ORDERS:
ORDER GRANTING MOTIONS TO DISMISS
I. Introduction
Peter G. Oliver, Sr. (Oliver) challenges a decision of the South Carolina Department of Environmental
Control (DHEC) to issue a permit to Lucent Technologies, Inc. (Lucent). The immediate matters addressed
here are two Motions to Dismiss filed by Lucent and DHEC in which both seek to dismiss this case since
Oliver lacks standing.
II. Analysis of Standing
A. Introduction
Not everyone is entitled to a contested case hearing; rather, only a "proper party"may obtain such a
hearing. A "proper party" is any "person . . . properly seeking and entitled as of right to be admitted as a
party." S.C. Code Ann. § 1-23-310(4) (Supp. 2000). A person is not entitled as of right to be admitted as a party
without first having "standing." Indeed, without standing "[a] private individual may not invoke judicial
power." Blandon v. Coleman, 285 S.C. 472, 330 S.E.2d 298 (1985); see also Lennon v. South Carolina Coastal
Council, 330 S.C. 414, 498 S.E.2d 906 (Ct. App., 1998) (explaining that a lack of standing fails to invoke
jurisdiction since "South Carolina courts, like the federal courts, require a justiciable case or
controversy before any decision on the merits can be reached."). Thus, Oliver must meet the requirements
of standing.
B. Requirements of Standing
For the instant matter, case law sets the requirements of standing since no rule of the ALJD sets the
requirements and Regs. 61-72.401 simply explains that standing is determined based on applicable statutes,
regulations, and case law. 25 S.C. Code Ann. Regs. 61-72.401 (Supp. 2000). Standing is present if the elements
required for traditional standing or for questions of great public importance are satisfied.
1. Traditional Standing Analysis
Under the traditional standing analysis, the complaining individual must show "an injury in fact--a harm
suffered by the plaintiff that is concrete and actual or imminent, not conjectural or hypothetical." Steel
Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 1016, 140 L.Ed.2d 210 (1998). Second, the
complaining individual must establish "causation--a fairly traceable connection between the plaintiff's
injury and the complained-of conduct of the defendant." Id. Finally, "there must be redressability--a
likelihood that the requested relief will redress the alleged injury." Id.
In this case, Oliver lacks standing for two reasons. First, no showing exists of an injury in fact. Second,
even if an injury could be found, there is no causation connecting the injury to Lucent's proposed permits.
a. Injury in Fact
An injury in fact must include a showing that the injury is one that is particular to the complaining person,
not simply common to the general public. Florence Morning News, Inc., v. Building Comm'n, 265 S.C. 389,
218 S.E.2d 881 (1975) ("[I]t is not sufficient that he has merely a general interest common to all members of
the public."). Oliver's assertions are only those common to the general public.
For example, Oliver asserts that the failure of DHEC to obtain information related to the past violations
of Lucent "restricts the ability of the citizens of the State of South Carolina to protect their health and
living environment." Pet. p. 1. Further, he asserts that in failing to request such records, DHEC "is failing
its Legislative Purpose of protecting the citizens of South Carolina." Pet. p. 3.
Like the Petition, Oliver's Response to the Motion to Dismiss also makes no showing of an injury in fact. Rather, Oliver (a resident of Lexington County) presents mere conjecture. For example, he states that he
has not "seen or heard in any of the public hearings" that a discharge from the plant "would not go into
the adjoining counties or neighboring Lexington County by dispersion of the air." Oliver Response p. 1. In
the same manner, Oliver relies upon hypothetical scenarios by asserting harm "if I were to visit friends in
Richland County." Oliver Response p. 1.
b. Causation
Finally, even if an injury could be shown here (which injury has not been shown), Oliver must still establish
"causation--a fairly traceable connection between the plaintiff's injury and the complained-of conduct of
the defendant." Here, Oliver expresses his view that past actions by AT&T Nassau Metals at a plant in
Gaston South Carolina have created injuries. However, Oliver does not allege how such injuries
committed in Lexington County by AT&T are fairly traceable to a permit in Richland County for Lucent to
construct a fiber optic facility. Indeed, the facilities are in separate counties, the operations are by
different named entities, and the complained of acts are past acts. To connect the alleged injury with the
current permit, more is needed than Oliver has provided.
2. Great Public Importance
Notwithstanding the traditional analysis, on some occasions, standing has also been found when the issue
being raised is of such public importance that a resolution of the issue is necessary to prevent future
litigation. Baird v. Charleston County, 333 S.C. 519, 531, 511 S.E.2d 69, 75 (1999); Evins v. Richland Co.
Historic Preserv. Comm'n, 341 S.C. 15, 532 S.E.2d 876 (2000). Cases of such magnitude have included
challenges to the constitutionality of a statute (Thompson v. South Carolina Comm'n on Alcohol and
Drug Abuse, 267 S.C. 463, 229 S.E.2d 718 (1976), alleged ultra vires acts of public bodies (Baird v. Charleston
Countyu
, supra; Evins v. Richland Co. Historic Preserv. Comm'n, supra;), and the interpretation of a statute
applicable to a large audience (CAF v. S.C. Dept. of Labor, Licensing & Regulation, 337 S.C. 476, 523 S.E.2d
795 (Ct. App. 1999). The instant case is not such a case.
Here, no constitutional challenge is presented, no statute of broad public application is at stake, and no
allegation is made that DHEC is acting beyond its authority. Further, no showing exists here of the
presence of unique questions needing resolution so as to avoid future litigation While obviously this case
is of significant concern to interested persons and entities in the immediate vicinity of the project, the
magnitude of public importance is not so great as to dismiss the failure of Oliver to satisfy the traditional
elements of standing. Accordingly, standing is not present in the instant case.
III. Order
The Motions to Dismiss filed by Lucent and DHEC are granted and this case is ended.
AND IT IS SO ORDERED
______________________
RAY N. STEVENS
Administrative Law Judge
Dated: November 20, 2001
Columbia, South Carolina |