Sunday, June 5, 2011

Sierra Club Florida Requests Veto of HB 993 - Rulemaking

Sierra Club Florida has asked Gov. Scott to veto HB 993 - Rulemaking.  The bill has not yet been sent to him, but will be as soon as it is signed by the Senate President and Secretary and the House Speaker and Clerk.  The Governor will then have fifteen days to sign the bill, allow it to become law without his signature, or veto it.

The text of the veto request is below:
June 4, 2011

The Honorable Rick Scott, Governor
State of Florida
The Capitol

400 South Monroe Street
Tallahassee, FL 32399-0001

Dear Governor Scott:

Sierra Club Florida urges you to veto CS/CS/CS HB 993, titled “Rulemaking.”
HB 993 deprives the party challenging a license, permit, or conceptual approval of due process and wrongly assigns them the burden of proof under three Chapters of the Florida Statutes dealing with environmental law, and fails to address how the intent of the legislature expressed in a grant of rulemaking authority is to be accomplished by the executive branch when the resultant rule remains unratified.

Specifically, the bill would:

1) Inappropriately shift the burden of proof from the applicant for a license, permit, or conceptual approval under Chapters 373, 378, or 403 of the Florida Statutes to the party challenging an agency’s intent to issue said license, permit, or conceptual approval.  When an agency gives notice that it intends to issue a license, permit, or conceptual approval, that notice does not constitute granting the requested approval.  Rather, the notice of issuance starts the clock on the period during which a challenge
 may be filed and during which the applicant remains just that, an applicant who should retain the burden of demonstrating that they meet all required criteria.  If a challenge is not filed during the notice period, the license, permit, or conceptual approval is issued and at that point the burden of proof should shift to any party who might wish to have it rescinded.  The language of the bill refers to the “applicant” not the “recipient” or “permit holder” making it clear that the entity seeking the license, permit, or conceptual approval is still applying.

The process of providing sufficient information to provide “reasonable assurance” to an agency may be time consuming, but it is designed to provide protection of the public interest.   The establishment of licensing and permitting requirements, etc., reflects the understanding of the people of Florida that the actions of self-interested persons may put citizens’ interests at risk, and that therefore, the use of some state resources must be licensed or be subject to permitting in order that the public interest not be unduly compromised. 

These licensing, permitting, and approval rules were authorized by the legislature, are subject to the Administrative Procedures Act, and are the law.  The ability of citizens to challenge agency decisions is an important part of that law that serves as a check and a balance against overweening or ineffectual state agencies.  Shifting the burden of proof to the challenger confers an unearned presumption of compliance on the applicant and is tantamount to eliminating citizens from the process.

2) Deprive the challenger of due process rights.  Section 10 of HB 993 establishes “the order of presentation in the proceeding” in which a non-applicant petitions as a third party to challenge an agency's issuance of a license, permit, or conceptual approval.  This language, therefore, establishes the procedural rules the court must follow in third party challenges to permits, licenses, and conceptual approvals under Ch. 373 - Water Resources, Ch. 378 - Land Reclamation, or Ch. 403 -Environmental Control. The “order of proceeding” mandated by Section 10 of HB 993 clearly deprives any third party challenger of due process rights by depriving them of rebuttal or surrebuttal even though they bear the burden of proof, and further, grants the applicant and agency rebuttal and an opportunity to introduce new evidence after the challenger’s presentation.  Rebuttal is very rarely allowed to introduce new evidence, but in HB 993 it is not only allowed, but is allowed without giving the challenger an opportunity to address it.  The salient language is below:

…the order of presentation in the proceeding is for the permit applicant to present a prima facie case demonstrating entitlement to the license, permit, or conceptual approval, followed by the agency. This demonstration may be made by entering into evidence the application and relevant material submitted to the agency in support of the application, and the agency's staff report or notice of intent to approve the permit, license, or conceptual approval. Subsequent to the presentation of the applicant's prima facie case and any direct evidence submitted by the agency, the petitioner initiating the action challenging the issuance of the license, permit, or conceptual approval has the burden of ultimate persuasion and has the burden of going forward to prove the case in opposition to the license, permit, or conceptual approval through the presentation of competent and substantial evidence. The permit applicant and agency may on rebuttal present any evidence relevant to demonstrating that the application meets the conditions for issuance.

The “order of proceeding” established of this language is:
1. Applicant lays out prima facie case as they wish “followed by the agency” 
2. The agency then submits “any direct evidence” which grants the agency a great deal of discretion in its determination of what evidence to submit.  The context clearly entertains the prospect of the agency choosing what evidence to bring forth: “Subsequent to the presentation of the applicant’s prima facie case and any direct evidence submitted by the agency,…” (emphasis added)
3. The petitioner attempts to prove his or her case “through the presentation of competent and substantial evidence.”
4. The permit applicant and agency get to rebut the petitioner’s evidence and may introduce new evidence.        

There is no good reason for establishing in statute a specially designed procedure for challenges under these three chapters that deal with important areas of environmental law: Water Resources (373), Land Reclamation (378), and Environmental Control (403) other than hostility to citizen participation in these areas.   Sufficient precedent and established judicial procedure for civil and administrative hearings have evolved over decades to provide a fair hearing for all parties.  This section is designed to provide an unfair hearing and places the procedures in statute because the provisions of the section would not be allowed by a competent hearing officer.  Establishing an order of presentation in the proceeding that assigns the burden of proof to the challenger while depriving them of rebuttal clearly violates their due process rights.  (Rebuttal is a defined term and since the “order of presentation” is established without referencing surrebuttal, it thereby also precludes surrebuttal.)

For comparison we offer the following language that does provide for a fair hearing from 163.6215 (4) (g) F.S.: “At the quasi-judicial hearing, all parties must have the opportunity to respond, to present evidence and argument on all issues involved which are related to the development order, and to conduct cross-examination and submit rebuttal evidence. Public testimony must be allowed.”

3)  Fails to address the conflict between the provisions of Chapter 120 requiring legislative ratification of certain rules and Article III, Section 9 of Florida’s Constitution that says “Each law shall take effect on the sixtieth day after adjournment sine die of the session of the legislature in which enacted or as otherwise provided therein.”  The requirement for ratification prevents rules authorized by the legislature in statute from being implemented and thereby interferes with the Governor’s responsibility to “take care that the laws be faithfully executed” (Art IV, Section 1, a.)  The ratification requirement creates an unacceptable separation of powers Catch-22 situation in which the legislature can pass a law and at the same time prevent the law from being executed.   While it may be expedient for the legislature to pass a bill it never wishes to become law, such a violation of the public trust should not be countenanced.

We urge you to exercise your authority to veto this bill in order to affirm the importance of individual citizens and their right to fair and impartial justice. 


David J. Cullen
on behalf of the Sierra Club Florida Steering Committee

David J. Cullen
Florida Sierra Club Lobbyist

111 Second Avenue
N.E. -
Suite 1001
St. Petersburg, FL 33701