Ar­ro­gance of a three-judge panel im­per­ils the Ever­glades

South Florida Sun-Sentinel (Sunday) - - Opinion - Ed­i­to­ri­als are the opin­ion of the Sun Sen­tinel Edi­to­rial Board and writ­ten by one of its mem­bers or a de­signee. The Edi­to­rial Board con­sists of Edi­to­rial Page Ed­i­tor Rose­mary O’Hara, Ser­gio Bus­tos and Ed­i­tor-in-Chief Julie An­der­son.

It’s a com­mon as­sump­tion that the Florida Supreme Court has the last word about law and jus­tice in this state. But a deeply dis­turb­ing de­ci­sion to al­low an ex­ploratory oil well in the Ever­glades shows that im­pres­sion is largely false.

The rul­ing came from a three-judge panel at the First Dis­trict Court of Ap­peal in Tal­la­has­see. Its con­tent ap­pears to leave lit­tle, if any, room for an ap­peal to the seven jus­tices at the state Supreme Court.

In an act of ju­di­cial ar­ro­gance, the ap­pel­late panel re­fused with­out com­ment to re­fer the case to the en­tire 15-judge dis­trict court or cer­tify it to the Supreme Court as a “ques­tion of great pub­lic im­por­tance.”

If pro­tect­ing the Ever­glades from the messy con­se­quences of oil drilling isn’t a mat­ter of great pub­lic im­por­tance, it’s hard to imag­ine what would be.

That’s why the Depart­ment of En­vi­ron­men­tal Pro­tec­tion, the City of Mi­ra­mar and Broward County — the par­ties fight­ing to pre­vent it — asked the panel to re­hear it, re­fer it to the full ap­pel­late court or give the Supreme Court an op­tion to re­view it.

Their mo­tions were ini­tially pro­moted by the three-judge panel that fa­vored the oil drilling ap­pli­cant, Kan­ter Real Es­tate LLC. And when the court with­drew the opin­ion as er­ro­neously is­sued this week, our com­mu­nity’s hopes were raised for a mo­ment. But a day later, the court reis­sued the pro-drilling opin­ion, mi­nus the push for a fuller vet­ting.

The rul­ing is a threat to restora­tion of the Ever­glades and to the aquifer that sup­plies drink­ing wa­ter for Broward, Mi­ami-Dade and Palm Beach Coun­ties.

If oil were found, Kan­ter would then claim the right to drill more wells through­out its 20,000-acre hold­ing. The sym­bol­ism is as omi­nous as the en­vi­ron­men­tal dan­gers. If state law can­not pro­tect the Ever­glades, of all places, noth­ing is safe.

For­tu­nately, the court case is only the first step. Kan­ter also needs per­mits from Broward, in­clud­ing a land-use change. It also needs per­mits from the U.S. Army Corps of En­gi­neers to in­vade wet­lands and from the South Florida Wa­ter Man­age­ment Dis­trict to drill a wa­ter well needed to op­er­ate its oil rig. These should be re­sisted with ev­ery force at the pub­lic’s com­mand. And the Supreme Court should be asked to take ju­ris­dic­tion, how­ever dim that prospect might be.

One les­son to be learned from this in­sult is that too lit­tle at­ten­tion is paid to the mem­ber­ship of Florida’s five dis­trict courts of ap­peal. While hardly any­one else was look­ing, Gov. Jeb Bush and his suc­ces­sors packed them with peo­ple whose con­ser­va­tive po­lit­i­cal back­grounds spoke louder than their other qual­i­fi­ca­tions.

Un­der the Con­sti­tu­tion, the five ap­pel­late courts are meant to have the last word in most cases. The one in Tal­la­has­see is of­ten more im­por­tant than the state Supreme Court be­cause it’s where most ap­peals of state agency de­ci­sions are fi­nal.

Brad­ford Thomas, presently the First Dis­trict’s chief judge and the au­thor of the oil drilling opin­ion, was a key aide to Bush, re­spon­si­ble for crim­i­nal jus­tice is­sues, be­fore Bush ap­pointed him to the court in 2005. Be­fore that, he held sim­i­lar staff po­si­tions at the Leg­is­la­ture and had been an as­sis­tant state at­tor­ney. Seven of the other 14 First Dis­trict judges also came from ser­vice to Re­pub­li­can gov­er­nors or at­tor­neys gen­eral.

In ear­lier times, Florida’s ju­di­cial nom­i­nat­ing com­mis­sions dis­fa­vored ap­pli­cants with such po­lit­i­cal back­grounds. That changed af­ter 2001, when the Leg­is­la­ture gave the gov­er­nor the power to ap­point all nine mem­bers of each com­mis­sion, in­stead of only three. That change was a gross dis­ser­vice to the pub­lic.

Thomas’ opin­ion in the Kan­ter case es­sen­tially turned on facts dis­puted be­tween the ap­pli­cant and the Depart­ment of En­vi­ron­men­tal Pro­tec­tion, which over­turned a hear­ing of­fi­cer’s de­ci­sion in the ap­pli­cant’s fa­vor. The chief is­sue was whether the drilling area is a de­graded nat­u­ral habi­tat with “less­ened en­vi­ron­men­tal val­ues.”

Thomas also brushed off the depart­ment’s re­liance on the 1991 Ever­glades For­ever Act, passed 24 years af­ter the last Ever­glades oil drilling per­mit was is­sued. Thomas said the act doesn’t pro­hibit oil drilling. More­over, he said it was im­proper for the depart­ment to hold the law against Kan­ter be­cause that ar­gu­ment hadn’t been made be­fore the hear­ing of­fi­cer.

The Ever­glades is not sim­ply a price­less nat­u­ral re­source. It is a sym­bol of Florida it­self.

Florida has the duty — and de­serves the power — to pro­tect its en­vi­ron­ment from some­thing as po­ten­tially ru­inous as oil drilling. For even the best pro­tec­tions against spills some­times fail, as we saw with Deep­wa­ter Hori­zon.

In the mean­time, the Leg­is­la­ture needs to dust off the oil-drilling statute. The word “en­vi­ron­ment” doesn’t ap­pear in the sec­tion that was key in the Kan­ter case. Rather, its list of cri­te­ria for reg­u­la­tors to con­sider in­cludes the in­ter­ests of other prop­erty own­ers, the pos­si­ble im­pacts on nearby de­vel­op­ment and whether the site is ur­ban or ru­ral. That part of the law hasn’t been up­dated since 1969.

An­other part gives cities, but not coun­ties, spe­cial stand­ing on per­mits within their bound­aries. The Ever­glades For­ever Act needs toughening up, as well.

Peo­ple can­not sur­vive in South Florida with­out the wa­ter the Ever­glades pro­vides. This na­tional trea­sure needs new pro­tec­tions.

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