Litigation

FRIENDS’ LEGAL WORK REMAINS STRONG
By: Albert J. Slap, Esq., General Counsel

Gold/Moreno Cases. Friends of the Everglades’ legal activism to protect and preserve  Marjory’s “River of Grass” has always been a key component of the organization’s mission  and its success. Elsewhere in this newsletter, on Friends’ website, and in the press, you have  probably been following what may be the end game of Friends’ legal case before Judge Gold  in Miami federal district court. As a result of Friends’ lawsuit, the State was forced to come up  with an $880 million plan to protect the Everglades from Big Sugar’s chemical pollution. This  plan has been submitted to Judge Gold and will be the subject of a public hearing on July 25,  2012 in Delray. If the plan is not appealed by Big Sugar and, if the State Legislature, the Scott  Administration and the South Florida Water Management District provide the necessary funding  and fulfill the multi-year commitment, then this could be a real milestone for Everglades water  quality. But, as all of us Friends of the Everglades understand too well, these are really big “ifs”.  The new plan, if it ever gets past appeals and lack of funding, should have a fundamental impact  on the Consent Decree case that is before Judge Moreno, also in federal court in Miami.

Be assured that your legal team is still “on the case” and working hard to make this pollution  cleanup plan become a reality – to protect and preserve the only Everglades in the world.

Turkey Point Units 6&7. The Gold case is not the only legal action in which Friends is  currently involved. Represented by the Everglades Law Center, Friends is a petitioner opposing  expansion of the FPL Turkey Point nuclear power plant. While Friends is not an “anti-nuke”  group, the multi-billion dollar construction of yet another sea level, nuclear power unit at  Turkey Point has the potential for major harm to the Everglades. Friends’ role, along with other  environmental groups, will be to closely study and evaluate the project proposal and to minimize  any adverse impacts on the Everglades.

Back-Pumping to Lake O. For years, the South Florida Water Management District (SFWMD)  pumped polluted water from the Everglades Agricultural Area (EAA) back into Lake  Okeechobee in order to help maximize Big Sugar’s profits. Friends opposed this environmentally  destructive practice and sued the Water District in federal court in Miami to stop it. Friends won  that case, but, then, the Bush EPA changed the water transfers rules for the whole country, just  to defeat Friends and to protect Big Sugar. As a result of the rule change, Friends lost in the 11th  Circuit and the case went to the US Supreme Court twice, which, on the second round, the High  Court refused to hear the case. To date, the Obama Administration has not changed the water  transfer rule back, in order to prohibit this environmentally destructive practice. So, Friends is  once again thrown into the breach, as the Water District, at the behest of Big Sugar, now has  come up with a new proposal to back-pump 70,000 acre feet of polluted water a year from Big  Sugar into Lake O. Friends and a dozen more environmental groups are opposing this back-  pumping proposal by the SFWMD.

Sulfate-mercury. As Board Member, Dr. John Purcell’s excellent, science piece on sulfate-  mercury contamination of the Everglades in this issue demonstrates, this is an environmental  problem of enormous magnitude and one that has serious human health impacts, as well. Friends  has developed important, new information about the nature and scope of this damaging methyl-  mercury pollution and will continue to work with other environmental organizations to determine  the most effective legal strategies to stop Big Sugar’s dumping of sulfates into the Everglades  and to mitigate methyl-mercury contamination of the Everglades fish and wildlife.

Polluter Pays. On November 5, 1996, the Polluter Pays Amendment (Amendment 5) to the  Florida Constitution was approved by over 68% of Florida voters. On March 6, 1997, Governor  Chiles requested an advisory opinion from the Florida Supreme Court regarding two questions:  (1) whether Amendment 5 is self –executing; and, (2) whether the term “primarily responsible  as used in Amendment 5 means that after an entity has been determined to be a polluter, it  is required to pay for the entire cost to abate its own pollution, or, in the alternative, whether  an entity is required to pay only a portion of the cost to clean up its own pollution. In 1997,  the Florida Supreme Court issued Advisory Opinion to the Governor – 1996 Amendment 5  (Everglades), 706 So.2d 278 (Fla. 1997). In that opinion, the Florida Supreme Court answered  both of Governor Chiles’ questions. It ruled that the Polluter Pays provision was not “self-  executing”, because the Court believed that the Amendment did not “lay down” a “sufficient  rule by means of which the right or purpose which it gives or is intended to accomplish may be  determined, enjoyed, or protected without the aid of legislative enactment.”

Thus, in 1997, the Florida Supreme Court left it to the Florida Legislature to pass laws that  would implement Amendment 5 (and, thereby, the will of the voters). The Supreme Court  ruled “the voters adopted Amendment 5 to effect a change, and construing the Everglades  Forever Act as Amendment 5’s implementing legislation would effect no change, nullifying  the Amendment and frustrate the will of the people. We, therefore, glean that in adopting  Amendment 5, the voters expected the legislature to enact supplementary legislation to make it  effective, to carry out its intended purposes, and to define any rights intended to be determined,  enjoyed, or protected.”

On Governor Chiles’ second question, regarding the meaning of the words “primarily  responsible”, the Supreme Court ruled: “[W]e recognize, of course, that not all of the water  pollution within the EPA and the EAA may be caused by polluters within the EAA. Therefore,  while polluters within the EAA as a group must pay for 100% of the cost to abate the pollution  they cause, Amendment 5 does not require them to pay for the abatement of such portion of the  pollution they do not cause.”

Fast forward to 2002 and the Barley case. Mary Barley, et al. v. South Florida Management  District, 823 So.2d 73 (Fla. 2002). Although the Supreme Court held that the SFWMD’s ad  valorem tax was constitutional as applied to landowners who were not polluters, there were two  Justices who dissented, Pariente and Quince. Justice Lewis concurred in the result only, but not  in the opinion of the majority. Then Chief Justice Wells wrote a concurring opinion, in which he  very clearly states: “I do conclude that the Legislature is under a constitutional mandate to pass  legislation implementing Amendment 5. In our 1997 Advisory Opinion, we noted this by stating  that ‘the voters expected the legislature to enact supplementary legislation to make it effective,  to carry out its intended purpose, and to define any rights intended to be determined, enjoyed, or  protected.’ 1992 Advisory Opinion, 706 So.2d at 282. I urge the Legislature to carry out the will  of the voters.” Justice Pariente, writing for herself and Justice Quince found that the SFWMD’s  ad valorem tax violated the Polluter Pays Amendment. “If non-polluters in the EPA or EAA are  paying for the costs of the abatement of water pollution within the EPA and the EAA, this would  violate the clear language of the amendment. No additional legislation is necessary to effectuate  nonpolluters’ rights to be free from the clean-up costs associated with polluters-as opposed to the  necessity for legislation to ensure that polluters pay the cost of the abatement of water pollution  that they cause.”

Last March, the Everglades Foundation released a study that it commissioned by RTI, Inc.,  which demonstrates that Big Sugar causes 75% of the pollution of the Everglades and only pays  for 25% of the cleanup, thereby providing proof that the Polluter Pays Amendment to the Florida  Constitution is being violated. http://www.evergladesfoundation.org/pages/1708.

Remarkably, it appears as though the Legislature can repeal and has repealed the will of the  people and will continue to do so (thereby protecting Big Sugar’s profits), unless advocates  can get this issue back before the Florida Supreme Court to give it a “third bite at the apple” to  correct the Florida Legislature’s flouting of the Florida Constitution’s Polluter Pays Amendment.

Categories Summer 2012 - Newsletter | Tags: | Published in August, 2012 |

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