Item O1
IN THE SUPREME COURT OF FLORIDA
vs.
FLO-SUN, INCORPORATED, )
OKEELANTA CORPORATION, and )
SUGAR CANE GROWERS COOPERATIVE )
OF FLORIDA, )
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)
)
)
)
)
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Petitioners,
Case Nos. 95,044
95,045
FORMER GOVERNOR CLAUDE R. KIRK,
individually and in the name of
the State of Florida, et aI.,
Respondents.
On Petitions to Review a Decision of
The District Court of Appeal, Fourth District
INITIAL BRIEF OF AMICUS CURIAE, MONROE COUNTY,
FLORIDA, IN SUPPORT OF PETITIONERS
James T. Hendrick
County Attorney, Monroe County, Florida
502 Whitehead Street, 3rd Floor Rear
Key West, Florida 33040
Fla. Bar No. 153679
Attorney for Amicus Curiae, Monroe
County, Florida
0, ,
TABLE OF CONTENTS
CERTIFICATE OF TYPE SIZE AND STYLE...............................................ii
TABLE OF AUTHORITIES. ........... ................. ............................................ iii
SUMMARY OF THE ARGUMENT.............................................................. 1
ARGUMENT............................................................................................... 2
I. THE RULE CREATED BY THE FOURTH DCA BELOW WILL
HAVE A DETRIMENTAL EFFECT ON LOCAL
GOVERNMENTS, BOTH AS REGULATORS AND AS
REGULATED PARTIES. .......................................................... 2
A. Local Government as Regulator..................................... 3
B. Local Government as a Regulated Party........................ 7
II. THIS COURT SHOULD PRESERVE THE LEGISLATURE'S
SOLUTION TO EVERGLADES WATER QUALITY AND
WATER QUANTITY ISSUES, BY REQUIRING ADHERENCE
TO THE PRIMARY JURISDICTION DOCTRINE. .................... 9
CONCLUSiON......................................................................................... 11
CERTIFICATE OF SERViCE.... ....... ........~............ ................................... 13
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CERTIFICATE OF TYPE SIZE AND STYLE
The undersigned certifies that the type size and style used in this
brief is Arial 14-Point proportionately spaced.
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TABLE OF AUTHORITIES
Judicial Decisions
Sal Harbour VillaQe v. City of North Miami, 678 So. 2d 356
(Fla. 3d DCA 1996) ..................................................................... 11, iii
Coalition for Adequacy in School FundinQ v. Chiles, 680 So. 2d 400
(Fla. 1996)... ...... .............. ...... ............... ................... ................ ......4, iii
Florida Rock Industries, Inc. v. Alachua County, 721 So. 2d 741
(Fla. 1st DCA 1998)........................................................................ 4, iii
New EnQland LeQal Foundation v. Costle, 666 F. 2d 30
(2d Cir 1981) ............................................................................... 11, iii
South Lake Worth Inlet District v. Town of Ocean RidQe, 633 So. 2d 79
(Fla. 4th DCA 1994) ....................................................................11, iii
State v. SCM Glidco OrQanics Corporation, 592 So. 2d 710
(Fla. 1st DCA 1991 )......................................................................11, iii
STATUTES
Section 120.569......................... ........................... ..................................... 9
Chapter 163, Florida Statutes (1999) .... ............. ................. .................. 3, 5
Section 163.3184, Florida Statutes (1999) ................................. ........... 3, 5
Section 373.4592, Florida Statutes (1999) .............................................. 10
Ch. 380, Florida Statutes (1999) ................................................................ 5
Section 403.182,Florida Statutes (1999) ............................................... 3, 4
Section 403.412, Florida Statutes (1999) .................................................. 3
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SUMMARY OF THE ARGUMENT
Over the last three decades, the legislative and executive branches
of state and federal government have created a detailed system of
environmental regulation based upon ever more precise scientific
standards and detailed scientific modeling and research. This system is
implemented by a process of extensive environmental permitting whereby
the impacts of a proposed project or activity, on a state, regional and local
level are taken into account by the various levels of government. By
dealing with such matters before a project or activity is undertaken, both
the regulatory agencies and the regulated industry are given a precise set
of readily-verifiable standards to apply.
The Fourth District decision casts aside these concepts of regulatory
predictability, allowing (indeed, requiring) trial courts to second-guess the
effects of projects long after they have been permitted and built, based
upon a mere general allegation that government is corrupt. Upon such a
claim, without more, the regulated party or the government itself will need
to "disprove" the allegation of government complicity in order to have the
issue presented to the appropriate regulatory body. The net effect of this
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holding will be to seriously diminish the value of a system built on scientific
standards, by allowing courts to revert to general common-law concepts
whenever a defendant cannot prove a negative: that government is not
corrupt. Both regulators and the regulated require the verifiable standards
and regulatory certainty that the current system provides.
The trial court's order of dismissal was correctly decided in
accordance with the every modern on-point precedent and should be
reinstated.
ARGUMENT
1. THE RULE CREATED BY THE FOURTH DCA BELOW WILL
HAVE A DETRIMENTAL EFFECT ON LOCAL
GOVERNMENTS, BOTH AS REGULATORS AND AS
REGULATED PARTIES.
The Florida Legislature and the Florida Department of Environmental
Protection (DEP) and other state agencies have created a balanced
system of environmental regulation that takes into account many, often
conflicting, public and private, state, regional and local interests. This
multi-tiered regulatory system, administered by federal, state and local
government agencies, provides for extensive control of environmental
matters and should not be discarded in favor of arcane common law public
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nuisance adjudication whenever someone claims that the modern
regulatory system is not working.
Local governments participate in the regulatory system both as
regulators and, in their proprietary activities, as regulated parties: In both
these roles regulatory certainty and verifiable standards are a necessity.
The Fourth District's decision destroys this regulatory certainty by allowing
anyone who disagrees with the environmental laws to make an end run
around them. The ultimate effect is to make a mockery of the regulatory
system, degrading its value to regulators and needlessly imposing
enormous costs on the regulated.
1. Local Government as Regulator
Local governments, such as Monroe County, participate as
regulators through local pollution control programs, which are approved
and supervised by DEP, and through the comprehensive land use planning
required by chapter 163, Florida Statutes (1999) and supervised by the
Florida Department of Community Affairs. 99403.182 and 163.3184, Fla.
Stat. (1999). Local governments and state agencies cannot adequately
administer the regulatory systems if the regulated parties are subjected to
multifarious requirements from the executive and judicial branches. See
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Coalition for Adequacy in School Funding v. Chiles, 680 So. 2d 400 (Fla.
1996) (recognizing the danger of multifarious pronouncements on the
same issue by the various branches of government).
Recognizing the need for consistency, the present regulatory system
is designed to insure that regulatory requirements are uniform among
various levels of government. Federal regulatory authority is delegated to
the states, with oversight by the Environmental Protection Agency (EPA) to
insure that states adhere to the requirements of federal law. See 42
U.S.C. 97410; 33 U.S.C. 9 1313. And, the Florida legislature's
environmental control programs in Chapters 373, 376 and 403, Florida
Statutes, are crafted to follow the federal model set forth in statutes such
as the Clean Air Act, 42 U.S.C. 9 7401, Clean Water Act, 33 U.S.C. 9 1251
and Solid Waste Disposal Act, 42 U.S.C. 96901.
Similarly, the state delegates authority to local governments to
control environmental pollution, but these programs must be consistent
with the requirements of state law and are subject to DEP oversight. 9
403.182, Fla. Stat. (1999); Florida Rock Industries, Inc. v. Alachua
County, 721 So. 2d 741 (Fla. 1st DCA 1998). Local governments are also
required under Chapter 163, Florida Statutes (1999), to enact
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comprehensive land use plans, which address environmental and other
issues related to future development. Such planning must be consistent
with the applicable strategic regional policy plan and the state
comprehensive plan. S 163.3184, Fla. Stat. (1999). As an Area of Critical
State Concern, the Florida Keys must further comply with the Principles for
Guiding Development established under chapter 380, Florida Statutes.
Regional, state and federal concerns are taken into account in all
environmental decisions due to the multi-tiered structure of the system.
And, the Legislature has created special procedures to insure that the
decisions made by local governments appropriately take into account
regional effects beyond the local jurisdiction. See, ch. 380, Fla. Stat.
(providing for regional, multi-disciplinary review of large scale local
government development approvals); chapter 9J-2, Fla. Admin. Code.
(same). Because the regulatory structure insures consistency it provides a
degree of coherence that simply cannot be achieved by ad hoc
adjudication under public nuisance principles.
This consistency and regulatory certainty will be severely degraded
by the decision below. Under the Fourth District's decision, anyone
displeased with the regulatory system can seek to supplant it merely by
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claiming that a government decision resulted from some vaguely alleged
conspiracy. Once such an allegation is made, a trial court must review the
motivation for numerous acts of the state and federal agencies and/or local
elected officials to determine if they resulted from undue political influence.
And, if the alleged complicity is not disproved, the circuit court will be free
to subsume the environmental regulatory role of government (federal, state
and local), without regard for the substantive requirements of the
legislatively created environmental law system. Of course, the trial judge
will not take over government entirely. Instead, the court will merely take
over regulation of a particular subject matter area for particular defendants,
presumably without consideration of the extra-jurisdictional and regional
effects of its decision, leaving the government whose jurisdiction was
supplanted and the various affected local governments to deal with the
consequences.
Local governments spend an enormous amount of time and money
complying with state planning and environmental regulatory requirements
and developing and maintaining the expertise to do so. Are the courts now
going to require even greater resource commitments whenever anyone
alleges displeasure with past government decisions? Will this Court also
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allow anyone who so desires to put the state and local government on trial
for failing to enforce the law, even if the complainant has never asked
government to do anything at all? And, what of the effect on the local
economy and the integrity of a regulatory system that depends on
providing regulatory certainty to both regulators and those it regulates?
The Fourth District failed to consider the effects of its decision by its
nearsighted application of notice pleading requirements. Its decision must
be reversed.
2. Local Government as a Regulated Party
While the detrimental effect on local government regulatory powers is
great, it pales in comparison to the effect on local governments acting in
their proprietary capacity as regulated parties. Local governments engage
in many activities that are subject to environmental regulation, operating
power plants, street systems, municipal stormwater systems, sanitary
sewers and solid waste disposal facilities. All of these activities are subject
to comprehensive state and federal permitting. In reliance on those
permits, Florida local governments collectively spend billions of dollars
constructing facilities and related environmental control structures, most of
which are funded through the issuance of bonds in the securities markets.
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2. THIS COURT SHOULD PRESERVE THE LEGISLATURE'S
SOLUTION TO EVERGLADES WATER QUALITY AND
WATER QUANTITY ISSUES, BY REQUIRING ADHERENCE
TO THE PRIMARY JURISDICTION DOCTRINE.
Because of its location and history, Monroe County has a special
appreciation for the natural environment in general, and the Everglades
system in particular. The Florida Keys are one of the most
environmentally-valuable regions in the state. Being just south of the
Everglades system, the Keys and Florida Bay are significantly affected by
water quantity and quality in the Everglades.
Monroe County strongly supports the ongoing efforts of the state and
federal governments to improve water quality in the Everglades. This
program which is provided for in the Everglades Forever Act, section
373.4592, Florida Statutes (1999), will first undertake comprehensive
hydrologic studies to determine the best system-wide solution to
Everglades water quality. Then, through the Everglades Construction
Project, the state and federal governments will undertake the largest-ever
environmental cleanup of its kind. Id. This will (as it must) occur over the
course of decades with careful monitoring of water quantity and water
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quality and detailed scientific data continually being gathered by regulatory
agencies.
As the legislative preamble to the Everglades Forever Act clearly
indicates, the issues involved are exceedingly complex and require a
carefully developed scientific solution. 9 373.4592(1), Fla. Stat. (1999).
Monroe County respectfully submits that trial courts are ill-equipped to
regulate in this area. The issues that face the Everglades simply cannot be
dealt with under general public nuisance concepts. Moreover, the creation
of an alternate regulatory system by the courts would require policy
judgments regarding the balancing of competing public, private and
ecological interests that are best left to the political branches.
As various precedents clearly hold, the courts should defer to the
scientific expertise of the regulatory agencies in complex environmental
matters. See Bal Harbour Village v. City of North Miami, 678 So. 2d 356
(Fla. 3d DCA 1996); South Lake Worth Inlet District v. Town of Ocean
Ridge, 633 So. 2d 79 (Fla. 4th DCA 1994); State v. SCM Glidco Organics
Corporation, 592 So. 2d 710 (Fla. 1st DCA 1991); New England Legal
Foundation v. Castle, 666 F.2d 30 (2d Cir. 1981).
CONCLUSION
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The Fourth District's meddlesome approach to dealing with the broad
public policy issues presented in this case should not become the
prevailing law of this state. If the Fourth District's decision is allowed to
stand, the courts will invite any person that is dissatisfied with past
governmental decisions to simply allege complicity, bypass the regulatory
system, and ask the courts to create a new system governing only those
persons that are parties to the suit. And, there will no longer be any
requirement that such a plaintiff even attempt to have the Executive
Branch address his concerns. The end result will be to significantly
devalue a regulatory system carefully created over the last quarter century
to deal with the increasingly complex environmental issues that have
arisen as population and industrialization have increased. Indeed, under
the Fourth District's decision the courts will be reverting to the old
common-law system, which the administrative regulatory scheme replaced.
This Court should reverse the Fourth District's decision.
Respectfully submitted this 4th day of February, 2000.
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Monroe County, Florida
502 Whitehead Street
Key West, Florida 33040
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 4th day of February, 2000, the
original and five (7) copies of Petitioner's Brief were filed with the Clerk of
the Supreme Court of Florida, and that a true and correct copy of the same
was furnished by U. S. Mail to:
Joseph P. Klock, Jr.
Gabriel E. Nieto
Steel Hector & Davis LLP
200 S. Biscayne Blvd,
Suite 4000
Miami, FL 33131-2398
Searcy Denney Scarola
Barnhart & Shipley, P.A.
Post Office Drawer 3626
West Palm Beach, FL 33402
Gary P. Sams
Hopping Green Sams & Smith
123 S. Calhoun Street
Tallahassee, FL 32301
Russell S. Bohn, Esq.
Edna L. Caruso
Caruso Burlington Bohn &
Compiani, P.A.
1615 Forum Place, Suite 3A
West Palm Beach, FL 33401
Jack Scarola, Esq.
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Thomas J. Guilday
Vikki R. Shirley
Huey Guilday & Tucker, P.A.
Post Office Box 1794
Tallahassee, FL 32302-1794
Robert T. Scott
Jack J. Aiello
Gunster Yoakley Valdes-Fauli
& Stewart, P .A.
#5606B6v1 ,MIA_199B> -Flo-Sun Brief.wpd
777 South Flagler Drive
Suite 500 East
Post Office Box 4587
West Palm Beach, FL
33402 -458 7
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