Friday, September 13, 2013

In Remembrance, Clay Shaw ... by gimleteye

(Note: as president of the board of Friends of the Everglades, and previously a state leader for Sierra Club, I write the following with direct knowledge of the circumstances of a critical portion of Clay Shaw's legacy. I never exchanged more than pleasantries with Congressman Shaw but observed the outcomes described below.)

In obituaries, the late Congressman Clay Shaw has been noted as a moderate Republican and champion of the Everglades. There are no scores settled from the grave, and, as often said; what emerges as history often depends on who gets the last word. So in the interest of history and scores – or at least counting them – how Clay Shaw was a friend of the Everglades deserves a closer reading.

In June 2001, President George W. Bush visited the Everglades. Congressman Shaw was in the presidential entourage. According to a New York Times report at the time, "Mindful, perhaps, that the president was not seen as having lavished sufficient praise on Representative Shaw at the Everglades event, speakers went out of their way to pay homage to him here. Al Cardenas, the state Republican chairman, singled out Mr. Shaw for "special recognition" as "someone who fights so hard for Florida every day in Congress." ("Florida GOP sees Bush visit as latest slight", NYT, 6/14/2001)

The reputation of the Everglades as a political swamp could not have been lost on any of the participants. Democrats, including Al Gore, had been badly boxed in by the political weight of Florida developers and Big Sugar. Jeb Bush, who gained his first elected office as governor of Florida in 1998, had substantially benefited from the builder lobby and the sugar billionaires. Scarcely six months earlier, on the same day the US Supreme Court decided in favor of George W. Bush, Jeb signed with President Bill Clinton in the Rose Garden the Comprehensive Everglades Restoration Bill.

Democrats in Congress, in Florida, and the Clinton White House wanted a bill – any bill – to settle decades of litigation. Republicans wanted a bill that would keep all the economic stakeholders and interests who depended on exploiting the Everglades – for cheap water, for limestone, for sugar – in play. While the distinction is actually blurred (only a Democratic sugar billionaire had the weight to get a phone call to President Clinton during one of his Oval Office trysts), Clay Shaw was one of the very few Republicans in Congress who understood and despaired the corrupting influence of the sugar subsidy in the Farm Bill. As such, while still a member of Congress he stood astride the achievement of federal legislation called CERP as a watchdog.

As a former mayor of Fort Lauderdale, Shaw's political career spanned the growth of urban Florida from small segregationist towns to sprawling metropolis and suburbs marching to the Everglades, filled with millions of new voters whose weak connections to a splendid wilderness just on the other side of the Florida Turnpike represented new political opportunities for the exploiters.

The Everglades restoration bill signed by Governor Jeb Bush on December 12, 2000 contained many trap doors, but two unavoidable facts of law that Bush’s Big Sugar supporters were determined to alter. The first had to do with the pollution standard for phosphorous: 10 parts per billion. The second had to do with a 2006 deadline for cleaning up its pollution. Both facts were established by a 1994 settlement agreement between two Democratic administrations as the result of years of federal litigation.

In 1993, at the very place in Everglades National Park where in 2001 President George W. Bush affirmed his commitment to America’s Everglades, a Democratic White House and the late governor of Florida Lawton Chiles, celebrated peace and progress on of the nation’s most enduring environmental challenges.

Governor Jeb Bush had different ideas. In 1994 Gov. Chiles defeated Jeb as a well-connected, first-time political candidate. Through his Foundation for Florida's Future, Jeb tinkered with conservative notions to unleash the power of profit as motivation for public good against "command and control environmental regulation". For industry -- the sugar industry --, those ideas mainly related to shifting the costs of pollution, or, cooking the books at the expense of the Everglades and the public.

For example, the biggest cost component of the original $7.8 billion price tag for CERP was a technology that was fiercely opposed by Sierra Club called aquifer storage and recovery (ASR, by acronym). Fully $3 billion of the price tag was aimed toward sinking 300 wells to store “excess” water in the hydrological equivalent of political sausage grinders. These wells, it was theorized, would replace the need for taking hundreds of thousands of acres out of sugar production. (The single federal agency qualified to judge the utility of applying ASR wells in Florida, the United States Geological Survey or USGS, was not consulted in the plan's formulation.)

For ASR to work, Governor Bush attempted a significant re-write of Florida water quality law. In April 2001, Sierra Club issued a state-wide alarm: “The Florida Legislature is now considering a law that would eliminate the standards for total coliform and other biological and chemical contaminants in our underground drinking water supply when water is pumped down from the surface. Our drinking water supply, the Florida Aquifer, would become a septic tank.”

The public outcry forced a rare policy retreat (one legislator in Georgia, when she heard of the Florida plan to store contaminated water in drinking water aquifers, trenchantly called the Jeb Bush plan “dumber than dirt”.) Bush was furious with environmentalists and never again acknowledged Sierra Club or its role in the hearts and minds of Florida voters. Nevertheless, ASR remained the “driver” of Everglades restoration plans for years within agencies like the US Army Corps of Engineers and EPA. Its leaders on the ground and in Washington knew better than buck political orthodoxies in Florida.

This was the swamp that Congressman Clay Shaw straddled, as a pragmatist who trusted that the federal court settlement in the Miami courtroom of Judge William Hoeveler a decade earlier, established the facts of pollution by Big Sugar and deadlines to fix the Everglades.

Those were exactly the facts that Big Sugar and its army of lobbyists sought to alter while the ink was still drying on CERP, through the agency of Governor Jeb Bush.

The legal avenue involved mobilizing the Florida legislature to re-write pollution standards for the Everglades without upsetting the 1994 settlement agreement. The effort that materialized scarcely two years after President George W. Bush’s appearance in the Everglades went along the lines of blurring deadlines and a de facto dilution of hard, fast numerical standards for fertilizer runoff.

The opening of this new attack on the Everglades, was rationalized as progress by Gov. Bush. In the 2003 session of the Florida legislature, Big Sugar flooded Tallahassee capitol hallways with its lobbyists. Environmentalists bitterly complained that there were more sugar lobbyists in Tallahassee than state senators: they were right.

"Now the sugar brigade has stormed Tallahassee to try to muck up the Everglades Forever Act, the very cleanup bill that has worked such wonders that Big Sugar pushed it through the Florida Legislature nearly a decade ago. In addition to moving the cleanup deadline back from 2006 to 2026, the industry's bill would have weakened the phosphorus standard from 10 to 15 ppb, prevented the state from converting any more sugar fields into artificial marshes, and basically eliminated any threat of enforcement. "An absolute betrayal," says Charles Lee, an Audubon Society lobbyist who has worked on Everglades issues for 30 years." (Sugar Plum, Michael Grunwald, The New Republic, April 24, 2003)

In the spring of 2003, Shaw was chairman of the Florida congressional delegation and point person for federal Everglades funding. Joined by fellow Republican Congressman Porter Goss, Shaw strongly objected to the draft bill supported by Gov. Bush, saying it was "inconsistent" with both the Everglades Forever Act and the 1992 court settlement, "creates significant ambiguity and diminishes the standard" for water quality, would "have negative impacts" on Interior Department resources, "limit the state's ability" to protect the Everglades environment and "does not reflect state intent to fully fund water-quality improvements." Shaw met with the leaders of the Florida legislature and spoke with Governor Bush. (Governor Must Veto Glades Clean Up Bill, Key West Citizen, 4/30/2003)

Bush accused Shaw in the press of being uninformed. (Bush: Sugar bill no Glades Threat, Miami Herald, April 8, 2003) Shaw ratcheted up his response. In a letter to the Florida legislature, Goss and Shaw called the legislation a potential "fatal error". "Only a few years ago, following months of negotiations, a diverse group of stakeholders reached a consensus that ensures the long term protection and habitat of the Everglades... " ("Congressmen warn state about tinkering with Everglades, AP, April 4, 2003)

In the middle of the legislative session, Judge Hoeveler called for a hearing -- at which Congressman Shaw testified -- , cutting through the criticisms leveled by Bush lieutenants like FDEP Secretary David Struhs in lockstep with sugar industry spokesmen who derided environmentalists for being "Chicken Littles" and "crying wolf".

On May 9th, Judge Hoeveler issued an extraordinary order:



THIS CAUSE comes before the Court upon a hearing held on May 2, 2003 called by this Court to address state legislation concerning the Everglades restoration efforts which, as of the date of this Order, the bill in question had not yet been signed by the Governor into law. The Court now feels compelled to comment on the present situation, and take action, as described below.

During the hearing, the state parties repeatedly reassured this Court that the new state legislation, should it become law, will have no effect on the hard-won agreement reached by the parties more than a decade ago, and entered by this Court as a Consent Decree. To be clear, I wish to reiterate in the strongest possible terms that insofar as the new legislation, proves inconsistent with the Decree, the parties' obligations as yet forth in the Decree remain unaltered. The agreement embodied in that Decree remains binding upon the parties, and I intend to enforce it as it currently reads, unqualified.

This Court does not yet have cause to attempt to apply the legislation, and I sincerely hope I am never obliged to do so, for the bill is clearly defective in many respects. The loose language it employs in describing compliance with its own mandates, such as ""maximum extent practicable," robs it of meaning or binding effect. It opens the door to ten or more extra years with no showing that such a lengthy extension is necessary.

While I am deeply troubled by the content of the bill, I am dismayed by the process that led to its passage. The bill was moved quickly through the legislative process, reportedly at the behest of more then forty lobbyists for the sugar industry. There simply is no acceptable explanation for the speed by which this was accomplished, given the fact that the deadlines remain three and a half years off and given the State's assurances much of the cleanup project is proceeding on track. The important issues addressed, namely, the plan for funding and completing the restoration project, warranted serious consideration by Florida's elected representatives.

Moreover, the sponsors of the bill should have allowed time to consider input from the broad range of interests impacted. Yet the treatment of the bill seemed calculated to avoid federal participation or public scrutiny.

I am also concerned about the effect this turn of events will have on the partnership between the federal and state governments. Last tine we met, in October, the presentations her the United States and the state parties suggested a spirit of successful collaboration and shared optimism. The presentation by counsel for the United States at last week's hearing was cautious, to say the least. In a carefully worded statement, counsel for the United States described the bill as "Indeterminate" and "Puzzling." I agree.

I share the federal government's concerns that the state's commitment has been attenuated. And now, it is my understanding that the Governor intends to sign the bill. Apparently, he has been misled by persons who do not have the best interests of the Everglades at heart. It Is my fervent hope that he has the opportunity to compare the bill with the one it would replace, the Everglades Forever Act, and consider whether the derogation of its mandates and deadlines is necessary, or wise.

I and the parties have spent several years laboring over this process, during which I have heard from the best scientists on the progress of the Everglades restoration. Until now, most of the experts, with some exceptions, were satisfied that the work would be completed by December 31, 2006. While there was some caution expressed about that date, the hope was that we would make it. If not, I would think that additional time needed would not be great. Now, the proponents of the new Act talk about ten years, or more.

Because I fear the state's support has been withdrawn, I have decided to take action. Having delayed resolution of this issue some time now, I have decided to appoint a Special Master in this case, as I am convinced that further oversight over the administration of the Decree is necessary. I do not intend to entertain further discussion as to whether a Special Master is warranted, but I recognize the necessity of clearly defining the scope of the position's authority, and identifying the most appropriate candidate. When this issue arose previously, several parties requested additional time "to brief the issues raised, including authority and costs. To that end, I invite the parties to do so, and come prepared on June 10 with additional proposals for candidates.

In conclusion, as far as the federal lands are concerned, it is this Court's position that the new legislation, if passed by the Governor, will have no effect. The hearing set for June 10 will proceed as scheduled, and will address the parties' progress toward meeting the Consent Decree's interim deadlines, which are imminent. At that time, I will also hear argument on the proper role for the Special Master and the parties' positions on the most appropriate candidates.

In the words of Theodore Roosevelt, "Conservation means development as much as it does protection, I recognize the right and duty of this generation to develop and use the natural resources of our land, but I do recognize the right to waste them or to rob, by wasteful use, the generations that come after us."

On May 20. 2003 Gov. Jeb Bush signed the Everglades bill into law despite a massive outcry by civic leaders, environmentalists and every newspaper editorial board in the state. For The Palm Beach Post, Sally Swartz acidly observed, "... deluded officials, clueless legislators and a governor who won't admit a mistake intend to "fix" the bad law with a still-secret new one. Sure they will." ("Marketing the Everglades Bill, Palm Beach Post, May 21, 2003)

As Everglades Chair at the time, I penned a statement for Sierra Club: "... We understand that big money and big influence can buy just about anything in the state of Florida, including the redefinition of pollution so that polluters can continue to pollute and shift the cost to ordinary citizens." Sierra Club dubbed the Jeb Bush bill, “The Everglades Whenever Act”. A year later, Friends of the Everglades and the Miccosukee Tribe of Indians filed federal litigation against the US EPA and Florida DEP for failing to abide by the nation’s landmark Clean Water Act.

The controversy over the Jeb Bush/ Big Sugar attempt to change the Everglades Forever Act had deep repercussions. David Struhs, the Bush lieutenant who misrepresented that federal agencies had "approved" the proposed changes, shortly resigned. After objections by Big Sugar, Judge William Hoeveler, one of the most respected members of the federal judiciary, was removed from Everglades litigation that remains the landmark of a storied career. The passage of the 2003 legislation lead to a new Clean Water Act lawsuit by Friends of the Everglades and the Miccosukee Tribe of Indians. In 2013, that litigation finally resulted in a major win for environmentalists and a settlement requiring, ultimately, more than $880 million in water treatment marshes to protect Everglades water quality. Big Sugar and the state of Florida continue to appeal the ruling by Hoeveler's successor in Everglades related litigation, Judge Alan Gold.

In August 2003, Stephen Goldstein for the Fort Lauderdale Sun Sentinel opined on Congressman Clay Shaw's role. ("Don't let deal sour project", Fort Lauderdale Sun Sentinel, August 20, 2003)
"Big Sugar owns Jeb Bush and the Republican-dominated Florida Legislature -- but not U.S. Rep. Clay Shaw. So, when the industry unleashed some 46 lobbyists to get a sweetheart bill passed giving it carte blanche to pollute the Everglades, elected officials of both parties melted. It was politics at its most saccharine in Tallahassee -- but led to one of Shaw's finest hours.

"I never read a worse drafted piece of legislation in my entire life," says the Washington veteran, who ought to know good from bad after representing South Florida for nearly 23 years. He says it was full of "weasel-words," that turned previously negotiated timetables and standards holding Big Sugar accountable for Everglades clean-up into gaping loopholes allowing for the dumping of deadly phosphorous willy-nilly.

"No one will confess to authorship of this bill," Shaw adds, aghast at the machinations of members of his own party. "This legislation puts greater burden on the taxpayer. It's a new tax. It flies in the face of the mandate from the electorate that polluters pay. It's an incredible thing -- one industry's hold on Florida. I would never have believed it."

... He pledges that he'll "never give up on the Everglades"; it's his "passion": "As long as I live and breathe, I'll be devoted to cleaning up and preserving it." The River of Grass is "full of life"; "we've messed it up, but we have no right to change the cycle of life" there. He says he's "been around long enough to know you don't pick up your marbles and go home. You keep moving. The game is never over."

In the Fort Lauderdale Sun Sentinel this week, former Governor Jeb Bush recalled Shaw, "... as being an an ally on Everglades restoration. "Politics doesn't have to be about elbows and knees and mean-spiritedness," Bush said. The record -- on both Jeb Bush and Clay Shaw -- shows otherwise, although Shaw was never mean-spirited.

The 26 year congressman was defeated by a Democrat, Ron Klein, in 2006. Klein benefited from the campaign support of Big Sugar. That year I wrote to a colleague, "I've seen Clay Shaw at work in federal court, defying Jeb Bush on the Everglades and it was a sight to behold. He deserves our gratitude: I can't think of another Republican from Florida who has taken as many real risks as Shaw in defense of the Everglades."


Anonymous said...

Thanks for sharing. I remember much of the fight during those years. Bush hurt this state tremendously in many ways. We can only pray that we get Scott out. As for Shaw, rest in peace dear warrior for the Everglades.

Anonymous said...

Moderate Republicans cannot survive without the support of some Dems. Despite Shaw's unwavering support for the Everglades, his moderate stances, and his honesty, the Dems basically said, "thanks for the Everglades support, we want our own guy there."

Anonymous said...

It is important to know that Clay was a good guy and that Ron Klein was supported by Big Sugar. Thank you.