Two Lakes, Two Streams and a Marsh Filed a Lawsuit in Florida to Stop a Developer From Filling in Wetlands. A Judge Just Threw it Out of Court

A Florida judge late Wednesday dismissed a closely-watched “rights of nature” case, finding that state law preempted an amendment to the Orange County Charter passed overwhelmingly by voters in 2020, that granted lakes, wetlands and streams the right to “exist” and “flow” as healthy ecosystems protected against pollution. 

Circuit Court Judge Paetra T. Brownlee’s ruling effectively struck down the entirety of the amendment, which also gave citizens in Orlando and the rest of Orange County the ability to enforce their rights to clean water, while making it unlawful for corporate entities to pollute newly-protected waterways. 

In Florida, pollution has become a flashpoint between local communities and state government, with communities like Orlando looking to take back control over environmental protection based on the belief that Florida regulators have failed to protect Florida’s valuable ecosystems, particularly its beaches.  

In her opinion, Brownlee made clear that the crux of the case was about the power of the Florida state legislature to set environmental policy and to preempt county and local laws when those laws conflicted. She also rejected arguments advanced by the plaintiffs—two lakes, two streams, a marsh, and all other affected waterways, along with environmentalist Chuck O’Neal—that Florida charter counties have a broad right to self-government under Florida’s Constitution. Judge Brownlee dismissed the case with prejudice, meaning that the plaintiffs cannot refile their complaint. 

The ruling is a major victory for development companies and the agricultural industry, which have strongly opposed more stringent environmental laws at the local level, including rights of nature laws which grant waterways, forests and other ecosystems unique legal rights, in a similar way to those held by people and corporations. Rights of nature laws afford ecosystems a higher level of protection than they now receive under federal and state environmental regulations. 

O’Neal said that he is considering his legal options, which could include filing an appeal of Brownlee’s ruling. He also said he’s waiting for a final decision in a parallel federal case that contests the lawfulness of the same dredge-and-fill permit at issue before Judge Brownlee. Plaintiffs in that case alleged the permit would irreparably damage a number of county waterways. While rights of nature statutes are proliferating at the local level throughout the nation, none has ever been upheld by a U.S. court outside a tribal jurisdiction. 

“We’ve got to keep fighting,” O’Neal said, referring to Brownlee’s ruling. “We’re back to fighting this the way we’ve fought for decades here in Florida, using our existing environmental protection laws.”

O’Neal said that rights of nature advocates will need to look beyond local laws and charter changes and that rights of nature amendments to state constitutions will be needed for those laws to take hold in the United States.  

“When local rights of nature laws pop up, the powers that be strike them down, like they did here in Florida,” O’Neal said. “There’s just too much money and power on the other side of the equation.” 

Legislative Cat and Mouse

The battle between state lawmakers and Orange County citizens began in June 2020, when Orange County’s Charter Review Commission placed a rights of waterways and a human right to a clean environment provision on the ballot for the November election. The proposed provision, as placed before voters, would have amended the county’s Charter, which operates like a mini-constitution.

But before the election took place, Rep. Blaise Ingoglia, a state legislator supported by the Florida Farm Bureau, inserted a clause into an 111-page omnibus bill that said local governments could not grant legal rights to “a plant, an animal, a body of water, or any other part of the natural environment,” and could not grant people or political subdivisions “any specific rights relating to the natural environment.”

In July 2020, Florida Gov. Ron DeSantis signed that legislation into law. Four months later, 89 percent of Orange County voters approved the proposed Orange County Charter amendment, seemingly unaware of the state legislature’s preemption. 

The following year, Beachline South Residential, a Florida developer, obtained a permit to dredge and fill wetlands as part of a mixed-use residential and commercial development in Orange County.  

O’Neal and the waterways—Wild Cypress Branch, Boggy Branch, Crosby Island Marsh, Lake Hart, Lake Mary Jane and all other affected Orange County waters—filed a lawsuit against Beachline and the Florida Department of Environmental Protection to stop the development. 

Both defendants, Beachline and the Florida Department of Environmental Protection, filed motions to dismiss the case.

On Wednesday, Brownlee granted the defendants’ motion, ruling that the state law and Orange County’s Charter amendment “cannot coexist.” She noted that O’Neal and the waterways arguments about Florida’s pollution problems were “passionately argued,” but said the courts have “no power to change or alter what the Legislature mandated.” She concluded the state law preempted the Orange County Charter amendment. 

She also shot down arguments by O’Neal and the waterways that the state law violated Orange County’s rights as a charter county to self-govern. O’Neal and the waterways had claimed that the state legislature “cannot constitutionally preempt local lawmaking when that lawmaking creates more stringent environmental protections than ones provided by the state.”

But Judge Brownlee said Florida counties are not “sovereign” and have “no inherent right of self-government which is beyond the legislative control of the state.” Historically, conservatives have championed local control over centralized government, but Florida has taken the opposite tact under Gov. DeSantis, who has signed legislation preempting local laws related to gun control, environmental protection and public health measures.  

Judge Brownlee also rejected O’Neal’s and the waterways’ argument that the state preemption law is unconstitutional under the “Natural Resources Amendment” of the Florida Constitution. That amendment states that it is the “policy of the state to conserve and protect its natural resources and scenic beauty” and that “adequate provision shall be made by law” to abate pollution. 

O’Neal and the waterways had argued that state lawmakers failed to make “adequate” laws protecting the environment, in violation of the “Natural Resources Amendment.” In support of that argument, they cited a range of ecological crises facing Florida.

Judge Brownlee said that nothing in the Natural Resources Amendment prevented state law from preempting local laws and that the language of the Natural Resources Amendment “requires simply that there be some reasonable level of legislative action, with the Legislature [being] empowered to determine, within reason, what is adequate.”

O’Neal and the waterways had outlined the “parade of horribles that may ensue” if the state preemption law was upheld, Judge Brownlee said, but those arguments were policy arguments and “this court cannot make its decisions based on policy.” 

O’Neal called the lawsuit a “David and Goliath” battle and said that other nations have had greater success in enacting rights of nature laws because they don’t face the same “power structures” that are present in the United States, including the “relentless grip of commerce on our political process.” 

Ecuador, Bolivia, Canada, New Zealand, India, Colombia, Bangladesh and other nations have variously recognized the rights of nature in constitutions, court decisions and legislation at the national and local levels. 

“I think that when the will of 89 percent of the people is struck down, I think people need to take a second look at, is their government performing according to their desires, their hopes, their dreams,” O’Neal said. “And if not, they need to engage in the political process and change the decision makers. Elections have consequences.”