WE FIXATE on winners and losers. That sometimes works in politics, but in court, it means we often misunderstand what decisions actually mean.
The headlines said South Carolina’s mega-farms got a big win in the state Supreme Court last week. And I suppose that’s true if by “win,” you mean “didn’t lose.” But not if by “win,” you mean “ended up in a better place than they started.”
In fact, given the precarious victory — two of the three justices who refused to overturn the law that gives mega-farms nearly unlimited use of our river water were retired justices filling in — it’s possible that the decision could send the law’s supporters looking for a way to shore it up against a future challenge. I said possible, not likely.
And it turns out the court’s opinion and the dissent, by their wildly different readings of what the state’s surface water act actually allows, could point lawmakers to some common ground. But I’m getting ahead of myself.
Let’s first consider what the court did not say: It did not say mega-farms are good for South Carolina. It did not say it’s a good idea to give them dibs on our water. It did not even say that our law is adequate to protect our water from overuse without court intervention. And it most certainly did not say that the state’s surface water act is fair to everyone else — or anyone else.
What the court did say was that since the plaintiffs’ use of the state’s rivers hasn’t been restricted yet, it was premature to claim that the Legislature unconstitutionally gave away the public’s right of access to the rivers. As the majority put it: “The ‘alleged injustice’ the plaintiffs seek to address in this case is that at some point in the future the State may fail to protect against currently nonexistent unreasonable uses of surface water, which in turn could become so severe that the State’s inaction amounts to a violation of its responsibilities to protect the public trust.”
The court also declared that although the water law does not specifically give people a right to sue if they ever suffer actual harm, they actually DO have that right.
That’s important to the plaintiffs, because it means they can go back to court if the mega-farms’ water use ever causes them actual harm. The rest of the ruling is important to the rest of us because it means the political battle over our water is not over. Instead, it simply returns to the place it always should have been settled: the Legislature.
It makes sense for our laws to acknowledge that farmers produce something that is more essential than, say, tire manufacturers. But I think lawmakers went too far with our water law, and they need to find a middle ground between “give mega-farms carte-blanche to do whatever they want with our public resources, in perpetuity” and “treat them exactly like manufacturers of non-essential goods.”
Most businesses must get permission from DHEC to withdraw more than three million gallons per month from our streams, rivers and lakes, in a process that considers “the anticipated effect” the withdrawal would have on fish, navigation, wildlife and recreation. But under the law passed in 2010, DHEC is required to approve farmers’ plans for withdrawals based almost entirely on a mathematical formula of river flow that critics say relies too heavily on averages.
The best way to find middle ground would be to abandon the idea of having different permitting processes for farms and for everyone else, and instead just set different standards that applicants have to meet, depending on whether they’re farms or not. But if lawmakers are too afraid of big-farm interests to do that, they could at least address the most problematic parts of the separate-and-unequal process. And the Supreme Court’s majority and minority opinions point to a good place to start.
The lawsuit argued that once a farm is “registered” to withdraw a certain amount of water, that registration is unalterable and irrevocable. Justice Kaye Hearn wrote in her dissent that this makes it impossible to reduce the authorized withdrawals even if water levels drop dramatically, noting that “While withdrawing four million gallons per month may have no harmful effects at the present, changing conditions in ten years may render that amount detrimental to a waterway.”
The majority insisted that the law provides the state ample leeway to reduce allowed withdrawals.
I’m not sure the law gives DHEC as much room as the majority suggests, but let’s assume it does. Surely no one would argue that we ought to allow the scenario that Justice Hearn describes. So what harm would there be in making it clear that DHEC has as much authority as the court says to reduce withdrawal allowances if conditions change? Or, for that matter, of making the farms come back every decade or two to get their approvals renewed?
That would still give farms more opportunity than I think they need to overuse our rivers. (It also wouldn’t address the separate and potentially larger problem of their unlimited use of our groundwater.) But at least it would give state officials the tools they need to protect our rivers from uses that are likely to harm the environment or human health. And who doesn’t want that?
Ms. Scoppe writes editorials and columns for The State. Reach her at email@example.com or (803) 771-8571 or follow her on Twitter or like her on Facebook @CindiScoppe.