For the past five years, the ports authorities for Georgia and South Carolina, on a joint venture basis, have been planning the development of a new port on the Savannah River in Jasper County. Good progress has been made, and a new multi-billion economic engine for the Lowcountry is on track. Yes, it will take time, but it is happening. And not everyone is happy about that.
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 SCSPA, in violation of the joint venture agreement. Gov. Haley correctly vetoed those provisos and the SC 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 South Carolina State Ports Authority and the Georgia Ports Authority that lays out how the Jasper port will be planned. This bi-state contract has previously been incorporated into permanent law by the South Carolina 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, or JPO) comprised of two individuals appointed by the SCSPA, two by the GPA 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 amend this method of governance by conditioning the SCSPA’s payment of its financial obligations on two of the three South Carolina members of the board voting in the affirmative. This disrespect for the rule of law is stunning. Never before has the General Assembly, through legislation, tried amend the terms of any contract voluntarily entered into 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 thereto must be in writing and signed by the contracting parties. Accordingly, if the provisos were enacted into law, such would arguably constitute a material breach of the bi-state contract that triggered default remedies, one of which is a right of repurchase of the Jasper port site by the Georgia Department of Transportation.
Proponents of the provisos argued that they were necessary to protect the Port of Charleston from competition by the Port of Savannah – that the GPA’s attempt to deepen the Savannah River from the mouth of the river to its Garden City terminal would somehow be facilitated unless the JPO’s governance structure was amended to provide the SCSPA with control.
That’s completely false. The JPO is already prohibited by existing state law from speaking on South Carolina’s behalf in regard to matters pertaining to the GPA’s proposed deepening of the Savannah River. Moreover, the bi-state agreement clearly states 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.
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 that harbor. And I was outraged when the South Carolina Department of Health and Environmental Control green-lighted the GPA’s plan to deepen the Savannah River to its Garden City terminal 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 by the JPO for the Jasper port.
The 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.