Conservation: Fighting the Good Fight Keeps Getting Harder

There are currently a number of situations in which local citizens and conservation groups are using the courts in an attempt to prevent special interests from making a quick buck at the expense of the long term degradation of our environmental resources. While their dedication is inspiring, too many of the instances underscore a troubling trend. We the People are too often having to undertake great measures in order to see that those entrusted with protecting such resources are held accountable to doing their job.

Last week, the 5th District Court of Appeals heard oral arguments in an appeal filed by a group of local environmentalists to a permit issued by our local water management board. The permit would allow the destruction of wetlands on Perico Island in order to facilitate politically-connected developer Pat Neals desire to build homes on the land.

The Florida Institute for Saltwater Heritage, Suncoast Waterkeeper, Manasota 88, Sierra Club and TBT Publisher Joe McClash are asking the court to reverse a Southwest Florida Water Management District order that awarded Neal a controversial permit to destroy mangroves and build on the coastal wetlands of this critical area that lies in the bay waters between Anna Maria Island and the mainland of northwest Manatee County.

Neal's request was pushed through Swiftmud by his developer pal, Carlos Beruff. But it should have never even gotten that far. The City of Bradenton clearly violated its own rules in giving approval for the development request, as well as state guidelines on wetlands. The city basically ignored the conservation groups that pointed this out and, in addition to the Swiftmud appeal, there is a pending suit by Suncoast Waterkeeper that challenges the city's approval. Despite the disputes and the fact that the ACOE has yet to weigh in, Neal has begun clearing on the site.

Meanwhile, Beruff is seeking an ACOE approval for a controversial mitigation bank that would allow him to circumvent some of the rules the county successfully defended in a recent suit that the developer lost regarding his Long Bar Pointe project, another controversial coastal development that will have drastic impacts on critical resources. It, along with the DEP approval for the bank that he has already secured, are being challenged by a number of the same groups. Again, Beruff's plans clearly violate local, state and federal guidelines, but the opposition has to go in for the long fight if they hope to see the rules successfully enforced.

This week, four conservation groups also filed suit against two government agencies over phosphate mining. ManaSota-88, Suncoast Waterkeeper, the Center for Biological Diversity and People for Protecting Peace River filed suit against the U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service on Wednesday for "authorizing 50,000 acres of phosphate strip mining that would irreversibly destroy native plant and animal habitat in central Florida."

The complaint claims:

"When deciding whether to approve phosphate mining activities in jurisdictional waterways, Congress and the public trust demand that the Corps and Service meaningfully comply with the law by observing statutory and regulatory conditions and rigorously analyzing environmental impacts. These efforts are not only legally mandatory but are also indispensable to protecting Florida's dwindling natural heritage and environment. Yet the Corps and Service have failed to fulfill these key directives in approving strip-mining for phosphate across more than 7,000 acres in the Peace River watershed."

The decision comes in the wake of Manatee County's decision not to deny an application by phosphate giant Mosaic to expand its local operations to include wetland destruction and the construction of another massive lake of toxic sludge near critical water supplies. As Manasota 88 and a number of other conservationists and environmental experts pointed out over several days of meetings, the county clearly had legally-defensible arguments to deny an expansion that had considerable public opposition. It simply didn't.

This week, Manasota 88 also petitioned the Sarasota County Commission not to repeat its trend of sacrificing previously protected wetlands for the sake of more development in a request to rezone part of the Meadows, near University Parkway. The site in question is just around the corner from a fight the group recently lost, when the county approved the destruction of previously protected wetlands on the site of a soon-to-be-built Whole Foods supermarket.

The current caseload of these groups outlines how difficult, expensive and time consuming the process of governance by citizen watchdog group can be. Rather than fulfill the historic role of public informer/advocate and government petitioner, these groups have been forced into the role of perpetual litigator. That's not the way the system is designed to work, but we are continuing to move further in that direction rather than away from it.

Florida first started seeing wholesale changes in these processes in 2011, following the election of Governor Rick Scott. Scott, a political outsider who ran against the Republican establishment during the Tea Party wave of 2010, quickly gutted key elements of state review–most notably the Department of Community Affairs–and began creating a political culture in which anti-regulation, pro-development ideology dominated state review. We saw this best locally when Katie Pierola and Greg Geraldson successfully beat Neal in the Robinson Farms case, only to have the governor and his cabinet, which replaced the DCA as the final authority on such matters, ignore a recommended order from the Division of Administrative Hearings and quickly rule in favor of Neal, who's been a key fundraiser for Scott, as well as the other members of his cabinet.

The impact of that political culture was recently reaffirmed when another DEP employee detailed the culture change at the agency, accusing DEP officials of punishing her for going off-script when it came to matters in which the rules and regulations clashed with the interests of politically-connected developers. The chilling effect such actions can have on the effectiveness of regulatory bodies is difficult to overstate. For every employee who is punished for not going along with the program, how many more have been influenced into acquiescence by the implied consequences of going against the grain?

Locally, we've seen a similar pattern at the county and city levels, in which those who refused to go along to get along were either marginalized or jettisoned, while so many others learned by such examples that the only thing that awaited their resistance was thankless martyrdom and a mid-life career crisis. That's why it's so concerning that Washington has been overcome by a climate in which the desire to similarly disempower federal oversight and return even more control to states and local government is at the forefront. Florida is among a number of states that stand as an example of how terrible such an outcome can be.

The protection of critical resources should not be a partisan issue, but it’s nonetheless become one. Special interests have successfully painted any sort of conservation group as leftist or liberal. A look through history, however, would refute such classifications. It's no mere coincidence that conservative and conservation come from the same root word. In fact, two of our most effective environmental conservationist Presidents were conservative Republicans: Teddy Roosevelt and Richard Nixon.

Everything from our National Parks to the EPA and the Clean Water Act can be traced to these two men who understood both the intrinsic value of environmental resources and the fiscal prudence of protecting resources now that you would otherwise be forced to restore at great expense later. Our nation will need clean drinking water into perpetuity. It is simply a question of what price we will pay to attain it. McClash, who served as a Manatee County commissioner for 22 years, was a rare modern conservative who was cut of the same cloth and was often successfully tarred as a RINO (Republican in Name Only) as a result.

The modern conservative ethos that all regulation is bad, resulting only in job loss and economic stagnation, was born of Ronald Reagan, another GOP outsider who departed from the common sense approach of Republicans like Nixon, much to the delight of the industrialist interests who helped put him in office. But America has had decades of expensive lessons to draw from when it comes to the true cost of jettisoning critical environmental protections and ignoring the basic tenet of capitalism that says each producer must assume the total and true cost of bringing their product to market.

This mischaracterization of conservation has been particularly effective in states like Florida, Texas, Pennsylvania and others in which Republicans hold powerful majorities at the state and local level. The promise of job creation and economic development in exchange for what is framed as liberal tree-hugging that places animals no one has heard of or mosquito infested bushes above American paychecks might be attractive to some people from an ideological perspective, but we will all have to live with the expensive consequences of not being good stewards of our natural resources, no matter what party it says on our voter registration card.

So, as inspiring as it is to see groups and individuals taking on and in some cases winning against powerful special interests and pay-for-play politicians, it is not an effective long-term strategy. As anyone of these people involved will tell you, fighting an infinitely better-resourced interest with much more to lose or gain financially by each individual decision, is no small task. The process is layered and can easily be manipulated in order to drastically raise the financial cost of the fight. Teams of lawyers can churn billable hours under a mountain of convoluted motions and other forms of feet dragging designed only to discourage dissent.