Legislators are poised to derail a 2011 S.C. Supreme Court decision that gave extra protection to wetlands and made it easier for the public to sue alleged polluters under state law.
A compromise bill, approved Wednesday by the Senate, preserves a handful of existing lawsuits by citizens’ groups, including one against dredging the port of Savannah and another over discharges of toxic arsenic into the Wateree River near Columbia.
But the legislation won’t allow future citizens’ lawsuits for violation of the state’s pollution control law, nor will it require the S.C. Department of Health and Environmental Control to establish a permitting program for potentially hundreds of thousands of acres of isolated wetlands not now protected by federal law.
Instead, the bill sets up a 13-member study committee to examine wetlands issues in South Carolina. The committee would have to complete reports to the Legislature by January and July of 2013. It also says citizens must file legal action with DHEC to determine if someone is contaminating the environment without a permit – rather than take the polluter directly to court under the pollution control law.
Environmentalists said the public and the landscape will lose important protections, but the compromise was the best they could hope for given the push by big business for the legislation.
“The environment got a bad deal out of this,’’ said Amy Armstrong, a Pawleys Island lawyer who won the July 2011 Supreme Court case that increased protections for isolated wetlands and strengthened the public’s right to file suit.
The compromise bill is expected to receive approval in the House before going to Gov. Nikki Haley for her signature. Haley is outspoken in her opposition to regulation that slows business and industrial growth. The legislative session ends next week.
Many legislators have expressed worries about the Supreme Court ruling’s impact on businesses and on the average citizen, who some said might need permits to fill even mud puddles. Environmentalists said the Supreme Court decision provided protections for rare, freshwater wetlands called Carolina bays and helped regular people sue suspected violators. Business representatives said they were more concerned about an increase in lawsuits. Most of the citizens’ suits pending were filed after the Supreme Court decision.
“Restoring regulatory certainty so we could recruit new industry and expand industry in South Carolina, that was a key,’’ said Darrell Scott, a lobbyist for the state Chamber of Commerce. “Number two, it was about protecting businesses from frivolous lawsuits.’’
In its ruling last summer, the Supreme Court clarified the public’s right to sue for enforcement of state environmental laws, much like citizens can do when agencies don’t enforce federal laws. The ruling also said a landowner at Litchfield Beach needed a permit under South Carolina law to fill part of an isolated Carolina bay, even though the state had no such permitting program. That meant DHEC likely would have had to establish a program.
