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Environmental Law Program

Fall 2007 Student Environmental Law Scholarship

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Fall 2007 Environmental Law of South Carolina Papers

Reynolds Elliott, Green Building in South Carolina: An Overview and Issues to Consider Since the Enacting of H.3034
Sustainable construction or “green building” incorporates environmentally friendly materials and procedures into building projects which results in increased energy efficiency and better indoor air quality and reduces the harmful effects the built environment has on the natural environment. Since the explosion of green building in the United States, led by the United States Green Building Council and the Green Building Initiative, among others, many states have mandated state funded construction projects be certified by using a specified green building certification. South Carolina joined these states in the summer of 2007 by enacting H.3034, which mandates that all state funded new and renovated building projects of a certain size be built to LEED or Green Globes certification. Now that green building is law in South Carolina, there are several issues that need to be considered. This note addresses the issues and policy considerations that South Carolina faces since the enacting of H.3034. This note begins with a brief overview of green building, identification of the main organizations involved, and a summary of the states that have pioneered green building legislation. Next, this note focuses on green building in South Carolina with an analysis of newly enacted H.3034. Thirdly, this note discusses the broader issue of whether South Carolina should mandate green building at all or should they allow the private sector to take the lead. Next, this note discusses the role of cost-benefit analysis in determining environmental policy. Because cost-benefit analysis is often invoked in determining the viability of green building projects, this note finds it appropriate to discuss whether cost-benefit analysis or perhaps some other method is more effective in making environmental policy decisions. Finally, a suggestion on how to approach H. 3034 along with a suggestion of possible amendments and subsequent legislation concludes this note.

Marty Farrant, Perpetual Shortsightedness: Against Conservation Easements
Conservation easements have gained popularity in recent years as tools both for preserving property in a relatively natural state, and also as vehicles for significant tax deductions. Property owners who donate future development rights to a charitable land trust are rewarded with generous tax deductions. In exchange the public is guaranteed the land will remain in its current state in perpetuity. Many critics of conservation easements question both the value to taxpayers of the preservation rights “bought” with those forgone tax dollars, and the wisdom of perpetually restricting property development by contract.
This paper looks at the legal doctrines underpinning conservation easements and their accompanying tax incentives, and argues that as a method for promoting environmental conservation, these easements are contrary to numerous time-tested legal doctrines, and therefore likely to create serious legal headaches for subsequent generations.

Scott Forster, South Carolina's New Administrative Review Process and Its Affect on Environmental Permitting

Christopher Ryan Gohagan, Maintenance of Onsite Wastewater Treatment Systems in South Carolina: the Need for Regulation in the Absence of Stewardship
For many years rural homeowners in the United States have utilized onsite wastewater treatment systems to treat and dispose their domestic wastewater when municipal sewage services could not be extended to their homes. However, in recent years Americans have come to appreciate the very serious public health and environmental quality problems that can result from the discharge of improperly treated wastewater. In recognition of these hazards, many states have taken measures to ensure that onsite treatment systems are kept in working order by imposing regular maintenance requirements on owners of these systems. Despite the fact that South Carolinians are among the leading users of onsite wastewater treatment systems, South Carolina has not updated its regulations for these systems and, as of yet, the State has not imposed any formal requirements for maintenance and upkeep. The purposes of this paper are to stress the importance of conscientious maintenance of onsite systems and, more importantly, to encourage the State of South Carolina to enact formal maintenance requirements so that the people and natural resources of this state are not exposed to potentially hazardous wastewater.

Brad Hewett, The Adequacy of South Carolina’s Current Water Resources and Legislation: What Impact Will South Carolina’s Interbasin Transfers Have On Disputes With Neighboring States?
The adequacy of water resources is a controversial and increasingly significant topic in our society today, especially taking into account factors such as rapid population growth in areas of the southeastern region of the United States and ongoing drought conditions. South Carolina is fortunate enough to have an abundance of lakes and rivers in our State which normally supply more than adequate amounts of water to meet our State’s environmental, industrial, and domestic needs. However, recent droughts and conflicts over shared river basins with our neighboring states of Georgia and North Carolina have pressed this issued to the forefront and forced legislators and citizens alike to question whether our current water regulation and resources are sufficient to meet our State’s increasing needs. This paper’s purpose is to highlight the adequacy of our current water resources and surface water legislation and to emphasize the necessity of water conservation measures and resolutions between our bordering states. This paper also addresses South Carolina’s current litigation with North Carolina in the United States Supreme Court concerning the equitable apportionment of the Catawba River and how South Carolina’s current interbasin transfers may affect this matter as well as any future controversies that may arise between Georgia and South Carolina over each State’s use of the Savannah River Basin.

Joseph Johnson, Going Green: The Costs and Benefits of South Carolina Green Building Legislation
This paper focuses on the proposed law in South Carolina the Energy Independence and Sustainable Investment Act of 2007, and how its enactment will effect both the environmental policies in the state and the overall economy of South Carolina. The basic premise of the law is that the state will offer tax credits to any taxpayer who constructs a commercial building that meets certain environmental standards set by the state. The law also provides for an expedited permitting process under those same standards. First, the paper gives a background into green buildings, and concentrates on the green building certification ratings system known as Leadership in Energy and Environmental Design (LEED). Then there is an outline of the provisions of the law, and a discussion on how these provisions can relate to South Carolina. The resulting effects of the law are given a prospective cost/benefits analysis covering the environmental and economic concerns. Finally, there is a discussion on this law is comparable to other states’ laws, and how South Carolina is progressing in the green movement.

Malinda McAleer, Can Biofuels Solve the Problems of American Foreign Oil Dependence?
Today, the price of oil regularly pushes $100 per barrel. The United States’ ongoing entanglements in the Middle East implicate oil dependence. And the exhaust from automobiles, a conspicuous greenhouse gas contributor, represents one-third of emissions annually contributing to accelerated climate change. The Federal government and state governments have passed legislation aimed at curbing oil dependence. This article explores one of the proposed answers to oil dependence: biofuels. After briefly presenting federal and – using South Carolina as the example – state legislation that supports biofuels, this article evaluates America’s current effort to implement biofuels revealing several limitations. This article then considers Brazil’s biofuels program in an effort to find a route around these limitations. Based upon the foregoing evaluation, this article concludes by offering a modified approach to biofuels implementation that includes mandated utilization of the second-generation biofuels technology and state leadership of biofuels implementation.

Maggie Murdock, Environmental Defense v. Duke Energy Corporation: A Pyrrhic Victory for Environmentalists?
In Environmental Defense v. Duke Energy Corp., the U.S. Supreme Court upheld the EPA and Environmental Defense’s view that Duke Energy was required to receive a PSD permit before making extensive modifications to many of its coal-fired energy generating units. These modifications had resulted in an increase in the total output of emissions from the coal-fired electric generating units in question, but no increase in hourly output. This opinion was heavily based on the statutory interpretation of the word “modification” by both the district court and the appellate court. Although the decision was hailed as an environmental victory, the decision itself actually reinforces the EPA’s discretion in interpreting the provisions of the Clean Air Act. The Bush administration has been widely criticized for attempting to dismantle whatever progress the Clinton administration made in developing environmentally beneficial policies. Now that the EPA’s discretion has been reinforced by the Supreme Court, there are fewer barriers to prevent its adopting the less stringent hourly emissions test that Duke Energy supported in this case. In addition, the Supreme Court, although attempting to avoid a decision on the merits, arguably reached the merits of this challenge to the CAA amendments, thus violating, or at least stretching the boundaries of, the CAA’s jurisdictional statute that restricts challenges to EPA regulations to the D.C. Circuit within a certain time period. As a result of this broad opinion, the EPA’s discretion to interpret the CAA regulations to require the very hourly emissions test it opposed in Duke has been affirmed, thus taking the shine off the victory touted by the environmentalists.

Peter Nosal, Regulation of Urban Stormwater Runoff in South Carolina: An Integrated Approach
Storm water pollution from urbanized areas has recently become a serious national concern. The United States Environmental Protection Agency (EPA) promulgated regulations in 1990 and 1999 to address the issue. The purpose of the 1999 regulations was to control pollution associated with small Municipal Separate Storm Sewer Systems (MS4). However, those regulations have not been completely implemented on a national level because of lawsuits and other problems. The EPA has delegated authority to most states, including North and South Carolina, to issue National Pollutant Discharge Elimination System (NPDES) permits. NPDES permits are the method through which storm water pollution is controlled and regulated. The South Carolina Department of Health and Environmental Control (DHEC) is the state agency responsible for issuing NPDES permits and implementing the EPA’s storm water pollution regulations. DHEC recently reported that it has issued certificates of coverage under South Carolina’s general permit for all of the state’s more than 70 small MS4s. This paper outlines the NPDES program for stormwater pollution and compares South Carolina’s program to implement the EPA’s regulations with North Carolina’s program. The comparison shows that while South Carolina’s small MS4 requirements are substantially the same as North Carolina’s requirements, North Carolina has several statutes that already enforce provisions of the NPDES permit. South Carolina will, likely, struggle to enforce its general permit because it does not efficiently use state resources. South Carolina should follow North Carolina’s lead and integrate all of its storm water pollution programs and mandate that DHEC be the primary agency that enforces South Carolina’s environmental laws.

John Powell, Should South Carolina Enact the Uniform Environmental Covenants Act
The Uniform Environmental Covenants Act is a uniform act intended to ensure that environmental covenants used in connection with the remediation of contaminated property, (more specifically Brownfields) are enforced and utilized as intended so that society, the environment, and prior, current, and future property owners are protected. These contaminated properties are problems socially, environmentally, and economically, and it is in everyone’s best interest to have them remediated. As a result, Federal and State laws have created programs to help provide incentives to parties to remedy these Brownfields, which may include partial remediation of contaminated property. In so allowing, the state governments have been using restrictive covenants to restrict the use of property when only partial remediation is accomplished. Due to several common law principles, the remediation programs may be ineffectively encouraging redevelopment, while inadequately protecting the environment and society from contaminated property. This Paper will discuss the role that the Act is intended to have in the remediation of Brownfields in South Carolina in light of the current laws and programs in place in South Carolina.

Carrie Raines, Update on Environmental Trust Fund Transfers
This paper examines the General Assembly’s transfer of funds from environmental trust funds to the General Fund. Beginning in Fiscal Year 2000/2001 and continuing through Fiscal Year 2003/2004 the General Assembly transferred funds from environmental trust funds to the General Fund to buttress the Budget. After 2003/2004, the General Assembly began to replenish the funds that it had previously transferred to the General Fund. While this action was a step towards replenishing the environmental trust funds, the funds could be in danger in the future because they are not established as true trust funds. This paper concludes by recommending that the General Assembly change the law to establish the environmental trust funds as “true trust funds” that are not susceptible to the whims and needs of any particular fiscal year budget.

Robert R. Sansbury III, Water and Wastewater System Security: Is South Carolina Safe, What’s Being Done to Secure these Necessary Utilities?
The purpose of this student article is to evaluate the security of South Carolina’s water and wastewater systems in the wake of 9/11, with special attention as to how we should allocate our scarce resources, given that our water is already plagued by other, potentially more realistic threats than terrorists; namely disease and contamination. Water systems are attractive targets for terrorists because their disruption would not only prevent consumers from receiving clean drinking-water, but would also halt industry, the production of electricity, and, therefore, society as a whole. Even more frightening, as modern methods of security have evolved, so have methods of water-terrorism, which include the potential use of weapons of mass destruction. Nevertheless, when compared with the likelihood of accidental contamination and “local mischief”, the threat of water terrorism is negligible, and South Carolina would better protect its water infrastructure by focusing its resources on more likely threats.

James Skinner, Feasibility of Claims by Folly Beach Homeowners against United States Army Corp of Engineers
The purpose of this paper is to discuss the various issues surrounding possible causes of action by homeowners from Folly Beach against the United States Army Corps of Engineers. There are sections: introducing the history of the island and an outline of the erosion problem caused by the actions of the United States Army Corps of Engineers, a discussion of a possible cause of action that homeowners on Folly Beach could bring against the Army Corps of Engineers by virtue of a takings claim in the Federal Court of Claims, and possible defenses based on standing and statute of limitations issues, followed by a conclusion stating whether the claim would be viable.

W. Chris Swett, Politics, Money, and Radioactive Waste: the Savannah River Site Conundrum
As a result of fifty years of United States nuclear weapons production, the Savannah River Site in Aiken, South Carolina, houses approximately thirty-seven million gallons of high-level radioactive waste. The Department of Energy (DOE) has attempted to streamline the cleanup of its radioactive waste at defense waste storage facilities for more than a decade. However, DOE has consistently failed to achieve quicker, cheaper cleanups. In 1996, DOE promulgated DOE Order 435.1, granting DOE the authority to reclassify residual amounts of high-level radioactive waste as “incidental waste,” exempt from disposal at the national geologic repository. As a result, DOE planned to bury millions of curies of radioactivity in underground tanks at the Savannah River Site. In 2003, the United States District Court for the District of Idaho ruled that DOE did not have the authority to reclassify high-level radioactive waste or dispose of it anywhere other than the national repository. Ironically, Senator Lindsey Graham of South Carolina proposed “Graham Amendment 3170” to the National Defense Authorization Act for Fiscal Year 2005, which was incorporated into § 3116 of the Act. Section 3116 effectively reversed the district court’s ruling, granted DOE sole discretion to redefine high-level radioactive waste, and authorized DOE’s disposal of the waste at the Savannah River Site. This paper examines DOE’s record of waste management and discusses the problems that § 3116 creates. Furthermore, this paper explains why Congress must repeal § 3116 to protect public health and preserve the Savannah River.

Drew Walker, Electronic Waste in South Carolina: A Proposal for a Healthy Future
South Carolina has recently joined the fight to combat the fastest growing waste stream in the developed world. Electronic waste, coming in the form of common household items such as computers and televisions, raises environmental concern when disposed in landfills. Dangerous amounts of toxic lead can leach through the earth into the public groundwater. With the hundreds of millions of computers that are being stored and discarded across the world, legislatures have initiated response. The European Union, California, and a handful of other American states have passed recent legislation to combat e-waste. Though the need for electronics recycling and efficient product design is commonly recognized, the responsive legislation, however, has varied in theory and approach. In an attempt to assign responsibility, lawmakers have directed regulation towards consumers, governmental entities, and/or manufacturers. This paper will analyze the pending e-waste legislation within the South Carolina General Assembly and offer suggestions for the most effective solution.

Ginny Watson, Water Quality Trading in South Carolina: Will it Work in South Carolina?
South Carolina currently does not employ water quality trading to manage water pollution. However, the state is ready to accommodate the policies and administrative procedures of water quality trading. Furthermore, it is likely that a sufficient need for water quality trading will soon develop in South Carolina to aid in repairing impaired waterbodies and to allow continued growth in South Carolina. The optimal framework for a water quality trading program in South Carolina would be a hybrid of a statewide framework and watershed specific framework.
Water quality trading originates from the Federal Clean Water Act and is developed by the Environmental Protection Agency. It combines the principles of water quality standards, total maximum daily loads (TMDLs), watershed management systems, and national pollutant elimination system (NPDES) permits. A credit system is created based on this information for pollutant dischargers to share their mandated allocation limits in hopes that the overall water quality standards and designated uses of the watershed are maintained. South Carolina’s legal and regulatory mechanisms conform to the federal standard. Also, there are three major acute water pollution issues that indicate South Carolina would satisfy EPA’s factors to consider in establishing a water quality trading program.
If South Carolina did implement water quality trading, there are three possible legal frameworks. Florida, Virginia, and North Carolina are all Southeastern states that exemplify one of these frameworks. Florida is developing a statewide framework, Virginia already has a watershed specific framework, and North Carolina’s framework is largely independent from state organization. Given South Carolina’s mechanism and the character of its basins, a hybrid of Florida’s and Virginia’s framework is most appropriate for a water quality trading program in South Carolina.

David Williams, Inadequacies of The Global Nuclear Energy Partnership (GNEP) and The Effect on South Carolina: A Failed Approach to the Long Term Sustainability of the Nuclear Power Industry
The Global Nuclear Energy Partnership’s vision, to provide for the safe and extensive expansion of nuclear power worldwide while addressing nuclear weapons proliferation and waste management concerns, does just the opposite. First, expansion under GNEP is not safe.The expansion it allows would be heavily subsidized, and in the end it would distort the efficient marketplace for reliable, efficient energy sources. In essence, taxpayers would not only pay higher rates for their energy due to enormous up-front setup costs, but they would deprive themselves of possibly far better alternatives that are cheaper and better for the environment in which they live. Further, the expansion would not be extensive because GNEP adds little to no value to the current industry. With reprocessing and advanced reactors, GNEP will produce no more, if not less, energy while reducing the amount of storage space required for the waste little to none. Additionally, GNEP increases the likelihood of weapons proliferation as separated plutonium is more readily available. Finally, waste management concerns are not addressed. The program heavily depends on the development of Yucca Mountain, which likely will not take form any time soon. GNEP’s backbone is its reprocessing facility. Arguably, the most attractive site for this facility is the Savannah River Site (SRS). If the facility is licensed and begins accepting waste, such waste will likely remain there indefinitely. Therefore, the SRS will permanently house not only low-level radioactive waste, but high-level waste as well. In the wake of the political and legal nightmare faced by Nevada, South Carolina should increase their efforts now and learn from their previous mistakes.