H 4102 Session 111 (1995-1996)
H 4102 General Bill, By J.H. Neal, Canty, Cobb-Hunter and Scott
A 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.
04/12/95 House Introduced and read first time HJ-48
04/12/95 House Referred to Committee on Judiciary HJ-48
A 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:
"Chapter 121
Environmental Bill of Rights
Section 44-121-05. 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.
-----XX----- |