By: Samantha Page, Originally Published: 5.6.16, Source: Think Progress
For the past 65 years, if someone — or some company — was illegally polluting in South Carolina, you could sue. The law was put on the books so that if South Carolina’s enforcement agencies didn’t have the time, money, or political backing to go after a polluter, the average citizen could step in.
Now, with only a month left in its 2015-2016 session, the South Carolina legislature has picked up a bill that would do away with this ability.
“No one in the public of South Carolina is calling for the repeal of their rights to protect their communities and clean water,” Frank Holleman, a senior attorney at the Southern Environmental Law Center (SELC), told ThinkProgress in an email. “Instead, this is an example of the lobbyists for corporate polluters controlling politicians who will take away the rights of citizens in order to curry favor with major campaign contributors.”
Holleman understands what is at stake here perhaps more than most. In early 2012, SELC filed a suit on behalf of a local water protection group, the Catawba Riverkeeper, against South Carolina Electric & Gas (SCE&G) over coal ash pollution in the Wateree River, near Columbia.
Coal ash is a byproduct of coal-fired power plants. For decades, plant operators have dumped the toxic waste — which can contain heavy metals and carcinogenic chemicals — in unlined pits near waterways. That, in and of itself, is not illegal. But the pits have been tied to groundwater contamination and, in some cases, the companies have been found to dump the waste directly into the waterway, which is illegal. Coal ash is an ongoing environmental issue across much of the southeast.
By August, the parties in the SELC suit had reached an agreement: SCE&G would remove all the coal ash in its unlined pits, either recycling it or putting it in lined landfills.
In other words, the system worked. There was documented pollution. Citizens’ groups sued, and the pollution was addressed. The settlement eventually led to an across-the-board commitment from all of the utilities operating in South Carolina — even Duke Energy, which has fought coal ash clean up in neighboring North Carolina. (Two years after the settlement, a stormwater pipe would break at a coal ash storage pond along the Dan River in North Carolina, poisoning the water with 39,000 tons of waste.)
“It’s good to have citizens to concentrate resources and keep polluters in check,” Sam Perkins, riverkeeper at the Catawba Riverkeeper, told ThinkProgress. “We have seen arsenic numbers in the groundwater decreasing as result [of the SCE&G settlement].”
And there is very little downside to the process, Perkins said. “If we’re wrong and it is without merit, I think that will play out in the judicial process.”
Perkins’ group is urging South Carolinians to contact their representatives to oppose the bill, which had been languishing in committee for nearly a year before it passed the House Judiciary Committee this week. The state Senate has already passed the bill, which is expected to go to a House vote in the next couple weeks.
Senators Ross Turner and Paul Campbell, who sponsored the bill, did not respond Thursday to a request for comment.
“Of those that are for it, you will be hard pressed to find anyone who wants to talk about being for it. They don’t like it; they don’t want to be for it; they recognize the wisdom of our position,” State Rep. James Smith, who opposes the bill, told ThinkProgress. “Behind the scenes it appears that there are quite powerful forces behind it.”
The not-quite-unspoken message here is that utilities and other industrial interests are putting pressure on the legislature to pass the bill, which Smith called a “horrible backwards [idea] that will hopefully not become law.” And so far, industry seems to be winning.
In 2012, the legislature passed a law preventing citizens from suing to stop pollution if the polluting had occurred after June 6, 2012. Now, says Smith, the same interests are coming back for the rest of the pot.
“Most of the groundwater contamination and the pollution relating to coal ash is legacy pollution that occurred before that time period,” Smith told ThinkProgress. “When it’s discovered — which it can be discovered now, newly discovered — they can be forced to fix it.”
But it’s not just the legislature that can come under pressure from industry — a fact that exposes yet another reason the original law should stand, opponents of the bill say.
“Sometimes — shocking — state government and their agencies and heads might be under political pressure… not to do things,” Smith said.
Indeed, the state’s Department of Health and Environmental Control (DHEC), which is charged with environmental enforcement, has been tied to the utility industry. The agency head, Catherine Heigel, was a long-time lawyer for Duke Energy and was on the board of Santee Cooper, another power company, when she was appointed last year. Both companies have been subject to enforcement by the DHEC in the past.
But beyond the appearance of being a captured regulator — a regulator that’s too close to the industry it’s charged with keeping an eye on — DHEC has other problems. Its water monitoring budget has fallen by over 40 percent in the past decade, according to Columbia, S.C.-based newspaper The State.
Catawba Riverkeeper’s Perkins chalks up at least some of the state’s environmental enforcement failings to the agency’s lack of resources.
“Laws like these are important because, especially after the economic downturn, you had environmental agencies… that don’t have the adequate staff and resources,” Perkins said. “Sometimes things get really drawn out, especially where there isn’t enough staff to handle a situation.”