South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Cruise terminal opponents say Charleston port agency sending contradictory safety messages
June 29th, 2020

By David Wren, Post & Courier

Claims by Charleston port officials that cruise ships will continue to dock at Union Pier even if a new terminal isn’t built are “preposterous,” terminal opponents say, because the current facility does not meet heightened federal security requirements enacted in the wake of 9/11.

Opponents, including local environmental and historic preservation groups, raised the safety issue in their reply to the State Ports Authority’s request to the S.C. Supreme Court for a rehearing in a case to determine whether a new terminal gets built.

The court has already ruled that opponents have a right to voice their concerns about a permit application for the construction project. That ruling overturned a 2014 lower court decision that blocked the opposition.

The S.C. Administrative Law Court, which deals in disputes involving state agencies, must now hold a hearing to decide whether a permit issued by the S.C. Department of Health and Environmental Control should be reviewed. That is, unless the high court in Columbia agrees to grant the authority’s petition and rehear the case — something that is exceedingly rare.

In asking for a rehearing, the SPA said opponents are hurting the city and themselves because a new terminal would reduce traffic and pollution while opening up part of Union Pier for private redevelopment and public green space. Cruise ships “will continue to call on Union Pier Terminal and the Charleston peninsula in the future regardless of whether the ports authority shifts (cruise) operations less than 600 yards north,” the maritime agency said in court documents.

Attorneys representing the opponents say that isn’t true. In a response filed last week, they said the SPA’s own documents — including its application for the permits — show that a new facility “is needed to comply with heightened federal security requirements and to meet the expanding needs of the cruise industry.”

The authority in 2007 signed a memorandum of understanding with U.S. Customs and Border Protection for conditional approval of ongoing cruise operations on a trial basis.

“That conditional approval has been renewed on an annual basis with the understanding that an improved facility would be needed for continued operations,” the authority has said in previous court filings.

Jim Newsome, the authority’s CEO, said Monday the current terminal meets federal requirements.

The authority “works constantly with Customs and Border Protection and other federal partners to ensure that all of our facilities are compliant with applicable regulations,” he said. “This is certainly the case with the current Union Pier cruise operation.”

Attorneys for the terminal opponents said the authority’s claims that a new terminal would be less impactful also are false because the proposed site is closer to many of the opponents’ homes and is designed to accommodate expanded cruise operations, including home-porting a vessel carrying up to 3,500 passengers. The Carnival Sunshine, which now calls Charleston its home, has a 2,642-passenger limit.

In sending the case back to the lower court, the Supreme Court ruled in February that opponents “have standing” — in simple terms, they have a dog in the fight — over whether a permit allowing a new terminal is issued. Those opponents, who are represented by the Southern Environmental Law Center and the South Carolina Environmental Law Project, say they experience medical problems and decreased property values due to pollution from cruise ships that dock near the city’s Historic District.

Whether a person has standing is a determination the court must interpret, and terminal opponents said the justices made the right decision in their February ruling.

“The court interpreted the undefined term ‘affected’ using that word’s customary meaning, and found that the opponents — whose homes are adjacent to (the) proposed 28-acre shipping terminal and who reasonably fear that the diesel soot emissions already injuring them will increase — so qualify,” the opponents said in the court filing.

The court has not said when it will rule on whether to rehear the case.

The authority has been trying for years to replace its existing, aging 1970s-era terminal, which the agency has termed “undistinguished,” “out of date” and “unattractive.” The facility is used primarily by Carnival Cruise Line, which operates year-round trips to the Bahamas on the Sunshine. Other cruise lines have ports of call at the terminal.

DHEC previously issued a permit that would authorize structural changes to an existing warehouse at Union Pier, the construction of two covered staging areas to handle passengers and luggage and the installation of five clusters of concrete pilings to support three elevators and two escalators.

In addition to the state permit, the ports authority will need federal approval from the Army Corps of Engineers to build the terminal. Opponents have challenged that in U.S. District Court. No hearings are scheduled in that case.

The Port of Charleston hosted 262,776 passengers from the Sunshine and other pleasure ships making ports of call in 2019.

Cruises throughout North America have been halted since mid-March due to the COVID-19 pandemic, and Carnival said it won’t return to Charleston until October at the earliest. The virus has forced two cities to rethink plans for new cruise terminals. Royal Caribbean asked the city of Galveston to delay construction of a new terminal until next year and Seattle has put a $100 million cruise ship berth on hold.

Source (external link)