The Price of Liberty is Eternal Vigilance
If the City had control, how much would really change?
CCL’s exaggerated fears for the environmentWarwick Jones
The dust on the cruise ship issue refuses to settle, at least in some areas of the Peninsula. The Coastal Conservation League (CCL) and others 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.
Mr. Blan Holman of the Southern Environmental Law Association spoke recently at a meeting of the Historic Ansonborough Neighborhood Association. He said that his organization, which is supported by a number of nonprofits, including CCL, and private citizens, is looking for grounds on which to bring a suit. His presentation on the regulation and laws that would be relevant in such a suit, gratifyingly included those that we mentioned in an article last year (Cruise ships - Some still call for a controlling City Ordinance. Don’t think so. Charlestonwatch.com November 22). He 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 Mercury, Mr. Holman specifically pointed to other rulings in past court cases that may be the basis of a suit.
We noted in our article last year the State and Federal Laws that make it unlikely in our view that a suit will prevail. We also noted that some are thinking that a successful suit brought by the City against the State Ports Authority (SPA) in 1992 can be used as a precedent. We wrote the regulation that was the basis of the suit was repealed. It has subsequently been pointed out to us that regulations that were substituted also contained the original ordinance. This does not change our view about the applicability of the precedent to the cruise ship issue.
We would add one thing to our view as to the success of a suit. The State Government clearly wants the harbors and the shipping therein to be controlled by the SPA. It does not want any local body stepping in the way. So we ask, should a suit succeed in passing some control to the City of Charleston, are the powers in Columbia simply going to concede? We doubt it. 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 we thought we’d step back and ask what happens if such a suit did prevail. CCL and two neighborhood associations say they support the Union Pier plan and commitment given by the SPA 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 mean time, the City claims that it does not have the authority to do many of the things sought by CCL and its supporters. It would run foul of State and Federal Law. It might also have added that action on some issues is not necessary. Besides, it has a letter from the SPA stating its commitment to the City to specifically limit cruse ship visits and passenger numbers. It is tied to the resolution in support of the Union Pier Plan adopted by Council last year. (Press Download file to see the resolution and the letters from the SPA in which it makes the commitment)
So let’s assume the City can now regulate cruise ships. What does it mean? The Mayor and Council can now dictate to the SPA 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 CCL and its supporters? The City may still yield to any requests made by the SPA 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 Council choose to do so. Certainly citizens can lean on Council members to press their cause but I dare say 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 SPA 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 CCL’s web site 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.
In a polite word, exaggeration! The cruise ships visiting Charleston already had adopted the pollution standards required by 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 whilst 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 Pensinsula daily? Let us remember that 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 SPA 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. We don’t find them offensive. But just wait until the harbor is deepened and the new generation of large container vessels starts arriving after the Panama Canal expansion is completed.
In summary, what CCL and its supporters are trying to achieve is laudable. Indeed we share their goals for the environment, the harbor, and the Peninsula. Those same goals are also 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 these goals are achieved. It has negotiated with the SPA and reached agreements, which it believes the SPA has made in good faith. The City believes the SPA’s commitment in its letters to the City are legally binding – essentially the number of cruise ship visits and passenger numbers over the next 2 years. Should the SPA wish to change this commitment, it is obliged to come back to City Council. This is reasonable. CCL and others should realize that the SPA couldn’t make such a commitment in perpetuity. The composition of the State Government and the SPA 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.
We’d add that the SPA has said that cruise ship visits are tied to the development of the Union Pier. You can’t have one without the other. The Mayor repeated this when Council deliberated on the Cruise ship resolution last year. The SPA has a mandate to increase waterborne commerce. A modest size cruise ship terminal, the capacity of which is line with the market for cruises out of Charleston, is appropriate with this mandate. But if the City or others were to interfere with this market by either limiting the size of cruise ships and visits, the viability of the terminal may be threatened. In such a case, the SPA has said it would revert to handling only cargo and the Union Pier plan would be abandoned. We doubt this is a hollow threat though we have to ask the question as to what the SPA’s action would be if after the Union Pier Plan was underway, a suit were successfully brought against the SPA? We don’t have an answer. The new terminal is slated for construction beginning next year.