Just hours after the Southern Environmental Law Center (SELC) filed a suit against Carnival Cruise Lines in 2011, the S.C. State Ports Authority (SPA) held a press conference. At the time, Mayor Joseph P. Riley Jr. said, "We will do everything we can to make sure this lawsuit fails," according to the Charleston Regional Business Journal.
But the suit is still alive and kicking in the state's court system. "It's been about exactly two years since we filed the case," says Blan Holman, the SELC attorney representing the Preservation Society of Charleston, the Coastal Conservation League, and the Ansonborough and Charlestowne neighborhood associations. "We think it's pretty obviously not frivolous."
Because the cruise line now docks its Fantasy ship in Charleston, the plaintiffs reasoned Carnival should be subject to city laws. And while the S.C. Supreme Court threw out three of the 10 claims the SELC had originally made in its suit regarding noise, sign, and environmental ordinances, the fight is far from over. As the CRBJ reports, the Supreme Court has asked attorneys on both sides of the case to file new briefs on two remaining issues.
When the suit was originally filed against Carnival in June 2011, the City of Charleston and the SPA immediately intervened. "They all quickly asked the state Supreme Court not to hear an appeal, but to take the case away from the local judge and hear it in the Supreme Court's original jurisdiction," Holman explains. The court consented in early 2012 and assigned a special referee, Judge Clifford Newman, to the case.
Newman considered the 10 claims made in the original complaint that fall into three categories: ordinance, nuisance, and environmental. They covered everything from city laws to noise complaints to accusations that Carnival is discharging in state waters without state permits.
But at a hearing last summer, Judge Newman recommended to the S.C. Supreme Court that all claims other than the nuisance ones be dismissed. His argument was based on his opinion that Charleston's zoning laws can only apply to structures. Because the Carnival Fantasy isn't permanently located on land or, Newman concluded, substantially attached to land, it isn't technically a structure. "But he said issues of whether or not someone's use of their property is reasonable [is] not really a legal question, it's more of a fact question, so it can't be dismissed," Holman adds.
Last week, the S.C. Supreme Court agreed with Newman on dismissing the noise, sign, and environmental permitting complaints. "We did appeal his view on the environmental permitting claim, and so we're disappointed to see that claim dismissed," Holman says. "But we think the seven remaining claims, which are ordinance claims and the nuisance claims, they are seven strong claims and this case is very much alive."
More importantly, the Supreme Court brought up a new issue in the case: Does the City of Charleston have the authority to regulate a cruise operation based in Charleston?
"That's really a much different question," Holman says. "It's a question that goes to the nature of the city's authority, period. It goes to issues of how far the city's authority can go when there are federal regulations in place and some limits on local authority."
Holman and the plaintiffs believe that the city does have the jurisdiction to regulate what the ships do within city limits, and he says he hopes the City of Charleston will preserve its power over these kinds of activities.
"The cruise lines are notorious for not paying any taxes and not being very heavily regulated," he says. "I think that the goal of the Carnival suit is to see that they're treated like other businesses, because in Charleston we regulate and have standards for all manner, be it pedicabs or horse-drawn carriages or bus tours or what you can do to your house."
And, he adds, those standards are key to the economic success of the peninsula and the metropolitan area. Basically, the plaintiffs just want Carnival to play by the rules. If the lawsuit succeeds, Holman hopes the cruise ship industry can continue in Charleston, but in a way that doesn't affect the livability and health of the community or detract from other parts of the tourist industry.
The Post and Courier reports that the SELC and Carnival Cruise Lines have 30 days to submit new briefs addressing the new allegations.
"The recent order issued by the Supreme Court in the cruise ship case is encouraging because it brings into clear focus the pivotal issues of the case," Mayor Joseph P. Riley Jr. told the City Paper in a statement. "And in light of the briefing schedule set by the court, I am optimistic that a decision will be rendered very soon."
In the end, if the court decides the city does have the power to regulate cruise ships, Holman is hopeful they'll take advantage.
"We are optimistic that when the city attorneys actually have the opportunity to drill down on the issue that they will, as has been their history, that the city attorney's office would actively and aggressively defend the City of Charleston's authority to control activities within its limits," he says.
Carnival Cruise Lines' public relations department said it was unable to comment on the case, and a call the City Paper made to the SPA was not returned.