H 4317 Session 112 (1997-1998)
H 4317 General Bill, By J.H. Neal, Canty and Cobb-Hunter
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.
06/05/97 House Introduced and read first time HJ-83
06/05/97 House Referred to Committee on Agriculture, Natural
Resources and Environmental Affairs HJ-84
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.
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