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In re In re Pittston Co. Oil Refinery & Marine Terminal at Eastport

ELR Citation: 7 ELR 20750
375 A.2d 530/(Me., 07/06/1977)

The court dismisses appeals by three state agencies, which appeal a permit issued for a coastal oil refinery, on the grounds that they lack standing to seek judicial review under the Site Location of Development Law, 38 Me. Rev. Stat. Ann. §§481 et seq., ELR Stat. & Reg. 43027. Appellee Board of Environmental Protection granted the application for the oil refinery submitted by the Pittston Company. Appellants Department of Marine Resources, Department of Inland Fisheries and Wildlife, and Office of Energy Resources appealed this decision. The Site Location Law provides judicial review to "any person aggrieved by any order of the Board." 38 Me. Rev. Stat. Ann. §487. Pittston's argument, that such aggrieved persons must be parties to the Board's proceedings, is without merit. The Law defines "person" as, inter alia, a state agency. Id. §482. The legislature's use of the word "person" is suggestive that others than those technically parties to the proceeding below should have the right of appeal.

Nonetheless, the agencies are not "aggrieved" in the statutory sense. To be aggrieved, state agencies must show that the effective discharge of their statutory obligations is impaired. Washington Utilities & Transp. Comm'n v. FCC, 513 F.2d 1142, 1149 (9th Cir. 1975). There are some situations in which an agency can show that this special interest is affected. See State Bd. of Education v. Coombs, 308 A.2d 582 (Me. 1973) (board's action reversed by another agency). In this case though, the three appellant agencies have no special interest affected by the Board's action. It is true that the record shows that the refinery may affect energy resources, fish, wildlife, and marine resources. But these effects are only speculative and not direct.

The court finds its holding congruous with the legislative intent regarding the function of other agencies in relation to the Board under the Site Location Law. These functions are advisory and consultative and do not rise to the level of challenges by judicial review.

Judge Godfrey concurs in the result on the second ground given by the court that the Board is the final arbiter of decisions under the Site Location Law.

The full text of this opinion is available from ELR (5 pp. $0.75. ELR Order No. C-1137).

Counsel for Appellants
Edward F. Bradley, Jr., Ass't Attorney General
Department of Attorney General
State House, Augusta ME 04330
(207) 289-3661

Counsel for Appellee
Edward H. Keith
Mitchell, Ballou & Keith
One Merchants Plaza, Bangor ME 04401
(207) 942-4826

Counsel for Pittston Company
Loyall F. Sewall
Sewall & White
P.O. Box 4665, Portland ME 04112
(207) 775-3101

Delahanty, J., joined by Dufresne, C.J., Pomeroy, Wernick & Archibald, JJ.; Godfrey, J., concurs in result.