Sustaining veto allows Jasper port to dodge legislative bullet

Special to the Packet and GazetteJuly 27, 2012 

For the past five years, the ports authorities for Georgia and South Carolina, in a joint venture, have been planning the development of a new port on the Savannah River in Jasper County. Good progress is being made, and a new multi-billion-dollar economic engine for the Lowcountry is on track. Yes, it will take time, but it is happening. And not everyone is happy about it.

A couple of months ago, state legislators friendly to the South Carolina State Ports Authority, which owns the Port of Charleston, sponsored two budget provisos that gave control of the Jasper port to the State Ports Authority, in violation of the joint venture agreement. Gov. Nikki Haley correctly vetoed those provisos, and the state Senate wisely sustained her vetoes by a three-to-one margin.

The provisos constituted an illegal attempt by the General Assembly to amend the bi-state contract between the State Ports Authority and the Georgia Ports Authority that lays out how the Jasper port will be planned. Significantly, this bi-state contract has previously been incorporated into permanent law by the General Assembly.

Among other things, the bi-state contract sets forth a specific governance structure for the joint venture: a six-member governing board (the Joint Project Office) comprising two individuals appointed by the State Ports Authority, two by the Georgia Ports Authority and one each by the governors of South Carolina and Georgia. It also states that the capital obligations of the two joint-venture partners in regard to planning the Jasper port are to be determined by a majority vote of its board.

The Jasper port provisos sought to change this by setting the condition that two of the three South Carolina board members must vote in the affirmative in order for the State Ports Authority to meet its financial obligations. This disrespect for the rule of law is stunning. Never before has the General Assembly, through legislation, tried to amend the terms of any contract between two parties, let alone one that has previously been incorporated by it as part of permanent law.

The bi-state agreement provides that any amendment must be in writing and signed by the parties. Accordingly, enacting the provisos into law would arguably constitute a material breach of the bi-state contract. That would trigger default remedies, one of which is the Georgia Department of Transportation's right to repurchase the Jasper port site.

Proponents of the provisos argued that they were necessary to protect the Port of Charleston from competition from the Port of Savannah, that the Georgia Ports Authority's attempt to deepen the Savannah River from the mouth of the river to its Garden City terminal would somehow be facilitated unless the Joint Project Office governance structure was amended to give the State Ports Authority control.

That's completely false. The Joint Project Office is already prohibited by law from speaking on South Carolina's behalf on matters pertaining to the proposed deepening of the Savannah River. Moreover, the bi-state agreement clearly states that the cost of dredging the Savannah River and disposing of the spoil is solely a Georgia obligation, unless the legislatures in the two states agree otherwise in an interstate compact. All the Joint Project Office does, and all it is has ever done, is plan for the new Jasper port.

I support the Port of Charleston, and I was one of the first to advocate the General Assembly set aside $300 million in general funds to cover both the state's and the federal government's share of the projected cost of deepening its harbor. And I was outraged when the state Department of Health and Environmental Control green-lighted the Georgia Ports Authority's plan to dredge the Savannah River without properly considering the negative economic and environmental impacts to South Carolina.

But to cripple the prospects of a Jasper port in a fit of anger over that DHEC dereliction is unjustified and unfair -- and illegal to boot. At some point, the Port of Charleston's container capacity will be exhausted, and future generations of South Carolinians will be well served by today's planning for the Jasper port.

The budget provisos would have negatively impacted that planning, and that's why the vast majority of state senators -- including the majority of those representing individuals in the vicinity of the Port of Charleston -- rejected them.

Tom Davis represents Beaufort County in the state Senate. His e-mail address is tom@senatortomdavis.com.

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