Why not in South Carolina?

Even without "Cancer Alleys" equivalent to Texas and Louisiana’s or concentrated animal feeding operations equivalent to North Carolina’s, South Carolina is still grappling with a long history and continuing legacy of discrimination, segregation and environmental racism.

In the Upstate and Midlands, decades-old industrial pollution overburden communities in both urban and rural areas. New challenges loom ahead as the industrial renaissance driven by the clean energy transition risks perpetuating a false trade-off between jobs or economic growth and environmental protection. The coast is the cradle of the Gullah/Geechee people, a powerful bulwark in the ever more urgent clash between climate protection and overdevelopment. With its deep history of race relations, Charleston alone adds multiple players and layers of complexity.

The proposed paving over of Charleston's Gadsden Creek threatens a community's quality of life
(Photo by Jared Bramblett)

Despite the overwhelming legacy of the past and the urgent current needs of several communities for equity in environmental decision-making, Environmental Justice is nowhere to be found in our state’s legal system and it is too often seen as “the issue that shall not be named” (or addressed in any new bill with half a chance of being passed) at our state Assembly.

Across the United States, states use various methods to incorporate environmental justice concerns into permitting and regulatory decisions. In California and New Mexico, courts may interpret required “cumulative impact” or “cumulative effect” analyses to include environmental justice considerations. Courts in Virginia and New York may apply official state or agency environmental justice policies when reviewing agency permitting decisions. Finally, some state laws require agencies to acknowledge environmental justice concerns in certain permitting or regulatory decisions. Why not in South Carolina?

In Friends of Buckingham v. State Air Pollution Control Bd., 947 F.3d 68 (4th Cir. 2020), the court reviewed an administrative decision by the Virginia Air Pollution Control Board to award a permit for the construction of a pipeline compressor station in a predominantly African American community. Virginia law requires consideration of “[t]he character and degree of injury to, or interference with, safety, health, or the reasonable use of property” and “the suitability of the activity to the area in which it is located” in permitting decisions. Va. Code Ann. § 10.1–1307(E). Furthermore, Virginia law declares that “[i]t is the policy of the Commonwealth to promote environmental justice and ensure that it is carried out throughout the Commonwealth, with a focus on environmental justice communities and fenceline communities.” Va. Code Ann. § 2.2-235 (West). Why not in South Carolina?

Compliance with required state and national air pollutant standards was not dispositive of whether a permit should be issued if a minority population may be affected by the permit more than others within the same county. - Friends of Buckingham, 947 F.3d at 93.

In the Friends of Buckingham case, the court held that the Board violated Virginia law when they failed to consider the potential for disproportionate health impacts on the local population.

As early as 2004, New Jersey established an environmental justice framework for the executive branch. In particular, the state environmental agency is required to “use available environmental and public health data to identify existing and proposed industrial and commercial facilities and areas in communities of color and low-income communities for which compliance, enforcement, remediation, siting and permitting strategies will be targeted to address impacts from these facilities.” N.J. Exec. Order No. 96 (Feb. 18, 2004). Three more executive orders addressing environmental justice followed EO 96, and in 2020 Governor Murphy signed Environmental Justice Law, Senate No. 232, requiring the state environmental agency to look at the environmental and public health impacts of facilities on overburdened communities when reviewing specific permit applications. N.J. Stat. Ann. § 13:1D-160 (West). The Department must deny permits that could disproportionately and negatively impact already overburdened communities. Why not in South Carolina?

In January 2022, Executive Order No. 246 directed North Carolina Cabinet agencies to consider environmental justice challenges when making decisions related to climate change and their response, such as how they will affect minority residents and the poor, and to examine the “social cost” of emissions. Shortly thereafter, a standing environmental justice and equity advisory board was created to advise on the consistent implementation of fair treatment and meaningful involvement of North Carolina citizens across the state environmental agency regarding: new and ongoing complex permits; ongoing and proposed innovation; ongoing and future mitigation of contaminant exposures to human health and the environment; equitable policies and initiatives to reduce greenhouse gas emissions and achieve a just transition to clean energy; raise community awareness of climate change threats; build community capacity to help shape and implement policy solutions.

Although without the full force of the law, the difference that such executive actions can make is clearly shown by a quick comparison of the webpages and resources dedicated to Environmental Justice by North Carolina and South Carolina.

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