Revision 5: protecting natural resources.

• Author: Henderson, William Clay
• Position: Florida Constitution Revision Commission

Ballot Title: Conservation of Natural Resources and Creation of Fish and Wildlife Conservation Commission

Ballot Summary: Requires adequate provision for conservation of natural resources; creates Fish and Wildlife Conservation Commission, granting it the regulatory and executive powers of the Game and Fresh Water Fish Commission and the Marine Fisheries Commission; removes legislature's exclusive authority to regulate marine life and grants certain powers to new commission; authorizes bonds to continue financing acquisition and improvement of lands for conservation, outdoor recreation, and related purposes; restricts disposition of state lands designated for conservation purposes.

For the past 30 years, environmental policy has been part of constitutional discourse in Florida. Since 1968, the state constitution has declared it "the policy of the state to conserve and protect its natural resources and scenic beauty" and has required that "adequate provision.., be made by law for the abatement of air and water pollution and of excessive and unnecessary noise."(1) This language has been the conceptual peg supporting a body of environmental laws that have evolved along with Florida's phenomenal population growth and development.(2) Public support for further constitutional protection of the environment has been tested in recent elections. In 1994, the net ban amendment received overwhelming voter approval.(3) In 1996, two amendments sponsored by the Save Our Everglades Committee were adopted despite formidable opposition that resulted in the most expensive political campaign in the history of the state.(4)

Even with the constitutional attention now given to the state's natural resources, environmental issues were on the minds of many who participated in 15 public hearings held over the last year by the 1997-98 Constitution Revision Commission. Dozens of speakers used the hearings as an opportunity to re-debate the merits of the net ban amendment. Others supported measures commonly referred to as an environmental bill of rights, extension of Preservation 2000, unification of fish and wildlife, and Forever Wild. These and other environmental proposals received serious attention from the commission. Four ultimately received the necessary votes to appear on the November ballot as Revision 5, entitled "Conservation of Natural Resources and Creation of Fish and Wildlife Conservation Commission."(5) The revision strengthens existing environmental language in the constitution and equips policymakers with tools to protect the state's natural resources. The commission intentionally placed Revision 5 first on the ballot among the revisions because the proposals in it consistently received the strongest support of the commission and the public.

Conservation and Protection of Natural Resources

Revision 5 contains a directive that "adequate provision shall be made by law... for the conservation and protection of natural resources." The original language of the proposal as filed appeared to create a self-executing provision which did not require implementing legislation and which granted a broad right of standing.(6) Thus it was coined "an environmental bill of rights." After the committee charged with considering the proposal expressed concern about the effect of such a far-reaching provision on property rights and litigation, the proposal underwent drastic changes that rendered the early title a misnomer. Yet while this proposal seems watered down in contrast to its original form, it remains a step up from the policy statement that presently exists in the constitution.(7)

The addition of this directive language into the state constitution will not require the legislature to do anything because it has in effect already satisfied this duty through existing comprehensive legislation. For that reason, it has been argued that the proposed language is unnecessary and would serve only to provoke litigation over its meaning. This fear is not likely to be borne out any time soon, particularly in light of the Florida Supreme Court's recent decision in Advisory Opinion to the Governor--1996 Amendment 5 (Everglades), 706 So. 2d 278 (Fla. 1997). There, the court concluded that the newly adopted Article II, [sections] 7(b) is not self-executing "because it fails to lay down a sufficient rule for accomplishing its purpose."(8) The commission's proposal requiring adequate provision for conservation and protection of natural resources is not any more specific in how the provision's purpose should be accomplished. Moreover, it...