In environmental feud, public interest should win
In Florida politics, you can often tell a great deal about the worth of an issue by who’s against it and how loudly they’re yelling. Today’s example is a simple proposal before the Florida Constitution Revision Commission “to establish that every person has a right to a clean and healthful environment.” We think that’s a splendid idea, and not just because Florida’s biggest business lobbies are desperate to defeat it. You judge. This is what Proposal 23 says: “The natural resources of the state are the legacy of present and future generations. Every person has a right to a clean and healthful environment, including clean air and water; control of pollution; and the conservation and restoration of the natural, scenic, historic, and aesthetic values of the environment as provided by law. Any person may enforce this right against any party, public or private, subject to reasonable limitations, as provided by law.”
That last sentence, which is intended to open courthouse doors now largely shut to the public, has triggered vehement opposition from Associated Industries of Florida and the Florida Chamber of Commerce. They are lobbying intensely to kill the proposal at today’s meeting of the commission’s judicial committee.
If Proposal 23 goes on next November’s ballot, as it should, most voters wouldn’t have to look far for reasons to support it. Sewage overflows, algae blooms, pollution warnings at beaches, the perpetual plight of the Everglades, chronic flooding and other consequences of overdevelopment have scarcely left any corner of Florida untouched.
Meanwhile, the governor forbids his agencies from mentioning phrases like “climate change” or “global warming.” The resulting silence speaks volumes about why the people can’t leave it to the government to protect Florida and its future.
State law on air and water pollution sounds all well and good, but it is riddled with weaselly-worded exceptions, delegates authority to malleable local agencies, and creates a stout barrier against citizens acting to protect the environment when the government will not.
In a section hilariously titled “Environmental Protection Act,” the law forbids any lawsuit against a person, corporation or governmental agency that is operating under a “currently valid permit…and is complying with the requirements of said permit…”
If that doesn’t wall off the courthouse well enough, the law also requires the losing party to pay the winner’s costs and attorneys’ fees. Those can be staggering, a risk that citizens are unlikely to bear. For good measure, they can be required to post bond before their case can proceed.
As for an administrative proceeding, the law allows citizens to intervene only when their “substantial interests” are at stake, a term that leaves too much to whim and chance.
“If you have a permit to destroy or pollute, a citizen has nothing to say about it. That’s ridiculous,” says Jacqui ThurlowLippisch, the commission member from Martin County who introduced Proposal 23.
A fourth-generation Floridian, ThurlowLippisch is a leading environmentalist who has fought for years to mitigate Lake Okeechobee discharges into the St. Lucie RiverIndian River lagoon. She says the courts have refused to accept the damage as a “taking,” which in legal terms would give protesters standing to sue.
“So many of our springs,” she adds, “are filled with algae affecting not just our quality of life, but our economy. Yet a person like me has no standing, no support from my state.”
Although the commission heard some 740 proposals from the public during early hearings, Thurlow-Lippisch says hers is the only one to make it to the current agenda word-for-word. It was presented by students and professors at Barry and Stetson Universities.
The Chamber of Commerce opened fire on the proposal before it even reached the commission’s official agenda, citing its history of fighting “measures that create excessive burdens on businesses or establish even more unneeded legal liability on Florida’s job creators.”
The Florida Constitution “should be a welcome sign for our great state — not amended to being a closed for business billboard,” Chamber president Mark Wilson said in an Oct. 17 letter to the commission.
Associated Industries, which doesn’t disclose its membership, hired four big legal guns to fight Proposal 23. They are a former Supreme Court justice, a former chair of the Florida Public Service Commission, a former judge of the First District Court of Appeal, and a former general counsel and deputy secretary of the Department of Environmental Protection.
“This vague amendment,” complained Tom Feeney, president of Associated Industries, “would effectively replace the comprehensive and well thought out regulatory system we have in place today with a piecemeal approach that is decided on a case by case basis by the court.”
But it’s been the lobbyists, and compliant legislators, who have “thought out” the system that is failing Florida today and so seriously threatening its future.
In any case, Proposal 23 retains a strong legislative role in the words “as provided by law” and “subject to reasonable limitations, as provided by law.”
Proposal 23 simply improves the chances that those laws, as interpreted by the courts, will finally favor the public interest.
It would disgrace the revision commission to let that cause die in committee today.
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, Elana Simms, Andy Reid and Editor-in-Chief Howard Saltz.