S.C. House Bill 3290 undermines Home Rule

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Margaret C. Pope

On March 7, 1973, the Home Rule Amendments to the S.C. Constitution became effective. With such passage, local government devolved from the Statehouse to county seats and town halls – thus, the primary functions of government became local again.
No longer were counties solely and strictly limited to educational purposes; building and repairing public roads, buildings and bridges; maintaining and supporting prisoners; paying jurors, county officers and the costs of litigation, quarantines and courts; supporting paupers and paying past indebtedness.
With the ratification of the present Article VIII to the S.C. Constitution, powers granted local government by the General Assembly were to be broadly conceived and construed. The journey toward Home Rule after the deliberate and purposeful contraction of local power in the 1895 S.C. Constitution, reflected our evolution as a state and the maturing of our political system. It also reflected the common sense proposition that decisions related to the provision of local services should be made at the local level.
Also during the 1970s, a variety of issues were identified relating to the disposition of solid waste which caught the attention of the federal Environmental Protection Agency. Solid waste disposal became a hot topic nationally and the question of what to do with all of it eventually reached the S.C. Statehouse.
Of particular concern to all involved, however, was that dealing with solid waste was going to be very expensive financially, and not dealing with it would exact great cost to the public health. The General Assembly, after many years and much debate, passed the Solid Waste Policy and Management Act of 1991 (SWPMA), and determined that county governments should be responsible for addressing the expense and health issues associated with solid waste. The SWPMA also set forth a number of provisions and suggestions for how they should go about it.
The various counties of our state dutifully responded by constructing landfills, assembling fleets of garbage trucks and entering into regional governmental agencies to achieve economies of scale. In many cases, counties engaged private waste haulers to perform all or a portion of these tasks under a franchise agreement.
In others, they fended for themselves with coalitions of counties often issuing bonds to provide the necessary capital. Regardless of the approach, the ultimate responsibility under the SWPMA fell to the counties and the ongoing capital and operational costs associated with this responsibility was and is substantial.
The implicit legal underpinning to this entire regime rests on the ability of counties, pursuant to their Home Rule powers, to control the flow of solid waste within their borders. By ensuring a sufficient flow of solid waste to a county-provided or county-licensed facility, a county can rest assured that capital costs will be recovered and that the costs to the public will be kept reasonable. This so-called flow control power has been challenged and upheld by the S.C. Supreme Court as a valid exercise of county Home Rule powers.
Currently pending in the S.C. Senate is House Bill 3290 (it has already passed the House), which upsets the balance struck between the General Assembly and local government back in 1973. The “Business Freedom to Choose Act” amends the SWPMA to add language eliminating the Home Rule power of counties to control the flow of solid waste within their borders.
This has the effect of endangering the revenue streams supporting county solid waste facilities – facilities constructed with public money on the basis of an understanding with the General Assembly. This understanding also formed the basis of the understanding between counties and their bondholders that purchased solid waste revenue supported bonds.
The new legislation, if adopted, removes the basis of that bargain and places county finances at risk. At a time when local government bonds and obligations are under the microscope due to events in Detroit, Jefferson County in Alabama, and various cities in California, our legislature should carefully consider the effects of its actions before causing a self-induced injury to local finances. House Bill 3290 undermines Home Rule, displays political indifference to meeting obligations, and should not be enacted into law.

Margaret C. Pope is an attorney with Partner, Pope Zeigler, LLC in Columbia.