By: Jimmy Gray, Director of Government Affairs

South Carolinians have grown accustom to waiting years, sometimes decades, for infrastructure projects to become a reality. The timeline from when a new road concept is designed to when the first car drives on the fresh asphalt is long, complex and redundant. It doesn’t have to be this way. We can balance growth and new infrastructure projects with protecting precious natural resources in a timely manner. This past Spring, the South Carolina General Assembly and Governor McMaster did just that by passing S 105 into law. This legislation, known as “automatic stay reform,” will help pave the way for new infrastructure projects to move forward in a timely fashion, while giving appropriate legal consideration to environmental concerns.

The legislation was sponsored by two of our own: Senator Luke Rankin and Representative Russell Fry. These Horry County legislators had a front seat in the years-long legal battle over International Drive. They were motivated to take action, making sure that future projects weren’t unnecessarily held up as long as International Drive.

By challenging a permit issued by a state agency, an individual, a non-profit or any group can halt any project (called an automatic stay) without showing any proof. If a group wants to delay anything, all they would need to do is file an action with the Administrative Law Court declaring their opposition to the permit. Any and all construction on the permitted project is delayed until the legal challenges are heard, which could take some time. Administrative Law Courts are busy, busy places, and often it can take upwards to a year or longer before a judge rules on the merits. These long delays not only make the process more complex, but often times more expensive.

The new law sets a 90-day limit for the Administrative Law Court judge to rule on whether the stay should remain in effect or construction can proceed. Further, an equally as important, the new law mandates that those challenging the permit prove their own case. Until the law was changed this spring, those challenging a permit had to prove absolutely nothing. The burden of proof was actually on the permit holder to show why they should have the permit in the first place. 

Opponents have said that the new reforms to the automatic stay process will not give enough time for considering environmental concerns. The new 90-day limit for consideration is far more generous towards these types of stays than our neighboring states. North Carolina state law doesn’t allow for these types of stays to be issued in general. In Georgia and Alabama, a judge has 30 days to consider a stay levied by an infrastructure project opponent. Prior to the passage of these reforms in South Carolina, judges had unlimited time to consider these stays. The average time it took for a decision was 288 days. The new 90-day limit strikes the right balance between getting a legal decision in a timely fashion and giving serious consideration to legitimate concerns.

This modernization will not only prevent obstructionists from holding important infrastructure projects hostage for an undefined period of time, but it will also pave the way for economic development in our state. Some of the largest employers in South Carolina: Boeing, the SC Ports Authority and Volvo have all been involved in cases that were impacted by the threat of an automatic stay which could have put a halt to SC job creation.

The reforms will also help further protect South Carolina taxpayer dollars. In 2015, the South Carolina Department of Commerce, a state agency, paid an environmental group $5 million in exchange for an agreement not to challenge a permit for a project related to important job creation in our state. There have been multiple instances of this involving several different employers in our state. Job creators know that environmental groups have the power to easily halt any economic development project, so they’ve begun directly negotiating with the groups and state agencies to prevent legal battles that will take years.  The previous undefined time period related to automatic stay proceedings was used as a bargaining chip for certain environmental groups to raise money from the state or directly from private employers.

Senator Luke Rankin, Representative Russell Fry and Governor McMaster took that bargaining chip off the table for these groups by getting this legislation across the finish line. Serious environmental concerns deserve to be heard in a court of law, but there’s no reason it should take longer than three months to receive full and fair consideration. This new law establishes an appropriate balance between preserving our environment, protecting taxpayer dollars and growing our economy: a win-win-win for South Carolina.