Court of Appeals Upholds Agreement to Protect Wetlands in Pawleys Island
On March 15, the S.C. Court of Appeals ruled that the plain language of a settlement agreement and consent order that says wetlands “shall” be preserved means that those wetlands must, in fact, be preserved. The Court of Appeals reversed the ruling from the Administrative Law Court (“ALC”), which affirmed the Department of Health and Environmental Control’s (“DHEC”) decision not to enforce the settlement agreement and order.
Relying on well and long-established rules and principles of contract law, the Court of Appeals remanded the case to the ALC to consider the propriety of the 2014 permit in light of the terms of the 2001 agreement and order.
This is an important victory for the rule of law and our wetlands, but it is also a reminder that a decision by the ALC is hardly ever the last word on DHEC environmental permits. Some ALC decisions are upheld by higher courts when challenged, others are overturned. In its 30-year history of forceful public interest advocacy SCELP has amassed a large collection of the latter, which bolster the case for the most stringent due process and legal precautions against the destruction of critical natural resources before a decision is final. Whereas a wrong judicial order can always be reversed and the relevant legal issue sent back to a lower court for reconsideration, most often filled wetlands cannot be unfilled, paved roads cannot be unpaved or extinct species cannot be resurrected.
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