South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Automatic Stay Critically Wounded

On February 27, 2018, the S.C. House of Representatives voted 86-30 to pass Senate bill S.105, which further erodes protections for air, water, wetlands and wildlife habitats. Prior to the bill, the “automatic stay” acted to prevent environmental degradation from occurring until a judge determined whether the degradation was lawful. The new law readily allows a permit applicant to proceed with a harmful and polluting project before that lawfulness determination is made.

If this law had been in place when SCELP was representing the Coastal Conservation League and the Save the Angel Oak community group in challenging a high density development on the 42 acres surrounding the Angel Oak on Johns Island, that development would have been built. Trees would have been cut down, wetlands filled, and polluted stormwater drained into the adjacent Church Creek. Thankfully, the “automatic stay” prevented that degradation, and the Angel Oak and its environment are permanently protected for the benefit of all South Carolinians.

The “automatic stay” was previously weakened at the behest of polluters to allow projects to proceed upon a showing of either good cause or that no environmental degradation would occur. The table has now been turned against anyone trying to challenge a permit, requiring that citizens must prove and win their case at the forefront, without sufficient opportunity for discovery and case development, by meeting one of the most difficult legal hurdles that exists in our system: an injunction.

This bill effectively eliminates citizens’ constitutional due process rights to a hearing before their rights are affected. Our legislature has decided it is more important to allow development on Captain Sams Spit, sprawling suburban developments in wetlands, the new landfill to haul in out-of-state garbage, and the mining companies that want to move in next door than it is to protect the quality of our environment.

Download available Autostay Press Release