Conservation League Fears May be Overblown

March 3, 2011

Investigative Reports

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The NerveBy Warwick Jones
Citizen Reporter

The dust on the cruise ship issue refuses to settle, at least in some parts of the Charleston area. The Coastal Conservation League and other groups appear to be looking for ways to instigate a lawsuit.

They say that they support cruise ships and the Union Pier plan but the number of visits and the size of cruise ships must be regulated by the city, regulations on waste disposal tightened, and traffic and parking studies be undertaken, inter alia. Two neighborhood associations in the historic district support the stand.

Blan Holman of the Southern Environmental Law Association spoke recently at a meeting of the Historic Ansonborough Neighborhood Association, stating that his organization, which is supported by a number of nonprofits, is looking for grounds on which to bring a suit.

His identified the regulations and laws that would be relevant in such a suit and also noted that there might be opportunity through application of a special tax or the extension of the accommodation overlay.

More recently in an article in the Charleston Mercury, Holman specifically pointed to other rulings in past court cases that may be the basis of a suit.

It has been noted that state and federal laws make it unlikely that a suit will prevail. It has also been noted that some believe that a successful suit brought by the city against the State Ports Authority in 1992 can be used as a precedent.

It should be added that state government clearly wants the harbors and the shipping therein to be controlled by the State Ports Authority. It does not want any local body stepping in the way. So one might ask, should a suit succeed in passing some control to the city of Charleston, are the powers in Columbia simply going to concede?

It would seem doubtful. If Columbia can twice alter regulations to allow the town of James Island to incorporate after the city has prevailed in suits to stop it, it is unlikely Columbia will sit back and let the city take control of cruise ships (and merchant shipping as well because it will be legally hard to separate them), in a port that is the most important in the state and arguably, on the East Coast.

Time will tell whether there are grounds for a suit and whether it will prevail.

But it’s interesting to step back and contemplate what might happen if such a suit did prevail. The Coastal Conservational League (CCL) and two neighborhood associations say they support the Union Pier plan and commitment given by the State Ports Authority to the city in relation to cruise ships size and the frequency of visits.

But the commitment is not legally enforceable and it should be, they say. But it is also clear they want the city to do more than regulate the frequency of visits and ship size.

In the meantime, the city claims that it does not have the authority to do many of the things sought by the Coastal Conservation League and its supporters. It would run foul of state and federal law. Besides, it has a letter from the State Ports Authority stating its commitment to the city to specifically limit cruse ship visits and passenger numbers.

So let’s assume the city can now regulate cruise ships. What does it mean? Mayor Joe Riley and City Council can now dictate to the Ports Authority and through it, to cruise ships – but only in such matters as visitors and frequency.

Is anything going to change? Probably not in the short term. But what of the long term? What is to guarantee that the mayor and council will be sympathetic to the CCL and its supporters?

The city may still yield to any requests made by the Ports Authority or cruise ships to increase visitor numbers or visits? An ordinance may be enacted that defines cruise ship visits and size, but it can easily be changed should the council choose to do so.

Certainly citizens can lean on council members to press their cause but it appears likely there are more people in Charleston that support cruise ships than oppose them. Indeed, considering they create employment, it is conceivable that these people may support a greater frequency of visits.

But the State Ports Authority tells us that even if they did, the market for cruises out of Charleston is small and is not expected to grow significantly and support more cruises than those planned. And indeed with only one berth capable of handling cruise ships, the scope for growth is very limited.

No matter what the city wanted, it could not impinge on federal and international laws that regulate cruise ships, in particular in relation to sewage and gray water discharge. Nor could it interfere with EPA regulations.

And in this theoretical exercise, even if the city were empowered to control cruise ship size and the frequency of visits, it is unlikely that any power over ships in state waters would be conceded.

And while we are speculating, we should remind ourselves that the cruise ships visiting Charleston are guilty of no infringement of federal, state or international laws. Indeed, the cruise lines impose more stringent conditions in relation to waste disposal than all the laws require.

The shipping lines probably rightly feel they deserve praise rather than condemnation for their higher standards. Stockholders would also wonder why the company would assume increased liability and the risk of penalties when it is trying hard to be a good citizen.

And it is worth quoting from the Coastal Conservation League’s website where it poses the question as to what will happen if its demands of the city are not met:

“We face the threats of significant volumes of pollution in our harbors, our air, impacts to habitat for fish and shellfish habitat. We face increased health impacts from air pollution traffic congestion and impacts to the scenic historic downtown areas.”

That would seem a bit of an exaggeration. The cruise ships visiting Charleston already had adopted the pollution standards required by the CCL before the latter made its demands.

There is no threat of significant pollution in Charleston harbor. And there is no evidence that cruise ships are presently polluting it – the cruise ships won’t allow it nor will state and federal authorities.

And in regard to air pollution, a cruise ship runs one of its engines to generate power while in port. Like all internal combustion engines, there are emissions. But really how significant are those from one engine when combined with those from the thousands of cars and trucks that ply the Peninsula daily?

Remember, the Peninsula is relatively small with few large buildings to impede airflow. Most of its perimeter is surrounded by water above which is “fresh” and unpolluted air. Cruise ship engine exhaust, and that from cars and trucks, is soon diluted with fresh air.

Cruise ships may draw more traffic down town to the State Ports Authority parking lot. But we doubt this will lead to a significant increase in air pollution, let alone to dangerous levels. And do cruise ships spoil the city skyline? It is in the eye of the beholder.

In summary, what Coastal Conservation League and its supporters are trying to achieve is laudable. Those goals are similar to those of the city.

The city has done nothing to compromise these goals and has gone as far as it believes it can in ensuring they are achieved. It has negotiated with the Ports Authority and reached agreements, which it believes the Ports Authority has made in good faith.

The city believes the State Ports Authority’s commitment to the city is legally binding – essentially the number of cruise ship visits and passenger numbers over the next two years. Should the SPA wish to change this commitment, it is obliged to come back to city council.

The CCL and others should realize that the Ports Authority couldn’t make such a commitment in perpetuity. The composition of state government and the Ports Authority will change over time. There is no reason why either couldn’t choose at some time in the future to alter the terms of the agreement with the city because of changed circumstances.