SC Administrative Law Court Decisions

I. Introduction

This matter concerns the filing of two Motions to Dismiss, one by the Lexington County Recreation & Aging Commission (Lexington County) and the other by Carolina Water Service, Inc. (Carolina Water). The South Carolina Department of Health and Environmental Control (DHEC) joins in supporting Lexington County's Motion to Dismiss. Brenda Bryant (Bryant) opposes both motions.

Lexington County, Carolina Water, and DHEC all argue that no jurisdiction exists in the Administrative Law Judge Division (ALJD) for two reasons. First, Bryant lacks standing to challenge the permit being protested, and, second, Bryant failed to timely file her request for a contested case.

The motions were heard on August 30, 2001 with all parties present and participating. After considering the arguments presented, I find that Bryant lacks standing. Accordingly, the ALJD's jurisdiction has not been invoked and the Motions to Dismiss are granted. Further, finding no standing, this matter is ended, and I do not reach the issue of whether Bryant timely filed her request for a contested case. See, e.g., First Palmetto Savings Bank, F.S.B. v. Patel, 344 S.C. 179, 186, 543 S.E.2d 241, 244 (Ct. App. 2001) ("Because we reverse on this issue, we need not reach First Palmetto's remaining arguments.")

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, Bryant must meet the requirements of standing.

B. Requirements of Standing

For the instant matter, case law sets the requirements of standing. ⁽¹⁾ Standing can be found 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, Bryant lacks standing since no showing exists of an injury in fact. ⁽²⁾ 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."). In Bryant's case, her petition asserts that the permit "constitutes a threat to public health." Such an allegation asserts an injury to the public at large and is insufficient to show an injury particular to Bryant. At best, her affidavit suggests that an injury will result if water is provided by "a provider with problems adhering to the environmental laws." However, such an allegation does not allege that any injury will befall her in particular. Rather, such is simply another way of expressing an injury common to the public.

Bryant argues that because her house is across the street from the water distribution system, she "would be directly affected." However, merely stating that one is across the street from a water distribution system does state a concrete injury. Bryant must set forth facts demonstrating how she would be directly affected by the water distribution system. Bryant has failed to do so; therefore, Bryant has not made allegations of an individualized injury that is sufficiently concrete.

Further, Bryant does not provide adequate information supporting her allegation that Carolina Water has had problems adhering to the environmental laws. Despite her assertion that Carolina Water's non-compliance with applicable permitting standards is a matter of public record, she fails to set forth any specific information which would allow taking notice of such alleged non-compliance. Thus, the injury complained of is merely conjectural and hypothetical.

In short, Bryant has not set forth specific facts allowing the ALJ to identify Bryant's individualized injury. Rather, to the extent an injury is suggested, the injury is not concrete and is at best only conjectural and hypothetical. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 1016, 140 L.Ed.2d 210 (1998). Thus, no injury in fact has been shown and no standing has been established.

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 County, 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 Lexington County and DHEC are acting beyond their authority or power. 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 Bryant to satisfy the traditional elements of standing. Accordingly, standing is not present in the instant case.

Bryant lacks standing. Thus, the ALJD's jurisdiction has not been invoked. Accordingly, the Motions to Dismiss are granted.

AND IT IS SO ORDERED

Dated: August 31, 2001

Columbia, South Carolina

1. No rule of the ALJD sets the requirements for standing. Further, DHEC's regulation 61-58C explains that challenges to a construction permit for a water distribution system must be made "subject to the provisions of R.61-72 and the Administrative Procedures Act." Regs. 61-72.401 is generic in nature and 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). Since no statute or regulation identifies the elements of standing for one challenging a DHEC permit to construct a water distribution system, case law sets the elements.

2. Since Bryant has not presented a particularized injury in fact, by definition, causation and redressability cannot be shown. Causation cannot be shown since no particularized injury exists to which the actions of either Lexington County or Carolina Water can be connected. Likewise, redressability cannot be shown since relief cannot be obtained for an injury that has not been identified.