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Current Status Bill Number:View additional legislative information at the LPITS web site.4098 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19990513 Primary Sponsor:J.H. Neal All Sponsors:J.H. Neal Drafted Document Number:l:\council\bills\psd\7279ac99.doc Residing Body:House Current Committee:Agriculture, Natural Resources and Environmental Affairs Com 20 HANR Subject:Environmental Bill of Rights Act, Conservation, Health and Environmental Control History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ House 19990513 Introduced, read first time, 20 HANR referred to Committee Versions of This Bill
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 121 TO TITLE 44 SO AS TO ENACT THE ENVIRONMENTAL BILL OF RIGHTS ACT; TO AUTHORIZE A CIVIL ACTION FOR DECLARATORY OR EQUITABLE RELIEF BROUGHT IN THE NAME OF THE STATE FOR THE PROTECTION OF AIR, WATER, LAND, AND OTHER NATURAL RESOURCES; TO PROVIDE EXCEPTIONS AND PROCEDURES; AND TO AUTHORIZE A CIVIL ACTION FOR DECLARATORY OR EQUITABLE RELIEF AGAINST THE STATE CHALLENGING ENVIRONMENTAL QUALITY STANDARDS PROMULGATED OR ISSUED BY THE STATE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 44 of the 1976 Code is amended by adding:
Section 44-121-5. This chapter may be cited as the 'Environmental Bill of Rights Act'.
Section 44-121-10. The General Assembly finds that each person is entitled by right to the protection, preservation, and enhancement of air, water, land, and other natural resources located within this State and that each person has the responsibility to contribute to the protection, preservation, and enhancement of these natural resources. The General Assembly further declares its policy to create and maintain within the State conditions under which human beings and nature can exist in productive harmony in order that present and future generations may enjoy clean air and water, productive land, and other natural resources with which this State has been endowed. Accordingly, it is in the public interest to provide an adequate civil remedy to protect air, water, land, and other natural resources located within the State from pollution, impairment, or destruction.
Section 44-121-15. As used in this chapter:
(1) 'Natural resources' include, but are not limited to, all mineral, animal, botanical, air, water, land, timber, soil, quietude, recreational, and historical resources. Scenic and aesthetic resources are also considered natural resources when owned by a governmental unit or agency;
(2) 'Nonresident individual' means a natural person or the personal representative of the natural person, who is not domiciled or residing in the State when suit is commenced;
(3) 'Person' means a natural person, a state, municipality or other governmental or political subdivision or other public agency or instrumentality, a public or private corporation, a partnership, firm, association, or other organization, a receiver, trustee, assignee, agent, or other legal representative of any of these;
(4) 'Pollution, impairment, or destruction' is conduct by a person which violates or is likely to violate an environmental quality standard, limitation, regulation, order, license, stipulation agreement, or permit of the State or any instrumentality, agency, or political subdivision of the State which was promulgated or issued before the date the alleged violation occurred or is likely to occur or conduct which materially adversely affects or is likely to materially adversely affect the environment; however, 'pollution, impairment, or destruction' does not include conduct which violates or is likely to violate a standard, limitation, regulation, order, license, stipulation agreement, or permit solely because of the introduction of an odor into the air.
Section 44-121-20. (A) A person residing within the State, the attorney general, a political subdivision of the State, an instrumentality or agency of the State or of a political subdivision of the State, or a partnership, corporation, association, organization, or other entity having shareholders, members, partners, or employees residing within the State may maintain a civil action in the circuit court for declaratory or equitable relief in the name of the State of South Carolina against a person for the protection of the air, water, land, and other natural resources located within the State, whether publicly or privately owned, from pollution, impairment, or destruction. However, no action may be brought for acts taken by a person on land leased or owned by that person pursuant to a permit or license issued by the owner of the land to that person which do not and cannot reasonably be expected to pollute, impair, or destroy any other air, water, land, or other natural resources located within the State; further, no action may be brought for conduct taken by a person pursuant to an environmental quality standard, limitation, regulation, order, license, stipulation agreement, or permit issued by the Department of Health and Environmental Control or another state agency. An action brought under this section includes, but is not limited to, an action to obtain the environmental compliance history and the opportunity to respond publicly to the environmental compliance history of an applicant seeking a permit for an activity that may cause pollution to or impairment or destruction of any natural resource if this information has not been timely provided upon request to the state agency from whom the applicant is seeking the permit.
(B) Within seven days after commencing an action under subsection (A), the plaintiff shall cause a copy of the summons and complaint to be served upon the attorney general and the Department of Health and Environmental Control. Within twenty-one days after commencing the action, the plaintiff shall cause written notice of the action to be published in a newspaper in the county in which the suit was commenced, the date of filing, the act or acts complained of, and the declaratory or equitable relief requested. The court may order additional notice to interested persons as it may consider just and equitable.
(C) In an action maintained under this section, the attorney general may intervene as a matter of right and may appoint outside counsel where as a result of intervention the attorney general may represent conflicting or adverse interests. Other interested parties may be permitted to intervene on such terms as the court may consider just and equitable in order to effectuate the purposes and policies set forth in this chapter.
(D) An action maintained under this section may be brought in any county in which one or more of the defendants reside when the action is begun or in which the cause of action or some part of the cause of action arose or in which the conduct which has or is likely to cause the pollution, impairment, or destruction occurred. If none of the defendants resides or is found in the State, the action may be begun and tried in any county the plaintiff designates. A corporation, other than railroad companies, telephone companies, telegraph companies, and all other public service corporations, is considered to be residing in any county wherein it has an office, resident agency, or business place. The above enumerated public service corporations are considered to be residing in any county wherein the cause of action arises or in which the conduct which has or is likely to cause pollution, impairment, or destruction occurred and wherein any part of its railroad or telegraph or telephone lines or any other public service corporation extends, without regard to whether the corporation or company has an office, agent, or business place in the county.
(E) If an action maintained under this section results in a judgment that a defendant has not violated an environmental quality standard, limitation, regulation, order, license, stipulation agreement, or permit promulgated or issued by the Department of Health and Environmental Control or any other state agency, the judgment does not in any way estop the agency from relitigating any or all of the same issues with the same or another defendant unless in the prior action the agency was initially or by intervention a party. If the action results in a judgment that the defendant has violated an environmental quality standard, limitation, regulation, order, license, stipulation agreement, or permit promulgated or issued by the Department of Health and Environmental Control or any other state agency, the judgment is res judicata in favor of the agency in an action the agency may bring against the same defendant.
Section 44-121-25. (A) In an action maintained under Section 44-121-20, where the subject of the action is conduct governed by an environmental quality standard, limitation, regulation, order, license, stipulation agreement, or permit promulgated or issued by the Department of Health and Environmental Control or any other state agency, if the plaintiff shall have made a prima facie showing that the conduct of the defendant violates or is likely to violate the environmental quality standard, limitation, regulation, order, license, stipulation agreement, or permit, the defendant may rebut the prima facie showing by the submission of evidence to the contrary; however, if the environmental quality standards, limitations, regulations, orders, licenses, stipulation agreements, or permits of any two or more state agencies are inconsistent, the most stringent controls.
(B) In any other action maintained under Section 44-121-20, if the plaintiff shall have made a prima facie showing that the conduct of the defendant has or is likely to cause the pollution, impairment, or destruction of the air, water, land, or other natural resources located within the State, the defendant may rebut the prima facie showing by the submission of evidence to the contrary. The defendant also may show by way of an affirmative defense that there is no feasible and prudent alternative and the conduct at issue is consistent with and reasonably required for promotion of the public health, safety, and welfare in light of the state's paramount concern for the protection of its air, water, land, and other natural resources from pollution, impairment, or destruction. Economic considerations do not constitute a defense under this section.
Section 44-121-30. The court may appoint a referee, who must be a disinterested person, to take testimony and make a report to the court in any action brought under this chapter.
Section 44-121-35. If the court has reasonable grounds to doubt the plaintiff's ability to pay judgment for costs and disbursements which may be rendered against the plaintiff in an action brought under Section 44-121-20, the court may order the plaintiff to post a bond or cash not to exceed five hundred dollars to serve as security for the judgment.
Section 44-121-40. The court may grant declaratory relief or temporary and permanent equitable relief or may impose conditions upon a party as are necessary or appropriate to protect the air, water, land, or other natural resources located within the State from pollution, impairment, or destruction. If the court grants temporary equitable relief, it may require the plaintiff to post a bond sufficient to indemnify the defendant for damages suffered because of the temporary relief, if permanent relief is not granted.
Section 44-121-45. (A) A person residing within the State, the attorney general, a political subdivision of the State, an instrumentality or agency of the State or of a political subdivision of the State, or a partnership, corporation, association, organization, or other legal entity having shareholders, members, partners, or employees residing within the State may maintain a civil action in the circuit court for declaratory or equitable relief against the State or an agency or instrumentality of the State where the nature of the action is a challenge to an environmental quality standard, limitation, regulation, order, license, stipulation agreement, or permit promulgated or issued by the State or an agency or instrumentality of the State.
(B) In an action maintained under this section the plaintiff has the burden of proving that the environmental quality standard, limitation, regulation, order, license, stipulation agreement, or permit is inadequate to protect the air, water, land, or other natural resources located within the State from pollution, impairment, or destruction. The plaintiff has the burden of proving the existence of material evidence showing the inadequacy of the environmental quality standard, limitation, regulation, order, license, stipulation agreement, or permit.
(C) In an action maintained under this section a person residing within the State, the attorney general, a political subdivision of the State, an instrumentality or agency of the State or of a political subdivision of the State, or a partnership, corporation, association, organization, or other legal entity having shareholders, members, partners, or employees residing within the State may intervene as a party, if that person makes timely application to the circuit court to intervene.
(D) An action maintained under this section must be brought in the county in which is located the principal office of the state agency or instrumentality that promulgated the regulation or standard or issued the order or permit which is the subject of the action.
Section 44-121-50. (A) As to any cause of action arising under this chapter, the court may exercise personal jurisdiction over a foreign corporation or a nonresident individual in the same manner as if it were a domestic corporation or the individual were a resident of this State. This section applies if, in person or through an agent, the foreign corporation or nonresident individual:
(1) commits or threatens to commit an act in the State which would impair, pollute, or destroy the air, water, land, or other natural resources located within the State; or
(2) commits or threatens to commit an act outside the State which would impair, pollute, or destroy the air, water, land, or other natural resources located within the State.
(B) The service of process on a person who is subject to the jurisdiction of the courts of this State, as provided in this section, may be made by personally serving the summons upon the defendant outside this State with the same effect as though the summons had been personally served within this State.
(C) Only causes of action arising from acts enumerated or referenced in subsection (A) may be asserted against a defendant in an action in which jurisdiction over the defendant is based upon this section.
(D) Nothing contained in this section limits or affects the right to serve any process in any other manner now or hereafter provided by law or the South Carolina rules of civil procedure.
Section 44-121-55. No existing civil or criminal remedy for any wrongful action may be excluded or impaired by this chapter. The rights and remedies provided in this chapter are in addition to any administrative, regulatory, statutory, or common law rights and remedies now or hereafter available."
SECTION 2. This act takes effect upon approval by the Governor.
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