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Environmental Law Program

Fall 2008 Student Environmental Law Scholarship

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Environmental Advocacy Seminar Paper Abstracts

Benjamin Baldwin, What's Downstream: The Changing Water Regulations of South Carolina
With increasing demand and from more sources on South Carolina’s surface water, the current regulation in place for surface water withdrawal is no longer adequate. Currently, South Carolina only requires reporting by surface water withdrawers of amounts. Now, however, there is legislation pending which would require permits to be issued which would allow the state to have control over uses of the diminishing supply of surface water. Because of the many interested parties involved, the legislation that is pending is somewhat a watered down version of what is perhaps needed by the state, however. With a look to some states in the region, North Carolina, Georgia, Florida, and Arkansas, South Carolina could borrow elements of water withdrawal regulation and put together a statute which would be incredibly forward thinking, but nearly any change would be better than what is currently in place in our state. Right now we’ll have to take what we can get.

Amanda June Bernard, Santee Cooper as a Publicly-Owned Utility
Santee Cooper, South Carolina’s public service authority is a publicly-owned utility with a unique relationship to the public. The Santee Cooper brought power and navigability across the state of South Carolina, and has since risen to provide power to over a million homes in the state. The accountability that the public has over the utility is minimal, however, and critics contend that the lack of accountability renders the public’s oversight over the future of power in South Carolina too minimal. As a consequence, those taking issue with the board of director’s decisions on such things as “need” and the choice of future construction are left to resort to federal laws in later stages of the process. This wastes precious judicial resources and time. With more accountability to the state or to the public in decision-making processes, much time and effort could be avoided, and compromises could be more easily reached.

Shilpi Chhotray, Mountaintop Removal: Effects on Human Health and the Environment
This paper will examine the detrimental effects of the extraction of coal by the practice of mountaintop removal in American Appalachia. First, the process of mountaintop removal will be presented in order to understand the extent of the devastation it brings to mountaintop removal sites. It will then discuss the effects of mountaintop removal on human health, the environment, and community well-being. The remainder of the paper will examine the Surface Mining Coal and Reclamation Act, the primary federal law regulating the effects of coal mining, as well as the major lawsuits challenging mountaintop removal. Finally, recommendations will be presented arguing for an end to mountaintop removal mining practices.

Kyle Clelland, A Criticism of the Public Trust Doctrine in South Carolina: Balancing Interests and Reevaluting the System
The State’s role as protector of the public trust is a particularly difficult one. In order to secure the goals of the public trust doctrine, the State must consider the interests of everyone. It has long been held that the concerns of property rights advocates and those of environmentalists were largely, mutually exclusive. However, through sound policy, the State may be able to strike an equitable balance which may in turn serve the interests of all.
While it appears that the early history of the public trust doctrine in South Carolina was marked by prudent and well reasoned deliberation, recent decisions by the State’s highest court indicate a derailing ofdeparture from these earlier applications. Although our courts operate under on the basis of the ever-evolving Common Law, shortsighted judicial reasoning should not go unchecked. The current state of affairs, both nationally and locally indicate that we need to seriously rethink the public trust doctrine. The stresses placed on the environment of South Carolina are greater than ever and the pressures of a volatile real estate market should encourage an honest reevaluation of the State’s current application of the public trust doctrine on South Carolina’s coastlines.

Harvey Cleveland, Water Conservation and Efficiency
This paper examines increasing water scarcity in the United States and South Carolina and conservation and efficiency measures that can be taken to ensure that water is not over consumed. The paper begins with an explanation of the major long term trends in United States population growth, industry growth, and increasing water consumption to frame the issue of increasing demand. Droughts and Climate Change are briefly discussed to show that a decrease in supply compounds the problem. After giving some reasons that traditional supply side solutions are problematic, an analysis of demand side solutions is given, and arguments for and against implementing these solutions in South Carolina are developed. Behavior modifying measures such as price increases and water restrictions are discussed, as well as efficiency measures such as leak detection and repair and the use of water saving technology. Lastly, the role of education in conservation is examined.

Colin Colverson, No More Shrimp for the Barbie: An Analysis of the South Carolina Shrimp Fishery, with a Proposal for its Future
This paper covers a possible need for developing and sustaining assistance mechanisms for transitioning unsustainable economic sectors into more sustainable employment fields. The paper begins with a detailed description of the current status of South Carolina’s commercial shrimp fisheries, from the sense of both an economic sector and an environmental impact analysis, then segways into a variety of policy proposals for the transitioning of these employees into different sectors. Specifically, this paper approaches the idea of whether South Carolina can or should assist its commercial shrimp fishing employees into more sustainable positions, such as low-impact aquaculture, recreational fishing employment, tourism, education, research, etc.

William Fortino, Environmental Whistleblowers
Environmental whistleblowers are a valuable source of information for the government to use when determining who is complying with its environmental laws. Whistleblower protections are crucial in enabling whistleblowers to report violations of the environmental law without fear of economic retaliation by their employers. South Carolina has three forms of protection available to environmental whistleblowers. Unfortunately, all three major forms of protection are each inadequate and flawed in their own respects and fail to provide the overall widespread protection environmental whistleblowers need in this state.
This paper discusses the background and history of whistleblower protections, some policy reasons for protecting whistleblowers and environmental whistleblowers, and analyzes all three of the major forms of protection available to environmental whistleblowers in South Carolina. This paper recommends a statutory model based on Louisiana’s whistleblower statute to address some of the most prevalent inadequacies in the current forms of protection.

Wesley E. Henderson, Annexation Authority in South Carolina
“[T]here is not a more controversial, legalistic, or emotional issue facing municipalities today than the process of annexation.” South Carolina’s annexation laws are criticized by some as being too restrictive and by others as being too lenient. In particular, current proposals include addressing the problem of shoestring annexations, remedying donut holes, improving public involvement, expanding standing to contest, among others. Underlying this debate are conflicts over the philosophy of government and fundamental beliefs regarding the role of government.
This paper analyses the arguments underlying the debate by focusing on the two competing theories: popular determination (favoring restrictive annexation laws, requiring consent from citizens before municipal annexation) and municipal determination (favoring less restrictive annexation laws, allowing city officials to make the determination).

Brian Hill, Lifting the Ban on Offshore Drilling in the Southeastern United States: Sound Economics or Future Environmental Disaster?
This paper seeks to inform readers concerning information about the present lifting of the ban on offshore oil drilling in the United States, by focusing on the history of offshore oil drilling beginning in 1887 to the dilemma that America now faces with an economic recession and whether new offshore drilling to meet America’s continuing energy needs are feasible.
To better inform readers of this subject, this paper lists reasons that proponents for offshore oil drilling give to influence decisions to the reasons opponents state against lifting the offshore drilling ban. Many environmental reasons and the problems currently faced with ongoing drilling operations are given. Current federal laws regarding offshore drilling are also given.
To clarify the subject more in a regional sense, this paper focuses on the states of South Carolina, Georgia, and Florida, with reasons given by proponents and opponents alike that focus on each individual state
Since, offshore drilling is a politically driven issue, this paper includes thoughts and stances of the next Obama Administration and ends with a “predicting the future” conclusion that focuses on the range of energy issues facing the nation and after reviewing the stated facts concerning America’s oil dependence and the need for alternative energy sources and their feasibility today, draws to a conclusion against the prospect of furthering offshore drilling operations in the United States, with specific references to the states of South Carolina, Georgia, and Florida.

Blake A. McKie, The Palmetto State’s Eminent Domain Riddle
This paper will examine the status of recent attempts to reform South Carolina’s eminent domain laws. A brief explanation of eminent domain and a historical overview of the roots of eminent domain law in the United States will begin the paper. This historical background will be used as a springboard into reviewing the decision in Kelo v. City of New London, 545 U.S. 469 (2005). The national reaction to the Kelo decision will be discussed as well as South Carolina’s initial and subsequent responses to the controversial Supreme Court decision. Specifically, the various attempts to reform eminent domain laws within South Carolina will be examined and the key government players, trade organizations and other groups with vested interests in the outcome of these reform attempts will be identified. Additionally, the Town of Mount Pleasant, South Carolina’s recent utilization of eminent domain power to preserve and conserve property near Shem Creek will serve as an example of a recent “taking” and be critiqued. Finally, this paper will offer a few suggestions of ways in which South Carolina could best shape its eminent domain laws in the coming years.

Malinda McAleer Pennington, Balancing the Distribution of Resources, Risks and Benefits While Implementing Utility Sector Efficiency Programs
Although public utility commissions, as electric utility regulators, are most simplistically understood as economic regulators, even this most basic characterization includes a broad variety of inherent considerations. The inherent considerations of electricity resource planning require public utility commissions to evaluate the distribution of resources, risks, and benefits incidental to electricity generation and distribution. Evaluating this distribution includes assessing the prudence of resource allocations, such as ability and funding. Additionally, electricity generation and distribution activities that utilize public resources are expected to achieve optimal results and these activities must withstand informed public scrutiny. Increasingly, federal law and policy advances efficiency as a goal capable of optimizing public resources and worthy of redistributing these resources. This paper surveys several existing and proposed state efficiency approaches to extrapolate specific mechanisms and to determine how these mechanisms, and combinations of these mechanisms, may diminish or benefit the distribution considerations of electric utility regulation.
Part I briefly explores the invasive impact of electricity generation on all citizens in modern society and how this impact has advanced efficiency as a regulatory consideration, even for those regulators not explicitly charged with environmental protection. Part II explains how federal law has broadened the scope of electric utility regulation by mandating the consideration of efficiency as a viable resource in planning to meet electricity demand. Part III reviews various efficiency implementation mechanisms that are either implemented or proposed in a variety of state programs in an effort to develop an understanding of these mechanisms. Finally, part IV contemplates how regulators and utilities may choose to combine these different mechanisms to achieve specific benefits and to avoid specific risks.

Ross Shealy, Untying Shoestring Annexations in South Carolina
This article examines the purpose and benefits of the contiguity requirement in municipal annexations, and analyzes how the phenomenon of “shoestring annexation” contravenes the benefits of the contiguity requirement. The article outlines how and why municipalities in South Carolina have been able continue the practice of shoestring annexation notwithstanding recent legislation forbidding the annexations. After assessing the obstacles to a successful legal challenge of an unlawful annexation, including the lack of adequate citizens’ initiatives, the article makes recommendations for legislative measures which will ensure unlawful annexations such as shoestring annexations will be subject to a legal challenge.