Tuesday, December 29, 2015

Jeb Bush Fail: The Everglades ... by gimleteye

I wrote the following for a Sierra Club Florida publication in May, 2003 as Jeb Bush was blowing up the federal state partnership to restore the Everglades. It happened a dozen years ago, when Jeb Bush was governor.

Jeb's political character flaw is a deep one; forcing science, fact and policy to fit predetermined outcomes. At the time, he said, "I don't need the permission of environmentalists to save the Everglades", but what he did in 2003 set back Everglades restoration for a decade at least.

Jeb was doing the bidding of Big Sugar, as disclosed in the recent New Yorker investigative report by Dexter Filkins. The New Yorker cites the outraged response of the federal judge who at the time had the longest and most in depth experience with Everglades related lawsuits: Judge William Hoveler. His remarks are printed entirely, below.

It is ironic that Big Sugar -- such a reliable supporter of Jeb in the past -- seems to be squarely in Marco Rubio's corner during this GOP presidential primary. But first, my commentary at the time for Sierra Club:
"A massive campaign by citizens to urge the governor to use his veto pen may or may not succeed by the time this article is published. 
Florida’s Everglades are a national treasure, ruined by the best intentions of public policy and the worst of human impulses; greed. 
What we treasure in the Everglades is the grand and the simple at once; the majestic panoramas framed by the sure knowledge that what we can see exists through the force of simple gravity; the slightest and most imperceptible variations of elevation that allow trillions of gallons of fresh water to flow seasonally, each year, in a slow arc from the waters of Lake Okeechobee through the tree islands and sawgrass prairies, through the uplands, rivers, and sloughs, into Florida Bay. 
The grand and simple of the Everglades is a natural poetry we follow with our senses and can lead us to experience an exalted sense of life. Simple gravity and clean, fresh water—nurturing the periphyton mats that comprise the bottom layer of the food chain—finds its polar opposite in political forces, driven by money and wealth, that have twisted restoration of the Everglades into a tangle of conflicting policies, regulations, and jurisdictions. 
It is not for want of trying. For decades, conservationists have advocated public policies to modify land use practices, including the proliferation of unsustainable agriculture and development in wetlands, and restore the simple force of gravity to the Everglades.
The Micosukee Tribe, an independent nation living in the Everglades, have passionately and eloquently advocated for water quality, investing considerable resources and expertise in fighting the worst impulses of government to protect polluters and campaign contributors.

But economic interests—primarily Big Sugar and sprawl industries, including banking—have used radical tactics to redefine their rights above those of nature and, today, are more powerful than any force of gravity. Economic forces have turned the simple into the complex, a form of magic altering the sky… turning clarity into confusion. 
More than a decade ago, the community of organizations dedicated to advocacy for Florida’s environment were persuaded to join the sugar industry, state and federal government, in collaboration instead of litigation and abandon lawsuits and courts in favor of collaboration toward a sustainable Florida and restored Everglades. 
It was a calculation fraught with risk. What environmentalists bargained in the Comprehensive Everglades Restoration Plan was that the moral argument for protecting the environment, which engages ordinary citizens on a visceral level, could be better served by a process of negotiation and partnership with polluters and developers and elected officials than persistence through litigation. 
The 1994 Everglades Forever Act was the heralded landmark of change; >from litigation by the federal government against the state of Florida and polluters it supported to a consensus building process. Naturally, those mistrustful of consensus building were not included in the new equation which, unsurprisingly, tilted heavily toward economic stakeholders and counted, perversely, environmentalists and government agencies on the same side of the negotiating table. 
An entire decade, then, was devoted to hashing out the politically charged collaboration that resulted, finally, in a federal law authorizing restoration of the Everglades. In 2000, Congress passed legislation providing for a unique federal/state partnership and cost sharing to engage the most complex and expensive public works project—nominally on behalf of the environment—ever undertaken. 
Sierra Club has been one of the clarion voices, in the past decade in Florida. Many of our activists believed that the fate of the Everglades could not be resolved through a process tainted by politics and belonged in the federal courts. We believed that the decision by the federal government to settle its litigation against the state of Florida was a bad decision. 
For standing on principle, Sierra Club failed to garner the significant support of financial backers of environmental funders in Florida, as heavy investment turned to making the collaborative process—borne by the Everglades Forever Act, a piece of legislation that Marjorie Stoneman Douglas refused to be associated with—work. 
The legislation that Governor Jeb Bush says he will sign is the rotted fruit of failure. It is failure masked as progress, supported by lies of the Florida Department of Environmental Protection and its secretary David Struhs, and has struck an enormous reservoir of outrage. Every newspaper in Florida, every environmental organization that favored the Everglades Forever Act, has harshly criticized the deal buster, that is predictable as it is tragic. 
Sierra Club activists have participated in a state-wide, massive effort to block new legislation promoted by the sugar industry that intends to mold the future of Everglades restoration into a version more palatable to sugar than to those assurances that form the underpinning of public expectations that the remnant Everglades will be restored within our lifetimes. Governor Bush’s mild protests, that he has only had “vague objections” to the new legislation prompted federal judge William Hoeveler, who oversaw the original settlement agreement in the early 1990’s, to write a remarkable order. There is no more fitting end to this report, than to quote verbatim, from Judge Hoeveler’s remarkable order of May 9, 2003.

May 9, 2003




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," rob 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,"

May 9, 2003

The following summary was drafted by Florida Audubon and Charles Lee, Sr. Vice President, with whom we have occasionally had differences. On this occasion, though, we are in complete agreement.

Specific Problems Which Merit a VETO of SB 626

The Bill requires Water Quality Standards need to be met only "…to the greatest extent practicable…" and/or "…at the earliest practicable date". These modifiers appear in the bill in five separate instances in ways that apply directly to the obligation that water quality standards be met, including “moderating provisions” that mean public lands will be used as mixing zones for sugar’s pollution. ( Page 2, lines 17-18; Page 6, line 25; Page 7, lines 2-3; Page 7, Line 9; Page 37, lines 4-5)
The Bill replaces a clear requirement that water quality standards be met with a weaker requirement to only implement part of a plan. (Page 36, lines 20-21) replaces the requirement to meet water quality standards in 2006 with one which only obliges the Department and District to "…take such action as may be necessary to implement the pre-2006 projects and strategies of the Long-Term Plan…".

The Bill Precludes "discharge limits" from being required until 2016. (Page 18, lines 25-27 and Page 37, lines 9-10), replaces the Everglades Forever Act's clear requirement to enforce "…discharge limits in permits for discharges into the EAA canals and the Everglades Protection Area…" beginning Dec. 31, 2006 (Subsection (4) (e) 3.) with a much weaker requirement that "… permits issued by the department (that) shall be based on BAPRT, and shall include technology-based effluent limitations consistent with the Long-Term Plan…".

The Bill Requires Additional Legislative Approval in the future before PSTA, Expanded STAs or other "Phase 2" Projects in the Plan can be implemented. Paragraph (d) on page 6 requires specific legislative approval for all “Phase 2” projects; that includes Periphyton STAs (PSTA) and expanding the STAs.

The Bill authorizes discharge of waters with phosphorus exceeding the 10ppb criterion to "Unimpacted Areas". This provision, on Page 18, lines 9-13 establishes a new "balancing test" with regard to proposals to discharge polluted water to "unimpacted areas". This would violate the non-degradation provisions of Florida water quality law, and the federal Clean Water Act.
The Bill adopts a flawed "Conceptual Plan for Achieving Long-Term Water Quality Goals" that has been repudiated by two federal scientists. (Paragraph (j) on Page 3, lines 19-22). The legislation then suggests that this plan may be revised by executive branch state agencies without being clear as to which agency might revise it ( Page 5, lines 22-25) and (Page 5-6, lines 28-30, 1-2) It is doubtful that the plan (once adopted by reference by the Legislature) can be revised by executive branch agencies due to a problem with “unconstitutional delegation of legislative authority” (See State, Dept. of Children and Family Services v. L.G. 801 So.2d 1047 Fla.App. 1 Dist.,2001).

The Bill proposes that water quality projects for which the state is responsible be “integrated” with "CERP" projects. As proposed, this may delay and add costs to "CERP". (Page 6, lines 3-17) While the idea of integrating water quality projects with CERP has conceptual merit and seems logical, the rough proposals to do this in the bill and the district's “plan” are not viewed favorably by federal agency managers most familiar with the actual steps necessary to implement currently planned and designed CERP projects. They predict lengthy delays of crucial CERP projects, and increased costs.


Anonymous said...

Do judges normally write orders before the Governor even signs a bill?

And the judge says he consulted with scientists. Jeb! has no use for scientists. Looks like he never has and never will.

Sparrow said...

Thank you for that great overview. The EFA was an attempt to balance all the sides - to an uninformed observer, it seemed like decisionmakers were faced with two extremes: Sierra Club vs. Big sugar, and the EFA was a reasonable attempt to chart a middle way forward. But that was not the case: There had been a lawsuit and a settlement, that already dictated the pollution levels that must be achieved. The Judge was overseeing that settlement. So he was simply commenting on how that bill related to the lawsuit settlement. He said it violated it, and he was right. He was not making an "order", as the previous commenter asked about, but indicating that the settlement case would still proceed despite it. As I recall, I recall the state scientists insisting that the settlement's pollution levels were technically impossible to achieve. If that was the case, the way to argue that was during the settlement hearings, not by trying to pass a new standard. If the level was not achieved, the state would be in violation, and the judge would then have to determine what to do. The settlement required the state to meet the standard. The EFA just made them try. So Sierra Cub was not being extreme - Big Sugar was just trying to do an end run around the settlement and you guys were exposing them. It helps to remind people who took sides. I had forgotten about Jeb!'s role.