The day after Christmas, the Florida Fifth District Court of Appeal rejected a titusville charter amendment approved by 83% of local voters for Right to Clean Water (RTCW).
We recognize the overwhelming support of this charter amendment by the residents of the City of Titusville and the admirable policies of the amendment. However, the Legislature in drafting section 403.412(9)(a) of the Environmental Protection Act has not authorized the types of rights provided for in the charter amendment. As such, an appellate court has no power to change or alter what the Legislature mandated.
A week before, the Montana Supreme Court upheld a youth climate case, based on Montana’s 1972 Environmental Rights Amendment. Florida needs to catch up to Montana and Pennsylvania.
“[Montana’s] constitution does not require that dead fish float on the surface of our state’s rivers and streams before its farsighted environmental protections can be invoked.” —Justice Trieweiler, Montana Supreme Court, MEIC v. Montana DEQ 1999
Florida Right to Clean Water, Please sign the petition, Join Montana and Pennsylvania
Florida needs a Right to Clean Water in the state constitution to reverse that legislative pre-emption and to go farther in protecting Florida’s waters, like Montana and Pennsylvania have already done.
Go here to have your copy of the petition mostly filled out for you: https://bit.ly/FRTCW-petition
QR Code, Florida RTCW Petition
Or do it yourself by getting a copy at
https://floridarighttocleanwater.org
WWALS and many other organizations hand out petitions at festivals and outings.
Montana has a state Environmental Rights Amendment (ERA). Pennsylvania also has an ERA, and its Supreme Court has upheld similar cases.
Amy Beth Hanson, Associated Press, December 18, 2024, Montana Supreme Court upholds state judge’s landmark ruling in youth climate case
The plaintiffs can enforce their environmental rights “without requiring everyone else to stop jumping off bridges or adding fuel to the fire,” Chief Justice Mike McGrath wrote for the majority. “Otherwise the right to a clean and healthful environment is meaningless.”
Montana Youth have the Right to a safe climate! Held v. State of Montana –Our Children’s Trust
Further:
“We reject the argument that the [authors of the amendment]—intending the strongest, all-encompassing environmental protections in the nation, both anticipatory and preventative, for present and future generations—would grant the State a free pass to pollute the Montana environment just because the rest of the world insisted on doing so,” the opinion states. “The District Court’s conclusion of law is affirmed: Montana’s right to a clean and healthful environment and environmental life support system includes a stable climate system, which is clearly within the object and true principles …of the right to a clean and healthful environment.”
Back in Flroida, here is the December 26, 2024, ruling in
Titusville v. Speak Up Titusville, Inc., and a local copy:
https://wwals.net/pictures/2025-01-20–piec-rtcw
Titusville Right to Clean Water protest –Speak Up Wekiva
If you think existing state laws are enough to protect Florida’s waters, let the Florida court explain that they are not:
The charter amendment also specifically grants residents the “right to clean water” which is defined in the amendment as “waters that are free of pollution.” We acknowledge, as referenced by Speak Up, that the charter amendment’s definition of pollution includes language from section 403.031(11), Florida Statutes (2022), which defines pollution, and section 403.021(6), Florida Statutes (2022), which describes the Legislature’s public policy regarding pollution, but none of these provisions provide for the right to have water bodies that are “free” of pollution. In addition, while Florida has enacted general laws and regulations that 6 support the protection and enhancement of water quality and pollution control, neither the Florida Constitution nor other general law explicitly provides this right to clean water as defined in the charter amendment, which is a right “relating to the natural environment” and thus, expressly preempted by section 403.412(9)(a).
Montana since 1972 has had this in its state Constitution, Article II, Declaration of Rights:
- Inalienable Rights. All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life’s basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities.
Plus much more detail in Article IX, Section 1, which requires:
(1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.
(2) The legislature shall provide for the administration and enforcement of this duty.
(3) The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.
The Pennsylvania Supreme Court in 2013 used the state’s Environmental Rights Amendment (ERA) to to strike down fracking waivers and pre-emptions. See Robinson Township v. Commonwealth (2013).
This is an important precedent for Florida, because it indicates that the legislature’s pre-emption of local government RTCW charter changes would itself be pre-empted by the RTCW constitutional amendment.
This is what has been in Pennsylvania’s Constitution since 1971:
Article I, Section 27. Natural resources and the public estate.
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.
On November 3, 2021, the voters of New York State approved an ERA by 68.9%, while rejecting other proposed constitutional amendments. It is by far the shortest such state constitutional amendment:
Article 1, “§19 Each person shall have a right to clean air and water, and a healthful environment.”
Notice that amendment does not say it is self-executing. And New York State courts have said that it is not, and that it does not provide authority to compell state authorities.
The proposed Florida RTCW amendment spells out, “(g) SELF EXECUTING. This Section is enforceable without the aid of legislative enactment.” It is also very clear that people will be able to sue state agencies for not doing their jobs. Plus it defines all its important terms.
The text of the Florida RTCW is quite long, but should avoid problems with previous amendments in other states.
It also avoids the problem the recent court ruling found with the Titusville charter amendment. Florida law 403.412(9)(a) states:
A local government regulation, ordinance, code, rule, comprehensive plan, charter, or any other provision of law may not recognize or grant any legal rights to a plant, an animal, a body of water, or any other part of the natural environment that is not a person or political subdivision as defined in s. 1.01(8) or grant such person or political subdivision any specific rights relating to the natural environment not otherwise authorized in general law or specifically granted in the State Constitution.
Here’s part of what the court wrote about that:
The charter amendment in this case does not contain the identical language explicitly providing a right to a body of water as the Orange County charter in Wilde Cypress did—the right to exist, flow, and be protected from pollution. It does, however, implicitly grant rights to bodies of water by granting residents the ability to bring an action “in the name of the Waters of Titusville,” and section 403.412(9)(a) expressly precludes a charter from recognizing a legal right to a body of water. In addition, there is no provision authorized in “general law or specifically granted in the State Constitution” that gives a citizen the right to file an action in the name of a body of water. Further, although it is an admirable goal, we know of no provision that is authorized in either general law or specifically granted in the State Constitution, nor has one been provided by Speak Up, which specifically provides a citizen the right to have a body of water that “flows, exists in its natural form, is free of pollution, and which maintains a healthy ecosystem.”
The proposed Florida RTCW state amendment does not grant rights to the waters, only to people.
Although as in Pennsylvania, a constitutional amendment should supersede a mere state law anyway.
So while Speak Up Wekiva has asked for a rehearing, they have a tough row to hoe unless Florida gets a state constitutional Right to Clean Water.
Florida registered voters, please sign the petition and get all your registered friends and relatives to do so:
https://floridarighttocleanwater.org
You can read it here:
https://wwals.net/?p=64384
For more on this subject, see:
https://wwals.net/issues/right-to-clean-water/
If you prefer to read more about the many problems with waters in Florida that RTCW could help fix, here you go.
A dozen ways our current system of laws have failed Florida waters, FLORIDARIGHTTOCLEANWATER.ORG PRESENTS
“Although considerable attention has been given to protect and conserve waters in the State, including Article II, Section 7 of this Constitution and a comprehensive body of State environmental laws and regulations, such attention has not corrected the continuing decline in the condition of waters in the State.”
— excerpt from the proposed amendment, “Right to Clean and Healthy Waters.”
A Dozen Reasons Why the System Has Failed
PDF
- Florida is #1 for most acreage of lakes too polluted to swim in
or support aquatic life.
Florida’s estuaries are also ranked 2nd in the nation for most impaired. Environmental Integrity Project—“The Clean Water Act at 50” (Mar 17, 2022) - About 80% of Florida’s 1,000 springs are impaired due to
excessive nitrogen.
Elevated nitrate levels in drinking water have negative impacts on human health (reduced blood oxygen, certain cancers, birth defects, etc.). “Analyzing Nitrates in North Florida’s Drinking Water” (Oct 23, 2018) - Human impact has reduced the flow of
Florida’s 1,000 springs by one third.
During dry years…hundreds of springs stop flowing entirely and many reverse flows, allowing tannic and salty surface waters to enter…the Floridan Aquifer. “Not One Drop More” (Aug 27, 2019) - It would take 217 years to achieve OFS water quality goals.
Ryan Smart, Executive Director, Florida Springs Council – Funding Report of the 2021-2022 springs projects proposed for funding by water management districts. - Red tide has exploded in frequency.
Based on a timeline of red tide, from 1878 to 1994, there has been a recorded 64 months of red tide (4.6% of the time). Over the last 29 years, there have been 200 months of red tide (58% of the time). That’s a 1,160.9% increase. - The impacts of red tide and blue-green algae blooms on local
economies grow.
In one study of red tide events of 2017-2019, for example, surveys showed a 36%-61% decrease in sales revenue for chartering / marine recreation businesses. - There are nearly a million acres of coastal estuaries and 9,000
miles of rivers and streams impaired with fecal bacteria.
Verified by the FL DEP “Fecal Bacteria may be in the Water where you’re swimming…” (Feb 1, 2022) - 800 manatees starved to death last year, after 1,100 the year
before.
Starvation due to pollution-fueled seagrass loss continues to linger as a major issue for Florida manatees. Citing Florida Fish and Wildlife Conservation Commission preliminary data results. (Jan 11, 2023) - Coral is dying off the coast of Florida.
“Land-based sources of pollution are known to affect coral growth and reproduction, have been linked with increased coral disease and bleaching, and contribute to coral reef ecosystem decline in Southeast Florida.” FloridasCoralReef.org - The health effects of more frequent blue-green algae blooms are
disastrous.
Studies show “people who live next to waterbodies with frequent toxic algal blooms have a 25% greater risk of developing ALS.” Brain Chemistry Labs (Feb 26, 2020) - The dangerous effects of polluted waters also hurt our drinking
water & food supply.
Depending on how much you’re exposed to cyanobacteria (in certain blue-green algae blooms), “microcystins can cause liver and kidney damage when consumed.” FDA. - Neither Floridians nor visitors trust our waters anymore, for
good reason.
Story after story after story after story, people are getting hurt from the simple act of entering Florida’s waters, to include Florida’s beautiful beaches.
-jsq, John S. Quarterman, Suwannee RIVERKEEPER®
You can help with clean, swimmable, fishable, drinkable, water in the 10,000-square-mile Suwannee River Basin in Florida and Georgia by becoming a WWALS member today!
https://wwals.net/donations/
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