Opening the Flood Gates?
Vol. 32 Issue 3 Pg. 40
South Carolina BAR Journal
November, 2020
Preservation
Society and “Affected Person” Standing
By
Michael Traynham
On a
pleasantly warm June morning in Columbia, a group of
attorneys and citizens gathered at the South Carolina Supreme
Court to hear oral arguments in a case involving expansion of
a cruise ship terminal in Charleston. Preservation Society v.
S.C. Dep’t of Health & Envtl. Control, and South
Carolina State Ports Authority,[1] originated in the Administrative
Law Court (“ALC”) as a challenge to a Critical
Area Permit and Coastal Zone Consistency Certification issued
by the South Carolina Department of Health and Environmental
Control (“DHEC”). The merits of those
authorizations were never reached at the trial level.
Instead, the ALC granted summary judgment to the Respondents
on the grounds that Petitioners lacked standing to bring
their suit.[2] Petitioners appealed, and the Court
of Appeals affirmed the ALC, leading to a petition for
certiorari and ultimately to oral arguments that June
morning.
On its
face, a dispute over standing is neither novel nor
particularly important to many in the legal profession. The
traditional requirements for standing in South Carolina state
courts are well-established in appellate decisions. Put
simply, standing “refers to a party’s right to
make a legal claim or seek judicial enforcement of a duty or
right.”[3]This fundamental requirement can be
met in South Carolina if a person demonstrates constitutional
standing,[4]statutory standing, or sufficient
public importance of the subject matter of the litigation to
trigger a common law exception to the standing
requirement.[5]In most cases, standing battles turn
on whether a plaintiff can establish the three elements of
constitutional standing most commonly referred to as the
Lujan[6]test: (1) injury in fact that is
actual or imminent that is (2) fairly traceable to the
defendant’s actions and (3) that would likely be
redressed by a favorable ruling.[7]Generally, the establishment of
constitutional standing is a fact intensive determination
that may not provide useful precedent for future litigants
with their own unique facts and circumstances.
Preservation Society stands apart from these cases
because it turned on statutory standing, based on a statute
that provides the framework for appealing many of
DHEC’s administrative decisions. That statute, South
Carolina Code Ann. § 44-1-60, has provided the basis for
hundreds of administrative appeals, contested case hearings,
and appellate decisions since its adoption in 2006 as part of
a major revision to the South Carolina Administrative
Procedures Act.[8]
“Affected
person” standing – A brief history
Among
other things provided for by Section 44-1-60, the statute
sets out the process for appealing certain DHEC
decisions[9]and delineates who may make such a
challenge. In operative part, the statute states that
“[a]n applicant, permitted, licensee, or affected
person may file a request with the Administrative Law Court
for a contested case hearing” in order to challenge a
final decision of DHEC. S.C. Code Ann. §44-1-60(G)
(emphasis added). The term “affected person” is
not defined by the statute for purposes of the general
procedure for challenging agency decisions, though the term
is used elsewhere in the law and is defined in the
context of some specific types of agency decisions.[10]The lack
of a definition for “affected person” under
Section 44-1-60 created a legal question regarding who has
standing to bring a contested case. Historically, this
question was addressed at the ALC by reading the term to
parallel the requirements of constitutional standing. In
S.C. Coastal Conservation League v. S.C. Dep’t of
Health & Envtl. Control and DBBO, LLC, the ALC found
that:
[B]ased upon the plain language of the statute . . . affected
person means someone who is injuriously acted upon. This
means that the requirement that a party be an affected person
is very similar, if not synonymous with the requirements of
constitutional standing.”[11]
In an
earlier case, the ALC found that to be an affected person one
must have “suffered an injury in fact . . . caused by
the action at issue” thus equating the term with the
first two requirements for constitutional standing.[12]The ALC
went on to say “it is implicit in every case before any
court . . . that the court have the ability to redress, or
provide relief for, the injury alleged.”[13]In a
footnote to the same decision, the ALC cast doubt on whether
an “affected person” has statutory standing at
all, or whether being an “affected person” is an
additional requirement imposed by the General Assembly above
and beyond the minimum threshold of constitutional
standing.[14]
On the
one hand, the ALC’s interpretation of Section
44-1-60(G) could be viewed as creating a nullity of a
legislative pronouncement. As the Petitioners argued in
Preservation Society, the term “affected
person” has no meaning if it simply serves as a
stand-in for the requirements of constitutional standing
or—worse—if a showing that one is an
“affected person” is a heightened requirement
beyond the three-part Article III showing. The Respondents
argued, on the other hand, that where the General Assembly
does not specifically define the category of persons that can
bring a statutory challenge, then “statutory
standing” is not conferred.[15]In any event, the
prevailing interpretation for 15 years had been that an
“affected person” challenging a DHEC permit
decision must still meet the three-part test of
constitutional standing in order to maintain a contested case
challenging the agency.[16]That changed dramatically on
February 19, 2020, when the Supreme Court issued its...
