CHS | The Lawsuits; what you may not know
If Brian Hicks and Mayor Riley are your only information sources about the proposed Union Pier cruise terminal project, you can be forgiven for not knowing much about it. Especially about two of the most recent lawsuits.
The most recent Hicks column began, “The State Supreme Court was pretty dismissive to the ‘cruise control’ crowd last month” before saying that the justices “were sort of condescending.” And “if that wasn’t [sic] dismissive enough,” Hicks continued, “Mayor Riley called the lawsuit ‘almost laughable’ from the start.”(1) Fortunately for Charleston, there are more nuanced commentators.
It’s correct that the SC Supreme Court dismissed the case concerning Carnival Cruise Line’s alleged violations of local and nuisance ordinances on a technicality, saying that the various neighborhood and preservation organizations weren’t the proper parties to make these claims. But the court also said that individuals could bring claims in a separate lawsuit.(2,3) Importantly, the court did not say any of the claims lacked merit, and as new claims may be raised against Carnival in the future, the suggestion that the court was “condescending” or that the claims are “laughable” is pure spin.
In a separate statement, Blan Holman, the Southern Environmental Law Center attorney representing the plaintiff’s noted that, “Today’s court ruling did not address whether Carnival’s home basing operation complies with local ordinances, or whether it is a nuisance that interferes with the property rights of neighboring home owners, as the plaintiffs alleged.”(4) These are the allegations that Mr. Hicks and the mayor have elected to ignore. Then there’s that second case…
Last September, as U.S. District Judge Richard Gergel tossed out the federal permit for the planned $35 million cruise terminal at Union Pier, he minced no words declaring that the U.S. Army Corps of Engineers did not adequately review the project’s impacts on the area. Chastising the Corps’ attorneys, Judge Gergel said, “I think you did an end run, you gave this permit the bum’s rush.” Refusing to accept the SPA’s specious argument that the waterfront terminal only needed a federal permit to install five new pilings, the judge told the defendants’ attorneys, “You have an obligation to look at the entire project. “You haven’t done what the law requires you to do by reducing a 108,000-square-foot project to 41 square feet of pilings. The process got distorted by limiting it to five piers.”(6) This blog correctly predicted that the SPA and Army Corps would defiantly appeal the ruling, and they did before reconsidering their position last month.(7)
Because of this ruling, the Army Corps of Engineers must conduct a thorough review of all the environmental and historic impacts of locating a giant new cruise terminal at Union Pier. Such reviews are very specific and Congressionally-mandated in these situations. This is the same requirement that the SPA tried to evade earlier in its head-on rush to build a terminal before anyone might realize of all of its potential impacts. Brian Hicks and Mayor Riley are no doubt upset by that failure to comport with the law.
Most importantly, Judge Gergel also highlighted the central problem of locating a cruise terminal near the heart of Charleston’s Historic District, arguably South Carolina’s centerpiece of tourism, culture, and economic development. As the AP reported, “the judge said that there is evidence in the 1,200-page court record that the terminal is being designed for larger ships than now call and could more than triple the number of cruise passengers visiting the city.”(6) And “triple” may be an understatement.
Later in his column, Brian Hicks wrote, “This is not over by a long shot.” For that, he should be thankful. Now there’s an opportunity during this federally-mandated process for the Army Corps to seek honest local input, do a thorough study of impacts, and research alternative locations for a cruise terminal. Those contrived State Ports Authority “citizen input sessions” won’t cut it this time–a federal court will be watching.
Jay, 11 Feb 14
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1) Over, Cruise ship fight isn’t over until we say it is – Brian Hicks – Post and Courier
2) Limit Cruise ship consequences on peninsula – Steve Gates – P&C
3) SC High Court throws out Cruise pollution case – Law 360
4) Supreme Court leaves legality of Cruise Harms in Historic Charleston unanswered – Blan Holman, SELC
5) SC Supreme Court tosses lawsuit seeking to block cruise ship operations – Meg Kinnard – AP
6) Judge tosses permit for SC Cruise Terminal – Bruce Smith – AP
7) SPA and Army Corps of Engineers withdraw cruise terminal permit appeal – Charleston Business Journal
Written by jwilliams
The Charleston Cruise Control Blog, written by Jay Williams, Jr., published periodically since May, 2011, consists of opinions and discussions about cruise ship tourism. Although Jay is involved with various local organizations, the opinions he expresses are solely his; they do not represent the views of any organization or other individual. Mr. Williams is an independent blogger/writer. We present these blogs for C4 website visitors as an information source and as an additional way to chronologically follow the debates, commentaries and discussions about cruise tourism in Charleston.
The recent proposal announced by state Reps. Jim Merrill and Leon Stavrinakis to earmark $5 million in the 2014 state budget for cruise ship shoreside power in Charleston should be met with great optimism and hope for a healthier Charleston.
Our primary concern is the public health of all our citizens and visitors, not other local aesthetic issues. Charleston City Council has wisely banned cigarette smoking around hospitals and in public buildings, and the State Ports Authority is wisely surcharging older-model diesel trucks compared to newer ones less soot-polluting.
Several years ago the Charleston County Medical Society and the South Carolina Medical Association published resolutions strongly in support of shore power over cruise ship soot pollution. But the SPA, Carnival Cruises, and the City of Charleston have been recalcitrant to support shore power to date.
Note that cruise ships produce four times more soot/particulate pollution compared to our many cargo ships, which often shut down their engines while dockside. In contrast, the Carnival Fantasy continues to run its engines belching soot pollution the entire time it is docked in the Historic District. A cruise ship running engines in port for its passengers (assuming the cleanest fuel as required in 2015) produces as much sulfur dioxide as 34,000 tractor-trailer trucks would over the same time period. Bunker fuel soot emissions are as carcinogenic (cancer-causing) as cigarette smoke and asbestos.
Ongoing nearby monitoring of particulate soot and air pollution (not only carbon particles, but also sulfur dioxide, nitrogen oxides, and carbon monoxide) requires major resources and is not a priority among the SPA, S.C. Department of Health and Environmental Control, the City of Charleston and other organizations concerned more with jobs than with public health. The American Lung Association and many medical articles document soot pollution exposure contributing to both acute asthma and bronchitis problems as well as chronic long-term harm from lung cancer, strokes (even within hours of exposure), cardiovascular disease, blood clots, and other pulmonary conditions. A study in the February 2012 Archives of Internal Medicine linked soot pollution with cognitive decline (dementia) in women. Hence, we have yet to learn the many long-term adverse public health effects of soot pollution, which often takes years to discover (not unlike smoking leading to lung cancer). Just because local folk aren’t directly ill today does not mean that they will remain healthy tomorrow, next year or the next decade.
A 2013 study linking air pollution to deaths reported that soot pollution comprised 40 percent of all of the global deaths linked to air pollution. Another way of expressing the damage done is that, had all of those who died due to the pollution lived natural lives, it would have comprised an additional 25 million years of existence globally. By utilizing shore power while in port, the home-port ship (currently Carnival’s oldest, the 25-year-old Fantasy) would lower harmful emissions of various pollutants by up to 97 percent versus what the ship would emit burning even the cleanest diesel fuels required in 2015 (Charleston Communities for Cruise Control, January 2014).
Ports around the country and the world that have installed shore power have already seen a decrease in respiratory diseases. Many ports of call in the US and around the world are increasingly turning to shore power for cargo and cruise ships, rather than suffer the ill effects of soot pollution. Examples include, but are not limited to: Juneau, Alaska; Los Angeles; Long Beach; San Diego; San Francisco; Seattle; Brooklyn, N.Y.; Vancouver, Canada; Rotterdam; Amsterdam; Venice; Sweden; Germany; Finland; Belgium; and Shanghai. Carnival has worked with several of these cities to implement shore power. Why not the same here in our Historic District?
Financially, shore power is quite “doable.” Recently The Post and Courier reported that the Carnival Fantasy (the oldest ship in the massive Carnival fleet) is not retrofitted to shore power but can be. Friends of the Earth, for the fifth year in a row, has given the Carnival Fantasy an “F” for its environmental footprint, especially regarding air pollution. It would require only a few million dollars from the deep coffers of Carnival and the SPA to implement shore power, from which S.C. would gain income and healthier jobs. Otherwise, the long-term health care costs are many multiples of these short-term costs.
We support cruising and healthier jobs and applaud the bipartisan effort to provide funding for onshore power, which will further improve the health of all Charlestonians and visitors to our cleaner and more hospitable city, regardless of the ultimate site of the terminal and other issues.
Cleaner air is clearly the public health issue in which we all have a stake.
J. Gilbert Baldwin Jr., MD, FACP, is a member of the Charleston County Medical Society’s Public/Environmental Health Committee. Robert T. Ball Jr., MD, MPH, FACP, is chair of the committee.
FEBRUARY 4th, Letter to the Editor, Dudley Gregorie
To protect the health of the city’s downtown residents, I am asking my fellow members of Charleston City Council to adopt a resolution in support of shore power.
The resolution will call on the State Ports Authority to make shore power available at its new state-of-the-art cruise ship terminal.
The times call for shore power as an integral part of this planned 21st century facility. Being equipped for “plug-in” will soon be the norm for newer cruise ships. Anything other than shore power is a bit shortsighted.
On Feb. 11, I will present to the Sustainability Advisory Committee, which I chair, a proposed resolution for consideration in support of shore power.
If approved, the resolution will go before City Council on Feb. 26 for a vote of support. While the City of Charleston has no jurisdiction over the SPA, it’s important that Charleston City Council send a clear message to the SPA that we support shore power, also called shoreside power, for cruise ships that dock here.The majority of the health concerns come from the Charleston-based Carnival Fantasy cruise liner.
Environmental and neighborhood groups have evidence to show the cruise ships pollute the surrounding air while the ship’s engine idles at dock side. Shoreside power allows a ship to plug in to a permanent land-based power supply while docked, eliminating the need for the ship to run its auxiliary engines and burn diesel fuel to run the ship’s equipment while it is tied up at the pier.
The SPA has made it clear that it has no plans to install shoreside power. The agency maintains that better technology is on the horizon, and it is waiting for this innovation.
But I am told that what the SPA’s acceptable substitute to shoreside power is a “less dirty” fuel standard to clear the air when emissions are measured, nullifying the need for shore power.
But after new federal fuel standards are put in place, the U.S. Environmental Protection Agency estimates that a cruise ship idling in port will still produce sulfur dioxide air pollution equivalent to more than 34,000 idling diesel trucks.
An extensive study of the cruise operations in the city finds that shore power will substantially lower harmful air pollution even when cruise ships burn “less dirty” fuel as required by federal law.
Joined with staff from the medical establishment, I advocated to make the area in my District around the Medical University of South Carolina and Roper Hospital a “smoke free zone.”
The use of shore power is another step in making the air quality for the residents a primary concern. Just as city council approved this clean air measure for the medical complex, council should continue this effort by supporting shore power for cruise ships to further protect the health of our residents.While the emerging cruise ship industry in the city is an important and welcomed economic gain to the city’s robust tourist sector, the environmental impact that cruise ship emissions pose to the health of our citizens is not a laughing matter but one that needs serious consideration.
A world-class city deserves world-class livability.
William Dudley Gregorie, who represents District 6 on Charleston City Council, is chairman of council’s Sustainability Advisory Committee.
FEBRUARY 4th LETTER TO THE EDITOR, Post and Courier, by Steve Gates
Yes, the South Carolina Supreme Court dismissed the lawsuit against Carnival Cruise Lines on a technicality.
The court said that since all members of the public suffer from congestion, pollution and noise associated with cruise ships, the plaintiff neighborhoods did not have standing to sue for individualized effects. Therefore, neighborhood associations near Union Pier, which bear the most direct effects, will not get their day in court.
The basis for the lawsuit was far from frivolous given the seriousness of the issues, the fact that Judge Newman, appointed by the S.C. Supreme Court to hear motions in the case, had recommended that a majority of the counts proceed to trial, and the determination by the Supreme Court in its cruise ship opinion that “All members of the public suffer from and are inconvenienced by traffic congestion, pollution, noise and obstructed views.”
On a positive note, neighborhood associations and preservation groups hopefully will have the opportunity to participate in the historic preservation impact study required by a federal judge to determine whether the U.S. Army Corps of Engineers should issue permits at Union Pier for a new cruise ship terminal.
This study should include analysis of the full scope of impacts of cruise ship operations on the historic district and could explore alternatives to a cruise ship terminal at Union Pier.
Also on a positive note, our Charleston state representatives, recognizing the statutory obligation of the State Ports Authority to consider mitigation of the effects of new projects on the City of Charleston, have proposed state funding for shore power for cruise ships.
Wherever a cruise ship terminal may be located, shore power facilities would be a welcome feature to eliminate the current pollution and soot problems and the health issues emphasized by our county and state medical societies.
Other forward-looking port cities have improved the health and quality of life of residents by finding a way to offer shore power for cruise ships. Use of shore power could eliminate pollution as a consideration in analyzing the best location for a terminal.
We hope our City Council will request that shore power facilities for cruise ships be installed in Charleston.
Neighborhoods near Union Pier have been emphasizing for three years the need to mitigate the impacts of cruise ships on downtown Charleston by limiting the size and number of ships, offering shore power and exploring alternate locations.
A decade from now, there could be a vibrant new waterfront community at Union Pier or there could be a cruise ship terminal and massive parking lot, pressured to take many more visits by even larger cruise ships and significantly influencing the type of development that occurs around it.
Getting this wrong can significantly change the historic Charleston experience and the reason that so many land-based tourists come.
Steve Gates is president of the Charlestowne Neighborhood Association.
Over? Cruise ship fight isn’t over until we say it is
by, Brian Hicks, The Post and Courier
For three years, downtown residents, preservationists and conservationists have tried to put limits on Carnival Cruise Lines’ business and stop the State Ports Authority’s plan to build a new terminal in their back yard.
They’ve been passionate, they’ve been tenacious, they’ve even been flying ugly flags from their downtown homes in protest.
And after all that, South Carolina’s high court dismissed their lawsuit as if it was an afternoon soap opera the justices were embarrassed to admit they’d tuned into.
In fact, they were sort of condescending.
“All members of the public suffer from and are inconvenienced by traffic congestion, pollution, noises and obstructed view, and (p)laintiffs have not alleged they suffer these harms in any personal, individual way,” the ruling read.
Ouch. If that wasn’t dismissive enough, Mayor Joe Riley called the lawsuit “almost laughable” from the start.
Now, he has a point about some of the sillier concerns (“view shed,” indeed), but the reasonable folks involved in this thing aren’t laughing.
And they aren’t finished either.
Pick your battle
Last week, while everyone else was stripping the grocery stores of bread and milk, a group of concerned residents got together to talk about their next steps in the war on cruise ships.
They are on the ropes, no doubt.
The Supreme Court dismissed the suit on a technicality, claiming the groups that filed didn’t have standing. It was something of a dodge. The merits of the case didn’t get a ruling – but they did get criticized a bit in the 11-page decision.
At one point, the justices say the lawsuit “fails to make factual allegations sufficient” to prove zoning is being violated. They mention that they’d already dismissed the argument that the Fantasy’s smokestack violates the city’s sign ordinance.
OK, you’ve got to admit that one was a stretch.
But the court made it clear that individuals could come back and file the same suit, make the same arguments and claim personal damages.
And you can bet your boarding pass that is exactly what some of these folks will do.
This is not over by a long shot. The groups are still challenging the state permitting process, and are watching to see what the Army Corps of Engineers does next on federal permitting, which could lead them to refile that suit.
All that stuff is pretty technical, and not very sexy. It could be effective, though.
But the real nuisance for the city, the port and Carnival will be the next suit – especially if it focuses on pollution.
Shore side solution?
Some folks have not done the cause any favors by complaining about the class of tourists oozing out of the Fantasy.
That has allowed the other side to dismiss all the critics as a bunch of snobs, and that’s not the case.
Truth is, even some of the cruise control folks cringe when they hear that stuff, as they should – because some people are snobs. Well, they’d better get used to tourists. In case they hadn’t heard, we are the best tourist town in the Milky Way Galaxy.
Many of these cruise control advocates are reasonable folks just looking for a little concession. The city, the port and cruise line have felt no compulsion to compromise, however, because they know some people will never be satisfied.
Some people just want the ships gone, period. And that’s not going to happen.
But there is some hope for concerned citizens. State Reps. Jim Merrill and Leon Stavrinakis are pushing for the state to install shore side power capabilities at SPA docks. That could cut down on the group’s most legitimate concern: pollution.
There will always be tourists here, and there will always be traffic. But if downtown residents can prove there is also air pollution, shore side power would be a huge win.
Maybe the two sides could actually find some – gasp – compromise.
And we could finally quit talking about the Un-Loved Boat.