ARTICLES

   ARTICLE II, SECTION 7(a):FLORIDA'S OVERALL POLICY OF ENVIRONMENTAL STEWARDSHIP REVISITED
       Ross Stafford Burnaman,
       Assistant General Counsel Florida Department of Community Affairs
       (September, 1997)
   

As the Florida Constitutional Revision Commission considers changes to our State Constitution, it has been asked to include an "Environmental Bill of Rights" to fortify the existing environmental provisions. [1]  There are several constitutional provisions that relate to our natural environment: Article IV, Section 9 establishes the Game and Fresh Water Fish Commission and directs that revenues from hunting and freshwater fishing licenses be appropriated for "management, protection and conservation" of those resources; Article VII, Section 14 allows lawful state bonds to finance construction of air and water pollution control facilities, solid waste facilities and water facilities; Article X, Section 11 codifies the public trust doctrine for sovereignty, submerged lands; Article X, Section 16 instituted marine net fishing limitations. Arguably the most fundamental provision, however, is Article II, Section 7(a),

Natural Resources and Scenic Beauty. It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provision shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise.

This article presents a very brief overview of the significant appellate decisions which have cited or applied Article II, Section 7(a) (hereinafter "the policy"). The environmental policy was amended in 1996, when voters approved a citizen initiative to require those primarily responsible for Everglades pollution to pay for pollution abatement costs. The new subsection is Article II, Section 7(b). [2]  Hopefully, this article will help inform deliberations regarding the manner in which the Florida Constitution should help safeguard our ecology. [3]

The policy has been virtually ignored by the Federal courts -- it is cited in one decision, but only in a footnote. [4]

There are approximately two dozen Florida decisions which refer to the policy. However, in some instances the policy is cited in a footnote [5], in a dissent, [6] or only as part of a recitation of a trial court decision. [7]

Often, courts have cited the policy as the foundation for a particular statute within the context of a challenge to the constitutionality of a statute or a challenge to the application of a statute. This use of the policy is understandable since the policy is not self-executing; the Legislature must enact statutes to effectuate it. Thus, the policy has been cited as a predicate for: Chapters 370 and 372 [8]; Chapter 373 [9]; Chapter 380, Part I [10]; and Chapter 403 generally [11], and Section 403.412 specifically. [12]  The policy did not appear to have any bearing on the outcome in those cases, however. In four decisions, the policy is, in essence, a textual footnote. [13]  In two instances, the policy has been considered within the context of Florida Supreme Court review of a proposed constitutional "property rights" amendment ballot review. [14]

The first reported Florida decision addressing Article II, Section 7(a) is Seadade Industries, Inc. v. Fla. Power & Light Co., 245 So. 2d 209, 214-215 (Fla. 1971), where the state high court said that natural resources should be considered in eminent domain cases. At issue was a district court opinion affirming an order of taking granting the utility lands necessary to construct the cooling canals at the Turkey Point nuclear power plant prior to the issuance of federal, state and local construction permits. The court "balanced" the policy with the public interest in building the power plant, and decided that the utility had shown that it could meet permit requirements and that in the meantime irreparable damage would not be done.

Five years later came the strongest application of the policy. In Askew v. Game and Fresh Water Fish Comm., 336 So. 2d 556, 560 (Fla. 1976), the policy was used to revive statutes which had been declared unconstitutional by the Leon County Circuit Court. [15]  A "fisherman's (sic) association" and the Game and Fresh Water Fish Commission had obtained an injunction to prevent the Florida Department of Natural Resources from introducing the White Amur fish into Deer Point Lake for aquatic weed control. The Florida Supreme Court said that it would have agreed with the trial court's reliance on Article IV, Section 9, of the Florida Constitution to invalidate the statutes, but for Article II, Section 7(a). The court reversed the injunction and allowed the weed-control project.

Contemporaneous with Askew v. Game and Fresh Water Fish Comm. was the initial District Court of Appeal opinion which cited the policy. In Pinellas Co. v. Lake Padgett Pines, 333 So. 2d 472, 477 (Fla. 2nd DCA 1976), the court reversed a circuit court injunction of Pinellas County's well-field development project located in Pasco County. The trial court determined that the projected was required to undergo Development-of-Regional-Impact (DRI) review under Chapter 380, Part I, Florida Statutes. The district court acknowledged that the DRI process was intended to implement the policy, but the court found that Chapter 373, Florida Statutes ("the Florida Water Resources Act of 1972"), more specifically implemented the policy as to water resources development. Thus, the statutes were harmonized and no DRI review was required.

In Weller v. Askew, 363 So. 2d 1091, 1094 (Fla. 1978), the court affirmed a circuit court's rejection of constitutional attacks on the Big Cypress Conservation Act, Section 380.055, Florida Statutes. Landowners in the Big Cypress area claimed that the use of State-bonded funds to purchase lands for donation as part of the federal Big Cypress National Preserve offended Article VII, Section 11(a), of the Florida Constitution. Further, the landowners claimed that State donation of sovereignty, submerged lands to the Preserve was contrary to Article X, Section 11, of the Florida Constitution. The Florida Supreme Court stated that the State's role in creation of the Big Cypress National Preserve was in furtherance of the "important state goal" ratified in the policy and that the project's goal of environmental protection "is unquestionably in the public interest." Id.

The most eloquent elaboration of the policy came in a 1995 Florida Supreme Court decision dealing with the protection of the endangered Key deer in the Florida Keys Area of Critical State Concern. In Dept. of Community Affairs v. Moorman, 664 So. 2d 930, 932-933 (Fla. 1995), the court quashed and remanded a Third District decision which had reversed an order of the Florida Land and Water Adjudicatory Commission which had rescinded Monroe County building permits for fences on Big Pine Key. Moorman v. Dept. of Community Affairs, 626 So. 2d 1108 (Fla. 3d DCA 1993). The district court determined that the interim County regulation prohibiting fencing was repugnant to due process and private property rights; citing Article I, Section 9, Article I, Section 2, and Article I, Section 23, of the Florida Constitution. [16]  The State high court found that a rational basis for the fencing prohibition was "plainly stated" in Article II, Section 7(a) and is "only underscored by the unique problem of the Key deer." Moorman, 664 So. 2d at 932-933. On the thornier property rights issue, the court stated that the regulation should not have been facially invalidated, but that the landowner could bring an inverse condemnation action:

In sum, the rights are property owners are limited by the lawful environmental policies of the State, and the State acting within its lawful power to regulate property is likewise limited by the depth of its purse.

Moorman, 664 So. 2d at 933.

In conclusion, Florida's overall policy of environmental stewardship, embodied in Article II, Section 7(a), has been of marginal import in appellate jurisprudence. The policy is reliant upon the Legislature to enact implementing legislation, and upon the citizens to pay the price of implementing that legislation when private property rights are unduly restricted or when important areas must be purchased to protect them. Within that history and context, it is hardly surprising that recent citizen initiatives have resulted in "self-executing" amendments such as the marine net fishing limitations or the Everglades "polluter pays" provision. Unfortunately, the practical application of those amendments has been problematic. Hopefully, the Constitutional Revision Commission will find a meaningful opportunity to present to Floridians a better expression "that our society is to be the steward of the natural world, not its unreasoning overlord." Moorman, 664 So. 2d at 932.

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1. Testimony of Department of Environmental Protection Secretary Virginia Wetherell to the Constitutional Revision Commission, Pensacola, July 23, 1997.

2. "Those in the Everglades Agricultural Area who cause water pollution within the Everglades Protection Area or the Everglades Agricultural Area shall be primarily responsible for paying the costs of the abatement of that pollution. For the purposes of this subsection, the terms 'Everglades Protection Area' and 'Everglades Agricultural Area' shall have the meanings as defined in statutes in effect on January 1, 1996."

3. An extensive discussion of the history of this provision, or other constitutional, environmental proposals is beyond the scope of this article.

4. Becker Phosphate Corp. v. Muirhead, 581 F. 2d 1187 n.4 (5th Cir. 1978).

5. Prugh v. St Johns River Water Mgmt. Dist., 578 So. 2d 1130, n. 2 (Fla. 5th DCA 1991); Deseret Ranches Of Florida, Inc. v. Bowman, 349 So. 2d 155, n.5 (Fla. 1977).

6. Seddon v. Harpster, 403 So. 2d 409, 413 (Fla. 1981)(Boyd, J., dissenting); Sarasota Co. v. Dept. Of Administration, 350 So. 2d 802, 808 (Fla. 2nd DCA 1977)(Scheb, J. dissenting).

7. Smith v. Willis, 415 So. 2d 1331, 1333 (Fla. 1st DCA 1982); Florida Power Corp. v. Gulf Ridge Council, 385 So.2d 1155, 1156 (Fla. 2nd DCA 1980).

8. State v. Davis, 556 So. 2d 1104, 1107 (Fla. 1990).

9. Turner v. Trust For Public Land, 445 So. 2d 1124, 1126 (Fla. 5th DCA 1984).

10. Cross Key Waterways v. Askew, 351 So. 2d 1062, 1064 (Fla. 1st DCA 1977).

11. Turner v. Trust For Public Land, 445 So. 2d 1124, 1126 (Fla. 5th DCA 1984).

12. Friends Of Everglades v. Bd. Of Com'rs, 456 So. 2d 904, 913 (Fla. 1st DCA 1984); Florida Wildlife Federation v. State, 390 So.2d 64, 66 (Fla. 1980).

13. City of Bradenton v. Amerifirst Development Corp., 582 So. 2d 166, 167 (Fla. 2nd DCA 1991); Florida Power & Light Co. v. Berman, 429 So. 2d 79, 82 (Fla. 4th DCA 1983); Town Of Indialantic v. McNulty, 400 So. 2d 1227, 1232 (Fla 1981); Askew v. Cross Key Waterways, 372 So.2d 913, 925 (Fla. 1978).

14. Advisory Opinion to Atty. Gen. Re People's Property Rights, 22 Fla. L. Weekly S271, 272 (May 15, 1997); Advisory Opinion To Atty. Gen. Re Tax, 644 So. 2d 486, 495 (Fla. 1994).

15. The trial court invalidated the last sentence of Section 372.26; Section 372.925 (as applied); and Section 372.931 (facial), Florida Statutes.

16. Ironically, the Third District cited Moviematic Indus. Corp. v. Board of County Comm'rs, 349 So. 2d 667 (Fla. 3d DCA 1977), for the proposition that preservation of the ecological balance of a particular area is a valid exercise of the police power, instead of Article II, Section 7(a), Florida Constitution, or implementing decisions such as Weller v. Askew, infra. The Third District is the only appellate court in Florida where there is no reported decision citing the policy.