South Carolina’s House just passed Bill 229 out of committee. It removes the right for a citizen lawsuit over environmental contamination, especially coal ash, under South Carolina law. The bill’s language is here — sponsors are getting a beating in The State. For Democratic candidates in South Carolina, this should be a winner.
Defenders claim the bill merely places significant barriers in the way of citizen lawsuits. Defenders of the bill claim the obstructions are just valid intermediate points. But what the law says is:
SECTION 1. It is the intent of the General Assembly that no private right of action exists under the Pollution Control Act, as contained in Chapter 1, Title 48. Except as set forth in Section 48-1-90(A)(4), no claim or cause of action alleging a violation of the act may be filed in a court or administrative tribunal by any person other than the department or an agency, commission, department, or political subdivision of the State on or after June 6, 2012.
Funny — that doesn’t seem to be a jog in the path; that seems to be a “do not pass go sign”. It gets worse.
The complainant must file a petition to the state agency for a determination that a specific, applicable regulation is applicable to a proposed or existing discharge. So, the complainant has to tell the agency which regulation applies. Oh, and by the way, the petition must name the person proposing or committing the discharge. I can see one or two slap back lawsuits in response to petitions.
If, by chance, you do get the petition absolutely correct, the agency gets to make an internal determination whether there is something to pursue. And if the agency decides not to act, you can petition the Administrative Law Court. The bill ties this up nicely by its final provision:
Notwithstanding the administrative remedy provided for in this section, no private cause of action is created by or exists under this chapter."
This bill was covered by The State on Wednesday. As The State noted (Lucas is the South Carolina House Speaker Jay Lucas):
Lucas, a Darlington-area resident whose region of the state includes coal ash ponds, was unavailable for comment Wednesday and state Rep. Jenny Horne, who voted for the bill, refused comment.