By Matt Tomsic
mtomsic@scbiznews.com
Published April 18, 2012

The Army Corps of Engineers is arguing a lawsuit filed by environmental groups should be dismissed, in part, because of proposed South Carolina legislation that would affect the groups’ ability to sue.

The Army Corps of Engineers Savannah District made the argument in a motion to dismiss the lawsuit, which was brought by the Savannah Riverkeeper, the Coastal Conservation League and the S.C. Wildlife Federation. Attorneys from the Southern Environmental Law Center are representing the environmental groups.

In its motion, the Army Corps argues the groups lack standing to sue and their claims are speculative.

The corps also cited pending legislation — H. 4654 — as a reason to dismiss the lawsuit.

The S.C. bill specifies that the Pollution Control Act does not create a private cause of action. In their complaint, the environmental groups argued a 2011 case provides a private right of action to enforce the Pollution Control Act. That case, the groups argue, is one justification for their ability to file the lawsuit.

H.4654 passed the South Carolina House 85-22 on March 22 and was introduced in the Senate, where it was referred to a committee and reported from that committee with amendments on April 12. The bill is still in the Senate and hasn’t been voted on by the full body.

“Review at this time is also inappropriate because the nature of the permit requirement that may apply at the time the discharges will be made is also uncertain,” Army Corps attorneys wrote in their motion to dismiss. “As discussed above, legislation has been introduced in the South Carolina Legislature that would modify the permit requirements of the Pollution Control Act.”

The corps will not make any discharges for another year, according to the filing, and the applicable permit requirements will be those in effect at the time of the discharges.

State Sen. Larry Grooms, R-Berkeley, stressed the bill is still pending, and the Army Corps has to follow current law.

“It seems ridiculous that the corps of engineers would cite a proposal as if it’s state law as reasoning that the lawsuit should be dismissed,” Grooms said. “They’re really grasping at straws.”

Grooms said the bill is still in the committee, where it can be amended more. Once it hits the Senate floor, it could face more changes.

The Senate has 22 legislative days remaining, Grooms said, and still has to pass a budget.

“Any bills that are not on the floor being debated are in danger of not passing,” Grooms said. “Our two-year session is drawing to a close, and it’s still nothing but a proposal.”

The Army Corps filed its motion to dismiss more than two months after the Southern Environmental Law Center filed its lawsuit, which argues the Army Corps failed to get a pollution control permit from South Carolina for its project to deepen the Savannah River.

Since then, the lawsuit has moved from Jasper County court to federal court.

“This project cannot proceed until and unless the corps obtains a South Carolina Pollution Control Act permit that guarantees the right of citizens to review the proposal and reduce its serious impacts on the Savannah River,” said Chris DeScherer, senior attorney for Southern Environmental Law Center, in a news release when the lawsuit was filed. “The federal government cannot ignore South Carolina’s process to protect the health of the state’s natural resources and its residents against the risks and harm of deepening.”