Citizens’ groups act to defend our legal rights

Could anything impact Charleston’s future more than the proposed new 100,000 sq. ft. cruise terminal at Union Pier?

Yes. There’s the possibility that citizens’ rights to protest any public controversy could be diminished in the legal process.  There may be a trend in the South Carolina courts to do just that.

The appeal was scheduled to be heard on Election Day, but at the last minute, for the seventh time, the the SC Court of Appeals postponed oral arguments in an appeal arising from DHEC’s issuance of permits to the State Ports Authority (SPA) for a new cruise terminal.  The case is now likely to be heard early next year.  That appeal involves the denial of legal standing of several groups that had challenged the issuance of those permits and the imposition of sanctions on those groups by Administrative Law Judge Ralph King Anderson III.

The judge ruled that all these citizens’ groups, the Coastal Conservation League, The Preservation Society of Charleston, Historic Charleston Foundation, The Charlestowne Neighborhood Association, Historic Ansonborough Neighborhood Association, The Charleston Chapter of the Surfrider Foundation, and The Charleston Communities for Cruise Control had no right to challenge DHEC’s approval of those permits.  DHEC is the SC Department of Health & Environmental Control.

You’re not to be blamed if you’ve lost track of the process, it’s been a long slough.

Five pilings, five years of history

The SPA has relentlessly pursued the construction of a new cruise terminal for five years declaring that the existing terminal is inadequate and doesn’t meet Homeland Security requirements.  But to build anything on the harbor, it needs both state and federal permits.

Back then, the SPA applied for and received a federal permit hoping for quick approval.  But three years ago, after opponents filed a suit to oppose it, United States District Court Judge Richard Gergel tossed the SPA’s federal permit to build the proposed $35 million terminal at Union Pier and blasted the U.S. Army Corps of Engineers for failing to adequately review the project’s effects as mandated by Congress. “I think you did an end run,” he told the Army Corps lawyers. “You gave this permit the bum’s rush.”

The Corps had determined that installing five clusters of pilings beneath the building would have little impact, but that didn’t satisfy Judge Gergel.  “You have an obligation to look at the entire project,” Gergel told their attorneys. “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 federal judge also referenced evidence contained in a 1,200-page filing that the new terminal is being designed for larger ships than now call here, and that the new terminal could more than triple the number of cruise passengers visiting the city.

Any potential surge of cruise passenger traffic strikes fear in the hearts of many downtown residents.  Those fears are hardly placated by SPA CEO Jim Newsome’s assertions that cruise ships are “maritime commerce,” and that cruise passengers aren’t tourists that can be regulated by the City.

The SPA has put “voluntary limits” on the size, number and frequency of visits for cruise ships.  That limit is 104 ships a year with a 3,500-passenger maximum.  But the SPA can unilaterally exceed these “voluntary limits” simply by issuing a notice to the City of Charleston one year in advance.

Following Judge Gergel’s rebuke, the Army Corps has held citizen input sessions and conducted studies of the terminal area.  Next week, it will bring the parties together to discuss the proposed Area of Potential Effect (APE), the geographic area that would be impacted by the new cruise terminal.  As you might imagine, determining those APE boundaries has been a contentious process.

It will be critical SC Appeals Court decision

The State has a parallel role, and DHEC has issued the necessary permits for a new terminal.  Those permits also were challenged in the Administrative Law Court, but Judge Anderson ruled that those groups did not have standing.  That ruling brings us to that appeal at the SC Court of Appeals in Columbia.

“The Administrative Law Court said you don’t have the right to bring this lawsuit,” Southern Environmental Law Center attorney Blan Holman explained, “but the law says ‘any affected person’ can challenge bureaucratic action, and these people living next to a cruise terminal are injured,” as shown in affidavits, by noise, soot, pollution, traffic, congestion, and other effects.  The judge made other errors, at least according to the Appellants, including “refusing to expand discovery.”

Holman, representing two of the groups appealing the ruling, added, “You can love or hate cruise ships, that doesn’t mater.  You should agree that these people who are affected have the right to challenge unlawful government action.” He said, “The ruling applied the wrong legal test, ignored evidence, and shouldn’t have even reached the conclusion it did as the federal courts already determined that we had standing.”

Citizens’ rights are on trial

This appeal is not merely about objecting to impacts from the cruise operations in Charleston, although that’s what brought us here. The core issue is bigger–it’s about citizen’s rights.  Attorney Holman argues that, “It’s about families and property owners across the state having the right to challenge injurious government action.

“Some in South Carolina want to take those rights away,” Holman submits, “and they are pursuing that agenda aggressively in the Legislature and the courts.  We are fighting to defend and restore a right established with the founding of the nation and South Carolina — the right to petition against the government. Upholding that right doesn’t mean we will necessarily win on the merits of the permit challenge itself.  But it ensures the merits of that challenge see the light of day. Justice demands no less.”

When the appeal is rescheduled, “It would be good for the people to see the Court in action.  The arguments aren’t long, and it’s a pretty formalized process,” Holman says. “Our side and the SPA will each have their say, interspersed by the judges’ questions.  It should only take about 45 minutes.  But the Court’s answer to the questions raised in this case will carry statewide importance in terms of citizens’ rights.”

Kristopher King, Executive Director of the Preservation Society, underscored the importance of the SC Appeals Court date, “We’ll be pleased to finally have our day in court. We maintain that the community [organizations] has standing in this issue. The outcome could result in a significant negative impact to the historic district and its residents, and this is exactly what these processes are meant to prevent. We certainly hope they do in this case.”

Dana Beach, Executive Director of the Coastal Conservation League, added this suggestion: “There is a growing consensus that the terminal is not appropriate or acceptable in this historic part of the city.  On top of the explosion of hotel rooms downtown, the congestion and visual impacts are simply too great. Charleston’s new mayor, John Tecklenberg, campaigned on reconsidering and revising the project.  Now it’s time for the SPA to do its part to sustain the economy and the quality of life of Charleston by revisiting this harmful proposal.”

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Jay Williams Jr.