A Florida Senate committee advanced a wide-sweeping bill that would require someone who loses an environmental court case to pay up to $50,000 to cover the winner's legal fees.
SB 738 filed by Sen. Danny Burgess (R-Hillsborough and Pasco County) was recommended to move forward with a 5-2 vote in the Senate Environment and Natural Resources Committee on Wednesday.
One key provision of the bill would require that the losing party pay the court and attorney fees of the winning party in case against the Florida Department of Environmental Protection or water management districts.
“Think about this, if the DEP loses or a water management district loses, we all end up paying that because they are tax funded organizations,” said Sen. Tina Scott Polsky (D-Broward and Palm Beach County).
Polsky introduced an amendment that would have taken out this provision entirely. But, committee members voted against the amendment.
“If an environmental group or an individual chooses to sue, and again, there’s no guarantee no matter how good your case may be, you have no way of knowing if you would win,” she said. “You are risking having to pay potentially exorbitant fees.”
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Burgess told the committee that this provision of his bill is intended to mitigate bad-faith, meritless lawsuits.
“I look at this as fundamental fairness,” Burgess said. “It's making sure that if you're gonna have skin in the game and that if you're challenging something it's not just because. I think there's a distinction between not liking an outcome and an outcome being wrong.”
SB 738 largely mirrors legislation that was recently signed into law by Gov. Ron DeSantis.
In May of last year, DeSantis approved SB 540 which states that the losing party in legal challenges against local government comprehensive plans or plan amendments is required to pay the attorney fees of the winning party.
“This is like a serious David and Goliath situation,” Polsky said. “Provisions against frivolous lawsuits already exist in Florida, and this legislation will only serve to force individuals and non-profits into financially impossible situations.”
‘Designed to intimidate’
VoteWater is a grassroots organization dedicated to water quality issues that was founded by residents of Stuart in Martin County in 2014. They believe the bill is designed to intimidate citizens who might be considering challenging FDEP or water management district permits or decisions.
“Senate Bill 738 it's a companion bill to House Bill 789 and both of them are designed in part to, in our view, to frustrate citizen involvement, to prohibit and intimidate citizens from filing challenges,” said Gil Smart, VoteWater’s executive director.
Other organizations, like The Florida Springs Council, believe the bill might significantly inhibit the work of non-profit organizations focused on enforcing environmental law.
“This bill will shut down my nonprofit,” said Ryan Smart, executive director for The Florida Springs Council who spoke at the committee meeting Wednesday. “We're a small Florida-based non-profit that specializes in ensuring that the laws you pass here in this room are followed around the state. If this bill passes, I will not be able to do that work, because a single loss will mean laying off all my employees and shutting my doors forever.”
Smart said a lack of enforcement could have wide-ranging consequences.
“It's going to mean harm to the Everglades, the Indian River Lagoon, Florida Keys, Central Florida Springs, and our coastal waters across the state,” he said.
Other worries
SB 738 includes four different provisions, each covering a different aspect of environmental management rules. The prevailing party’s legal fees section is first in the bill. But one other section is also worrying environmentalists.
“It's the fourth section of the bill, which seeks to have counties and municipalities do what they're calling a holistic review of the coastal permitting process,” said Smart from VoteWater.
This provision, Smart said, tailors to developers hoping to fast-track construction along coastlines.
“A really bad idea in the era of sea level rise and saltwater intrusion,” Smart said. “At a time when we ought to be scrutinizing coastal development more closely than ever, this is an attempt to get local municipalities to just shove as much through as quickly as possible.”
The remaining provisions in the bill cover side slope construction of nonindustrial stormwater management systems and limiting litigation under the Water Quality Assurance Act from involving all damages including personal injury to just “damages to real or personal property.”
The bundling of various issues, Smart said, helps push legislation like this forward.
“It's very effective at muting criticism,” he said. “And it's very effective at getting some of these bills pushed through.”
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