Environmental regulation in Florida's coastal zone: you ain't seen nothin' yet.

• Author: Darmody, Stephen J.
• Position: Citizen suits

A powerful trend is emerging in maritime environmental law. This trend will be accompanied by increased exposure to citizen suits; it will unmistakably change the way business is done along the coast of Florida. This article describes some of the coming changes and suggests that those who do business on or near the coasts should carefully monitor developments in the law.

Environmental Regulation's Broad Reach

The modern environmental movement is now 30 years old, but the core of environmental law remains unchanged. Before Congress created the current alphabet soup of environmental laws, (1) the principal means of environmental regulation was a lawsuit brought by a private party alleging that a defendant's behavior was a nuisance and prevented the plaintiff from enjoying its property. (2) In response, the courts weighed whether the defendant's action warranted judicial relief and determined whether the costs that would be imposed upon one party outweighed the potential benefit to the other party--or possibly society. (3)

Today, the statute books are filled with environmental laws. The Code of Federal Regulations bulges with well-meaning but often incomprehensible detail, (4) and legions of cases show the judiciary's best efforts at interpreting the intent of Congress. (5) For years, these laws were viewed as having established a command and control system of environmental regulation. (6) Although mind-numbing at times, the regulation was predictable. (7) Today, it is becoming increasingly apparent that the most important development forged by environmental law is not that environmental regulators have the authority to tell businesses how they must conduct their activities. Although that is true, the existing statutes have done three things that are far more important to businesses located along the coast of Florida.

First, Congress has added "citizen suit" provisions to most substantive environmental laws. (8) As interpreted by the courts, these provisions allow virtually anyone with an arguable interest in a resource to enforce the requirements of the substantive law. Second, whenever an action triggers the need for federal review and approval of a plan, any person who is adversely affected by the agency's action may challenge the federal government's decision. (9) Third, because the federal government has always maintained a strong interest in protecting the navigability of the waters along our country's coasts, (10) the need to obtain approval from the federal government before proceeding with a project in the coastal zone can almost be presumed. Moreover, whenever a federal permit is needed, the government will solicit public input.

The net effect of these provisions has been to create a new "environmental paradigm" (11) within which federal administrative officials not only have tremendous influence over the use of Florida's coastal resources but act under the watchful eye of millions of people. Each of those people has the ability to bring what amounts to a nuisance remedy to preserve what he likes about Florida's coastline. As a result, any entity that does business on or near the coast must understand that its success depends upon satisfying the concerns of millions of "regulators."

Evolving Substantive Maritime Environmental Law

Despite the settled nature of most domestic environmental laws, there has recently been a remarkable focus on maritime environmental law. The world's coastal zones support 60 percent of its population and more than one billion people live in coastal urban centers. (12) This population density has a dramatic impact on the health of the oceans. Indeed, 80 percent of the pollution in the oceans originates from land-based activities, and almost 50 percent of the world's coasts are considered threatened by development-related activities. (13) The most widespread and frequently irreversible impact on ocean ecosystems is often said to be coastal development. (14)

With its extensive coastline, numerous deep-water ports, and a burgeoning population, (15) Florida will be the home of millions of people living in such coastal urban centers. Its coming growth will present an enormous challenge for those who must balance the competing pressures of population growth, economic development, and ecological preservation. The environmental challenges of the future in Florida will be managed within a legal system unlike the common law, under which one landowner may sue another, or the substantive environmental law, under which compliance with a permit virtually guarantees the absence of controversy. The process to determine how Florida's limited natural resources ought to be shared by residents and tourists alike will be dramatically more complex.

States Enacting Maritime Environmental Laws

Other changes are coming that will affect coastal development. Some of the changes that have received a great deal of local attention involve individual resources, such as the manatee, while trends emerging in areas beyond Florida's borders have thus far attracted little attention but could have a much greater impact.

Many coastal states are increasing the stringency of laws that protect coastal resources because they do not believe federal law is adequate to protect their resources. When the Clean Water Act was passed in 1972, Congress was primarily concerned with eliminating pollution in rivers such as the Cuyahoga in Cleveland, which became famous after its surface caught fire. The law essentially prohibited all pollution except that permitted by a government agency tasked with determining which pollutants a waterbody could absorb without degrading its quality. (16) Reflecting the focus of the times, Congress considered our rivers to be the major target of pollution and industry to be its major source.

Against this backdrop, the EPA's implementing...