Opening the Flood Gates?, 1120 SCBJ, SC Lawyer, November 2020, #40

AuthorBy Michael Traynham
PositionVol. 32 Issue 3 Pg. 40

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...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT