Arrogance of a three-judge panel imperils the Everglades

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.