Home Builders scored a huge victory last week in Columbia. Legislation (H.4654) to restore the integrity of the Pollution Control Act in the wake of the Supreme Court ruling in the Smith Land Company case received final approval in the House and Senate this week. The bill was signed into law by the Governor on Wednesday, June 6th.
Under the Smith Land Company opinion, the Supreme Court held that a permit from the S.C. Department of Health and Environmental Control was required on any discharge into the environment under the state’s Pollution Control Act. Further, the Court held that a private right of action exists that would allow any citizen to sue an alleged violator under the Act. Both of these interpretations are a significant change in the implementation of the Pollution Control Act and would have posed uncertainty in the regulatory process, cause significant harm to SC’s economic development efforts, and expose business and industry to environmental litigation.
A controversial move by environmentalists (from Julian Barton’s Legislative Report)
Several environmental groups were a party to the compromise that resulted in the Smith Land Company bill that passed. Just as the bill was passing the SC House, the Southern Alliance for Clean Energy, the Waccamaw River Keeper, and the SC Coastal Conservation League filed a lawsuit against Santee Cooper in violation of the compromise language in the bill.
It was clear that the environmental community once again did not live up to their word! The 11th hour sneak attack was not appreciated by legislators who had worked hard to craft a solution. The environmentalists unrelenting attack on coal fired electric plants in South Carolina continues unabated. South Carolina is moving from being energy independent to energy dependent!
by Julian Barton, Director of Government Affairs
Home Builders Association of South Carolina
Late last summer the SC Supreme Court handed down a decision that sent shock waves through the development community in the SC League of Women Voters vs. Smith Land Company case. Under the Supreme Court’s Smith Land Company opinion many citizens may be in violation of the Pollution Control Act (PCA) and now every other citizen has the right to sue them, even though the case does not directly impact them.
The decision nullified sixty years of case law with two liberal interpretations of the law:
1. Zero Tolerance: The Court ruled that any discharge into the environment must have a permit – this case involved filling in .19 acre of wetlands on a .33 acre lot that was not required by state or federal law to have a permit. Based on this decision, any emission into the environment must have a permit. To meet the courts new direction, DHEC alone will need to double or triple their permitting departments!
2. Encourages Lawsuits: The Court also ruled that anyone could have “standing” in a case, and they did not have to be directly impacted by the case. In the past the individual filing the lawsuit had to be directly impacted to file suit. This now opens the door for a flood of litigation from every activist group in the state. Don’t like a Walmart in your city, don’t like electric generation plant, don’t like a business that is building on the water, then the new strategy is to bury them in lawsuits! The SC Supreme Court has set back economic development in our state by ten years!
If this case is allowed to stand, economic development in this state could come to a grinding halt as anti-economic development groups sue every business that wants to come to the state. Companies will locate in less litigious states! The court has given a big advantage to our competitors, Georgia and North Carolina, with this decision!
Senator Harvey Peeler and Representative Nelson Hardwick are expected to introduce legislation next week to reverse the onerous and dangerous SC Supreme Court decision. Passage of this bill will be a top priority for the business community this session!