (agency lacks authority to modify certain decisions subject to pending judicial review)