May
16, 2019
The Honorable Ron DeSantis
Plaza Level 1, The Capitol
400 S. Monroe St.
Tallahassee, FL 32399-0001
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.
Deborah
L. Foote
Government
Affairs & Political Director
