South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Opinion: Don’t limit a citizen’s ability to challenge government
March 17th, 2015

BY ALEX SANDERS

State Senator Greg Hembree, R-Horry, has introduced S. 165, legislation which would eliminate the “automatic stay,” an important measure that allows citizens to challenge a governmental issued permit and prevent irreversible damage while the courts consider the merits of their objection.

Our government tries to make the best decisions for the health and welfare of its citizens, but sometimes it fails, and when it does, citizens have always had the ability to challenge those decisions by exercising their right to a hearing. If they choose to protest a government action as improperly authorized, the “automatic stay” provision prevents construction from taking place until the Administrative Law Court has heard all of the facts and analyzed the situation to make sure that an agency decision is well-founded and that a proposed project complies with state laws designed to protect our air and water quality, our beaches, rivers, and natural habitats.

Because of the “automatic stay” provision in our law, much serious harm has been prevented. For example, on Johns Island, our beloved Angel Oak, now a 42-acre Charleston park, might be no more if lawyers for concerned citizens had not been able to use the “automatic stay.” Developers were planning high density apartment buildings and commercial businesses, including big box stores, on the land surrounding the Angel Oak. They planned to fill 5 1/2 acres of wetlands, but citizens challenged the ill-advised wetland fill permits. The “automatic stay” kept the developer from moving forward with construction, cutting down acres of surrounding trees, filling wetlands, and probably dooming the magnificent Angel Oak. The delay allowed citizens the time to put together a settlement that resulted in the entire 42-acre tract surrounding the Angel Oak to be preserved in perpetuity, so that future generations can continue to wonder at this breathtaking and ancient live oak tree.

Register | Manage Newsletters In another case, a group of citizens in Laurens County contested a permit authorizing a new landfill in Gray Court, a small, rural community. At the time, Laurens County generated less than 20,000 tons of waste annually and already had 241,000 tons of existing capacity. The new landfill would have added 154,000 tons of new capacity in a county that had more than 10 times the capacity it needed to dispose of its waste. The citizens challenged the Department of Health and Environmental Control permit, and the “automatic stay” prevented the landfill company from constructing the new landfill before the Court held a hearing. The Supreme Court ultimately agreed that this landfill was not needed and overturned the permit. Thankfully the landfill had not been constructed, due to the “automatic stay,” and Gray Court and Lake Martin, where the landfill was proposed, are now protected from unneeded and unwanted out-of-state waste. I could give you many other examples of how this important and valuable “automatic stay” has been used to prevent damage.

The proposed legislation will eliminate a critically important means that citizens have to challenge unwise and often illegal government actions that benefit the few at the expense of the many. Nothing less is at stake than the ability of a citizen to challenge the government, which is the essence of the American democracy

Alex Sanders, a founder of the Charleston School of Law, has served in the S.C. House and Senate, as a state judge and as president of the College of Charleston.

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