Wednesday, May 25, 2016

David Guest, Earthjustice: don't stay away for long ... by Alan Farago

David Guest has been one of the most important environmentalists of a Florida generation that is now approaching retirement. David is a few years older than I am but only a few -- and I understand perfectly his inclination to reserve time for reflection, family, friends and travel.

There is more than admiration in my assessment.  David has been lead attorney for Earthjustice on important litigation in which the organization I represent as volunteer board director, Friends of the Everglades, is a plaintiff.  David has been our attorney, and we -- his client.

One of our cases has been to the US Supreme Court twice and still alive in a federal appeals court. We call it "the backpumping case", and it concerns the question whether transfers of polluted from one water body to another requires an EPA pollution discharge permit. Our interpretation of the Clean Water Act is that it does. If it did, all these horrible discharge events plaguing Florida's rivers and estuaries -- to protect Big Sugar mainly -- would require a level of scrutiny that is sliding by the canal locks without more than a passing nod by state and federal regulators.

David and his team's work on behalf of groups like Friends has generated major opposition: by Big Sugar and its partner, the State of Florida, but also by dozens of other states and municipalities and industries that oppose accountability for the costs of pollution.

Toxic algae bloom in Caloosahatchee today
The point is that David Guest 's work has national importance. Florida is that kind of place. When shit goes wrong on the environment here, it goes very wrong. As David pointed out to Bruce Ritchie in his Florida Politico profile, when shit goes wrong in Florida, it is often in a place like the Everglades that is astoundingly beautiful.

David is a leader of his generation of Florida environmentalists. Although he is not an activist per se, his years of experience lead him to a very clear-eyed -- a gimlet eye if you will -- understanding of the weaknesses and foibles of Florida's Everglades movement.  I will miss his company for views unpopular within the ranks.

David Guest's intelligence about these matters had marinated long enough in the morass of the Everglades to distill his wit to a very fine point. This, from Bruce Ritchie's profile:

"I think the permitting strategy of the Scott administration is the same as the strategy for throwing Mardi Gras beads at a parade," Guest retorted. "Somebody yells, and you throw them a permit."

Exactly. Travel safely and well, David Guest.

Environmentalists‘ ’Elvis' reflects on a generation leading Earthjustice
By BRUCE RITCHIE 5:25 a.m. | May. 24, 2016

TALLAHASSEE — It was just after a heavy rainstorm in 1991, and rapids in North Florida’s Jumping Gully Creek had churned runoff from a pulp mill plant just upstream into thick, yellow foam. David Guest, an environmental lawyer who had just become the head of Earthjustice’s Florida office, climbed a tree to photograph it.

The image, Guest recalls, was "the perfect picture" to describe his pollution lawsuit’s claim that the pulp mill was using the creek as part of its treatment system before it flowed into Florida — "nightmarish" foam in the foreground, corporate signage behind.
"There just wasn't anything you could say to that picture. It just captured it. There was no cross-examination, no argument,” Guest said in an interview last week in the Tallahassee offices of the San Francisco-based nonprofit environmental law firm. "Ever since then, we would tell our story with pictures that were indisputable.”

The case went before an appeals court panel, and as one judge saw the photo during a hearing, he asked a lawyer for the pulp mill, the Packaging Corporation of America: "You got a pretty scuzzy operation going down there, don't you?" Earthjustice won the case.

Guest, 64, is retiring after 26 years as managing attorney of Earthjustice in Florida, in a career that has put him at the center of many key environmental battles and earned him praise from allies and opponents alike. No successor has been named.

In Guest’s time there, Earthjustice blocked a proposed coal plant near the Everglades, enforced speed zones for manatees, kept sea turtles from getting caught in shrimp-trawler nets, fought overfishing in the Gulf of Mexico, protected threatened sturgeon in the Suwannee River, defeated drilling leases in near-shore waters and fought pollution threatening the Everglades.

In 1997, he won a landmark case against Lykes Brothers Inc., a major landowner and farming company, that resulted in Fisheating Creek being declared a navigable waterway. The case established that it and other waterways were state-owned and are available for public access.

He also won a lawsuit in Putnam County that required the state to set minimum flows and levels for waterways, turning the legal tide against unrestrained groundwater-pumping and surface-water withdrawals.

Now, Guest plans to take time off to "drift" across Russia’s many time zones, living on little money and staying in places that welcome fellow drifters. He has taken similar trips to Pakistan and the Balkans and said that's the best way really to experience the culture and meet friends.

Richard Grosso, a longtime environmental lawyer and a law professor at Nova Southeastern University, sees that plan as in keeping with Guest's personality.

"He's intellectually curious," Grosso said. "He's not a guy who is going to sit on a rocking chair.”

But once he returns, Guest said he expects to remain involved.

"I'll be back in some capacity — I don't know how it will play," he said. "My clients really want me to stay in the fray."

"I THINK THERE'S MYSELF AND a lot of other environmental lawyers in Florida who basically spent their careers trying to be David Guest," Grosso said. He said Guest’s retirement will challenge other lawyers for environmental advocates to step in to fill his shoes.

"He's a real hero and a leader to a lot of us who have followed him," he added. "He really is among the most brilliant legal minds I have ever come across in my career."

Guest also has the respect of some of the lawyers he's opposed in court.

“He is kind of like the Elvis Presley of Florida’s environmental advocacy community,” said David Childs, who has represented utilities against Guest and his clients.

Terry Cole, who has represented industry and agricultural clients in court opposite Guest, said that even in difficult cases with high stakes and emotions, Guest is professional with his adversaries and has a sense of humor.

"You don't have to get mad about it, but you do want to work hard to get your point across for your client," Cole said. "He is very good at doing that."

But Guest has also earned enemies in communities that rely on Florida's sugar industry, which he has battled over water quality standards, the burning of sugar cane fields and the back-pumping of water from canals into Lake Okeechobee.

Among those communities is Clewiston, home to U.S. Sugar Corp. and its sugar refinery. In February, Clewiston Mayor Phillip Roland wrote in Context Florida that Guest's rhetoric on the industry’s back-pumping "contains outright lies and completely ignores facts that anyone can research for themselves."

In 2011, after an Earthjustice lawsuit led the federal government to propose setting numeric limits for nutrient pollution, a head of Associated Industries of Florida called the group a "liberal, left-leaning, communist-inspired environmental organization."

"The bottom line here,” Guest said in response in 2011, “is that no matter how many times polluters and their lobbyists claim the water is clean, the sad truth is that it isn’t."

In the interview this month, Guest said people in Clewiston have been accusing him of being a communist for years because of his "colorful" descriptions of the sugar industry. He said the industry is in the "influence business" and earns more from federal subsidies than from selling its product.

"These people are not farmers," he said. "These are the ultimate welfare corporations. And those people in the sugar industry of Florida are the royalty of the United States of the people who live on subsidies."

"Since they are in the subsidy business, if they have a choice between a tractor and five lobbyists, they'll choose the lobbyist every time," he added.

Guest’s voice is soft but firm, and he talks seriously yet with a playful reminiscence that suggests the conversation is always leading toward a punchline. He refuses to use regulatory terms like "nutrient pollution" — he calls it "sewage, animal manure and fertilizer” — and says the nomenclature of pollution is "formulated by people who have an interest in it."

"They don't call them ‘pollution limits,’" he said. "They call them ‘water quality standards.’ That sounds like 'gem quality.'"

In the courtroom, Guest sometimes is alone or among just a few lawyers representing environmental groups, while on the other side of the courtroom might be two dozen lawyers representing industries, utilities and government agencies. He doesn't see that as a problem.

"Being a major player in the drama is a wonderful feeling," he said, and he noted a practice benefit to having a small legal team: "Whenever you have a crowd of lawyers working together on one issue, they spend the majority of their time fighting with each other.”

But Guest lost when he represented environmental groups suing to block the first statewide numeric limits on nitrogen and phosphorus in waterways. The state and the federal Environmental Protection Agency approved rules that the groups said left too many loopholes.

EVEN AS HE RETIRES, GUEST and the groups he represents still hope to persuade a state judge to invalidate spending in this year's state budget. They argue that $237 million in the budget violated Amendment 1, the conservation spending measure that voters approved in 2014.

Democratic and Republican governors alike had pushed for land acquisition and the Legislature had supported it until 2009, when the program was cut amid the recession. But after the recession ended, funding for land acquisition was not restored. That led to Amendment 1, which Guest says is intended to reinstitute funding for land acquisition and restoration.

Guest — who has a poster-sized copy of the Amendment 1 ballot summary on the wall of his office — says those who view land acquisition unfavorably either are disconnected from parks and nature or else have enough land for private ranches and nature preserves.

"For them, [recreation and nature] takes place with servile waiters in tails bringing them frosted drinks with a view of the city," Guest said. "But for many, if not most, Floridians, going to a beautiful outdoor place that's been preserved is a really important part of their lives.”

That, he said, is a huge part of why people want to move to Florida. "It's not cheap condos. A big part of it is, the place is so beautiful. If you pave it over, it's not going to be beautiful anymore."

He espouses the view — widely held among environmentalists — that good people are being purged from state government under Gov. Rick Scott, who boasts about the state issuing permits faster since he's become governor.

"I think the permitting strategy of the Scott administration is the same as the strategy for throwing Mardi Gras beads at a parade," Guest retorted. "Somebody yells, and you throw them a permit."

But Guest said his outlook on the future of Florida's environment isn’t bleak. Political support comes and goes, he said, and environmental advocates must react properly in both situations.

"The role of lawyers and advocates is to get a ratcheting effect, something that you get and they can't take away," he said. "When the tide's in, that's what you do. When the tide is out, you've got to be pushing the opposite way. So all the things they do to screw the environment, you stop them from having a ratchet effect so you can get it back."


Anonymous said...

He refuses to use regulatory terms like "nutrient pollution" — he calls it "sewage, animal manure and fertilizer” — and says the nomenclature of pollution is "formulated by people who have an interest in it."

This is what makes Guest so effective, he does not accept the re-branding of common terms. This focuses the mind and does not distract from repugnicant word smiths. If the voting population was keen on this tactic, we would not have this election cycle's choice of candidates.

Look back the last 35 Years at all the ludicrous words generated by the body politic:
Well fair queen, trickle down economics, desert shield, SS lock box, partial birth abortion, creation science, hope and change,
you get my drift?

Besides elections, words mater too!!!!!!

Anonymous said...

David IS EarthJustice. He is the main reason I donate and recommend that organization. They are fearless!

Anonymous said...

So, the question is - who is going to take his place? Continuity is important.

Anonymous said...


Kent Williams said...

Its unfortunate that The blame is placed solely on Big Sugar, the people in charge of trying to bring down Big sugar are just as corrupt as they claim their targets are. This article fails to mention crucial information, including the fact the only about 5% of the pollutants in the water are caused by the sugar farmers. Leaky septic tanks along with run off infused with cow manure, which contains large amounts of phosphorus, are what account for the other 95%. The target has been placed on the wrong people, and if we continue down the path we are following we will only bring more damage to our fragile ecosystem.

Marty Baum said...

David is a hero, a real hero. I am honored to call him friend. Alan, you would have REALLY enjoyed the 7 hours he spent aboard our boat boat last year.... the stories..

Julie said...

What an inspiration!