On November 26, 1997, the Florida Supreme Court issued an advisory opinion to Governor Lawton Chiles regarding a 1996 amendment to the Florida Constitution, Amendment Five.  Amendment Five provides that “[t]hose in the Everglades Agricultural Area who cause water pollution within the Everglades Protection Area shall be primarily responsible for paying the costs of the abatement of that pollution.”  The request for an advisory opinion made by Governor Chiles discussed the “Everglades Forever Act” which was enacted to settle many years of litigation between the United States of America, the State of Florida, the South Florida Water Management District, the Department of Environmental Protection and certain large agricultural interests to determine how and at whose expense the pollution of the Everglades should be abated.  The interaction between the Everglades Forever Act and Amendment Five has been a subject of debate. Another primary question revolving around Amendment Five was whether or not the amendment is self-executing. [1]   The Governor requested the Florida Supreme Court to opine on the following two questions: 
 

Is the 1996 Amendment 5 to the Florida Constitution self-executing, not requiring any legislative action considering the existing Everglades Forever Act? Or is the Legislature required to enact implementing legislation in order to determine how to carry out its intended purposes and defining any rights intended to be determined, enjoyed or protected?

What does the term “primarily responsible” as used in the 1996 Amendment Five to the Florida Constitution mean? Does it mean responsible for more than half the costs of the abatement, or responsible for a substantial part of the costs of abatement, or responsible for the entire costs of the abatement, or does it mean something different not suggested here? 

     The basis for the Governor’s request was that the uncertainty created by the unclear language of Amendment Five made the South Florida Water Management District and the Florida Department of Environmental Protection, the entities responsible for enforcing the Everglades pollution abatement initiatives, unable to move forward on enforcing the Amendment.  The Governor is responsible for providing guidance to these executive agencies on their responsibilities and clarification from the Supreme Court would help the Governor interpret the Amendment and provide the needed guidance to the agencies.

     In response to the Governor’s request, the Florida Supreme Court agreed to give an opinion on the issues raised. Interested persons were permitted to file briefs and to present oral argument.  Briefs were filed on behalf of Save Our Everglades, Inc., Florida Audubon Society, National Audubon Society, Flo-Sun, Inc., Osceola Farms, Inc., Atlantic Sugar Association, Inc., Okeehanta Corporation, U.S. Sugar Corporation, Sugar Cane Growers Cooperative of Florida, St. Joe Corporation, The Florida Chamber of Commerce and the Florida Legal Foundation. 

     The Court concluded that Amendment Five is not self-executing and cannot be implemented without the aid of legislative enactment because it fails to lay down a sufficient rule for accomplishing its purpose. [2]   The Court stated that many policy determinations are raised by Amendment Five, including what constitutes “water pollution”; how one will be adjudged a polluter; how will the costs of pollution abatement be assessed; and by whom might such a claim be asserted. The Court also pointed out that Amendment Five was incorporated into Article II, Section 7(a) of the Constitution and thus must be read in pari materia with the rest of that provision. [3]  Other parts of that provision direct the legislature to provide by statute for the “abatement of air and water pollution.”

      After determining that Amendment Five is not self-executing, the Court addressed the existing Everglades Forever Act and determined that further legislative action is required. The Court specifically determined that there was no inconsistency between the Everglades Forever Act and Amendment Five.  Both Amendment Five and the Everglades Forever Act were adopted for the purpose of requiring polluters to pay for the abatement of their Everglades pollution. However, the Court found that, notwithstanding the mutuality of subject matter, the Everglades Forever Act is not the enabling legislation for Amendment Five.  This conclusion was based on several things, including the pre-election publicity and promotion relating to proposed Amendment Four, Five and Six.  The Court stated that the voters adopted Amendment Five to effect a change, which would mean that relying on the existing Everglades Forever Act would effect no change and thus frustrate the voter’s intent.  “We therefore glean that in adopting Amendment Five, 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.”

      The Court next addressed the meaning of the phrase “primarily responsible.”   The Court recited the laws of constitutional construction, which require consideration of the intent of the voters who adopted the amendment and which generally require words to be interpreted in their most usual and obvious meaning. [4]   After analyzing the dictionary definitions of the words “primarily” and “responsible,” and the voters intent to recognize that no one entity is responsible for all the pollution in the Everglades Agricultural Area, the Court opined that “primarily responsible” means that individual polluters, while not bearing the total burden, would bear their share of the costs of abating the pollution found to be attributable to them.

 
[1] In 1996, the Attorney General of Florida opined that the Amendment is self-executing (Op. Att’y Gen. Fla. 96-92). 

[2]  Citing Gray v. Bryant, 125 So. 2d 846 (Fla. 1960).
 
[3]  Citing In re Advisory Opinion to the Governor, Appointment of County Commissioners, 313 So. 2d 697, 701 (Fla. 1960).

[4]  Citing Jacksonville v. Continental Can Co., 113 Fla. 168, 172, 151 So. 488, 489-90 (1933) and Myers v. Hawkins, 362 So. 2d 926, 930 n. 10 (Fla. 1978).