If the Savannah River dredging permit debacle tells us anything, it is that we can't depend on state officials alone to watch out for our interests.
Gov. Nikki Haley and the state Department of Health and Environmental Control let us down when DHEC worked out a weak agreement to pave the way for a water quality permit to dredge the Savannah River for more than 30 miles to Georgia's Savannah port.
Now lawmakers, who were so upset over the Georgia port permit that they unanimously passed a joint resolution to try to undo it, are moving ahead with a bill that would take away an important tool from private groups seeking to right an environmental wrong.
That tool is the ability to bring a lawsuit under the state's Pollution Control Act. A House bill would prevent private parties from suing for violations under the law.
The Southern Environmental Center has filed a lawsuit claiming that the U.S. Army Corps of Engineers needs a permit under that law, as well as a water quality permit, before it can go ahead with the project to deepen the river.
The lawsuit, filed on behalf of the Savannah Riverkeeper, the S.C. Coastal Conservation League and the S.C. Wildlife Federation, claims the Corps' plan to dump dredge spoil on the South Carolina side of the river (specifically the proposed site of the Jasper County deep-water port) requires a pollution permit. The groups contend the material to be dredged, by the Corps' own admission, contains potentially toxic material, including cadmium.
They make a good point, and one that should have come from DHEC, but did not. DHEC's staff, after initially turning down the water quality permit, and the agency's board turned their efforts to coming up with a way to grant the permit after Haley asked them to reconsider. The Pollution Control Act didn't come up in that debate.
The move to prevent private lawsuits under the act was a result of a state Supreme Court decision last summer. The court ruled in a lawsuit filed by the Georgetown County League of Women Voters, objecting to the filling of isolated freshwater wetlands, that a private person or group can bring a lawsuit if they see violations of the law.
Other lawsuits that could be affected by the change in the law seek to limit cruise ships in Charleston; stop arsenic pollution from a coal plant near Congaree National Park; and fix groundwater contamination in Myrtle Beach around the old AVX industrial site, The (Columbia) State newspaper reports.
Lawmakers must recognize the irony of their trying to stop lawsuits aimed at protecting South Carolina's resources even as they take the highly unusual step of trying to undo an agency decision on an environmental permit.
Their frustration with DHEC's giving a green light to a project that would potentially damage critical environmental resources and put at a major disadvantage, if not stop entirely, a port project on the South Carolina side of the river is palpable. They also see it as a strike against the Charleston port and its own harbor-deepening plans.
The House ratified the resolution this past week. Haley has said she would veto it; we expect lawmakers to override her veto.
Legislative action to overturn an agency decision is not the way to resolve this. In addition to the lawsuit citing the Pollution Control Act, the state's Savannah River Maritime Commission and the Southern Environmental Law Center have filed legal challenges against the water quality permit.
State Sen. Tom Davis says the resolution, which sets out the Maritime Commission's authority over dredging and navigation issues affecting the Savannah River, could be used to drive home to the courts the role the legislature intended for the Maritime Commission.
The commission was shut out of the debate over the water quality permit, and it should not have been. The permit conditions also didn't address the potential harm from the material to be dredged, and they didn't address whether more suitable alternatives to dredging dozens of miles up the river had been explored. Developing the Jasper port would be such an alternative.
South Carolinians need the safeguards offered by the ability to file a lawsuit under the Pollution Control Act when state officials fail to do their duty. The state's high court has said such suits can be brought. The courts can sort out frivolous or unwarranted suits.
As in the Savannah River dredging case, lawmakers may find they need the help some day.