Lights out after ruling?

Melissa Haneline
The Post and Courier

Carolina-Pacific takes South Carolina sawmill by-products and compacts them into solid biofuel pellets that can be used to produce energy. A state high court decision suspended the grant that funded the company's renewable energy program.

The state Supreme Court decision that struck down bobtailing could put a North Charleston company out of business, and the Legislature continued using the practice Wednesday over the objections of two of the state's leading politicians.

The start-up renewable energy company, Carolina-Pacific LLC, became a victim of lawmakers' appetite for adding unrelated items to legislation when the court's decision came down Monday. The $200,000 grant for the company came from a renewable energy fund that was tagged onto a 2007 bill about nursing.

On Wednesday, lawmakers overrode Gov. Mark Sanford's veto on a 2008 bill that originally was designed to create tax breaks for the purchase of energy-efficient appliances. Tagged onto that bill, which is now law, is a tax-free weekend to buy guns and allow local gasoline suppliers to mix fuel with ethanol.

"(The bill) clearly violates this mandate and would undoubtedly be held to be unconstitutional by our Supreme Court," Sanford said.

The Supreme Court decision struck down the extra provisions in a 2007 law about nursing that set up a South Carolina Renewable Energy Infrastructure Development Fund to provide loans and grants for renewable energy production. The court said that practice, often called bobtailing, was unconstitutional because "every act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title."

Programs stricken by the Supreme Court cease to exist, although the law's original intent remains intact, said Mark Plowden, communications director of the state Attorney General's Office.

"The frustration of it is that the Supreme Court just terminated this thing and the Legislature is out of session now," said Carolina-Pacific LLC Chairman John B. Kern. "It has to come to a stop unless the funding is restored."

Carolina-Pacific started a pilot program about a month ago at the State Ports Authority's Veterans Terminal to study compaction of wood sawdust and agricultural products into soup can-size briquettes. Kern hoped to sell them to European markets as an alternative to coal.

"We have been sending samples and studying mixtures," Kern said. "This presents a big challenge to South Carolina's concerted effort to move forward with renewable energy. It's unfortunate, and it will be hard to overcome it."

Kern looked toward state Rep. Chip Limehouse, R-Charleston, for help since Limehouse championed the program.

Limehouse said he supports the project, but since the Legislature is now out of session until January, he said he is not sure there is much lawmakers can do until then.

House Speaker Bobby Harrell, R-Charleston, said the renewable energy projects had broad support in the Legislature and that he expects lawmakers to reinstate that funding quickly upon their return next year.

The energy funds are administered through the state Department of Agriculture, and other energy programs also are affected by the ruling.

"We are looking into the legal aspects of the Supreme Court decision to see what the ramifications might be," said Becky Walton, Agriculture Department public information director.

As for the Legislature's veto override, Sanford said, "The deliberative process that is supposedly the hallmark of the legislative process was bypassed, and the public was denied opportunity to be informed of and participate in the consideration of the ethanol-blending provisions."

Senate President Pro Tem Glenn McConnell, R-Charleston, also was critical of the process. He advocated for the Senate to uphold the veto just before both the House and the Senate overwhelmingly overrode it.

"We're going to be sued, and we're going to lose," he said.

The Governor's Office noted Thursday that the action came just 48 hours after the Supreme Court opinion was issued.

"People who voted to override that veto really need to look at themselves in the mirror and ask the hard question of whether they are upholding the oath they took to uphold the state's constitution," said Sanford's press secretary, Joel Sawyer.

"It is just unconscionable. They are thumbing their nose at the public, at the constitution, to say, 'If you don't like it, tough luck. Sue us,'" he said.

The case

The state Supreme Court issued an opinion Monday in South Carolina Public Interest Foundation v. Harrell.

The court ruled that the Legislature violated the one-subject rule per law in the state constitution in 2007. The law in question sought to strengthen the state's nursing profession, but it also included provisions dealing with pharmacy requirements, hydrogen, rural energy and other subjects. Another provision created the South Carolina Renewable Energy Infrastructure Development Fund, which was to provide loans and grants to companies producing renewable energy products.

The court action struck down parts of the bill that were bobtailed, such as the renewable energy fund, saying they had nothing to do with the bill's original intent.

In some cases, bobtailing is an attempt to skirt the months-long legislative process. Sometimes it happens when lawmakers try to revive proposals that were otherwise dead.