Events are moving along quickly in the mega-match between the Florida Dept. of Environmental Protection (Don’t Expect Protection) and the four petitioners (Seminole Tribe, City of Miami, Martin County and the Florida Pulp and Paper Assoc.) in this case. After a telephone conference yesterday that included Judge Canter and all five parties, the cases were all consolidated into one, the final hearing was postponed and oral arguments are now scheduled for next Wednesday, September 7th in Tallahassee at the DOAH bldg.
There are so many motions on the table at this time, there’s no telling how long the hearing will last, but it could also be relatively short if the judge first takes up the Seminole Tribe’s Motion For Summary Final Order. This excellent piece of legal work does a great job of presenting several legally sound reasons why Judge Canter should tell DEP to take a hike and take their “incomprehensible” rule with them. I hope he does!!!
As you know from previous updates, the JAPC (Joint Administrative Procedures Committee) sent DEP a letter after the first notice was published. The notice was purportedly to let all of us know that DEP was about to change state laws/rules in a way that would allow industries to dump a lot more cancer causing and/or toxic chemicals into our waters. The JAPC letter told DEP that their “notice” was “incomprehensible” to the general public and that any reader of that notice would be “seriously handicapped” in trying to figure out what the heck DEP was up to.
This is the job that JAPC is tasked to do. It is a joint standing committee of the Legislature created by Rule 4.1 of the Joint Rules of the Florida Legislature. It is composed of six Senators, appointed by the President of the Senate, and six Representatives, appointed by the Speaker of the House. The primary function of JAPC is to generally review agency action pursuant to the operation of the Administrative Procedure Act (Chapter 120, Florida Statutes), particularly as these actions relate to the rulemaking process. It is JAPC’s responsibility to ensure that rules adopted by the executive branch agencies do not create new law, but rather stay within the authority specifically delegated by the legislature. Section 120.545, Florida Statutes, provides additional authority for the review of rules and sets out the procedures in the event of a JAPC objection to a rule.
In plain language, it is a relatively small group of legislators who make sure that the Governor’s agencies don’t go nuts and try to make up rules that don’t follow the statutes that authorize them. Plus they make sure that procedures are followed as outlined in state law, which are largely there to make sure that we, the citizens of Florida, have certain rights and protections. This is important because someone could get elected Governor who is totally whacked out for some reason (high on power, drugs or some other unreliable motivator) and force his agencies to do things that are totally irresponsible and contrary to the public ‘s best interest.
WAIT A MINUTE!!!! I THINK THAT MAY BE WHAT’S HAPPENING HERE!!
So the Seminoles also point out in their excellent Motion, that we are supposed to get “fair notice” of the agency’s intended action. The First District Court of Appeals has said that means the public should be able to understand what’s about to happen to them. Here’s how the Seminole Tribe describes DEP’s failure to do that:
“FDEP’s failure to articulate the specific changes being made and provide a short, plain statement of the effect of those changes is particularly egregious in this case, because the Proposed Rule is
a matter of public health and safety, affecting the risk of cancers and disease to the citizens of the State of Florida based on their consumption of aquatic wildlife from Florida’s waters”.
Just a short sentence or two in DEP’s notice would have done the trick. They could say something like:
“The State of Florida is planning to change our long-standing policy of allowing toxic chemicals to be dumped into Florida waters in concentrations that will cause no more than one in a million Floridians to die of cancer when exposed to these waters through drinking, swimming, fishing or eating shellfish. We will now allow an increase in most of these toxic discharges that will increase the risk of death by cancer to as many as one in 70,000 for people who eat no more than six ounces of fish per week. For people who eat more than that, or drink a lot of water or weigh less than 176 pounds, or accidentally eat fish containing more than one toxic chemical, well . . . . the outcome could be bleak. Just sayin’ . . . you have a right to know what we are doing here.”
Or something to that effect. They probably would not ask me to write their public notice.
The Seminoles make great points in their Motion and I’ll be sitting on the edge of my seat as we wait to see how the judge rules on it. As reported before, DEP is trying to get all four petitions dismissed. They don’t think that anyone has standing to challenge their rule. DEP even went so far as to object to the Seminole Tribe’s discovery requests and filed a motion requesting protection from the Seminole’s efforts to uncover DEP’s inner workings as they developed the rule. Then three days later DEP withdrew their somewhat strange Motion. WHAT IS GOING ON HERE? I WONDER IF OUR CRAZY MARTIAN GOOFBALL GOVERNOR HAS TURNED THIS WHOLE RULE-MAKING FIASCO OVER TO SOME OF HIS FELLOW MARTIAN GOOFBALL FRIENDS?
As much as I DON’T respect DEP, I have never seen the agency do such incompetent work. Yes they are frequently mean-spirited and will lie and cheat in court, but there’s usually some basic competence bleeding through their desperation to win at any cost.
Stay tuned and if you can be in Tallahassee on Wednesday, September 7th at 9:00 a.m., then I recommend that you be at the Division of Administrative Hearings, Hearing Room 2, The DeSoto Building, 1230 Apalachee Parkway. It should be an interesting morning and an opportunity to see our state government at work.