Thursday, June 27, 2019

Governor DeSantis Signs HB 829- A Blow to the Environment

UPDATE:

**PRESS RELEASE**

SIERRA CLUB CRITICAL OF GOVERNOR’S SIGNING OF HOUSE BILL 829

TALLAHASSEE, FL. (June 28, 2019) – Today Governor DeSantis signed House Bill 829 despite calls from environmentalists to veto this terrible bill. Amended in the waning hours of the legislative session and without the opportunity for public input, HB 829 uses 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.

“Now law, HB 829 imposes 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,” said Sierra Club Florida’s Chapter Director, Frank Jackalone. “A general exemption from monetary sanctions for good faith behavior already exists in law.”

Deborah Foote, Director of Government Affairs for Sierra Club commented, “Neither party can control what the other’s fees and costs will be. This law 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 law also includes a preemption of regulation of Class B biosolids to the Department of Environmental Protection (DEP); all local ordinances regulating Class B biosolids will be null and void once DEP adopts its administrative rule.

“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,” said Jackalone.

“Water quality regulation should be done on a watershed by watershed basis as soils, vegetation, impermeable surfaces, and sources of pollution vary throughout Florida. HB 829 will no longer allow that. Governor DeSantis, by signing this bill, has shown his support of the environment is very selective; if it impacts developers, it goes out the window,” said Foote.


A chapter of the national Sierra Club, Sierra Club Florida is made up of volunteer leaders and civic activists representing over 230,000 members and supporters from all over the state. 

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On Wednesday, House Bill 829 was sent to Governor DeSantis. Please call his office and ask him to VETO this bad bill. 
HB 829 is an attempt by the legislature to (1) 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, and (2) preempts 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. 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) The bill also makes clear the legislature’s intent to preempt local control of the management of land application of Class B biosolids. 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. 

Please call Governor DeSantis at (850) 488-7146 and ask him to VETO HB 7103. If you are unable to call, please email   GovernorRon.DeSantis@eog.myflorida.com.