Two creeks, a marsh and two lakes are plaintiffs in a first of its kind complaint filed last month against a real estate developer and the Florida Department of Environmental Protection.
Wilde Cypress Branch, Boggy Branch, Crosby Island Marsh, Lake Hart and Lake Mary Jane, tributaries of the Kissimmee River are seeking declaratory and injunctive relief that Beachline South Residential, LLC’s proposed “Meridian Parks Remainder” mixed use real estate development violates the water bodies’ own right to exist.
On November 3, 2020, the voters of Orange County overwhelmingly approved a charter amendment by a margin of 89.2%, creating standing for nature, itself, to sue to confront environmental degradation, with that new charter provision, providing in relevant part,
Section 704.1 – Right to Clean Water, Standing and Enforcement.
A. Natural Rights of Orange County Waters and Citizens. (1) The Wekiva River and Econlockhatchee River, portions of which are within the boundaries of Orange County, and all other Waters within the boundaries of Orange County, have a right to exist, Flow, to be protected against Pollution and to maintain a healthy ecosystem. ..
B. Standing, Private Right of Action. Orange County, municipalities within Orange County, any other public agency within Orange County, and all Citizens of Orange County shall have standing to bring an action in their own name or in the name of the Waters to enforce the provisions of this Section of the Charter.
I blogged last year that the movement to empower nature giving it standing sue in its own right (.. as opposed to traditional standing requiring a citizen to be damaged) is the single most impactful trend in environmental law, When Trees Sue for their Own Environmental Preservation.
The idea that nature can have standing is not new. Justice William O. Douglas’ widely quoted dissent in the U.S. Supreme Court case, Sierra Club v. Morton, 405 U.S. 727 (1972) described the doctrine,
public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. .. So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life.”
That legal doctrine was brought to bear when on January 8, 2021, this defendant Beachline made a permit application to the state Florida, including, requesting authorization to fill in approximately 115 acres of Orange County waters for a construction of a mixed use residential and commercial retail development on approximately 1,923 acres.
The Complaint, among other allegations, avers the “proposed development violates the right to exist of the Crosby Island Marsh, Lake Hart and Lake Mary Jane by cutting off and/or restricting the sufficient flow of clean water into these protected bodies of water.”
The Complaint is an instructive read and the case may be precedent setting. Not only in play is an effort to halt a real estate development, but also the matters of preemption of state law over local charter amendments creating causes of action, and that this appears to be the first case in the United States of nature having standing as a plaintiff.
Thought leaders largely agree there needs to be a better way of protecting the environment than the current dinosaur environmental laws most enacted in the 1970s, and enabling nature to seek judicial redress is a public policy coming to a courtroom near you.
