By Fred Horlbeck
Jimmy Chandler of the S.C. Environmental Law Project has a problem with people who try to fool Mother Nature.
As founder of the Palmetto State’s only home-grown legal service devoted to defending the environment, Chandler is only too happy to show you why.
He reaches into a drawer at his Georgetown office and hauls out a sheaf of aerial photos. Each shows Cherry Grove, a coastal South Carolina island, as it was decades ago when developers were just starting to build a network of canals.
He pores over the images, comparing untouched marshland in earlier photos to the grid of artificial waterways emerging in later photos, the fill enclosing them increasingly stitched with docks and dotted with houses.
Then he comes to the punch line: Time and tides have been filling in the canals, endangering property owners’ boating access.
You can’t fool Mother Nature.
And if you try, the Environmental Law Project is likely to catch on. That’s how Chandler got involved in a legal battle over dredging the waterways.
And it’s why crusading for the environment has been Chandler’s passion for 21 years, ever since he started the S.C. Environmental Law Project after leading a successful fight to banish plans to build an oil refinery in Georgetown.
The refinery could have brought almost 400 jobs to the small port, but Chandler followed his vision of a greater good: Protecting the area’s marshes and waterways, including Winyah Bay, from oil spills.
“The fear there was that there were going to be oil spills that got into the marsh,” Chandler said. “And if there was an oil spill and it was in marsh and it was out in the middle of the bay and I didn’t own any property out there, would I have any standing to complain about that? And that’s the typical kind of case that we do.”
Ever since, Chandler’s vision has kept him hard at work on environmental cases of every stripe throughout the state.
More recently, lawyer Amy Armstrong has joined the effort, and the nonprofit also has hired an office administrator, Jordan McDonald.
Together they work out of an office in Georgetown’s historic district, with Chandler and Armstrong handling the cases while McDonald runs the office and puts together SCELP’s quarterly newsletter, Mountains & Marshes.
At any given time, they have 25 to 30 active cases, Armstrong said.
Plus, they have SCELP’s track record: Settlements in 60 to 80 percent of its cases and a 50 percent success rate in cases that have gone to trial.
There have been crusades, such as the years-long battle to close the Laidlaw hazardous waste landfill at the headwaters of Lake Marion near Pinewood in Sumter County. There have been the citizens’ groups, the homeowners’ associations and individuals who banded together in environmental causes that, sooner or later, they brought to SCELP.
And then there was Jim Smiley, the beach jogger.
Jogger with standing
Smiley made headlines in 2007 when he appealed a state Office of Ocean and Coastal Resources Management permit that would have allowed a community association on the Isle of Palms to scrape sand from the beach to replenish dunes for its beachfront property owners.
Smiley, an Isle of Palms resident and retired College of Charleston biology professor, said the scraping and the heavy equipment it would require would make it impossible for him to jog on the beach.
An administrative law judge threw out Smiley’s appeal without a hearing. The Coastal Zone Management Appellate Panel affirmed.
Frustrated, Smiley approached SCELP. Taking the case pro bono, Chandler saw the connection to the same challenge he had faced in the refinery battle: Standing.
The administrative law judge had said jogging wasn’t a sufficient interest to give Smiley standing to appeal the permit.
Standing had been a hotly litigated issue in SCELP cases for five years. This time, however, Chandler saw a chance to boost the standing of people taking environmental concerns to the courts.
“We would file an appeal, and pretty quickly you’d see a motion to dismiss for lack of standing,” Armstrong said. “It was an easy way for our opponents to try and get a case thrown out without even being heard on the merits.”
But Smiley’s case was different, Chandler said.
“Our feeling was that if Jim Smiley went on the beach every day and he couldn’t complain about what happened out there, then there was a chance that none of our clients or very few of our clients were going to have standing in future cases,” he said.
“We felt like we had to bet the farm on that case.”
Armstrong and Chandler focused on the basics of beach activities.
“What do people do on a beach? What is it they enjoy on the beach? What do you do when you get out there? You walk. You make sand castles. You might go swimming a little bit,” Chandler said
“And so we put in our brief: Look, all these things have value to people. I mean, [one of] the most calming things in the world is to get on the beach and walk down the beach with your arm around somebody you love. Is that a trivial interest?”
The state Supreme Court agreed.
Wrote Justice Costa M. Pleicones in Smiley v. S.C. Department of Health and Environmental Control: “Interference with Smiley’s enjoyment of the beach, and his inability to use it for his rehabilitative jogging for at least six months a year for at least the next five years, are sufficient allegations of a ‘stake in the outcome’ to permit Smiley standing to challenge the permit” (see the Aug. 6, 2007, issue of South Carolina Lawyers Weekly).
Since then, standing has been an issue in just one SCELP case, Chandler and Armstrong said.
Pioneering effort
But SCELP is about more than showcase legal victories, said Kim Diana Connolly, an associate professor who specializes in environmental law at the University of South Carolina School of Law.
It’s had its share of cutting-edge legal wins, but Chandler’s drive to cover the state as an environmental watchdog sets SCELP apart, she said.
“The point is that he’s there for all the cases and the point is that he’s not been somebody whose thought is, ‘Oh, I’m going to pick this because it’s going to get some really good press hits,’” said Connolly, a member of the nonprofit’s board of directors.
“He is there when he is needed for the issue.”
In 1999, when Connolly joined USC, a handful of in-state practitioners, including Chandler, focused on environmental law full-time.
Since then, others have moved in, most notably the Southern Environmental Law Center, a Richmond, Va.-based nonprofit that focuses on the Southeast and has an office in Charleston.
Chandler was the pioneer, Connolly said.
“There are other states that are blessed with a lot of activists, and the interesting thing is we have more full-time environmental practitioners now than we did, certainly with the Southern Environmental Law Center setting up an office here,” she said.
“But I don’t think they would have been able to come here and do the work that they hoped to do had there not been the S.C. Environmental Law Project.”
Bob Guilds, a long-time environmental lawyer based in Columbia, agreed.
He said Chandler has been “at the front of the pack in terms of long-term, consistent, significant influence on environmental law and policy in South Carolina, and in particular the major policy and regulatory controversies that have reflected major challenges to environmental protection in the state.”
One example is the battle against the Chem-Nuclear radioactive waste landfill near Barnwell, which Guilds described as “another object lesson in South Carolina’s being the dumping ground for the nation’s waste that no one else wants to manage elsewhere.”
Both Chandler and Guilds represent the Sierra Club in that case.
“By applying environmental law and science principles, Jimmy and a small group of others, including myself, have been able to hold the state accountable even where the political leadership has been all too willing to bend the rules or to not apply them rigorously,” Guilds said.
Regulatory issues
Warring against state regulators is nothing new for SCELP.
Wayne Beam, former director of the now defunct S.C. Coastal Council, has described Chandler as a tough opponent in their many tangles over environmental issues.
“When I was a regulator, he was much easier to deal with than he is now,” Beam said in a 2007 interview. “The projects I work on, people want to get something done. Jimmy’s deal is to keep things from happening for a cause.”
In such battles, a regular SCELP ally has been the state Constitution’s Article 1, § 22, which establishes a right to due process in administrative decision-making.
Chandler said he has cited the provision to get hearings before the state Department of Health and Environmental Control.
“We’ve had cases come up where DHEC said, ‘Look, there’s nothing in our regulations that says you can get a hearing,’ and we said, ‘The Constitution says we can get a hearing.’”
Challenging a DHEC permit can be tricky, Armstrong said. The DHEC board doesn’t use the rules of civil procedure, and there are no evidentiary rules.
“The process before the DHEC board is not like a trial-type hearing,” she said. “You can say really whatever you want, and it’s sort of argument, fact, evidence all blended into one.”
Prior to a 2006 change in its procedures, the board played a greater role in playing policy, she said. Now, however, the board is more likely to follow staff recommendations.
That’s a problem for SCELP. “A fair, open-minded review” from the board seems less attainable, Armstrong said.
“They’ve got managers and regulators within the agency, and they look at the regulatory criteria, but there isn’t, from my perspective, a lot of scientific opinion when they arrive at their conclusions on the impacts to a natural resource,” she said.
Making friends
Among its friends SCELP counts a list of foundations and other organizations that reads like a who’s who of environmental conservation and historic preservation.
Among the biggest names are the National Audubon Society, the Sierra Club, the S.C. Coastal Conservation League, the Springs Close Foundation, Middleton Place and the Hopsewee Preservation Foundation.
SCELP also receives donations from several hundred individuals.
But with a $425,000 budget based largely on donations and grants, the nonprofit operates on a slim margin, Chandler said, and recent economic turmoil has forced donors to withhold financial support. As a result, he expects to hold spending to $400,000 in the coming year.
“We’ve always operated on such thin margins that we tend to raise enough money to keep the operation going and not much more,” Chandler said.
The nonprofit takes some cases on a pro bono basis, but in the past year it has increasingly charged new customers a reduced hourly rate not exceeding $135 per hour.
In another recent trend, the nonprofit has seen small groups knocking at its door more frequently.
“Sometimes it’s groups of individuals that see something that they are concerned about, and they start asking questions and somehow find their way to us,” Chandler said.
When that happens, SCELP welds them into a viable client by helping them organize as nonprofits.
“The organization becomes a client and the organization also is a structure so that if decisions have to be made, if there’s a settlement, a proposal on the table or decisions have to be made about whether to appeal something or there’s a major strategy decision, they’ve got a board and officers and a structure set up,” Chandler said.
But SCELP has been known to take cases at the drop of a hat.
For example, it’s representing about 20 folks who were planning to go to trial pro se when they realized they needed help.
“They came to us about a week before they were going to trial,” Chandler said. “They were getting ready to go to trial without a lawyer. All of a sudden, they realized, ‘This is more complicated than we thought.’”
The case is now in the state Supreme Court.
— Questions or comments may be directed to the writer at fred.horlbeck@sc.lawyersweekly.com.
January 5, 2009
By Fred Horlbeck