Look for a big payday ahead for gleeful environmental litigators if CRC 23 makes its way into the Florida Constitution.
And if that doesn't bother you, remember this lulu of a proposal would come at the expense of the Florida economy, Florida businesses large and small and no doubt progress on vital projects like already litigation-hampered Everglades restoration.
I believe that former Sewall's Point mayor Jacqui Thurlow-Lippisch, appointed to the Constitution Revision Commission by Senate President Joe Negron, meant well when she introduced this amendment.
"I wanted a public proposal," Thurlow-Lippisch told me. "I wanted something that came from the people, and this amendment was a collaboration by Barry University and Stetson University professors and some of their students. Nothing in it has been altered.
"Right now our laws are stacked against citizens and for corporations," she said. "This is a fix. When necessary, citizens should have the right to fight for a clean and healthy environment.”
To get a clearer picture of the proposed amendment, have a look at its language:
"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."
The trouble here is several. The amendment would be open to a wide interpretation from Florida’s legal system. It would create mass uncertainty and threaten to overturn the work of manufacturers, small businesses, governments and many others across the state.
The proposed amendment would provide any person, not just Floridians, the ability to litigate “against any party, public or private” if they feel their right to a “clean and healthful” environment is threatened.
Frivolous lawsuits, here we come. Try to imagine how likely lawsuits are to escalate under such a constitutional "privilege," how much this will cost Florida businesses and how many of them will go bottom-up beneath the weight of wasteful and needless legal fees -- taking jobs with them.
Challenges certainly aren't limited to big corporations, as Thurlow-Lippisch probably intended. They could be brought against any government entity, business or private citizen, even if they are in full compliance with existing laws or the terms and conditions of existing, valid permits.
Permits will mean little if this amendment survives.
It's the little guy such an abuse-prone law is going to hurt. If, let's say, a Lube Depot owner wants to hassle his competitor over at 10-Minute Lube, he can get a lawyer and argue Mr. 10-Minute Lube isn't disposing of his old oil in an environmentally friendly manner; therefore he is being denied his "right to a clean and healthful environment." Now both Lube guys have a lawyer and before you know it, the court is deciding on safe oil disposal -- and because courts don't always act quickly, the lube businesses and the 10 employees they hire between them are living a nightmare.
Nothing in the amendment keeps courts from allowing suits against government entities.
In a Nov. 8 blog post, Thurlow-Lippisch suggests had her amendment been law last year, Martin County citizens might have had the option of suing the U.S. Army Corps of Engineers and the South Florida Water Management District for "(knowing) they were discharging billions of gallons of toxic algae from Lake Okeechobee into a community’s river making some citizens sick (without) discussion, warning, or health notices posted until the entire ocean ran green." The District and the Corps in Court over blue-green algae.
Personally, I fear the coming clash of environmental ideologies if this amendment passes. Maybe the Forest Service's call for prescribed burns clashes with my right to clean air. Under CRC 23, I can sue. What about the burning of biofuels? Or the pulsating noise of wind turbines 24/7 close enough to my home to split my head open? Never mind that there's nothing cleaner than wind power -- I can sue.
Watch environmental law mushroom like a cloud over the Nevada desert. Think about it. So many new venues to troll for business.
Fortunately, Associated Industries of Florida didn't wait around to see how Thurlow-Lippisch's proposal would shake out during next week's CRC meetings. It's fighting back. AIF President and CEO Tom Feeney has retained a string of top environmental and regulatory attorneys with the Gunster law firm to stop "this dangerously vague amendment."
Says Feeney, “CRC Proposal 23 would no doubt cause more harm than good to our state. This vague amendment 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 courts. Decades of Florida statute already exists to protect our citizens and their right to clean air and water. This amendment would do nothing more than create harmful uncertainty and open thousands of Florida businesses and private citizens up to endless litigation.”
The amendment circumvents existing avenues to address air and water quality issues and that's how it encourages frivolous lawsuits -- the things that drive up business costs and threaten future economic development and expansion in Florida, say Gunster and AIF.
Gunster attorney Greg Munson, former deputy secretary of the Department of Environmental Protection and its former general counsel, has the firmest grip I heard on this amendment: “My concern is that this proposal, if placed into the constitution, would create hurdles and potential liability for businesses, small and large, that are legally operating today with valid permits provided through the Florida Department of Environmental Protection and/or the U.S. EPA. The extremely vague language would take years or decades to be clarified by the courts, during which time these businesses would be in the dark about how to comply with the constitution.
"Florida has an extensive regulatory scheme that’s been in place for 40 years," Munson said, "and this provision would ignore it.”
Thurlow-Lippisch didn't deny the amendment language is very vague, but so, she said, is language in the Environmental Preservation Act in Florida statute now. She also agreed that in the half-a-dozen mostly liberal states that have adopted language similar to her amendment's, not all is going smoothly. "Mainly, I think I've started the conversation, and that's the most important thing," she said.
Thurlow-Lippisch is one of a 37-member commission which meets every 20 years. Called "A Right to a Clean and Healthful Environment," CRC 23 is one of 103 constitutional amendments proposed and under review right now for possible inclusion on the 2018 ballot.
The Gunster team assisting AIF against CRC Proposal 23 includes Kenneth B. Bell, former justice, Florida Supreme Court; Lila A. Jaber, former chair, Florida Public Service Commission; Simone Marstiller, former judge, First District Court of Appeal; and the previously mentioned Gregory M. Munson.
"A provision relating to the protection of natural resources and scenic beauty is already included within the current Florida Constitution in Article II, Section 7(a). That section was heavily debated and carefully thought out prior to passage," these Gunster lawyers point out. "It has served the state for three decades of evolving environmental regulation, protection and restoration and is sufficient for Florida's future."
Reach Nancy Smith at nsmith@sunshinestatenews.com or at 228-282-2423. Twitter: @NancyLBSmith
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