The Florida attorney general's environmental protection authority.

• Author: Handberg, Roger B.

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Last year, the oil spill in the Gulf of Mexico reminded Floridians, once again, of the impact environmental disasters can have on our state. In Florida, the lead agency in managing and protecting Florida's environment is the Florida Department of Environmental Protection (DEP). (1) Another agency with environmental protection authority is the Florida attorney general's office. This article will discuss three statutes that authorize the attorney general to pursue litigation that serves to protect Florida's environment from air and water pollution: 1) the Environmental Protection Act of 1971, 2) the Florida Air and Water Pollution Control Act, and 3) F.S. [section] 60.05 (which provides for the filing of an action to abate a nuisance). This article concludes that, of these three statutes, the 1971 act provides the attorney general with the broadest grant of authority to protect Florida's environment.

Environmental Protection Act of 1971

Environmental protection has long been a priority for Floridians. Fla. Const. art. II, [section] 7 (1968) provided: "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." (2)

In 1998, Florida voters overwhelmingly (by a vote of over 70 percent) amended this provision to add "conservation and protection of natural resources" to the list of items for which the legislature was directed to make adequate provision by law. (3) Art. II, [section] 7(a) now reads in full: "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 and for the conservation and protection of natural resources." (4)

The Florida Legislature enacted the Environmental Protection Act of 1971 for the purpose of effectuating the policies set forth in art. II, [section] 7. The 1971 act authorizes the attorney general to file actions or intervene in certain proceedings to protect the environment in three types of situations. In particular, the attorney general can:

* File an action for injunctive relief to compel a noncompliant governmental entity to enforce applicable environmental standards; (5)

* File an action for injunctive relief to stop a person or governmental agency from violating an environmental law, rule, or regulation; (6) or

* Intervene in a proceeding to prevent a person from obtaining a license or permit where that person's actions would result in pollution of the air, water, or other natural resource of Florida. (7)

In effect, the 1971 act adopts by reference almost every environmental law that applies in Florida and empowers the attorney general to seek their enforcement through actions for injunctive relief or participation in the licensing and permitting process.

There are three limitations on injunctive relief actions brought under the 1971 act. First, such an action cannot be maintained if the alleged polluter is operating in compliance with a validly issued permit. (8)

Second, before an action for injunctive relief can be filed, the attorney general or other complaining party must "first file with the governmental agencies or authorities charged by law with the duty of regulating or prohibiting the act or conduct complained of a verified complaint setting forth the facts upon which the complaint is based and the manner in which the complaining party is affected." (9) The relevant governmental entity is responsible for transmitting a copy of that complaint to whoever is allegedly violating an environmental law, rule, or regulation. (10) The agency then has 30 days to "take appropriate action." (11) If no such action is taken within that time, the complaining party may file its action for injunctive relief. Any injunctive action that does not follow this procedure is barred. The one exception is that these procedures may be bypassed if a temporary restraining order is needed to "prevent immediate and irreparable harm from the conduct or activity complained of." (12)

Third, any complaining party who loses a suit for injunctive relief under the 1971 act is subject to paying the prevailing party's costs and attorneys' fees. (13)

Cases Interpreting the 1971 Act

There are no reported appellate cases involving the attorney general filing an action or intervening in a proceeding pursuant to the Environmental Protection Act of 1971. The 1971 act, however, also permits "a political subdivision or municipality of the state, or a citizen of the state" to file such suits. (14) All but one of the 15 reported appellate cases regarding the 1971 act were brought by Florida citizens or non-profit environmental organizations. The one case brought by a political subdivision involved an action by Lee County to enjoin temporarily the South Florida Water Management District (SFWMD) from implementing an emergency plan to discharge fresh water from Lake Okeechobee into the Caloosahatchee River. (15) Lee County lost at the circuit court, which was affirmed on appeal. In reaching that result, the district court of appeal found that it was "impossible to characterize SFWMD's plan to save Lake Okeechobee by temporarily discharging fresh water into the river at a rate slightly exceeding the 28-year daily mean as patently illegal or so palpably abusive of its authority to be commensurate with illegality." (16) The appellate court also upheld the circuit court's ruling that a likelihood of irreparable harm had not been shown. (17)

Of the other 14 reported cases, 11 of them were decided prior to 2002, which is when amendments were made to the 1971 act regarding the requirements that apply to citizens seeking to intervene in administrative and licensing proceedings. Prior to the 2002 amendments, Florida appellate courts upheld the ability of citizens or nonprofit environmental organizations to bring a suit or intervene in a permitting proceeding pursuant to the 1971 act in the following situations:

* Injunction sought against alleged pollution of river by use, maintenance, and operation of spillway. (18)

* Application for permit to dredge and fill storm management system for a residential development. (19)

* Application for water discharge permit for a phosphate mine. (20)

* Suit alleging collusive actions by developer and governmental agencies designed to avoid extensive public review of developmental plant changes. (21)

* Action against utilities that allegedly were polluting the water and the county governmental entity that failed to take action to stop the pollution. (22)

* Suit against the Board of Commissioners of Orange County. (23)

By contrast, Florida appellate courts concluded that citizens or nonprofit environmental organizations did not have the right to bring actions or intervene in permit proceedings in the following pre-2002 cases:

* Informal licensing proceedings between Department of Environmental Regulation and operator of phosphoric chemical plant regarding plant's proposed modifications to plant. (24)

* Challenge to inclusion of parcel of land in environmentally endangered purchase list. (25)

* Failure to allege compliance with conditions precedent. (26)

Most of the pre-2002 decisions did not address the merits of whether an environmental law or regulation was being or would be violated. Instead, they were focused on technical legal issues, such as whether a corporation was a "citizen" who could bring a suit (yes) (27) or whether a citizen needed to show some "special injury" to be able to maintain their suit (no). (28) In 2002, the 1971 act was amended to provide that a citizen may only initiate an administrative or licensing proceeding if they have "substantial interests" that will be affected, which requires a demonstration "that the proposed activity, conduct, or product to be licensed or permitted affects the petitioner's use or enjoyment of air, water, or natural resources protected by this chapter." (29) Absent such a demonstration, a citizen is limited to intervening...