Petitioning the S.C. Court of Appeals to revisit a case it’s already ruled on is typically a futile formality on the way to asking the state’s highest court for a review.
Such rehearings are rarely granted.
But last week’s petition, filed by opponents of a new cruise ship terminal at the Port of Charleston‘s Union Pier near the historic City Market, provides a preview of the arguments those groups will make if the S.C. Supreme Court later decides to take the case.
The appeals court last month ruled the opponents — they include environmental, neighborhood and historic preservation groups — do not have a legal right to stop the state’s Department of Health and Environmental Control from issuing a permit the State Ports Authority needs to build the $35 million terminal.
Those opponents, in their petition for rehearing, say the court’s three-judge panel made numerous mistakes in coming to their conclusion.
For example, the judges said the increased noise, pollution, traffic congestion and aesthetic harm opponents say a new terminal would bring are “generalized complaints” that aren’t sufficient to establish direct harm to the groups that are suing.
“In fact, each of the individual members of the community groups that provided affidavits described concrete and particularized injuries that they would personally suffer,” Southern Environmental Law Center lawyer Blan Holman, who represents the opposition groups, wrote in last week’s petition.
Those opponents say they’re already experiencing sore throats caused by cruise ship emissions, oily soot landing on their homes and property and other issues with cruise operations at the SPA’s current terminal a few hundred feet south of the proposed site. A bigger terminal, they say, would lead to even bigger problems.
Each of these people, Holman wrote, have “demonstrated injury from the cruise terminal in a personal and individualized way.”
The judges also said opponents must prove their business or property values have declined as a direct result of the new terminal — something Holman said is “difficult if not impossible” to do because the terminal hasn’t been built.
Holman also said in his petition that opponents were already granted the right to challenge a permit for the new terminal during a separate, but related, federal court hearing — something the appeals court judges ignored, he added.
He wants the appeals court to reverse its earlier decision and give terminal opponents the right to fight the DHEC construction permit. The SPA has not filed a response to the petition, but previously said it is “gratified” by the October ruling.
The long-running legal dispute centers around a permit that DHEC issued in 2012 allowing the SPA to place five additional clusters of support pilings beneath an older warehouse at the north end of Union Pier. That’s where the maritime agency wants to build a new terminal, replacing a nearby 1970s-era building used mostly by Carnival Cruise Line and its Ecstasy cruise ship.
The pilings are needed, according to court documents, to support three elevators and two escalators. The new site would be more than three times larger than the existing terminal.
Groups including the Coastal Conservation League, the Preservation Society of Charleston and others filed a lawsuit opposing DHEC’s ruling, but a state Administrative Law Court judge ruled the groups did not have a right to sue. Those groups then filed their appeal.
Holman has said the groups would support a terminal farther north from the city’s Historic District, but SPA officials say Union Pier is the only site available for construction.
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.