Florida’s Springs and Rivers Need Their Own Legal Rights (Part One of Two)

Over the weekend of April 13-14, 2019, I attended a gathering of about 20 people in Apopka to hear Thomas Linzey, the executive director of the Community Environmental Legal Defense Fund (CELDF), talk about the work of his organization and explain why so many of us who work so hard on behalf of our springs and rivers have so little to show for that work in regard to actual restoration, preservation and protection of these living systems.

Linzey’s talk was a refresher for me since I had attended one of CELDF’s Democracy School sessions in 2013, when Linzey and Mari Margil were hosted by the Center for Earth Jurisprudence at Barry University’s Law School in Orlando. That event was an “Aha!” moment for me, as Linzey and Margil explained how the USA’s laws were structured for the benefit of business and corporations at the expense of Mother Earth.

The primary culprit that stands behind these laws is the fact that in the USA, “the environment” = “property.” If you own a piece of land, you have the legal right to destroy it, in part or in total. The land/environment itself has no legal rights apart from your ownership of it.

CELDF uses a couple of effective graphics to explain how this legal system works. The first graphic is what they call the “Regulatory Triangle.” Say a group of community citizens identifies a problem:  Some landowners want to start a concentrated animal feeding operation (CAFO) in land along a pristine river somewhere in Florida. Citizens in the surrounding communities hear about this idea and are aghast because they know the “big picture” problems that accompany CAFOs: water pollution, noxious odors, increased heavy truck traffic, decreased land values in surrounding areas, private profits for a few people or a corporation taking precedence over the well-being of the community as a whole.

As citizens mobilize to fight the CAFO, they learn that different units of government and agencies within Florida need to issue “permits” in order for the CAFO to operate. So citizens decide to make calls to get people to respond to their concerns.

The county commission staff replies, “We’re so glad you called! Here is what you are allowed to comment about and here is how you can make comments to the commission.”

The state’s environmental protection agency staff replies, “We’re so glad you called! Here is what you are allowed to comment about and how you can make comments to our agency.”

When citizens learn what they are and are not allowed to comment about—which is always just one or two small parts of the “big picture” they’ve identified—they decide to ask for help from one of the larger environmental organizations in their area.

The organization’s staff replies, “We’re so glad you called! Here is what we are allowed to comment about and here is how we can make those comments.”

The Regulatory Triangle operates to funnel citizen concerns down a chute that leads to citizens’ being able to contest only one or two small parts of the “big picture” problems that they have identified.

Source:  Community Environmental Legal Defense Fund (CELDF)

But what happens if, for example, the county commission decides to do the right thing and deny the necessary permit(s) for the CAFO? The landowners will get their permits anyway, thanks to what CELDF describes as the “Box of Allowable Remedies” (they called this the “Box of Allowable Activism” back when I attended Democracy School and I actually like that title better).

The commission is constrained by four legal principles:  (1) state pre-emption, which means state law trumps local law; (2) Dillon’s Rule, which specifies that the state is the parent and municipalities the children, so municipalities can only do what the state gives them permission to do; (3) corporate commerce rights, embedded in the Commerce Clause of the U.S. Constitution; and (4) corporate personhood constitutional rights, which allow corporations to sue municipalities for damages caused by laws and decisions that affect corporate profits (including estimated future profits), coupled with the idea that “nature” is “property” and interference with the use of that property may constitute a 5^th Amendment “taking” of the “property.”

 

Source:  Community Environmental Legal Defense Fund (CELDF)

 Note that these four constraints are now firmly embedded in our legal system and trace their origins back to one of our two primary founding documents, the U.S. Constitution.

And keep in mind that when municipalities and state agencies issue “permits” for things like CAFOs, natural gas pipelines, phosphate mines, and huge withdrawals of water from the Floridan aquifer, what is actually being “permitted” is damage to those natural systems that sustain us and other sentient beings. A permit grants permission to cause damage. And under current law, we are not “permitted” to stop that damage.

But we keep plodding along, attending meetings, making comments, being good, polite stakeholders. There's a popular saying that "the definition of insanity is doing the same thing over and over again, but expecting different results."

Are we crazy? Isn't there something else we could be doing?

Why, yes. Yes, there is. See Part Two of this essay, coming soon.