HORRY COUNTY, SC (WMBF) - The appeals process that allows environmental groups to stall road projects while they're being debated could change with bills proposed in the South Carolina House and Senate.
Senator Greg Hembree, (R) Horry and Dillon Counties, filed a bill in the Senate in 2015 that would essentially require environmental groups to prove their case in order to postpone a road project. Otherwise, construction could go forward. Right now, they have to file a letter and pay a filing fee to get a road project stalled.
An automatic stay is then put on projects within the administrative law court appeals process.
"This is their nuclear weapon," Senator Hembree said.
Senator Hembree said his bill, along with a similar bill in the House, aims to weed out groundless claims before the appeals process wastes taxpayer money by holding up projects.
"31 is one that got held up and I've been told that that ended up costing taxpayers nearly $20 million in addition," he said.
However, South Carolina Environmental Law Project Executive Director Amy Armstrong said she thinks moving forward on potentially illegal projects before they've been fully vetted in the appeals process could be harmful to the environment.
"Once you've cut down the swamp and filled it in, you can't bring those trees back and create wetlands," Armstrong said.
She said an automatic stay helped in the case of the Angel Oak Tree in Charleston.
"If development had proceeded around Angel Oak, we wouldn't have been able to negotiate a settlement," she said. "We wouldn't have been able to secure protection for the forest that surrounds the Angel Oak."
The bills would give petitioners a 30-day automatic stay then they would have to prove why the stay should continue.
Armstrong said she doesn't think it would be fair to have to prove a case before it can be fully investigated.
"It would allow illegal decisions, illegal activities to proceed and leave citizens powerless to do anything about illegal construction activity," she said.
She also said defendants have the option as current policies stand to try to get a stay lifted.
"The court has been very willing to lift the stay and that's why I have a lot of hesitancy about having any confidence that we'd be able to get the court to impose the stay because the Administrative Law Court has favored lifting the automatic stay," Armstrong said.
However, Stan Barnett, an attorney for Horry County, said he doesn't think that's the case because it's difficult to prove negative effects from a stay being in place and also prove there will be no irreversible effects from a project moving forward. He said the way the statute is currently written, it is predisposed for the stay to be upheld.
The difficulty in getting a stay to be lifted is why Horry County hasn't filed to lift the stay in the International Drive case, Barnett said.
Barnett said the standard in other courts is for the challengers to offer evidence for a stay to be put in place to start with rather than the stay happening automatically.
Hembree's bill would also allow judges to add a bond for petitioners to pay for irreparable harm if they want a stay.
"They've got to get some skin in the game," he said. "They've got to show why this permit should be held up and they've got to get some sort of good faith, evidentiary basis to do that."
Armstrong said a compromise was made several years ago over a similar bill. That compromise ended up maintaining automatic stay.
Hembree said the compromise isn't working, otherwise his bill wouldn't be necessary.
Hembree said Sen. Vincent Sheheen, (D) Chesterfield, Kershaw and Lancaster Counties, is currently blocking his bill in the Senate. The bill in the House is still in the judiciary committee.
"I'm in it for the long haul," Hembree said, of the possibility of the bill failing this legislative session. "We'll just file the bill in January. We'll pre-file it in December and we'll start this fight all over again."
"Due process rights say you can challenge a decision, you can challenge government action and you have the right to have a hearing and the automatic stay allows time for that hearing to occur," Armstrong said.
The attorneys in the International Drive case have until May to turn in their proposed orders, which will say what they think the judge's order should be. The judge will then have as much time as he needs to issue his decision.