Florida’s Enforcement Crisis

Florida Today recently reported on the under-punishment of pollution in Florida. It pointed to findings reported by the Public Employees for Environmental Responsibility (PEER) that, “Thirty-four years of Florida environmental enforcement data … depict an enforcement program in crisis.” 

The report ends with, “Pouring money into infrastructure projects will not be enough to clean up Florida’s dirty water and address other looming environmental crises.” This is where the Florida Right to Clean Water initiative comes in. 

We can’t expect human nature or the nature of politics or profit-making to change anytime soon. Currently, the law not only allows special interest influence in policymaking, but it also protects what has grown to functionally become a “right to pollute.”

As clean water advocates and attorneys can attest, it’s difficult to question much less reverse an agency decision or policy once made. We should embrace the reality of our situation in order to understand why a right to clean and healthy waters in the Florida Constitution is the only way forward at this point. 

There are already laws against water pollution on the books. Once an agency gives the thumbs-up, polluters can legally pollute to the maximum limits set. 

It is of no concern to polluters whether or to what extent their pollution stresses or destroys an aquatic ecosystem. It’s not their job. In fact, they have the fiduciary duty to maximize profits however possible. 

It’s the state agencies, as noted in the PEER report, that have failed to hold their ground against political pressures and other forces intent on placing polluters’ interests above us and our waters. But here’s the thing: They’re not bad people. They just want to keep their jobs, and maybe get promoted. This includes the proverbial foxes in the agency henhouse. 

It’s the system itself we need to attack, not the people. Every business is run by human beings, and every public official is a natural person with a family, with basic needs like being able to drink clean water, or with liberty interests in recreation, property values, or business endeavors. Everyone needs clean water. There is no counterargument. 

We need to surgically remove the tumor that has grown to cause all the eco-systemic destruction and suffering, statewide, for decades: The idea that pollution equals power in Florida. This is exactly what the right to clean water does. It shifts to and “constitutionalizes” the idea that Floridians have equal power when it comes to our waters. 

In addition to the obvious good it would bring to our aquatic ecosystems, a right to clean water also provides the necessary systemic fix: political cover. Every agency head, even the foxy ones, has a bigger boss – and that is the Florida Constitution. Once in place, it will be unconstitutional for any state agency to harm or threaten to harm Florida waters by action or inaction.  

Importantly, since the amendment is so clear and specific about the duty of care, their government attorneys will know exactly how to advise. 

With the right to clean water, good public officials will be released from the stranglehold of pollution politics. Agency staff will have a shield against inappropriate influences. With a clear line in the sand, legal positions will be predictable and stabilizing, around which robust commercial dealings can occur – responsibly.

Higher standards of review will usher in statewide transitions to smart growth, sound (waste)water management, and other forward-thinking infrastructure decisions. Innovative developers offering the best designs, materials, and technology, for example, will naturally reap the rewards of being the best and most competitive in the market. 

There will also be substantial savings made from not having to litigate, not having to lobby and not having to donate considerable funds to multiple politicians every cycle, which can then be invested in “Florida-friendly” business models. Besides, if they’re unable to run a successful business without contributing to the destruction of Florida waters, do we really want them here? Do they have the right to pollute and destroy paradise, or do we have the right to clean and healthy waters? It’s one or the other, and it’s up to Floridians to decide.

It’s time to protect the good people in our state agencies with the constitutional clarity we all need, to do the right thing for our waters and way of life. It’s time we move from a right to pollute to a right to clean water in Florida. 

Learn about and do something to support the Florida Right to Clean Water initiative. Find the petition, amendment language, and everything you need to know about how to help at FloridaRightToCleanWater.org.

Mel Martin is the Florida Right to Clean Water campaign coordinator. A Florida attorney and retired U.S. Marine Corps judge advocate, Martin was co-drafter of the amendment language.

If you are interested in submitting an opinion piece to The Invading Sea, email Editor Nathan Crabbe at ncrabbe@fau.edu. Sign up for The Invading Sea newsletter by visiting here.