|Pass SC Pollution Control Act Bill|
|May 17, 2016|
Pass SC Pollution Control Act Bill
The South Carolina General Assembly is winding down its 2016 legislative session and is tackling a number of issues important to the business community. One includes a major fix needed to the state’s Pollution Control Act (PCA).
Until 2012, the enforcement of the PCA to prevent illegal pollution without a permit was left to DHEC, and it was understood that if no permitting program existed, no permit was necessary. Then in 2012, the South Carolina Supreme Court, in a split 3-2 decision, created a new right to allow private citizens to sue under the PCA for any discharge or emission into the environment without government’s permission through a permit issued by DHEC. And this included discharges and emissions for which no permit existed, such as tailpipe emissions from vehicles for which no permitting program exists. A representative from DHEC stated in legislative hearings that under the Supreme Court’s ruling a DHEC permit could be necessary to exhale, and without the permit a person could be sued.
Legislation was proposed to restore the PCA to its original interpretation so that the government did not need to give a citizen permission for every activity. Since 1950, government enforcement of the PCA has protected against improper discharges into the environment. It has never needed private citizen participation, and in fact, the General Assembly delegated its enforcement authority to DHEC to ensure that there would be reasonable, scientific approaches to this important task.
The PCA was never intended to create a mechanism for extreme groups to delay and obstruct individuals and companies from pursuing their economic development. Instead, private citizens could use a variety of other tools to protect themselves from illegal and improper emissions and discharges, such as nuisance, negligence and trespass claims and citizen suits under other environmental laws regulating air, water and land disposal. The environmental groups gravitated to the PCA only recently because, in their words, bringing common law and other citizen suit claims are “harder to prove” because the PCA does not require any showing of injury or harm.
After a legislative compromise with the environmental community to restore common sense to the PCA and the interpretation that has existed for over 60 years, the environmental groups exposed a loophole that would allow them to sue for any unpermitted discharge prior to June 6, 2012, after agreeing that no more lawsuits would or could be brought after the legislation passed in 2014. In an effort to close the loophole and restore the original agreement, the current PCA bill was proposed.
The environmental community claims this bill will prevent people from suing for pollution; however, nothing in this legislation eliminates lawsuits for nuisance, negligence, or trespass or any of the myriad federal environmental statutes that permit private citizen actions. As proof, here in Columbia, the Congaree Riverkeeper has sued a local water utility under the federal Clean Water Act alleging illegal discharges and pollution of the river. The Riverkeeper did not even make a claim under the PCA. Likely the Riverkeeper’s failure to plead the PCA is because they did not think it was a legitimate remedy to their claimed damage, but instead is nothing but a weapon for obstruction and delay.
The litigious environmental community in South Carolina is not about protecting the environment but is rather about central planning, delay, disruption, impediments to progress, job destruction, and selfishness.
DHEC uses the PCA to protect our environment. It will act when it believes science and the need to safeguard the public’s interests require its intervention. The business community is simply asking the General Assembly to let DHEC do its job, allow the other tools and remedies remain for private citizens, and stop extremists from damaging our economy and our environment with their abuse of the PCA.
Lewis Gossett is the president and CEO of the South Carolina Manufacturers Alliance. Ted Pitts is president and CEO of the South Carolina Chamber of Commerce.