South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

SC Supreme Court Will Rehear Our Public Trust Case
Posted: August 4, 2017

On July 19, 2017, the S.C. Supreme Court decided our case challenging the Surface Water Withdrawal Act in favor of mega-farms. The opinion was controversial, with a 3-2 split among the justices and varying media coverage:

The Court said that people who own property on our waterways, and who fish, swim, kayak and recreate on these waterways, did not have the right to bring a challenge to the law which dramatically impacts their property rights and water uses. But the law has broader implications beyond the properties belonging to a handful of individuals.

The registration process of this law permanently grants massive amounts of water to large agricultural users without regard to public rights in the use of these waters. The dissenting Justices recognized the public trust give-away and yesterday, in an effort to highlight the public importance of this case, SCELP filed a petition for rehearing on the narrow issue of the public trust doctrine. Our claim is that the state has a special obligation to protect the rivers, lakes and streams for the use and benefit of all South Carolinians -- a rule of law that the majority of the Supreme Court failed to implement.

On September 29, the Court agreed to rehear the case. This is clearly a vital issue for both our environment and our democracy. Not only water is an increasingly stressed resource, but to quote Joseph Sax, a preeminent scholar on the topic, when special interests exert an undue influence on the public resource decisions of legislative and administrative bodies and cause those bodies to ignore broadly based public interests, particularly in our surface waters, the public trust doctrine serves to "promote equality of political power for a disorganized and diffuse majority by remanding appropriate cases to the legislature after public opinion has been aroused."

You can learn more about this case here.

Download available SWWA - Supreme Court Opinion

Download available SWWA - Petition for Rehearing