"Intervene" means "intervene": the Florida Legislature revises citizen standing under F.S. s. 403.412(5).

• Author: Sellers, Lawrence E., Jr.
• Position: Environmental and Land Use Law

One of the most controversial bills enacted during the 2002 Regular Session affects both administrative and environmental law by revising the standing afforded citizens to challenge environmental permitting decisions under F.S. [section] 403.412(5). This measure, [section] 9 of HB 813, (1) revises the statute to effectively overrule prior judicial decisions that had interpreted [section] 403.412(5) to. provide virtually "automatic standing" to citizens and Florida environmental interest groups to initiate administrative proceedings under Florida's Administrative Procedure Act (APA). The bill expressly provides that [section] 403.412(5) does not authorize a citizen to initiate (or request or petition for) an administrative proceeding Under [section] 120.569 or [section] 120.57 of the APA.

Background

* Section 403.412(5) Provides Standing to "Intervene" in Certain Proceedings.

Enacted in 1971 as part of Florida's Environmental Protection Act, subsection (5) of [section] 403.412 provides standing to any citizen of the state to "intervene" in any administrative, licensing or other proceedings authorized by law for the protection of the air, water, or other natural resources of the state. The legislative history of this act has been characterized as "sparse." (2)

* Early Agency Interpretations of [section] 403.412(5).

The earliest administrative decisions interpreting [section] 403.412(5) addressed two themes: whether [section] 403.412(5) required citizens seeking to participate under the statute to demonstrate their substantial interests would be affected, and whether the term "intervene" in [section] 403.412(5) required that an administrative proceeding under the APA (as opposed to "free form" agency activity not governed by the APA) be already ongoing before a party could participate under [section] 403.412(5).

Peterson v. Department of Environmental Regulation, DOAH Case No. 78-1467 (DER Final Order dated April 17, 1979), was one of the first administrative cases interpreting [section] 403.412(5). In that case, the hearing officer held that, notwithstanding the provisions of [section] 403.412(5), the petitioners must establish not only that they are "citizens of the state" but also that their substantial interests would be affected before they may participate in an administrative hearing under [section] 120.57. To determine otherwise could "result in exposing both state agencies and private permit applicants to unnecessary and unconscionable delay and expense where formal administrative proceedings are requested by persons having no personal stake in the outcome of the proceedings." (3) This interpretation was affirmed by DER, but rejected by the agency shortly thereafter in another case, C.S.M. Corporation v. Department of Environmental Regulation, DOAH Case No. 79-2470 (DER Final Order dated April 30, 1980). In that case, DER held that the standing requirement in [section] 403.412(5) was less stringent than the "substantial interests" standard in the APA. (4) After the C.S.M. case, [section] 403.412(5) consistently was interpreted by the agency to require no showing of substantial interest to participate in administrative proceedings challenging environmental permits. (5)

The second major theme was addressed in another early case, Environmental Confederation of Southwest Florida v. Cape Cave Corporation, DOAH Case No. 83-2567 (recommended order dated April 7, 1983). In that case, the hearing officer interpreted the term "intervene" to mean that [section] 403.412(5) only authorized participation under the statute once administrative proceedings had already been initiated under [section] 120.57. In other words, "intervene" did not mean "initiate." However, DER rejected that interpretation in its final order, based on dictum in Manasota-88 v. Department of Environmental Regulation, 441 So. 2d 1109 (Fla. 1st DCA 1983), (6) which had been decided while the recommended order was pending at the agency. DER determined that under Manasota-88, [section] 403.412(5) authorized the initiation of administrative challenges to environmental permits, as well as intervention into ongoing administrative proceedings.

* The Courts Interpret [section] 403.412(5).

Greene v. Department of Natural Resources, 414 So. 2d. 251 (Fla. 1st DCA 1982), was the first appellate decision to interpret [section] 403.412(5). In Greene, a citizen asserted standing under [section] 403.412(5) to challenge approval by the Board of Trustees of the Internal Improvement Trust Fund of the inclusion of a tract of land in Broward County on the Conservation and Recreational Lands list on the ground that the land did not meet the criteria for inclusion on the list.

In upholding the denial of Greene's petition for an administrative hearing, Judge Shivers explained: "Section 403.412(5) does not authorize or allow a citizen to initiate a [section] 120.57 proceeding without first meeting the substantial interest test...." (7) Quoting [section] 403.412(5), the court found that the statute's plain language addressing standing to intervene precluded Greene from initiating an administrative proceeding under [section] 403.412(5). (8)

Notwithstanding the court's fidelity in Greene to the statute's plain language, the following year the court's interpretation of [section] 403.412(5) took a turn in ManaSota-88. In that case, ManaSota-88 filed a petition under [section] 403.412(5) seeking to "intervene" into DER's free-form permitting process with respect to several environmental permits for which Gardinier had filed applications. DER denied ManaSota-88's petition because it determined that, until it issued its proposed agency action, there was not yet any agency action in which ManaSota-88 could participate. The court affirmed DER's denial of ManaSota-88's petition, but in dictum the court expanded the scope of [section] 403.412(5), stating: "In the event that the Department does propose to issue the permits to Gardinier, [section] 403.412(5) would appear to be a statutory provision entitling appellants to participate as a party to proceedings under [section] 120.52(10)(b), including initiation of a [section] 120.57 hearing." (9) The court distinguished Greene as applying only to cases that did not involve licensing or permitting, or when the statutorily required allegations of environmental injury were absent. (10)

Figuratively speaking, ManaSota-88 let the horse out of the barn. Not long after, in Booker Creek v. Mobil Chemical Co., 481 So. 2d 10 (Fla. 1st DCA 1985), the court relied on the dictum in ManaSota-88 to find that Booker Creek had standing under [section] 403.412(5) to initiate a challenge to a DER determination that a groundwater discharge permit was not required for two wastewater storage areas proposed in connection with a phosphate mining operation. Booker Creek had not alleged or proved that its or any of its members' substantial interests were in any way affected by the proposed wastewater storage operations. (11) After the decisions in ManaSota-88 and Booker Creek, a number of cases have cited [section] 403.412(5) as the sole basis for standing to initiate Chapter 120 proceedings, (12) thus allowing any citizen of the state to initiate an administrative challenge to a permitting decision without any showing that its substantial interests will be affected.

The Legislature Responds

These judicial interpretations of [section] 403.412(5) did not sit well with the business community. Home builders, developers and other business interests repeatedly complained that the liberal standing provided by these interpretations, especially when coupled with loose pleading (13) and proof requirements, (14) made it far too easy for opponents to defeat or modify projects--not based on the merits of their objections, but simply as a result of the delay and expense created by the easily-requested administrative proceedings. (15) These complaints eventually prompted the introduction of legislation that would effectively overrule these judicial decisions. Although very controversial with environmental interest groups, this legislation came close to passage in both 2000 and 2001. (16)

Similar legislation was introduced again during the 2002 Regular Session in the form of SB 270, by Senator Jim King, and HB 819, by Representative Gaston Cantens. Environmental interest groups actively opposed the bills, but both measures enjoyed considerable success in their respective chambers. (17)

Ironically, the legislation ultimately passed the legislature as part of HB 813, a bill that also provides a dedicated source of funding for Everglades restoration-funding which was actively sought and supported by all environmental interest groups. (18) The irony of this pairing of the standing legislation with the Everglades restoration bill was not lost on even the casual observer. One newspaper editorial dubbed it "the Devil's Deal." (19)

The Governor Signs and Explains the Bill

The attorney general, (20) most environmental interest groups and newspaper editorials urged the governor to veto the bill, (21) while other prominent environmental interest groups and editorials urged the governor to allow it to become law. (22) There was much disagreement about the effect of the bill on citizen...