About the Amendment.
When the board members of the Florida Rights of Nature Network decided to develop and sponsor a constitutional amendment in October 2021, it invited all associated environmental nonprofits and legal experts to join in the deliberation and design of its provisions. The intent was to achieve the "ends" of rights of nature laws; i.e., to ensure the good of ecological functions and processes were considered and respected by state actions (and inaction). Due to the strict legal review both by the Florida Supreme Court and potential post-enactment challenges, the board also required that at least three Florida Constitutional Law experts reviewed and signed off on it. Such was the case.
This was a painstaking, lengthy process over a period of six months, led by a Florida attorney which taught Water Pollution Law and Environmental Ethics, with multiple iterations reviewed by any advocacy group that voiced a desire to collaborate. We are fortunate to have been counted as a "green amendment" by the national organization, Green Amendments for the Generations (founded and led by Maya van Rossum), and look forward to "deeper dives" with fellow legal / policy-savvy people and organizations in the near future.
If you have any questions about any portion of the amendment's language, please contact us at firstname.lastname@example.org.
Let's look at each paragraph
Providing courts insight of drafter's intent, "how we got here," and the intended zone of interest for standing.
The length is not preferred when drafting constitutional amendments, but necessary to provide clear guidance critical to its intended purpose.
"Waters sustain all forms of life. Clean and healthy waters protect and promote substantial interests, including human health, safety and welfare, native fish and wildlife, conservation of natural resources, outdoor recreation, aesthetic values, business opportunities, property values, and economic interests throughout the State. Although considerable attention has been given to protect and conserve waters in the State, including Article II, Section 7 of this Constitution and a comprehensive body of State environmental laws and regulations, such attention has not corrected the continuing decline in the condition of waters in the State. The poor condition of many important waters throughout the State has led the people of Florida, in their inherent political power, to create this fundamental right to clean and healthy waters. State executive agencies are instrumental to the effort to protect Florida waters from harm and threatened harm. Consequently, to promote the interests of Florida’s people, businesses, organizations, communities, and economies in clean and healthy waters, this Section provides for equitable remedies against the actions or inactions of State executive agencies that harm or threaten harm to Florida waters, with the goal of clean and healthy waters and the aspiration that waters in the State will one day flourish."
"DECLARATION OF RIGHT"
Provides the constitutional authority underlying this amendment.
"The people have the inherent political power pursuant to Article I, Section 1 of this Constitution to create the fundamental right to clean and healthy waters. The people hereby declare this fundamental right, which is indefeasible."
Clarifies what exactly constitutes a violation of this amendment, so state executive agencies are put on sufficient notice.
"It shall be unlawful, and considered a violation of the right to clean and healthy waters, for a State executive agency, as defined herein, to harm or threaten to harm Florida waters by action or inaction, including by regulation, rule, policy, plan, standard, permit, practice including management practice, activity, agreement, memorandum of understanding, order, or by inaction that permits harm or threatened harm about which the State executive agency knew or should have known."
Provides guidance to both plaintiffs and courts regarding the process and contours of this cause of action, with sufficient deference to judicial powers.
"(1) A person, as defined herein, may bring a civil action for injunctive or declaratory relief in a court of competent jurisdiction against a State executive agency for violating this Section. Exhaustion of administrative remedies and notification time periods shall not be required. A plaintiff is not required to allege special or direct injury to state a claim.
(2) Any violation under this Section will be considered de novo. Due to the fundamental nature of this right, to avoid liability where a violation is shown, a State executive agency shall be required to demonstrate that its action or inaction, as described in subsection (c), was necessary to promote a compelling government interest and was narrowly tailored to advance that interest. Where a party’s action or inaction is found to be a substantial factor in a violation of this Section, that party shall be liable for the violation and shall not avoid liability on the basis that the action or inaction of another party or nonparty has also contributed to the violation.
(3) A prevailing plaintiff shall be entitled to appropriate declaratory relief and to such equitable relief as may be appropriate to remedy the violation including, without limitation, injunctive relief to restore waters to the condition that existed prior to the proven violation. In addition, a prevailing plaintiff shall be entitled to reasonable attorney’s and expert witness fees."
Clarifies the intended scope, purpose and meaning of material terms used in this amendment.
(1) “Clean and healthy waters” are waters free from harm, or threat of harm, that occurs after the effective date of this Section. Indicators of clean and healthy waters include water quality safe for native fish and wildlife and human recreation, and regarding drinking water sources, safe for human consumption; sufficient habitats, water filtration, and element cycling to support thriving populations and diverse communities of native fish and wildlife; natural flow regimes, to include recharging ground or underground water; and other ecological processes and functions to be intact.
(2) “Harm” means the introduction of pathogens, contaminants, or toxins into waters or the disruption of natural hydrological or ecological processes or functions of waters. This term includes but is not limited to such chemical, biological, or physical stressors to waters that contribute to unnatural water levels or nutrient loads; that remove, fragment, or degrade habitat of native fish or wildlife; that disturb vegetation or soil near the edge of waters; that introduce exotic or invasive species; that obstruct or divert natural flow; that overexploit native species; and that negatively affect the health of humans or of native fish or wildlife.
(3) “Person” means any individual, partnership, joint venture, corporation; any group of the foregoing to include nonprofit organizations; any tribal entity; or any government entity.
(4) “State executive agencies” shall mean the following governmental entities and officers: The Governor; the Cabinet and members of the Cabinet; each State executive officer and State executive department, and each State executive departmental unit described in Section 20.04, Florida Statutes; the Fish and Wildlife Conservation Commission; each water management district; and each officer and governmental entity of the executive branch having statewide jurisdiction or jurisdiction in more than one county.
(5) “Waters” refers to the aquatic ecosystems of aquifers, bays, creeks, estuaries, estuarine systems, lagoons, lakes, rivers, riverine systems, springs, streams, wetlands, intracoastal and coastal waters within the boundaries of the State of Florida and shall include the natural tributaries and artificial waterways which impact these water bodies. This term shall include fresh, brackish, saline, tidal, surface, ground and underground water associated with these water bodies.
"OTHER CONSTITUTIONAL PROVISIONS"
A boring but necessary inclusion in the amendment language to provide sufficient notice of constitutional effects and to survive FL Supreme Court review.
"This Section affects constitutional provisions of the executive branch: Article IV, Section 1 (Governor); Article IV, Section 4 (Cabinet); Article IV, Section 6 (Executive departments); Article IV, Section 9 (Fish and Wildlife Conservation Commission)."
To clarify that no legislation is necessary for this amendment to come into effect.
"Implementing legislation is not required to enforce this Section. This Section is remedial and shall be given a liberal construction to fully effectuate its purpose."
Comes into effect immediately.
"This Section shall become effective immediately upon approval by the electors of Florida."
Should something be found invalid, the rest of the amendment shall stand and continue in effect.
"If any part of this Section, or the application of this Section to any person or circumstance, is held invalid, the remainder of this Section, including the application of such part to other persons or circumstances, shall not be affected by such a holding and shall continue in full force and effect. To this end, the parts of this Section are severable."