Suit shows what water amendment could achieve in Florida

Here’s what Floridians need to know about the first lawsuit involving New York’s Green Amendment, approved by voters in 2021, and every New Yorker’s “right to clean air and water and a healthy environment,” a right we in Florida do not have.

Fresh Air for the Eastside v. The State of New York, et al. involves greenhouse gas emissions and nauseating, noxious odors from New York’s second largest landfill, the source of 26,000 community complaints since 2017. In 2022, citizens filed suit charging the state’s department of environmental protection with failure to prevent a violation of their new environmental rights.

The state asked the court to dismiss the case. In refusing, the court recently made several important legal determinations that bode well for a proposed Florida constitutional amendment, “Right to Clean and Healthy Waters.”

The amendment, the court stated, is self-executing and fully enforceable against the state when through action or inaction it violates these rights. Plaintiffs, it said, are not required to exhaust all other administrative remedies before appealing to the court for relief under these rights. It affirmed the basic but essential fact that the state and its agencies cannot at their discretion violate the state constitution, and that the court has the authority to compel the state to correct a violation of the people’s rights.

That’s a lot to read into a 14-word amendment, but that’s what courts do: Case by case, they determine what new laws mean and how they get applied.

Pennsylvania’s Green Amendment was key in finding that state’s notorious Act 13 unconstitutional. Under Act 13, a municipality would have had no authority to prevent fracking operations next to schools or in church parking lots, for example, and doctors couldn’t speak publicly about health impacts to their patients.

Montana’s Green Amendment stopped a mining deal that would have produced 245 tons of toxic waste for every ounce of gold and would have consumed 10,000 to 15,000 gallons of fresh water every minute, lowering the water table 1,000 feet.

Citizens and ecosystems in these states needed protection. Their constitutional rights protected them, and New Yorkers decided they needed the same level of rights. So do we.

The Indian River Lagoon lost 58% of its seagrass area since 2009, more than 46,000 acres. Consequently, manatees in the lagoon are starving to death in tragic numbers. Waters that cannot support seagrass beds would be in violation of our Right to Clean and Healthy Waters (RTCHW), and we could hold the state accountable through the courts. Feeding manatees lettuce isn’t the answer. Curtailing pollution is, and the state would be constitutionally bound to do so.

Armed with information from a 2008 report by the Army Corp of Engineers, which predicted catastrophe if the Florida Department of Environmental Protection permitted further use of the Piney Point phosphate plant in Manatee County, our amendment could have compelled better decision-making on the part of the state, thus avoiding the release of 215 million gallons of polluted water into Tampa Bay.

A full list of examples would take pages. Florida waters are polluted because the state permits it through action or inaction, and it allows as much pollution as is politically acceptable. It does this out of deference to special interests and to fatten campaign coffers.

Because the judge in New York read much into “Each person has a right to clean air and water and a healthful environment,” a higher court could overrule this judgment. Indeed, it is a legal concern that the brevity of the amendment could be vulnerable to other court interpretations and challenges.

But the determinations the judge found implicit in New York’s law are explicit in our proposed amendment. It would be against plain-text meaning and established legal doctrine to declare our RTCHW isn’t fully enforceable against government action or inaction or that courts can’t compel the state to correct violations by cleaning up our waters.

The language in our amendment is purposely explicit to best ensure its ability to meet legal challenges and to protect our right to clean water.

In 2023, we need what the state will not provide: bold environmental action to restore and protect our waters. Floridians, therefore, must qualify a “Right to Clean and Healthy Waters” amendment for the 2024 ballot for approval by voters. Then we could compel bold action, because we’d have the constitutional right to do so.

By Joseph Bonasia