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I-73 rulings are bad news for road opponents

Editorial by Audrey Hudson, editor

A federal judge last week issued several different ruling in a case brought by the Coastal Conservation League against numerous federal agencies that issued a permit necessary for construction of Interstate 73 to Myrtle Beach.

You can read the rulings of U.S. District Judge Bruce H. Hendricks here.

The rulings allow the case to move forward as a citizen’s suit, but the judge’s decisions could make it a lot harder on lawyers representing the Coastal Conservation League to prove their case — that the permit should not have been issued.

The judge dismissed two primary claims from the Coastal Conservation League lawyers, so now the environmentalists must present a higher standard of proof in order to win their case.

The Coastal Conservation League lawyers must prove the Army Corps of Engineers, EPA, the U.S. Transportation Department’s Federal Highway Administration, and S.C. Transportation Secretary Christy Hall all abused their discretion and made the permit decisions arbitrarily.

Like we said, it’s a heavy burden of proof.

The government agencies, on the other hand, have spent the past decade researching and studying the interstate project, whether it’s viable, the appropriate route, public comment has been requested and reviewed, mitigation land to offset the impact to wetlands has already been purchased.

A complaint we hear most often about the project, is that it’s taken too long to build — this is why, bureaucracy.

Now, when the judge asks the government to deliver the record used to determine whether the permit should be issued, Justice Department lawyers will likely be carrying box after box after box into the courthouse to show how the government reached its conclusion.

The remaining claims are that the government arbitrarily and capriciously failed to consider alternative routes, made insufficient mitigation plans, and should have conducted yet even more environmental studies on top of the ones already required and completed. 

If the massive record compiled by the agencies in their decade-long consideration of this project is sufficient to support the conclusions reached by the agencies, the permit will be upheld by the judge.

Most stories this week focused on a septette motion filed by the Myrtle Beach Area Chamber of Commerce, which sought to intervene in the case to support the government agencies.

Since the chamber is not the permit holder, or liable for the decision, that motion was rejected.

However, the judge acknowledged the important interests the chamber has in the project. So, it would not be surprising if the chamber asks in the future to intervene as a friend of the court.

That’s the meat of the issue and where we stand.

Lawyers for the Coastal Conservation League filed the case to dismiss the permit in June of 2017. Decisions on these motions were delayed because the original judge retired.

As for when a decision will be made on the case in this court, it’s likely to take as long as a year.