The Maine Supreme Judicial Court ruled a local organization that fought a now-defunct proposal to construct a liquefied petroleum gas storage tank in Searsport must pay its own legal costs for appealing a decision upholding the validity of a state-issued permit for the project.

In a decision dated Dec. 24, the panel of supreme court justices ruled that Thanks But No Tank does not fit the description of a "prevailing party" and is therefore not entitled to recover the costs of appealing an earlier decision out of Kennebec County Superior Court. That ruling affirmed the decision of the Department of Environmental Protection to grant a permit to DCP Midstream for construction of the 22.7 million gallon LPG storage tank at Mack Point, according to court records.

But after the superior court entered its judgment, DCP voluntarily surrendered the permit that was the subject of the appeal, which occurred just after the company withdrew its application with the town of Searsport on April 2, 2013. The company then filed a motion to dismiss the appeal as moot, and the court granted the motion May 9, 2013.

"TBNT argues that we should vacate the Superior Court's judgment because it is now moot," stated the decision. "Additionally, TBNT argues that it is a prevailing party … and is therefore entitled to recover the costs of its appeal. We disagree and dismiss this appeal without awarding costs."

The court record stated that in May 2011, DCP applied for the DEP permit needed for the $40 million project, which included the LPG storage tank, a pier equipped to ship 2.5 million barrels of LPG annually, and stations for loading trucks and rail cars. Additionally, the company sought a permit to construct a pipeline over a portion of coastal wetland, alter about two acres of forested freshwater wetland, and install a culvert to divert a stream on the property. In October 2011, court documents state DEP approved the permit application, and the residents of Searsport, Stockton Springs and neighboring towns involved with TBNT sought review of the permitting decision in court. At that time, TBNT raised issues with the department's conclusions that the project met visual impact standards, that projected impacts on natural resources from potential accidents met statutory requirements, and that the project would meet air emission and noise standards.

"DCP countered that at least 19 of the 21 members of TBNT were not abutting property owners and thus lacked standing to challenge the permit," stated the decision.

In the Nov. 13, 2012, superior court decision, the court ruled evidence in the record was insufficient to allow the court to determine whether TBNT had standing, and it dismissed the case with respect to the disputed 19 individuals, but also ruled the standing issue was not "fatal" to its review with respect to the two abutting landowners.

In the end, the court affirmed the decision from DEP to issue the permit, concluding the department did not err in its findings.

After the court granted the motion from DCP to dismiss because of the company's decision to withdraw its application with the town, court records state TBNT urged the court to either vacate the superior court decision regarding the DEP permit or determine that DEP lacked jurisdiction to accept DCP's petition to surrender the permit given the pending appeal. Court records show state statute dictates an agency lacks jurisdiction to make modifications to a decision that is the subject of pending review.

The Maine Supreme Judicial Court dismissed the appeal as moot except in regard to two issues: whether the law court should vacate the superior court decision because DCP's surrendering of the permit rendered the case moot and whether TBNT was entitled to recovery of its cost as a prevailing party.

"…[E]ven if TBNT could demonstrate that review of this case was prevented through happenstance, it has not met its burden of demonstrating an entitlement to vacatur," stated the decision in regard to TBNT's move to vacate the earlier court ruling.

As to whether TBNT could be considered a "prevailing party" and therefore entitled to recovery of legal costs stemming from the appeal, the justices disagreed with the organization's argument that its actions in opposing the conditional use permit led to the Searsport Planning Board's decision to deny the permit. All of that, argued TBNT, resulted in the appeal becoming moot.

"This case was mooted pending appeal, and the only evidence in the record about the reasons that led DCP to surrender the permit are in DCP's petition to surrender, where DCP stated that its decision was 'a result' of 'the Town of Searsport Planning Board['s]… indicat[ion] that it will not approve the project as currently configured,'" stated the decision. "The connection between the decision by the Searsport Planning Board to deny a conditional use permit and the merits of this appeal — concerning the decision by the Department of Environmental Protection to grant an environmental permit — is too tenuous to sustain an award of costs. Rather, TBNT has 'obtained precisely nothing that [it] could not have had without [this] litigation."