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Senate Continues to Stall on Pollution Control Act Fix

May 24, 2012
Senate Continues to Stall on Pollution Control Act Fix

Senate continues to stall on Pollution Control Act fix

With only seven legislative days remaining, the Senate continues to stall on passing H.4654, the Pollution Control Act fix that would correct the South Carolina Supreme Court’s ruling in the Smith Land Company case. Under the Smith Land Company ruling, any emission or discharge into the environment now requires a permit, even if one does not exist. Additionally, the ruling creates a private right of action for citizens and citizens groups to sue a person or company deemed in “violation” of the Pollution Control Act (PCA), opening the door for a tidal wave of lawsuits.

In the Smith Land Company case, less than 2/10 of an acre of an isolated wetland was filled after a landowner contacted the U.S. Army Corps of Engineers and DHEC. Neither agency required a permit to fill the isolated wetland, so the landowner did not acquire one. The Supreme Court held that a permit from DHEC was required, not because a regulatory program covered it, but because the PCA contains what the court interpreted as an absolute prohibition of any discharge into the environment without a permit.

The South Carolina Chamber of Commerce and its allies have urged the General Assembly to approve H.4654, calling it one of the top economic development priorities of the legislative session. While the House passed H.4654 in March, if the Senate doesn’t act soon, the legislation will not pass this year, putting South Carolina at a competitive disadvantage with neighboring states. North Carolina and Georgia do not have this court-imposed private right of action or unlimited numbers of permits for discharges into the environment.

If the Senate sets H.4654 for Special Order, it will bypass senators currently objecting to the legislation. H.4654 would restore more than 60 years of balance and precedent and protect businesses from regulatory uncertainty.

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