Pollution act change shouldn't become law

Efforts to stop the Savannah River dredging project may save a key pollution-fighting tool -- private citizens' right to sue under South Carolina's Pollution Control Act.

But the right to sue to prevent or stop pollution shouldn't rely on a single issue, as important as it might be. South Carolinians need this "backstop," as one attorney described it, to ensure that valuable resources are protected, especially when state officials let us down.

That certainly was the case with the water quality permit issued by the state Department of Health and Environmental Control for the Savannah River project.

The Southern Environmental Law Center has filed a lawsuit claiming that the U.S. Army Corps of Engineers needs a permit under the Pollution Control Act, 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.

State Sens. Tom Davis of Beaufort and Chip Campsen of Charleston joined Senate Democrats earlier this month to block the Senate's taking up the bill -- already passed by the House -- that would prevent private lawsuits under the Pollution Control Act.

Davis and Campsen said they did so because the law would be retroactive, which they said was unconstitutional, and because it would "undermine a currently viable means by which the state of South Carolina could contest the Georgia Ports Authority's Savannah Harbor Expansion Project -- a project that now calls for dumping dredged waste on the Jasper port site until the year 2060 (thus rendering that economic project stillborn) and inflicting irreversible environmental damage on the Savannah River and the surrounding ecosystem."

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.

In its answer to the legal challenge over the pollution permit, the Corps is citing the pending bill. But the Corps is getting ahead of the lawmaking process with that defense. It also said it would be premature to seek a permit now when the work wouldn't start for another year and has said it could proceed with the dredging work even without a water quality permit from South Carolina.

Davis and Campsen said their concerns would be addressed if the retroactive language in the bill was deleted.

But that doesn't solve the bill's fundamental problem: This is a bad idea that weakens the state's environmental protections, and it's unnecessary. The courts can sort out frivolous or unwarranted suits. People's right to sue should not be abridged.