February 9, 2012

Lawmakers might block Savannah port suit

South Carolina will hurt its chances of stopping Savannah’s hotly disputed harbor dredging project if state legislators prevent citizens from suing accused polluters, lawmakers were told Wednesday.

A bill to stop certain types of lawsuits, approved by a House subcommittee, is supported by major business groups and legislators worried about additional liability from lawsuits against companies and property owners. The legislation says people can’t sue under state law for enforcement of South Carolina’s pollution control act.

But if given final approval, the legislation would also make it difficult to continue with a lawsuit filed by environmentalists last week against the Savannah project, opponents of the bill said.

“The current bill will gut the lawsuit,” environmental lawyer Frank Holleman said in written comments to the House committee.

The legislation could affect three other so-called “citizen” lawsuits filed since a 2011 state Supreme Court ruling solidified the rights of people to sue to enforce South Carolina’s pollution control law. Those cases involve suits to: limit cruise ships in Charleston; stop arsenic pollution from a coal plant near Congaree National Park southeast of Columbia; and remedy groundwater contamination in Myrtle Beach around the old AVX industrial site.

Whether the bill could pass the legislature is questionable, since 2012 is both an election year and the second year of the session, when most new bills are harder to get through. But opponents say the language could be attached to an existing bill, which could provide an easier path.

The Savannah dredging issue is a sore spot with scores of politicians, business people and environmentalists, who are in rare agreement on the Georgia port project. They are upset because the S.C. Department of Health and Environmental Control approved environmental permits that allowed the long-studied project to move ahead.

Business interests say the approval puts Savannah ahead of Charleston in the race to attract bigger ships to port. Environmentalists say the dredging will have devastating ecological impacts to fragile marshes, water quality and endangered animals. DHEC changed its mind and approved the dredging after Republican Gov. Nikki Haley intervened on behalf of Georgia’s Republican Gov. Nathan Deal.

Rep. Nelson Hardwick, R-Horry, said there are enough weapons to fight the Georgia port project without the environmentalists’ lawsuit. In addition to the suit, environmentalists also have appealed a water quality permit issued by DHEC, and state legislators have passed resolutions condemning the DHEC dredging decision.

“There are other causes of action that they can take that make a lot more sense than just relying on us to just allow an unlimited amounts of lawsuits,” Hardwick said during a break in the meeting. He said the bill’s intent was “to prevent full employment for lawyers from going forward.”

Holleman said, however, the lawsuit is an important weapon against the Savannah dredging since DHEC has blessed the project. Holleman, an attorney with the Southern Environmental Law Center, said South Carolina can’t always depend on DHEC to protect the Palmetto State from pollution.

“We know DHEC won’t do it, since they have signed on to an agreement to certify the project,” Holleman said, noting that legislators who vote for the bill will “join the DHEC board in removing another hurdle to the Corps’ plans for the Savannah Harbor Expansion.”

Another concern about the Hardwick bill is its impact on wetlands. The Supreme Court stunned developers last summer when it said people wanting to fill isolated wetlands – which are not protected by the federal government – need a state permit. South Carolina laws provides limited wetlands protection in coastal areas, but the state has no direct permitting program. Isolated wetlands, which unlike river swamps and salt marshes are not connected directly to streams or the ocean, include rare, ecologically fragile Carolina bays.

Hardwick’s bill – which DHEC supports – says people don’t need environmental permits if the state doesn’t have a permitting program in existence now. That includes isolated wetlands.

Wednesday’s hearing was spiced by a testy exchange between Hardwick and environmental lawyer Amy Armstrong, who won the Supreme Court case on behalf of two Litchfield Beach residents upset about the filling of a section of a Carolina bay next to their home.

During a break in the meeting, Hardwick asked if Armstrong’s clients were suffering “mental anguish.” He asked Armstrong if “we could help them with counseling. I’ll make a contribution right now. I’m just wondering if they were damaged mentally.”

Armstrong, surrounded by lawyers for business interests who support Hardwick’s bill, replied that her clients’ property values were hurt by filling a portion of the 40-acre Carolina bay. She said Hardwick’s bill would put the remainder of the Carolina bay at risk of development because it would lessen state protection.

“That was unprofessional,” Armstrong said of Hardwick’s comments. “It’s not the way you treat other people. It surprises me that an elected official would talk to a citizen of the state in that manner.”

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