TWH – States like Florida see frequent protracted political conflicts, and conflicts that do not only occur between candidates. They also occur between Democratic urban areas and Republican-controlled state governments. Since 2020, one county in Florida has seen a drawn-out conflict between green urban voters and the state legislature.
In 2020, Orange County voters passed a charter amendment to protect waterways. The authors of that amendment based it on the “Rights of Nature” legal theory. Under that theory, species, and natural systems, like rivers, have rights and can sue in court.
Similar lawsuits have been brought in other jurisdictions like the recent suit filed in Ecuador on behalf of a woolly monkey and the case in Seattle over the rights of Skagit River salmon and the precedents being set in other countries TWH reported on in the past few weeks.
That amendment formed the basis of a lawsuit in 2021. In 2020, the Florida legislature, however, superseded local control of protecting waterways. Orange County activists then tried to put green initiatives on the state ballot in 2022. They have since suspended that campaign, but intend to try again in 2024.
Orange County, Florida
Orlando, the largest city in Orange County, is the home of many theme parks and resorts, including Walt Disney World Resort.
The Supervisor of Elections of Orange County reported that as of April 15, 2022, voter registration in Orange County was 42.29% Democratic, 25.02% Republican, 30.97% no party affiliation, and 1.73% Other parties.
The Right to Clean Water, Standing, and Enforcement Amendment
In his lawsuit, Charles O’Neal provided a history of the Right to Clean Water, Standing, and Enforcement amendment.
In June 2019, O’Neal filed a proposed charter amendment with the County Charter Review Commission, a proposal that would put the rights of nature County Charter Amendment on the ballot. Within one month, the Review Commission had formed a committee, which studied and revised that proposed amendment.
A retired NASA engineer, a marine biologist, and three lawyers made up the committee. On March 4, 2020, the full County Charter Review Commission voted to approve the amendment. Nine people voted in favor, and five against. Named the “Right to Clean Water, Standing and Enforcement amendment,” approval placed it on the ballot on Nov. 3, 2020, and would receive roughly 89% of the vote in its favor.
The text of the amendment contained the language that all “waters within the boundaries of Orange County have a right to exist, flow, to be protected against pollution and to maintain a healthy ecosystem.” Those who violated the amendment would have to restore the waters to their state before the violation.
The amendment transferred enforcement from government officials to private citizens filing civil suits. This approach to enforcement may sound eerily familiar to the recent law passed in Texas regarding abortion and Florida’s “Don’t Say Gay” law since both employ similar methods of enforcement by empowering citizens to sue anyone they believe has broken the laws.
Inside Climate News reported that lobbyists took note of this proposed amendment. While activists worked within the system and with voters to pass the amendment, lobbyists against the amendment worked with the Florida legislature.
A legislator introduced a clause to the omnibus 2020 Clean Waterways Act:
(9)(a) A local government regulation, ordinance, code, rule, comprehensive plan, charter, or any other provision of law may not recognize or grant any legal rights to a plant, an animal, a body of water, or any other part of the natural environment that is not a person or political subdivision as defined in s. 1.01(8) or grant such person or political subdivision any specific rights relating to the natural environment not otherwise authorized in general law or specifically granted in the State Constitution.
That clause prevented “local governments from recognizing or granting legal rights to the natural environment.”
In July 2020, the legislature passed the 2020 Clean Waterways Act. Florida Governor Ron DeSantis signed the bill in July 2020. He signed it midway between the decision to put it on the ballot and the date of the election.
After the 2020 Clean Waterways Act took effect, the Florida Farm Bureau Federation awarded a state Representative, Blaise Ingoglia, their 2020 “Legislator of the Year” award. Ingoglia, a Republican, represents parts of Central Florida. The Federation said Ingoglia was the driving force in the “Rights of Nature preemption language” in the Legislature. They “credited” him with a key role in “passing the bulk of Florida Farm Bureau’s legislative agenda.”
The Election of Nov. 3, 2020
The “Rights of Nature Amendment” was on the same ballot as the presidential election of 2020. This co-occurrence allows one to roughly compare votes for president with those for this amendment.
The Orange County Supervisor of Elections reported the results of the election. In Orange County, 395,014 (60.85%) voters chose Biden. Another 245,398 (37.8%) chose Trump. In the same election, 529,878 (89.22%) people voted for the Right to Clean Water, Standing and Enforcement Amendment. Another 64,036 (10.78%) people voted against that amendment. The Right to Clean Water, Standing and Enforcement Amendment received 134,864 more votes than Biden. All third party and write-in Presidential candidates totaled only 8,766. A fairly large number of people had to vote for both Trump and this amendment.
The Suit of 2021
The state had already preempted this green amendment. Yet in April of 2021, Charles O’Neal filed a lawsuit based on it. O’Neal sued on behalf of waterways in Orange County. Defendants in this suit were Beachline South Residential, LLC., and Noah Valenstein, Florida Department of Environmental Protection (FL DEP).
The core issue is real estate development. One defendant, Beachline, has proposed a “mixed-use residential and commercial retail development.” In November 2020, it asked for a wetlands dredge and fill permit. Beachline wanted to dredge and fill in 115 acres in Orange County. The lawsuit argued that granting this permit would damage waterways in Orange County, violating the Right to Clean Water, Standing and Enforcement Amendment.
Beachline had filed requests for dredging and filling with the U.S. Army Corps of Engineers. On Dec. 22, 2020, in the last days of the Trump Presidency, permitting authority changed. The U.S. Environmental Protection Agency transferred authority to issue those wetland permits. It shifted authority from the U.S. Army Corps of Engineers to FL DEP.
In January 2021, Beachline transferred its permit application to the FL DEP. The suit asked for an injunction against Noah Valenstein of the FL DEP to stop the permitting process.
Current status
The Florida Phoenix reported that Orange County activists have not given up on protecting their waterways. O’Neal and others launched an effort to put five state-wide initiatives on the Florida ballot in 2022, calling their effort FL5.org.
These initiatives would demand more strict protection of “Florida’s waters, wetlands, wildlands in the path of new or expanded toll roads, and iconic species.” The iconic species include black bears, bottlenose dolphins, the endangered Florida Panthers, Florida manatees, right whales, and sea turtles.
The fifth initiative outlined would ban “captive wildlife hunting facilities.” Those facilities sell access to hunt animals on their properties. Those animals include antelope, deer, hogs, rams, and water buffalo.
According to their website, FL5 has postponed trying to place these initiatives on the 2022 ballot. Ballotpedia notes in its tracking of the measure that FL5 fell short of the nearly 900,000 valid signatures required to be submitted by February 1, 2022, in order to get the initiative on the November 2022 ballot.
FL5 now seeks to get its initiatives on the 2024 ballot. The protracted political conflict will continue.
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