Strictly speaking, does F.S. [section] 376.313(3) create duty to everybody, everywhere?, Part II.

• Author: Ansbacher, Sidney F.
• Position: Environmental and Land Use Law

Not every release of pollutants will give rise to a strict liability claim under F.S. [section] 376.313. In some instances, stigma damages may not be recoverable under this cause of action.

The Florida Supreme Court in Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216 (Fla. 2010), stated, "The [l]egislature has enacted a far-reaching statutory scheme aimed at remedying, preventing, and removing the discharge of pollutants from Florida's waters and lands. To effectuate these purposes, the [legislature has provided for private causes of action to any person who can demonstrate damages (1) as defined under the statute." (2)

Given the expansive nature of strict liability under F.S. [section] 376.313 and the limited defenses available to a defendant, the nature of the defendant's action and the type of damage allegedly suffered become very important in determining whether a plaintiff can state a cause of action for this section. Notwithstanding the broad application of a strict liability claim under F.S. [section] 376.313, if a defendant's actions do not result in a discharge or other condition of pollution covered by F.S. [section][section] 376.30 376.317, then a plaintiff cannot state a cause of action. (3)

For example, in The St. Joe Company v. Leslie, 912 So. 2d 21 (Fla. 1st DCA 2005), the court reversed the lower court's class certification ruling and found that the plaintiffs' complaint failed to state a cause of action for strict liability under F.S. [section] 376.313 because there was no evidence that the waste, which the class representative saw being dumped, exceeded state standards. (4)

Additionally, plaintiffs often seek to recover for "stigma damages" (5) caused by contamination inflicted upon their property. Sometimes the contamination does not trespass upon plaintiff's property, but instead is located in the vicinity of a plaintiff's property. At least one Florida court ruled that a plaintiff is not entitled to recover for "stigma damages" when the plaintiff's property is not actually contaminated. (6) Thus, unless a plaintiff can prove that his or her land was contaminated, recovery for "stigma damages" is not allowed. (7) Therefore, for courts following the First District's ruling in St. Joe, it is questionable whether a plaintiff (at least one who is not a commercial fisherman) can rely upon stigma damages to meet the damages requirement under F.S. [section] 376.313, unless the contamination has trespassed upon their property, even if the actions of the defendant result in a discharge or other condition of pollution covered by F.S. [section][section] 376.30-376.317.

Cunningham

The First District decision, in Cunningham v. Anchor Hocking Corporation, 558 So. 2d 93 (Fla. 1st DCA 1990), rev. den., 574 So. 2d 139 (Fla. 1990), appears to be overturned by the majority in Mosaic. The majority relied on the definition of "damage" in F.S. [section] 376.031(5), which includes property or environmental or natural resources. The statutory definition expressly excludes "human beings" from natural resources. Accordingly, the Mosaic majority overturns Cunningham's holding that one could state a cause of action for personal injury as "environmental and health hazards" under F.S. [section] 376.313.

Natural Resource Damages

The Mosaic court's determination that private parties may seek natural resource damages (8) is troubling for two reasons. First, as noted above, the definition of "damage" in F.S. [section] 376.031(5) does not apply to F.S. [section] 376.313. By its terms, [section] 376.031 applies to "ss 376.011-376.21, unless the context clearly requires otherwise." Nonetheless, the Florida Supreme Court's interpretation of the state statute is binding. As the Fifth Circuit Court of Appeals stated in Allen v. Carman, 486 F.2d 490, 492 (5th Cir. 1973):

It is not for us to tell our distinguished [b]rothers [and now sisters] of the high court of Florida how to write (or paint). However characterized, what they have said is the law of the Medes and Persians which binds Floridians and Erie-bound [f]ederal [j]udges, and it is declared in plain language that even those who run may read.

As Chief Justice Harry Anstead, et al., stated in "The Operation and Jurisdiction of the Supreme Court of Florida," (9) the whole point of the Florida Supreme Court's acceptance of jurisdiction under Fla. Const. art. V, [section] 3(b)(4), is to pronounce binding opinion on an issue of statewide importance.

Accordingly, we must look to all references to natural resources in Ch. 376 to glean who may protect them. Perhaps, sub silentio, the majority decided that the "context"--as set forth in the definition statute at F.S. [section] 376.031--dictates use of that definition as applied to [section] 376.313. More significantly, private causes of action to address natural resource protection are inconsistent with, and are likely preempted by, federal statutory law on the subject.

The federal statutes that create natural resource claims are CERCLA, the Oil Pollution Act of 1990, the Clean Water Act, the Park System Resources Protection Act, the Deepwater Port Act, and the Natural Marine Sanctuary Act. These statutes enable various agencies, not including the U.S. Environmental Protection Agency (USEPA), to sue to restore damaged resources. (10)

Among the federal agencies that are authorized to act as trustees are the Department of Interior and NOAA. State agencies with similar duties may bring an action to restore resources that were allegedly harmed by releases of regulated substances. (11)

Private parties are uniformly not listed as trustees in any federal act. They do not have any private or qui tam (12) right of contribution or cost recovery. Indeed, municipalities may sue to remediate natural resource damages under CERCLA only when the state governor appoints the municipality as a "public trustee of the state's natural resources." (13)

Consolidated City of Indianapolis v. Union Carbide Corporation, 2003 WL 22327832 (S.D. Ind.), refused to find that a municipality had statutory natural resource trustee standing under that state's Environmental Legal Actions Statute (ELA). (14) The court acknowledged that the Seventh Circuit had ruled that the ELA "'appears to...