‘Right to farm’ bill protects right to harm

Here comes Big Sugar yet again, molding the Florida Legislature like clay in a sculptor’s hands.

This time it’s Senate Bill 88, which “expands protections available under Florida’s Right to Farm Act,” according to a vague handout from the Senate Rules Committee.

But there’s a lot of devil in the details. It ought to be called the “Right to Harm” bill.

This legislation is unmistakably aimed at the class action lawsuit filed in federal district court two years ago against nine sugar companies over the clouds of ash produced by the fires they routinely set to burn leaves off the sugar cane stalks to make them easier to harvest.

The bill would add “fumes and particle emissions” to the existing list of defensible practices.

Although the sponsor insists the bill wouldn’t apply to past claims, lawyers for the people suing Big Sugar emphatically disagree.

“The lawsuit is entirely based on state statutes and state law principles, and federal courts routinely address state law claims and are bound by state law in doing so,” said Matthew T. Moore, one of the plaintiffs’ lawyers, in an e-mail to the Sun Sentinel editorial board. “The lawsuit is in federal court because it is a class action, and is required to be heard in federal court. The lawsuit is affected by the bill.”

Moreover, SB 88 makes the existing law much worse in every other respect.

It would be virtually impossible and a potentially ruinous gamble to sue a farm in Florida courts for any unneighborly offense.

The bill essentially redefines the common law tort of “nuisance,” according to Moore, “to include almost any type of claim a plaintiff could make, including claims made under state pollution statutes.” He calls that “incredible overreach.”

Also, it says a nuisance action can’t be filed against a farm more than a half mile from the affected property. That’s no matter how much farther the winds blow. Big Sugar’s ash clouds have been known to blow as far from the cane fields as Century Village. More often, though, the ash rain falls on the less prosperous communities near the cane fields. The lawsuit covers 675 square miles.

The bill also raises the burden of proof to “clear and convincing,” a much more daunting standard than “preponderance of evidence,” which normally applies in civil litigation.

It limits ordinary damages to the reduction in the affected property’s value, which greatly reduces Big Sugar’s potential liability since most of the affected communities are poor ones. It also requires proof of a criminal conviction or civil enforcement action to justify punitive damages.

And finally, the clincher: Whoever loses a nuisance claim against a farm’s “generally accepted” practices” is on the hook for all the farm’s legal expenses, including court costs and attorney fees.

It is scandalous that the Legislature is even considering a bill like that.

The cane fields are routinely set ablaze from October until April, to the distress of people in Pahokee and other rural areas in Glades, Hendry and Palm Beach counties, where the ashes most often fall. When the suit was filed, the plaintiffs’ attorneys said hospitalization rates for asthma were almost five times higher in Palm Beach County than in Florida overall.

“The black snow that comes from the sky, people are breathing that stuff in. They’re getting sicker and sicker every day,” said Fred Taylor, the former Jacksonville Jaguars running back, who was raised in Belle Glade and spoke in support of the suit.

Sen. Jason Brodeur, R-Lake Mary, the prime sponsor of SB 88, says people objecting to the cane burning could still voice their complaints to regulatory agencies such as the Florida Forest Service, which is an arm of the Department of Agriculture and the EPA.

That would be futile. If the Department of Agriculture were on the job, it would have banned the burning long ago.

When Brodeur presented the bill on second reading in the Senate Thursday, no one raised a question about it. It will be on the agenda for final passage later this week.

Brodeur told the Senate that “those who moved next door shouldn’t be allowed to sue a farmer who has been in business 100 years.”

That’s the agriculture lobby’s stock argument: “We were here first.” It begs an important question in this instance. Burning may be the cheapest means of stripping the sugar canes, as well as the most environmentally unfriendly one, but it isn’t the only way. In Brazil, Australia and other places, according to the Sierra Club, open field burning is being replaced by mechanical harvesting.

The bill has sailed through three Senate committees with only a handful of votes against it. Minority Leader Gary Farmer Jr. and Perry E. Thurston, D-Fort Lauderdale, voted “no” in the Rules Committee, but weren’t heard from Thursday. Sen. Lauren Book, D-Plantation, supported it in committee.

It’s a familiar clash of the Sierra Club and other environmental lobbies against big business, represented by Associated Industries, the Florida Farm Bureau and the Florida Chamber of Commerce. In such situations, the public interest usually loses.

A dark money organization called the State Government Leadership Foundation has been posting internet ads for the legislation. In an application for tax-exempt status, it told the IRS that it had been seeded with $1.3 million largely from corporations such as Exxon, Pfizer and Time Warner. Its subsequent donors are secret. In 2012, according to ProPublica, it helped Republicans gerrymander the North Carolina legislature.

Agriculture Commissioner Nikki Fried, whose Forest Service division issues the burn permits, reportedly considers SB 88 unnecessary. But she hasn’t opposed it, which is unfortunate. Fried ought to be pushing the industry to turn to mechanical harvesting in Florida. If she doesn’t speak up, who will?