Conservation Wins: 2016 Legislative Year in Review
Wow. What a Year it’s been! The short story is that in 2016 conservation WON at the State House. We PASSED hard fought legislation to protect South Carolina from coal ash and irresponsible shoreline development. We BLOCKED bad bills that would put South Carolinians at risk and take away our rights to hold polluters accountable. We were strong, we held our ground, and proved that conservationists in South Carolina are a force to be reckoned with. Of course, this success was all because of the collaborative, productive work of all of the Conservation Coalition partners.
Please stay tuned as we update our Conservation Scorecard this summer, which tracks all of these good (and bad) votes! That way you can see how your elected officials are representing you at the State House.
Regulatory Rollbacks: Protecting Citizens’ Rights to a Clean Environment
For the fourth Year in a row, the Conservation Coalition has stopped attempts to rollback regulatory and legal protections for citizens impacted by illegal pollution.
Together, we blocked:
- S.165/H.5090 – elimination of the Automatic Stay
- S.229/H.4640 – Polluter Amnesty (elimination of past right of action under the PCA)
- S.228/H.3370 – elimination of DHEC Board Review of permit appeals
- S.1062/H.5093 – Industry Immunity from Nuisance Suits
Coalition partners Sierra Club and SC Environmental Law Project introduced the following two bills together this Year:
- Environmental Bill of Rights (H.4984) – Introduced by Rep. Neal and others, this Joint Resolution in the House Judiciary Committee will put a referendum on the ballot in November to allow citizens’ to vote on amending the State Constitution to grant standing for individuals to conserve and protect the environment. It also grants authority to local governments to enact environmental regulations more protective than state law.
- Citizens’ Environmental Property Rights (H.4985) – Introduced by Rep. Neal and others, this bill in the House Agriculture and Natural Resources Committee will require an applicant who applies for a permit, license, or other DHEC action which may give rise to a contested case to provide personal notice to all adjacent, adjoining, and affected landowners. It also prevents trespassing for surveying on private property without express consent and reinforces the need for public notice and due process for requests to use public trust property.
Automatic Stay
The Automatic Stay is an Administrative Procedures Act provision that ensures that affected persons have an opportunity to an administrative hearing before contested construction activity proceeds. The “stay” allows the Administrative Law Court to assess the facts and law and determine whether the permit was properly authorized by the agency. The “stay” avoids irreparable harm to an affected party or place before that harm occurs. “Stays” are useful to businesses like landfills, hospitals and also local governments, homeowners associations, and individuals by ensuring that an agency decision is well-founded before permanent construction occurs.
S.165 (Sens. Hembree, Turner, Bennett, and Massey) and H.4011 (Reps. Hardwick, Goldfinch, Clemmons, and Crawford) would allow projects to be built while environmental permits are under administrative review by limiting the stay to only 30 days, allowing development to proceed prior to a hearing and likely eliminating the ability to secure meaningful relief.
S.165 passed out of the Senate Judiciary Committee after contentious hearings and debate. Sen. Hutto offered a friendly amendment in committee that effectively nullified the intent of the proposed legislation bill; and it passed out unanimously. With the help of friends like Sens. Hutto, McElveen and Johnson, we avoided a vote on the Senate floor.
Polluter Amnesty (PCA)
S.229 (Campbell and Turner) would amend the Savings Clause of the Pollution Control Act to preserve only pending actions and suits, with no protection of rights, liabilities and duties to sue for cleanup of past, unpermitted pollution. The bill violates the PCA compromise that was agreed to by all parties in 2012; and equates to issuing an unconstitutional amnesty for past, unpermitted pollution. In short, this bill is yet another attempt to give polluters immunity, while taking away citizens’ rights to protect themselves, their families, and their property from illegal pollution.
After contentious debate on the Senate floor in 2015, we agreed to a compromise amendment introduced by Senator Brad Hutto. The friendly amendment lessened the scope of the Savings Clause but retained the cause of action for past pollution caused by toxics as defined by EPA, coal ash pollution, and hazardous pollution from waste sites like Pinewood and Barnwell. It ultimately passed the Senate. a special thanks goes to Sen. Hutto, Sheheen, Courson, Johnson, Scott, and McElveen for their help.
In a 2015 House Judiciary Committee meeting, the Manufacturer’s Alliance and State Ports Authority derailed S.229 by amending it to remove the toxics language (from Sen. Hutto’s amendment that passed the Senate) and to insert language from S.228 that would eliminate DHEC Board Review of permit appeals. In the resulting confusion, Representatives Thayer and Brannon worked with us to clarify the impact of the insertion and to temporarily stop the progress of the botched bill.
Near the end of session in 2016, S.229 was revived in the House Judiciary Committee with the support of Speaker Jay Lucas and Chairman Greg Delleney. Led by Rep. Stephen Goldfinch, with intense partisan pressure, the bill unfortunately passed out of committee 13-10, stripped of most of the Senate compromise language and retaining only language related to Pinewood and Barnwell hazardous waste sites. Thank you to our champions on the Committee who fought against the amended bill: Rep. Doug Brannon, Weston Newton, Walton McLeod, James Smith, Todd Rutherford, Beth Bernstein, and Mandy Powers Norrell.
We ultimately killed the bill by avoiding a House floor vote because of strong bipartisan support.
DHEC Board Review
By sending appeals straight to the Administrative Law Court (ALC),S.228 (Campbell) would significantly increase legal expenses for everyone and reduce the DHEC Board’s accountability.
In 2015, S.228 passed out of the Senate Medical Affairs Committee with an amendment. We avoided a Senate floor vote with Senators Sheheen, Lourie, Jackson, and Johnson objecting to the bill. We then stopped an attempt to add the bill as an amendment to S.229 in both 2015 and 2016.
Nuisance Suits
Early in 2016, Senator Campbell, Rep. Forrester, and others introduced companion bills that would give industry immunity from nuisance claims. If S.1062 or H.5093 had passed, no “existing industrial facility” could be sued for nuisance because of any “changed conditions” in the existing facility. This could include anything from increasing the size of a landfill to changing the kind of “waste” it accepts (i.e. human sewage, coal ash, etc.). The resulting “changed condition” could increase the odors, noise, dust, traffic, emissions, and discharges leaving neighbors with no redress.
Luckily, both bills were swiftly stopped in subcommittee hearings in both the House and Senate by the Conservation Coalition and our partners. We expect the Manufacturers Alliance to introduce a similar bill in 2017.
Fighting Coal Ash
We passed the Coal Ash Disposal Bill (S.1061/H.4857) with the active help of the Pickens County delegation. Coal ash is a dangerous waste product of coal-fired power plants containing toxic arsenic and lead that can cause breathing problems and contaminate groundwater, lakes, and streams— threatening the health of our families and the environment. An out of state waste company tried to dump tons of coal ash in a Pickens County landfill intended for construction waste like stumps and old cement. Representative Davey Hiott (House Agriculture & Natural Resources Committee Chair), Senator Larry Martin (Senate Judiciary Chair), Representative Gary Clary, and Representative Neal Collins responded to citizen concerns about coal ash pollution and introduced bills to prohibit coal ash from class 2 landfills and require disposal in safer class 3 landfills. Their colleagues responded quickly: the Senate version (S.1061) was ultimately adopted with unanimous support in both chambers.
Historic Protections for our Shoreline
After almost a decade of work, DHEC’s Blue Ribbon Committee (BRC) on Shoreline Management’s recommendations were finally drafted into state law in the last week of the legislative session. Most importantly, attempts by developers to sabotage the bill for their own gain were decisively defeated Year after Year, improving the chances that the fragile sands of Captain Sam’s Spit will not be developed.
Among other things, the passage of S.139 will establish a permanent baseline. Instead of allowing the building line on the front beach to move seaward, as has been the case for 25 Years — allowing houses to be built during temporary accretion cycles — the line will be permanently set in 2017. This means construction along our coast will never be able to move closer to the ocean. This not only protects our beaches from erosion, it also protects our communities from the repercussions of irresponsible construction projects.
This is a big win for our state and our conservation coalition partners. The Post and Courier commends the Legislature for passing this important update to South Carolina’s beachfront management program. We are grateful for Representatives Bill Herbkersman, Peter McCoy, Kirkman Finlay, James Smith, Leon Stavrinakis, Russell Ott, Doug Brannon, and Weston Newton for leading these efforts in the House – as well as Senators Ray Cleary, Marlon Kimpson, Chip Campsen, John Courson, Thomas McElveen, and John Matthews who led on this issue in the Senate. These legislators stood up for our state, and we thank them for their hard work!
Land Protection
The South Carolina Conservation Bank
We successfully gathered a supermajority of co-sponsors to Rep. Bingham’s Conservation Bank reauthorization bill, H.4945 that mirrored Senator Campsen’s bill (S.519). These companion bills would have eliminated the sunset provision, improved the death clause, and increased funding by .05 cents (as recommended by the Wetlands Task Force). Neither received a hearing, but we expect that they will be re-introduced next Year. We will need a strong grassroots campaign to pass them before the Bank authorization expires in 2018.
2016 Budget Conference Committee negotiators settled on a $15M funding level for the Conservation Bank (CB) for FY 2016-2017. The House had originally authorized a $10M funding level which was amended upward in the Senate to $20M, so the negotiators split the difference. Also included in the Conference Report were two Senate-sponsored budget provisos that diverted $3M from the Bank to DNR. The first proviso would transfer $2M to DNR to be used for a 1 for 3 match in federal funds under the Pittman-Robertson Federal Aid in Wildlife Restoration Act which could result in $6M available to DNR wildlife habitat restoration. The second proviso redirected $1M of CB funding to DNR for use in matching federal funding under the National America Wetlands Conservation Act (NAWCA). When all is said and done, the Conservation Bank will have a net of $12M available for awards in the upcoming fiscal Year. Work will continue this Year on how to address public access questions and address the financial needs of DNR’s wildlife management areas.
Lake Conestee Nature Park
After about two Years of pursuing recognition of Lake Conestee Nature Park as a “Wildlife Sanctuary” in state statutes (like Beidler Forest and numerous other properties around the state) our friends at the Conestee Foundation successfully passed H.4743, introduced by Representatives Eric Bedingfield and Chandra Dillard. This is long overdue and we are happy to see the Park get this recognition.
Waste
Bottle Bill
The theme of this Year’s international FIRST LEGO league competition was Trash Trek. The Lego robotics team from Clover’s Oakridge Middle School, “The Diplomats,” advocated for the “South Carolina Beverage Container Recycling Act” (H.5207) as introduced by Representatives Tommy Pope and James Smith. This bill will allow local jurisdictions to implement a bottle deposit program to incentivize recycling with the help of the Department of Revenue and DHEC.
The Diplomats testified in support of the bill in the House Agriculture and Natural Resources Committee. Unfortunately, the bill was introduced too late for passage. We hope to reintroduce the bill next Year.
Lead Wheel Weights
“The Hyperbolics” Lego robotics team from the Sterling School/Charles Townes Center in Greenville took on the task of getting rid of lead-based wheel weights, which can fall off tires, degrade, and travel in stormwater runoff to our waterways.
Students started off with a public awareness campaign, website, and video. The Hyperbolics then met with the Greenville Legislative Delegation. They also landed the support of the Automotive Maintenance and Repair Association, Motorist Assurance Program, and Plombco, a major manufacturer of wheel weights, who put out endorsements and a press release supporting the legislation.
Representative Bruce Bannister, Senators Turner and Shealy and the Greenville delegation introduced H.5141 and S.1231. Although introduced too late for passage, these bills will be reintroduced.
Plastic Bags
Led by Speaker Lucas, legislators in the House introduced legislation (H.4793) to “ban” plastic bag bans. This bill targeted local governments, despite SC being a “home rule” state, and sought to prevent towns and cities from enacting their own local waste-reduction solutions, including banning plastic bags.
Some municipalities, including Isle of Palms, have already taken steps to reduce plastic waste on our beaches. Thankfully, the Coalition swiftly rallied grassroots support against the bill, discouraging even a subcommittee hearing from being held.
Water
Dam Safety Reform
In the wake of historic flooding and dam failures in October 2015, the Conservation Coalition worked with the House in 2016 to improve dam safety regulations. Speaker Lucas stated in a State article that “It appeared that dams were not being regulated or classified correctly. We just really wanted to take a look at how we were doing things and see if there was a way to do it better.”
The Coalition supported DHEC’s dam safety reform bill (H.4565) by bringing experts on dam safety and dam removal to subcommittee hearings and answering questions about the bill. In an extremely disappointing turn of events, Members of the House Agriculture and Natural Resources Committee worked to weaken the existing law rather than strengthen it, eventually killing it under its own weight. We hope to address concerns in new legislation next Year and were pleased that the existing dam safety program was fully funded this Year.