Thursday, May 16, 2019

Sierra Club Letter to Governor DeSantis- Veto House Bill 829


May 16, 2019

The Honorable Ron DeSantis
Plaza Level 1, The Capitol
400 S. Monroe St.
Tallahassee, FL 32399-0001

Dear Governor DeSantis:

Sierra Club Florida urges you to veto House Bill 829, titled “Attorney Fees and Costs.”
HB 829 is an attempt by the legislature to coerce local governments into acceding to more preemption than may be supported by statutory text by increasing the financial risk of going to court to defend an ordinance challenged on the grounds that it is expressly preempted. In addition, section 2 of the bill (ll. 52-59) makes clear the legislature’s intent to preempt regulation of Class B biosolids in a one-size-fits-all fashion. This is inappropriate in water quality issues which should be addressed on a watershed by watershed basis.

Specifically, the bill would:

1)      Use the threat of awarding the prevailing party attorney fees and costs to coerce local governments into acceding to broader constitutional or statutory preemptions than may actually exist in law. HB 829 would impose these expenses on non-prevailing parties even if initial presentations to the court were good faith arguments regarding whether the scope of an express preemption extended to the subject of a local ordinance, and if the arguments were made with a reasonable expectation of success. A general exemption from monetary sanctions for good faith behavior already exists in 57.105 (3)(a) F.S. The basis for this exemption is to allow the judicial system to operate in a way that reserves sanctions for malfeasance, not for having a weaker argument.

The party challenging an ordinance gets an initial advantage from the pressure on the local government to withdraw or repeal its ordinance before the court process is completed and costs can be awarded.  The challenger though, is at the same or greater risk should the local government successfully follow through on defending the legitimacy of its ordinance since the challenger will then be on the hook for the local government’s fees and costs in addition to his or her own.

Neither party can control what the other’s fees and costs will be. This serves to discourage both parties from entering the legal arena to challenge or defend. The inability to budget within one’s means is a strong disincentive to participation in a challenge or defense of an ordinance.

The legislature’s power is wrongly increased whenever a dubious claim of preemption goes unchallenged and law is not clarified because of an indefensible disincentive to accessing the judiciary. General laws are written to apply to the state as a whole and interpretation is often necessary. Local governments and their constituencies should not suffer diminished autonomy because the legislature chooses to make court action prohibitively risky. 
2)      Apply the disincentive of awarded fees and costs to local governments’ environmental ordinances.  Subsection (5) of HB 829 exempts local ordinances adopted pursuant to Part II of Chapter 163 (Growth Management issues), the Florida Building Code, and the Florida Fire Prevention Code.  However, a review of those statutes reveals that there is nothing in any of them that deal with invasive or exotic species.  Accordingly, an express preemption of regulations dealing with invasives to the state would be subject to the fees and costs provisions of this bill which could weaken or halt a locality’s attempts to get ahead of a serious threat in a timely manner.  Even more disturbingly, section 2 of the bill makes clear the legislature’s intent to preempt local control of the management of land application of Class B biosolids.  The relevant text of the bill reads:

A municipality or county may continue to enforce or extend an ordinance, regulation, resolution, rule, moratorium, or policy adopted before February 1, 2019, relating to the land application of Class B biosolids until the ordinance, regulation, resolution, rule, moratorium, or policy is repealed by the municipality or county or until the effective date of the rules adopted by the Department of Environmental Protection, whichever occurs first.

This text indicates an implied preemption that has a number of negative aspects:
·         The intended preemption is clearly implied as beginning on the effective date of rules adopted by the Department of Environmental Protection. The preemption is to be complete; no more stringent regulation will be permitted.  Residents of communities are the ones who have to live with water pollution and must be able to adopt regulations strong enough to do the job of protecting their water resources.  Also, it is the local community that is on the hook for violations of the Clean Water Act, not the State.  Localities must be able to adopt regulations, up to and including bans, that work effectively and must not be saddled with a halfway measure that a statewide regulation is very likely to be. Section 2 of the bill exempts growth management ordinances from the costs and fees provisions of HB 829, but it decidedly does not exempt them from preemption as this portion of the bill illustrates.
·         Water quality regulation should be done on a watershed by watershed basis as soils, vegetation, impermeable surfaces, and sources of pollution vary throughout Florida.
·         The implied preemption in section 2 of the bill contravenes of 163.3162 (3) (h) which currently states that ordinances regulating “the transportation or land application of domestic wastewater residuals or other forms of sewage sludge shall not be deemed to be duplication of regulation.”

We urge you to exercise your authority to veto HB 829 in order to maintain access to the courts, to reserve the use of monetary sanctions for malfeasance as already established in Chapter 57 of the Florida Statutes, to allow challengers and local governments to make rational choices regarding how to control their costs in budgeting for legal actions, and to indicate your disapproval of preempting effective local environmental ordinances.

Sincerely,

Deborah L. Foote
Government Affairs & Political Director