Judge: Opponents have standing to challenge state permit for Charleston cruise terminal

Associated Press
Updated: December 03, 2013 – 3:16 pm

CHARLESTON, South Carolina — Charleston neighborhood, conservation and preservation groups may challenge a state permit for a $35 million South Carolina passenger cruise terminal, a state administrative law judge has ruled.

In a 16-page ruling on Monday, Chief Administrative Law Judge Ralph K. Anderson III rejected a South Carolina Ports Authority motion to dismiss a challenge to a state Department of Health and Environmental Control permit.

The DHEC permit certified that putting added pilings beneath an old riverfront warehouse so it can be renovated as a new terminal complies with state coastal regulations.

The permit challenge is one of three ongoing legal fights involving the city’s cruise industry.

The Ports Authority in July asked Anderson to dismiss the challenge to the state permit, saying the pilings have not yet been installed and so there has been no injury to the plaintiffs and they have no standing to appeal. Attorneys also argued the appeal should be dismissed because whether cruises operate out of Charleston is a political question, not one for the administrative law court.

Anderson noted the plaintiffs, who include six local groups, allege the permit will allow more cruise ships with the pollution, traffic and health impacts that accompany them.

“At this stage of the proceedings, the court finds that petitioners have sufficiently alleged that the organizations have standing,” he concluded, but added he would consider the larger issue of whether cruises should be allowed at all.

“The case before this court involves the discrete matter of whether the permit issued to the Ports Authority complies with state law,” he wrote.

A hearing is set for next month.

The question of whether the cruise industry is a public nuisance is now before the state Supreme Court. The justices heard arguments last month and have not indicated when they might rule.

The third legal challenge is to federal permit for the terminal pilings. A federal judge ruled in September that the U.S. Army Corps of Engineers did not study the issue adequately and tossed out the permit. The Ports Authority and the Corps have appealed that decision to the 4th U.S. Circuit Court of Appeals in Richmond, Virginia

Terminal opponents say they want limits on cruises so they don’t overwhelm the city. Supporters say the city will only be a niche cruise market and the industry is already being appropriately regulated.

(Story distributed by The Associated Press)

Per the City…. we all suffer….

Attorneys argue in front of S.C. Supreme Court over harm cruise ships would cause Charleston

By Schuyler Kropf

COLUMBIA — Allowing a lawsuit that challenges Charleston’s cruise ship visits over zoning issues to stand could damage global commerce if taken to the extreme, a lawyer argued this morning before the South Carolina Supreme Court.

Attorney Marvin Infinger said the lawsuit filed by preservationists and neighborhood groups could essentially be applied to all commercial shipping that calls on Charleston.

“The suit, if allowed to stand, would do violence to the ocean-going commerce of this nation,” he said.

Additionally, lawyers argued the plaintiffs looking to challenge the cruise ship visits are not uniquely affected by the traffic and congestion the ships have brought.

City attorney Frances Cantwell said, “The harm is no different in kind than what we all suffer.”

Attorney J. Blanding Holman IV, who represents the plaintiffs, said the suit should go forward because of the systematic harm the ships are bringing to a closed, confined and historic part of Charleston.

Check back later for updates.

Generation Two Stickers and Banners are Here!

We are pleased to announce that the second generation of C4 Banners and Bumper Stickers are here! Thanks a million to our friends at The Bosworth Group for the amazing design. Banners are $25 to offset some of our production costs and the stickers are FREE!

You can get your banners by going to The Preservation Society of Charleston’s  gift shop on King Street. They are only $25 to offset some of our cost.

For stickers: you can go to any of these places

  • Coastal Conservation League     328 East Bay Street     M-F from 9-5
  • Preservation Society of Charleston     147 King Street     M-Sa from 10-5 and Sundays from 12-4
  • Ann Long Fine Art     54 Broad Street     M-Sa from 11-5
  • Corrigan Gallery     62 Queen Street     M-Sa from 10-5
  • Burbage’s     157 Broad Street     M-F from 8-6 and Saturdays from 9-2


Flags up!!!

Banner 2013

C4 Banner 2013


c4 Bumper Sticker


CHS | After losing its permit, the SPA will surely compromise. Ah, no.

CHS | After losing its permit, the SPA will surely compromise.  Ah, no.

U.S. District Court Judge Richard M. Gergel ruled that the U.S. Army Corps of Engineers failed to comply with the “formal assessment and consultative requirements” of the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA) before awarding the SC Ports Authority (SPA) a permit to transform “a previously permitted transit shed…into a modern state-of-the-art $35-million cruise ship passenger terminal” at Union Pier in Charleston.

The Army Corps, for unknown and probably unknowable reasons, had determined that complying with the NEPA and NHPA assessments was unnecessary because “the proposed activity will result in minimal individual and cumulative adverse environmental effects.”  The project, the Corps said, would qualify as “maintenance,” and stated that the cruise terminal project had “no potential to cause effects on historic properties.”

Judge Gergel ruled otherwise. The Army Corps of Engineers, he said, ignored its responsibilities to do a proper assessment under the controlling NEPA and NHPA acts by saying that it was limiting its review to only five new pilings to support elevators and escalators that would come in contact with navigable waters.  That argument, the Court said, is “plainly inconsistent with the Army Corps’ own regulation…which provides for jurisdiction involving ‘any structure in or over any navigable water in the United States.'”   In his conclusion, the judge went farther, saying that rather than consider “all the activities in its jurisdiction under the Rivers and Harbors Act ‘in its scope of analysis,’ the Army Corps of Engineers, unreasonably and unlawfully, restricted its ‘scope of analysis’ to an insignificant fraction of the project that lay within the agency’s jurisdiction.”

“By omitting more than 99% of the project within its jurisdiction…  “The Court finds that the Army Corps’ limitation of the ‘scope of analysis’ to five concrete pile clusters was arbitrary, capricious, unreasonable, and contrary to law.”

Almost equally disturbing were the SPA’s own statements and data that it presented to the Court.  Quoting from the ruling, “The Ports Authority has acknowledged that a cruise ship terminal can ‘present special challenges’ in ‘managing automobile and pedestrian traffic,’ ‘protecting the environment,’ ‘and preserving Charleston’s unique character’ and ‘there are still lingering questions about how well the cruise ship business will fit into the context of this diverse, world class city.'”  “Record evidence provided by the Ports Authority supports the [opponent’s] claim…that the number of cruise ships and passengers has increased in recent years, and the proposed new and larger passenger terminal would likely significantly increase the number and size of cruise ships visiting Charleston and the volume of cruise passengers in the historic Charleston waterfront.”  By 2012, the number of ships visiting Charleston had increased by 86% over “the 2005-2009 five-year average.”

And the SPA also gave us a glimpse into a far worse future.  With a new terminal, the 1990’s-era, 855’, 2,056-passenger Carnival “Fantasy” will be replaced with ships carrying 3,450 passengers.  And based on the SPA’s data, the Court concluded, “Even if the Ports Authority maintained its voluntary cap of 104 cruise ship visits a year(2), this would represent a 131% increase over the 2005-2009 five year average and a 24% increase from 2012.”   And to service such a volume of passengers, the Court noted, the SPA estimates that on an average embarkation and disembarkation day, “up to twenty tractor trailers, sixteen small trucks, thirty-two busses, ninety taxis, and 1600 passenger vehicles would need access to the very confined” terminal area that “lies immediately adjacent to the Charleston Historic District and the Ansonborough neighborhood.”

So how do you think the SPA reacted to the ruling?   Did it agree to comply, did it suggest a compromise, or did it offer to study another, less invasive location for a terminal?   No.  It appealed.  The appeal came in spite of the SPA’s own website that appears to invalidate any argument that their project could be considered “maintenance”:  “…Charleston is an ideal cruise port.  With an efficiently run operation and plans for a new state-of-the-art cruise terminal, our port is ready to welcome cruise operators and travelers alike.”(3)  Yes, and with the widening of the Panama Canal and a newly prosperous Chinese middle class, are we to believe that those ships of the future will carry only 3,450 travelers?

But if you’re looking for relief from Charleston’s mayor or its complacent, compliant City Council, forget it.  Mayor Joseph Riley recently reiterated his total lack of interest in regulating cruise ship tourism.(4)   So it’s up to the courts.

Oral arguments in another case will be presented this Tuesday, this one at the SC Supreme Court.(5)   Carnival Cruise Lines will argue to dismiss charges that it’s violating zoning ordinances, permitting requirements and creating a nuisance.(6)  True to form, both the SPA and the City of Charleston intervened in this case on behalf of…the defendant, not on behalf of the residents, organizations and associations trying to protect Charleston from the accelerating threat of unregulated cruise ship tourism.

Surely the SC Supreme Court read Judge Richard Gergel’s decision and recognizes the defendant’s fallacious assertion that their massive floating resorts can tie up at will, disgorge thousands of people simultaneously onto the world’s most cherished historic places, and then ignore every rule and regulation these historic places have developed to protect their history, culture and quality of life.  Or must degradation accompany this exploitation?

Jay, 15 Nov 13

1)   U.S. District of South Carolina, Charleston Division, Court Decision.  Preservation Society and Coastal Conservation League vs. US Army Corps of Engineers and SC Ports Authority
<Federal Cruise Permit SJ Order 9-18-13.pdf>

2)  The SPA has steadfastly refused to commit those “voluntary limits” in to legally binding limits.
“This Charleston Harbor Battle is over Cruise Ships” – NY Times

3)  South Carolina Ports website – Cruise Charleston page

4)  Reports of Mayor Joseph Riley’s comments at the membership meeting of the Charlestowne Neighborhood Assn., 29 Oct 13.

5)  South Carolina Supreme Court, Register of Cases for November, 2013.  Look for first case on 19 November.

6)  “Carnival Cruise Lines asks for Dismissal of Suit” – Post and Courier


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.

Carnival will sail bigger ships from New Orleans

November 13, 2013 10:13 AM

NEW ORLEANS (AP) — Some larger cruise ships will call New Orleans their home as the role of the cruise business continues to increase at the Port of New Orleans.

The Carnival Sunshine, which arrives Sunday, carries 2,984 passengers — 22 more than the Carnival Conquest, which it’s replacing. In April, it will be replaced in turn by the 3,646-passenger Carnival Dream, which Carnival Cruise Lines currently plans to keep in New Orleans.

The port is likely to set its third straight record for cruise ship passengers this year, said Gary LaGrange, president and CEO of the Port of New Orleans. He said the Dream should increase that even more in 2014, when it’s expected to boost Carnival’s passenger total from more than 330,000 a year to more than 400,000 a year.

New Orleans’ overall cruise business rose more than 32 percent last year to 977,703 passengers. The 2011 passenger total of 736,908 broke a record set in 2004, port officials have said, citing a report made for the Cruise Lines International Association.

“This year we have a good shot at passing a million,” LaGrange said.

The CLIA report also said New Orleans was the nation’s sixth-busiest cruise port last year, up from ninth in 2011.

LaGrange said cruises have risen from about 5 percent of the port’s income a dozen years ago to 20 percent of last year’s $50 million-plus revenues.

Carnival cruises year-round from the port. Royal Caribbean Cruise Line sails from October through April, and Norwegian Cruise Line from November through April.

Those lines also are bringing in new ships. The 2,376-passenger Norwegian Jewel replaced the 2,348-passenger Norwegian Star, and Royal Caribbean’s Navigator of the Seas is replacing the newly renovated Serenade of the Seas.

New Orleans’ cruise business has risen nearly nine-fold over the past 10 to 12 years, LaGrange said. “A lot of it has to do with the fact that we’re marketing it as two vacations in one: Come down and you get the Big Easy and get the cruise as well,” he said.

He said the CLIA study found that passengers usually also spend two nights in area hotels, spending $335 a day in New Orleans compared to an industry average of $93 a day.

Newer, faster ships make the Gulf of Mexico’s destinations more accessible, offering more cruise stops than many other ports, LaGrange said. From New Orleans cruises go to Mexico, the Cayman Islands, Jamaica, the Bahamas, Florida, Belize, Honduras, San Francisco, the Canary Islands and Spain.

Jim Berra, senior vice president of marketing and chief marketing officer for Carnival, said the Carnival Sunshine, previously known as the Destiny, underwent a $155 million makeover at a shipyard in Trieste, Italy, adding a water park, a new partial deck, 182 cabins, and more than 20 new “branded spaces” such as restaurants, outer decks, bars and lounges and entertainment.

The Sunshine and Dream will continue the Conquest’s weeklong cruises. The Elation will continue as the line’s ship for 4- and 5-day trips.

November 15 Letter to the Editor

Well said Pat! We couldn’t agree more!

Cruise insights I recently had the good fortune to visit two historic port cities: Athens, Greece, and Istanbul, Turkey. The experience showed me that it is quite possible to dock passenger as well as cargo ships at the same location — away from the historic districts — without detracting from the cruise or the historic district. The historic district in Athens was a 30-minute cab ride from the port in Piraeus, and the historic area in Istanbul was another easy cab ride from the docks. My friends and fellow passengers didn’t think twice about having to travel a short distance from the docks to the historic districts. In fact, we were relieved to find that these valuable and irreplaceable historic cities were protected from the aesthetic and environmental effects that we are not protected from in Charleston. My experience cruising to globally important historic ports only reinforces that we should not park cruise ships in front of our own historic port city. A visit to historic Charleston is worth a short cab or trolley ride from a more remote terminal location.

Pat Sullivan Plantation Court Mount Pleasant

Nov 15 Post and Courier

Cruise terminal opponents want SC permit tossed

as taken from The Post and Courier by Bruce Smith

Now that a judge has tossed out a federal permit for South Carolina’s proposed $35 million cruise terminal, opponents of the project say a state permit should be invalidated as well.

In September, U.S. District Judge Richard Gergel invalidated a federal permit for the project that would transform an old waterfront warehouse into a passenger terminal. He ruled the Army Corps of Engineers, in allowing additional pilings to be placed under the warehouse for the terminal, did not adequately consider the project’s effects on Charleston’s historic district.

In a Nov. 1 filing with Ralph King Anderson, the chief judge of the Administrative Law Court, opponents say that with the federal permit invalidated, the state permit must be vacated as well.

Jessie White of the S.C. Environmental Law Project wrote the state permit required a water quality review. That review was encompassed by issuing the federal permit but, now that permit has been tossed out, the state must conduct its own review.

Without such a review, the motion said, “the permit and certification are invalid and must be vacated.”

Anderson has scheduled a Jan. 27 hearing in the case.

But if the state permit and certification are invalid “this honorable court should not expend its valuable resources or the resources of the parties evaluating what is, in essence and in law, a dead letter,” the motion said.

The State Ports Authority has until month’s end to respond to the motion.

The agency will be in court next week when the state Supreme Court hears arguments in a separate lawsuit alleging that cruises in Charleston are a public nuisance. The Ports Authority is also appealing Gergel’s ruling to the 4th U.S. Circuit Court of Appeals.

Terminal opponents say they are not against cruises, but want limits so the number of passengers doesn’t overwhelm the city. Supporters say the city will only be a niche market and the industry is being appropriately regulated.

The debate has been ongoing for several years. Carnival Cruise Lines permanently based its 2,056-passenger liner Fantasy in Charleston more than three years ago. Before that, cruise liners made port calls, but no ships were based in Charleston.

Sunday’s Letter to the Editor

Air pollution
I wish to commend SPA Chief Executive Officer Jim Newsome for his efforts to reduce air pollution by replacing older truck engines in the SPA fleet.

However, it is unfortunate he will not consider installing onshore power for those cruise ships that use our historic city as a home port some 60 times a year, while running their engines.

Gilbert Baldwin Jr., M.D.

Hasell Street


Congratulations to Our Friends in Italy!

Italy to divert cruise ships from historic Venice

A special commission has approved a plan to divert cruise ships away from Venice’s historic centre

By Reuters

9:09PM GMT 05 Nov 2013

Italy will immediately begin to limit large cruise ship traffic in the Venice lagoon and the biggest vessels – of more than 96,000 gross tonnes – will be banned from November of next year, the government said on Tuesday.

Protests by Venice residents and environmentalists concerned about the damage caused by increasing cruise ship traffic to the fragile city, one of the world’s most popular tourist destinations, have been on the rise in recent years.

Prime Minister Enrico Letta met the transport and culture ministers as well as the governor of the Veneto region and the mayor of Venice, and approved plans to limit or shut down cruise ship traffic in parts of the Venice lagoon and near the city’s famous Saint Mark’s Square.

“Finally the trend towards gigantic ships in the lagoon has been turned around,” the mayor of Venice, Giorgio Orsoni, said in a statement. “We’ve had enough of these mega cruise ships just metres away from San Marco, from now on there will be clear limits on the size of ships that can enter Venice.”

Concern at the risk posed by the enormous vessels has been heightened by the disaster of the Costa Concordia, the 114,500 tonne liner which sank off the Tuscan island of Giglio in 2012, with the loss of 32 lives.

Large cruise ships will be banned from the canal between the mainland and the Giudecca island in the lagoon while a new access channel is developed with the main shipping terminal.

From January 2014, cruise ship traffic in front of the Piazza San Marco in the heart of the city, will be limited, with the number of cruise ships of more than 40,000 tonnes authorized to cross the Giudecca canal cut by 20 percent from 2012 levels.

From November next year, the largest ships of more than 96,000 tonnes will be banned entirely from crossing the Giudecca canal.