Archive for August 2018

Can neighbors challenge new Charleston cruise terminal permit? SC Supreme Court to decide

The South Carolina State Supreme Court will determine whether neighbors living near the city’s Union Pier neighborhood have the right to challenge state pollution permits issued for a large new cruise ship terminal proposed for historic downtown Charleston.

The Court today provided notice that it will review an appellate court decision that declared neighbors did not have the right or the standing to question the legality of pollution permits.

The permits would authorize construction of a 20-acre cruise terminal complex in downtown Charleston next to a National Historic Landmark District.

The terminal would be designed to handle much larger vessels than have previously operated out of Charleston’s historic area.

“This is a case about neighbors across South Carolina having the right to challenge unlawful permits that would authorize major polluting activities right next door,” said Blan Holman, managing attorney for the Southern Environmental Law Center’ Charleston Office.

“The lower courts said families and businesses have no right to question permits for a large polluting facility or to hold the government accountable. We believe the neighbors do have that right, and we are heartened that the South Carolina Supreme Court has agreed to consider this case.”

For years, neighbors, preservationists, and conservationists have asked for measures to minimize pollution and traffic. When the S.C. Department of Health and Environmental Control issued permits for the project without those measures, the groups sought review in the state Administrative Law Court.

But that court and the S.C. Court of Appeals found that neighboring citizens lacked standing to have the permits reviewed because they did not qualify as “affected persons.”

In 2013, in a separate but related case challenging federal permits, a federal court reached the opposite conclusion on standing. The court eventually threw out the federal permit as unlawful.

Before state and federal officials, the local groups put forth options they say could reduce pollution, such as plug-in power used in other ports to reduce the soot emitted by cruise ships idling in port. When the state permit was issued without considering those options, they challenged it as unlawful.

Holman said he was surprised the matter had gone on for long as it has, given the economic value of the Charleston historic district and available options used by other ports to reduce pollution and traffic.

“At the end of the day, we need to get to a solution that balances a cruise operation and the people, resources, and businesses around it,” said Holman. “Stripping the rights of people across South Carolina to question unlawful pollution permits is not the way to get there.”

SELC and other attorneys represent the Preservation Society of Charleston, the Historic Charleston Foundation, the Historic Ansonborough Neighborhood Association, the South Carolina Coastal Conservation League, the Charleston Chapter of the Surfrider Foundation and Charleston Communities for Cruise Control.

Editorial: S.C. Supreme Court decision bigger than cruise ships

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The state Supreme Court’s decision to take up a local lawsuit challenging a permit for a new and expanded cruise ship terminal is a welcome development not just for the plaintiffs but for any individual or organization seeking relief from a governmental decision.

At issue is the legal “standing” to challenge a ruling or action. Without it, judges dismiss cases before ever examining the underlying complaints, which in this case concern pollution and traffic generated by cruise ships.

To be granted standing, plaintiffs typically have to demonstrate they have suffered direct harm by the action in question. And so far, claims that exhaust fumes have caused sore throats or aggravated respiratory conditions have been deemed insufficient. But if Charlestonians and their advocates don’t have a say in how in their environment is shaped, who does?

In the cruise ship case, the plaintiffs, including neighborhood, historic preservation and environmental groups, are challenging a 2012 permit the state Department of Health and Environmental Control (DHEC) issued to the State Ports Authority to rehabilitate a wharf for a new terminal adjacent the existing one at the foot of Market Street.

In the latest go-around, the State Court of Appeals ruled that the plaintiffs failed to show they would suffer any direct harm and “presented only speculative claims that the proposed passenger terminal would adversely affect their property values and businesses.”

But shouldn’t anyone have a right to ask a court to review a decision that affects them? We think so, and so does attorney Blan Holman, who is representing the plaintiffs.

“We will ask the Supreme Court to restore those rights, which are vital to keeping the government in check and accountable to citizens across South Carolina,” he told The Post and Courier recently.

In 2013 in federal court, where rules about establishing standing differ slightly, a judge rejected an Army Corps of Engineers permit issued for the project, saying the agency focused only on replacing some pilings under the wharf and failed to consider the environmental impact the new terminal would have on the historic neighborhood surrounding it.

So far, it’s unclear when the state Supreme Court will take up the long-running case against DHEC, but it’s worth noting that Carnival Cruise Line plans to replace its Charleston-based ship Ecstasy with the slightly larger Sunshine in May.

For the time being, the State Ports Authority is sticking to its self-imposed cap of 104 port calls per year. But the cruise industry continues to expand, and the agency will no doubt come under increased pressure to lift that cap if the terminal project is allowed to move forward.

Putting arguments for or against cruise ships aside, we hope and trust the state’s highest court will decide that, indeed, citizens do have a right to their day in court when it comes to governmental decisions affecting the environment — truly a shared asset in which we are all stakeholders.

SC Supreme Court to weigh in on Charleston cruise ship terminal debate

SC Supreme Court to weigh in on Charleston cruise ship terminal debate

A case that will help decide whether the State Ports Authority builds a new terminal for cruise ships near downtown Charleston is headed to the state’s Supreme Court.

South Carolina’s top court agreed on Tuesday to hear an appeal of a lower court’s ruling that would have let the project move forward. The state Court of Appeals ruled in November that environmental and historic preservation groups don’t have a legal right to stop state regulators from issuing a permit that would allow construction of a new terminal.

“This is good news for neighbors seeking to ensure that traffic and pollution from thousands of vehicles using a large terminal are minimized as the law requires,” said Blan Holman, a lawyer with the Southern Environmental Law Center, which is representing groups opposed to the project.

“The lower courts said these families and businesses had no right to question unlawful (regulatory) approvals,” he said. “We will ask the Supreme Court to restore those rights, which are vital to keeping government in check and accountable to citizens across South Carolina.”

Erin Dhand, spokeswoman for the ports authority, said the agency has no comment on the Supreme Court’s decision.

The SPA has been trying for years to build a $43 million terminal for cruise passengers on the north end of Union Pier. While the authority says the new site would improve traffic flow, opponents say the facility — three times larger than the existing building near the end of Market Street — would add to congestion by bringing 1,600 cars and dozens of trucks, buses and taxis to the area on a regular basis.

The appeals court, in its November ruling, said opponents did not provide any evidence that they would suffer direct harm from a new terminal. Instead, they “presented only speculative claims that the proposed passenger terminal would adversely affect their property values and businesses,” the ruling stated.

The case centers around a permit the S.C. Department of Health and Environmental Control issued in 2012 allowing the SPA to place five additional clusters of support pilings beneath an existing warehouse. That’s where the maritime agency wants to build a new terminal, replacing a nearby 1970s-era building used mostly by Carnival Cruise Line.

Terminal opponents say DHEC issued the permit without completing an analysis of the effects on nearby neighborhoods or considering alternative locations. The S.C. Administrative Law Court said in 2014 the opponents don’t have a right to challenge the permit, setting up the appeal.

The SPA also needs a federal permit to proceed with the project. The Army Corps of Engineers is reviewing an application for that permit but has not set a timetable for its decision. A previous permit application was tossed out by a federal judge in 2013 because the proposal did not consider the terminal’s impact on the city’s Historic District.

Opponents of the Union Pier proposal say they would prefer a new terminal is built farther from the city’s historic areas, such as at Veterans Terminal in North Charleston. They also advocate the use of shore power — port-side electric plug-ins for ships while they are docked to reduce emissions.

“At the end of the day, we need to get to a solution that balances a cruise operations and the people, resources and businesses around it,” Holman said. “Stripping the rights of people across South Carolina to question unlawful pollution permits is not the way to get there.′

VIEW ARTICLE HERE: https://www.postandcourier.com/business/sc-supreme-court-to-weigh-in-on-charleston-cruise-ship/article_40741922-a567-11e8-b561-23685da110dc.html