South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

S.C. Congressman introduces 'Loser Pays' bill targeting Clean Water Act lawsuits
March 6th, 2017

By Charmaine Little

A bill from South Carolina Congressman Tim Rice has stirred up controversy as it would amend the Clean Water Act (CWA) and make special interest groups think twice before they take action against infrastructure projects.

Rice aims to change the CWA, as well as keep special interest groups like environmental organizations accountable if they file unsuccessful lawsuits that could hold up construction projects for years at a time, with The Discouraging Frivolous Lawsuits Act. The act has been nicknamed the “Loser Pays” bill. This comes amid several lawsuits against the paving of International Drive in South Carolina.

Rice told WBTW that while it is a small project, he has concern that the same could go into play for others on a more major scale like, construction on Interstate 73. He said he is waiting for many special interest groups to come in at the 11th hour with lawsuits that could put the project on pause.

The South Carolina Environmental Law Project has been vocal about the bill that it believes has the potential to get rid of the CWA.

“He repeals protection that exists in the Clean Water Act. This would in effect expose municipal water supplies, such as drinking water, fishing areas, and wildlife areas to contamination,” Staff Attorney Amelia Thompson told Legal Newsline.

“Right now under the CWA you’re going to have some protection to keep disposal sites from impacting those types of water and [Rice] would take away those protections. To me, that’s something that’s not really talked about and it’s a really important section of the bill. The overall the impact of this bill is to make it so that people won’t bring any kinds of claims to protect their rights to clean water."

Another portion of the bill that is a concern to the group is the “loser pays” portion. Thompson added that courts have always had the power to make the losing party pay, but Rice’s bill would make it mandatory if passed.

“This is problematic in a lot of ways," Thompson said. "Sometimes people bring lawsuits that are a bit risky. That’s because the law is not certain in every area. That’s just the way that common law develops over time. This would really discourage anybody from taking on a case unless they had a 100 percent chance of winning, which is ridiculous because you never have that certainty.”

Some sections of the bill also state that parties would not be able to reach a settlement agreement, which could discourage amicable outcomes as well as take away state rights when it comes to “frivolous lawsuits.”

Thompson said, “Every state has their own laws preventing [frivolous lawsuits]. This doesn’t change the state laws and frivolous lawsuits have for a very long time been against the law. Attorneys take them very seriously to the extent that I’ve heard this [bill] wouldn’t do anything to impact it.”

The Discouraging Frivolous Lawsuits Act was referred to a House committee and has roughly 30 co-sponsors.

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