Legislature Revises Citizen Standing Under Section 403.412(5): The "Devil's Deal" or Much Ado About Nothing?
One of the most controversial environmental bills enacted during the 2002 Regular Session revises the standing afforded citizens to challenge environmental permitting decisions under Section 403.412(5), Florida Statutes, the Environmental Protection Act of 1971. This measure, Section 9 of HB 813, revises the statute to effectively overrule prior judicial decisions that had interpreted Section 403.412(5) to provide virtually “automatic standing” to citizens and Florida environmental interest groups to initiate administrative proceedings under Florida’s Administrative Procedure Act (APA). The bill expressly provides that Section 403.412(5) does not authorize a citizen to initiate (or request or petition for) an administrative proceeding under Section 120.569 or Section 120.57 of the APA.
Section 403.412(5) Provides Standing to “Intervene” in Certain Proceedings
Enacted in 1971 as part of Florida’s Environmental Protection Act, subsection (5) of Section 403.412 provides standing to any citizen of the state to “intervene” in any administrative, licensing or other proceedings authorized by law for the protection of the air, water, or other natural resources of the state. The legislative history of this Act has been characterized as "sparse."1
The Courts Interpret Section 403.412(5)
Greene v. Department of Natural Resources2 was the first appellate decision to interpret Section 403.412(5). In Greene, a citizen asserted standing under Section 403.412(5), to challenge approval by the Board of Trustees of the Internal Improvement Trust Fund of the inclusion of a tract of land in Broward County on the Conservation and Recreational Lands list on the ground the land did not meet the criteria for inclusion on the list. In upholding the denial of Greene’s petition for an administrative hearing, Judge Shivers explained: "Section 403.412(5) does not authorize or allow a citizen to initiate a Section 120.57 proceeding without first meeting the substantial interest test. . .."3 Quoting Section 403.412(5), the court found that the statute’s plain language addressing standing to intervene precluded Greene from initiating an administrative proceeding under Section 403.412(5).4
Notwithstanding the court’s fidelity in Greene to the statute’s plain language, the following year the court’s interpretation of Section 403.412(5) took a turn in ManaSota-88 v. Department of Environmental Regulation.5 In that case, ManaSota-88 filed a petition under Section 403.412(5) seeking to “intervene” into the Department of Environmental Regulation’s free-form permitting process with respect to several environmental permits for which Gardinier had filed applications. DER denied ManaSota-88's petition because it determined that, until it issued its proposed agency action, there was not yet any agency action in which ManaSota-88 could participate. The court affirmed DER’s denial of ManaSota-88's petition, but in dictum the court expanded the scope of Section 403.412(5), stating: "In the event that the Department does propose to issue the permits to Gardinier, § 403.412(5) would appear to be a statutory provision entitling appellants to participate as a party to proceedings under § 120.52(10)(b), including initiation of a § 120.57 hearing."6 The court distinguished Greene as applying only to cases that did not involve licensing or permitting, or when the statutorily required allegations of environmental injury were absent.7
Figuratively speaking, ManaSota-88 let the horse out of the barn. Not long after, in Booker Creek v. Mobil Chemical Co.,8 the court relied on the dictum in ManaSota-88 to find that Booker Creek had standing under Section 403.412(5) to initiate a challenge to a DER determination that a groundwater discharge permit was not required for two wastewater storage areas proposed in connection with a phosphate mining operation. Booker Creek had not alleged or proved that it or any of its members’ substantial interests were in any way affected by the proposed wastewater storage operations.9 After the decisions in ManaSota-88 and Booker Creek, a number of cases have cited Section 403.412(5) as the sole basis for standing to initiate Chapter 120 proceedings.10
The Legislature RespondsThese judicial interpretations of Section 403.412(5) did not sit well with the business community. Home builders, developers and other business people repeatedly complained that the liberal standing provided by these interpretations, especially when coupled with loose pleading,11 and proof requirements,12 made it far too easy for opponents to defeat or modify projects – not based on the merits of their objections, but simply as a result of the delay and expense created by the requested administrative proceedings.13 These complaints eventually prompted the introduction of legislation that would effectively overrule these judicial decisions. Although very controversial with environmental interest groups, this legislation came close to passage in both 2000 and 2001.14
This legislation was introduced again during the 2002 Regular Session in the form of SB 270, by Senator Jim King, and HB 819, by Representative Gaston Cantens. Environmental interest groups actively opposed the bills, but both measures enjoyed considerable success in their respective chambers. Ironically, the legislation ultimately passed the Legislature as part of HB 813, a bill that also provides a dedicated source of funding for Everglades restoration--funding which was actively sought and supported by all environmental interest groups.15 The irony of this pairing of the standing legislation with the Everglades restoration bill was not lost on even the casual observer. One newspaper editorial dubbed it “the Devil’s Deal.”16
Most environmental interest groups and newspaper editorials urged the Governor to veto the bill,17 while one prominent environmental interest group and other editorials urged the Governor to allow it to become law.18 There was much disagreement about the effect of the bill on citizen standing.19 The sponsor said the bill had been so compromised it is now almost "benign,"20 and a lobbyist for one environmental interest group said the bill "will do no harm to citizen standing for environmental groups.21 However, representatives of other environmental interest groups claimed that the citizen standing amendment "will undo 30 years of legal precedents and call into doubt the most elemental of citizen rights.22
So what does the legislation really do?
Overrules Prior Judicial DecisionsAs originally filed, the legislation principally sought simply to make clear that Section 403.412(5) does not allow an unaffected citizen to “initiate” an administrative proceeding.23 As enacted, the bill does this by expressly providing that “as used in this section and as it relates to citizens, the term “intervene” means to join an ongoing Section 120.569 or Section 120.57 proceeding; this section does not authorize a citizen to institute, initiate, petition for, or request a proceeding under s. 120.569 or s. 120.57.”24 The legislation clearly has the effect of overruling prior judicial decisions, including ManaSota-88.25
During the many legislative committee hearings on HB 819 and SB 270, there was considerable confusion and controversy about the effects of the bills as originally filed. Accordingly, the legislation was expanded in several ways in an effort to alleviate this confusion and to reduce some of the controversy.
Confirms that there is No Effect on APA “Substantial Interests” Standing
First, the bill was expanded to make clear that citizens continue to have standing to request administrative proceedings under the APA if their substantial interests will be determined by the challenged agency action. The bill does this by expressly providing that “nothing in this section limits or prohibits a citizen whose substantial interests will be determined or affected by a proposed agency action from initiating a formal administrative proceeding under s. 120.569 or s. 120.57.”26
The bill goes on to provide that “a citizen’s substantial interests will be considered to be determined or affected if the party demonstrates it may suffer an injury in fact of sufficient immediacy and is of the type and nature intended to be protected by [Chapter 403].”27 In this fashion, the bill appears to codify the APA “substantial interests” standing test as set out in the seminal case of Agrico Chemical Co. v. Department of Environmental Regulation, 406 So. 2d 478 (Fla. 2d DCA 1981).
Describes What “Substantial Interests” Are Sufficient
In an effort to address claims that citizens would have difficulty meeting the APA’s substantial interests test, the bill also establishes what showing of “substantial interests” will be sufficient under the APA. The bill provides that a sufficient demonstration may be made by a petitioner who establishes that the proposed activity, conduct, or product to be licensed or permitted affects the petitioner’s use or enjoyment or air, water or natural resources protected by chapter 403.28
This language is intended to codify existing case law holding that demonstrating that a proposed activity will affect one’s use and enjoyment of natural resources protected under the specific statute at issue is sufficient to demonstrate “substantial interest.” See, e.g., Friends of the Everglades v. Board of Trustees, 595 So. 2d 186 (Fla. 1st DCA 1992). As such, it appears that this language was intended neither to relax nor to make more stringent the “substantial interests” standing test to participate in environmental proceedings.
Provides that No Showing of “Special Injury” Is Required
Notwithstanding the addition of the language that was designed to make clear that the bill would have no effect on a citizen’s ability to establish “substantial interests” standing under the APA, some expressed concern that this showing nonetheless would be difficult if it required the citizen to demonstrate some form of “special injury,” i.e., an injury that is different in kind or degree than from that suffered by the general public. Some environmental interest groups were particularly sensitive about this requirement because the Department of Environmental Protection recently had denied standing to neighbors seeking to challenge an air permit for a nearby cement plant in part because the allegations in their petition did not demonstrate that the petitioners would suffer any “special injury” beyond that which might be sustained by all persons residing in the surrounding area.29 In its final order, DEP concluded that such “special injury” was necessary to confer standing under the “substantial interests” standing requirements of the APA.30
To address this concern, the bill was amended to provide that “no demonstration of special injury different in kind from the general public at large is required.”31 Of course, allegations of injury to the environment alone or other generalized grievances which are of concern to everyone are still insufficient to confer standing under the “injury in fact” test. However, the elimination of any “special injury” test may actually have the effect of making it easier for petitioners in environmental cases to demonstrate this "substantial interests" standing.
Provides "Automatic Standing" to Certain Environmental Interest Groups
As noted, a number of Florida environmental interest groups had previously relied on the judicial interpretations of Section 403.412(5) to provide them with essentially “automatic standing” to initiate administrative proceedings on environmental permitting decisions. They therefore strenuously opposed any change to the law. They argued that change was unnecessary because in reality the law had been used only sparingly32 and that, if it were abused, there were other means to deal with these abuses.33 They also argued that the change to Section 403.412(5) would not prevent them from filing challenges; it simply would require them to go to the unnecessary trouble of demonstrating that they or their individual members would be affected by the challenged permitting decision.
In an effort to reduce the controversy concerning the effect of the bill on some of these groups, a new subsection (6) was added to the bill. It provides “automatic standing” to environmental interest groups that meet certain requirements.34 Most notably, the group must be a “Florida” corporation, the corporation must have at least 25 current members residing within the county where the activity is proposed, and the corporation must have been formed at least one year prior to the date of the filing of the permit application that is the subject of the proposed agency action.
The requirement that the group be a “Florida” corporation has generated considerable criticism, particularly from foreign corporations like the Sierra Club. However, the courts previously have held that these groups are not citizens of the state for purposes of the standing provided by Section 403.412(5),35 so it does not appear that this change would have any adverse effect on such foreign corporations.36 In addition, nothing in the bill changes the law on "associational standing," so even foreign environmental corporations will continue to be able to assert standing based on the individual standing of their members.
The new requirement that the group have been formed at least one year prior to the date of the filing of the permit application apparently is designed to deal with cases like Friends of Nassau County, Inc. v. Nassau County.37 In that case, the petitioner, “Friends of Nassau County” was created on the day the petition was filed by individuals who were business competitors of the applicant.38
Describes Standing Test for Federally Delegated or Approved Program
In Florida, the DEP implements several federally delegated or approved environmental programs for the United States Environmental Protection Agency (EPA). For example, DEP implements the NPDES, RCRA, PSD and Clean Air Act Title V permit programs in Florida. Applicable federal regulations require these programs to include provision for citizen participation and for judicial review of final permits by specified persons.39 Previously, Florida had advised EPA that it provided the required opportunities for judicial review by way of the liberal standing provided by Section 403.412(5). EPA became aware of the proposed changes to Section 403.412(5) and reminded Florida of the requirements to provide for judicial review of final permits.40 Although the bill does not directly affect the existing right to seek judicial review of final permit decisions,41 the sponsors adopted DEP’s suggestion that the bill be amended to add a new subsection (7) that provides for standing to request administrative proceedings on such permits if the citizen meets the standing requirements for judicial review of a case or controversy under Article III of the U.S. Constitution.42 A citizen generally will be deemed to have met these requirements if the citizen has suffered an actual or imminent injury which is an invasion of a legally protected interest and which is concrete and particularized; such injury is fairly traceable to the challenged action and not the result of the independent action of some third party not before the tribunal; and such injury will likely be redressed by a favorable decision by the tribunal.43
Section 9 of HB 813 was enacted primarily to clarify standing afforded to citizens of the state under Section 403.412(5), which authorizes citizens to “intervene” in certain proceedings. To accomplish this, the legislation expressly provides that the term “intervene” means to join an already ongoing administrative proceeding, and it expressly provides that it does not authorize a citizen to “initiate” (or request or petition for) an administrative proceeding under Section 120.569 or Section 120.57 of the APA. In so providing, the Legislature has rejected the contrary interpretation adopted by the courts.
The Legislature also sought to alleviate confusion and to reduce controversy resulting from this change to Section 403.412(5). It did so by expanding the statute in several ways. The legislation confirms that the change will have no adverse effect on a citizen’s traditional standing under the APA to request a hearing if the citizen’s substantial interests would be affected or determined, it describes what interests are sufficient, and it makes clear that no showing of special injury is required in such cases. In addition, the legislation provides “automatic standing” for Florida environmental interest groups that meet certain requirements. Finally, the legislation seeks to insure that Florida will continue to be able to implement certain federally delegated or approved programs.
No doubt these additional efforts to alleviate confusion and to reduce controversy will themselves provide the courts with new opportunities to interpret the standing now provided by this new version of Section 403.412.
1. One of the early articles on Florida's Environmental Protection Act of 1971 noted that the legislative history file contained only one document even remotely bearing on legislative intent. Patricia A. Renovitch, The Florida Environmental Protection Act of 1971: The Citizen's Role in Environmental Management, 2 FLA. ST. U. L. REV. 736, 751 (1974).
2. 414 So. 2d. 251 (Fla. 1st DCA 1982).
3. Id. at 253 (emphasis added).
5. 441 So. 2d 1109 (Fla. 1st DCA 1983).
6. Id. at 1111.
7. Id.8. 481 So. 2d 10 (Fla. 1st DCA 1985).
9. Id. at 12.
10. E.g., ManaSota-88 v. Gardinier, 481 So. 2d 948 (Fla. 1st DCA 1986); Cape Cave Corp. v. DER, 498 So. 2d 1309 (Fla. 1st DCA 1986).
11. It was not until 1998 that the Legislature amended the APA to require an agency to dismiss a petition for hearing if it was not in substantial compliance with the requirements of the Uniform Rules. See Section 120.569(2)(c), F.S.
12. Generally speaking, the applicant for a license or permit carries the ultimate burden of persuasion of entitlement throughout all proceedings. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
13. They also criticized administrative decisions that held that the attorney's fees and bonding provisions in Section 403.412 did not apply to and therefore could not be used to discourage this "intervention" under Subsection (5). See generally Frank E. Matthews, Kathleen L. Blizzard, Thomas W. Reese, "Pro/Con: Intervention in Environmental Permitting: Should There Be a Price?," FLA. B. J. 51 (January 1990).
14. In 2000, the House bill (HB 1135) passed the House, but not the Senate. In 2001, two Senate bills (CS/SB 910 and CS/SB 1560) passed the Senate, but neither passed the House.
15. Jim King, "Balancing Environment and Development," Miami Herald (April 29, 2002).
16. Editorial, "Devil's Deal on the Everglades," Palm Beach Post (March 31, 2002).
17. Editorial, "In Need of Vetoes," St. Petersburg Times (April 3, 2002); Guest Opinion, "Veto Everglades Bill; It Includes a Toxic Amendment," Miami Herald (April 4, 2002); Editorial, "Kill Measure Restricting Protest of Developments," Tampa Tribune (April 6, 2002); Carl Hiassen, "Everglades Bill Hijacked by Special Interests," Miami Herald (April 7, 2002); Editorial, "Everglades Bill Sullied by Dirty Trick," Tallahassee Democrat (April 10, 2002); Editorial, "Slick Subterfuge," Sarasota Herald-Tribune (April 11, 2002); Editorial, "Legislature Tries to Shut Activists Up," Ft. Myers News-Press (April 26, 2002); Editorial, "A Politically Tainted Everglades Bill," Tampa Tribune (April 26, 2002).
18. Editorial, "For Everglades Funding," Miami Herald (April 3, 2002); Editorial, "A Lousy, But Clear, Choice," Ft. Lauderdale Sun-Sentinel (April 7, 2002); Editorial, "Glades Choice: Pragmatism vs. Principle," Lakeland Ledger (April 7, 2002).
19. David Royse, "Activists Disagree About Environmental Bill," Tallahassee Democrat (March 29, 2002); Craig Pittman, "Everglades Bill Could be Unmaking of Activist," St. Petersburg Times (April 7, 2002); Neal Santaniello, "Ecological Groups Spar Over 'Glades Bill," Ft. Lauderdale Sun-Sentinel (April 14, 2002).
20. Terry Sheridan, "Citizen Rights Showdown?," Daily Business Review (April 25, 2002).
21. Bill Kaczor, "House Passes Limits on Environmental Appeals," St. Augustine Record (March 21, 2002).
22. Guest opinion, "Veto Everglades Bill: It Includes a Toxic Amendment," Miami Herald (April 4, 2002).
23. § 2, HB 819 (2002); § 2, SB 270 (2002). The original bills also would have made clear that the Act's provisions regarding attorneys fees and bonding requirements also apply to administrative proceedings initiated [?] under Subsection (5).
24. § 9, HB 813, 2d engrossed.
25. See Senate Staff Analysis and Economic Impact Statement for CS/SB 270 (March 13, 2002); House of Representatives Analysis for CS/HB 819 (Feb. 22, 2002).
26. § 9, HB 813, 2d engrossed. In this fashion, the bill is much like other statutes that require a litigant to demonstrate that it will be "affected" in some fashion before it may initiate legal proceedings. E.g., Section 163.3215, F.S. (allowing any "aggrieved or adversely affected" party to enforce local comprehensive plans through development orders); Section 120.68, F.S. (authorizing judicial review under the APA only by a person who is "adversely affected" by final agency action).
27. Id. The bill affords standing only if a party "demonstrates" it may suffer an injury in fact. As such, the petitioner will be required to prove facts establishing its standing at final hearing.
28. The sponsor of the House bill, Representative Gaston Cantens also read a statement of legislative intent that elaborated on this provision in the following fashion: "With regard to individual citizens who are natural persons, all standing requirements to demonstrate substantial interest will be satisfied if the petitioner demonstrates that the proposed activity of the environmental permit will affect the person's use or enjoyment of air, water, or natural resources. In other words, if that person fishes in the water body to be altered by a permit, watches birds there, or undertakes similar activities that will be changed by the fact that a permit is granted, they will have standing." Journal of the House of Representatives, p. 3112 (March 22, 2002).
29. Final Order of Dismissal, Woodhouse and Tyler v. Suwannee American Cement Company and DEP, OGC Case No. 99-2231, DOAH Case No. 00-0702 (DEP May 25, 2000), aff'd 798 So. 2d 729 (Fla. 1st DCA 2001) (citations omitted).
30. Id. Some courts have refused to apply the “special injury” analysis to determinations regarding standing under the APA. E.g., Friends of the Everglades, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 595 So. 2d 186, 189 (Fla. 1st DCA 1992). In a case considering another subsection of Section 403.412, the Florida Supreme Court has held that the Legislature enacted Section 403.412 to extend standing to private and corporate citizens of Florida without any showing of special injury. See Florida Wildlife Fed'n v. DER, 390 So. 2d 64, 67-68 (Fla. 1980).
31. § 9, HB 813, 2d engrossed, amending Section 403.412(5), F.S.
32. The case cited most frequently by one of the sponsors involved a challenge by a person from South Florida to a permit for the construction of a development in Northeast Florida. Mike Salinero, "Senator Offering Growth Protection," Tampa Tribune (April 19, 2002).
33. Two other legislative proposals, HB 257 and SB 280, would have revised the APA to provide for sanctions similar to those in Federal Rule 11. Neither of these measures was enacted during the 2002 Regular Session.
34. § 9, HB 813, 2d engrossed, to be codified at Section 403.412(6), F.S.
35. See Legal Environmental Assistance Foundation v. DEP, 702 So. 2d 1352 (Fla. 1st DCA 1997); Sierra Club v. Suwannee American Cement Co., 802 So. 2d 520 (Fla. 1st DCA 2001).
36. Foundation v. DEP, 702 So. 2d 1352 (Fla. 1st DCA 1997); Sierra Club v. Suwannee American Cement Co., 802 So. 2d 520 (Fla. 1st DCA 2001).
See generally Florida Home Builders Ass'n v. Department of Labor and Employment Security, 412 So. 2d 351 (Fla. 1982) (holding that association may have standing even though acting solely as representative of its members, provided certain requirements are met).
37. 752 So. 2d 42 (Fla. 1st DCA 2000).
38. Id. at 49.
39. E.g., 40 CFR § 123.30 (states administering the NPDES program must provide an opportunity for judicial review in state court of final permit decisions that is the same as provided under the Clean Water Act, which authorizes review by any "interested person"); 40 CFR § 70.4(b)(3)(x) (a state that administers a Title V program must provide for judicial review in state court of final permit decisions by the applicant, any person who participated in the public participation process, and any person who could obtain judicial review of such actions under state laws).
40. See letter dated February 20, 2002, from Deputy Regional Counsel, Region 4, EPA.
41. Judicial review of final permit decisions is provided by Section 120.68 of the APA. In a recent opinion, a Florida appellate court held that an environmental interest group that had relied solely on Section 403.412(5) for standing to request an administrative hearing did not establish standing for judicial review of the final permit decision. See Sierra Club v. Suwannee American Cement Co., 802 So. 2d 520, 522-23 (Fla. 1st DCA 2001).
42. This language apparently was taken from a case involving consideration of whether Virginia’s standing provisions were consistent with the federal requirements for approved programs, Commonwealth of Virginia v. Browner, 80 F. 3d 869 (4th Cir. 1996), and from the subsequently revised provisions that were approved by EPA. 62 Fed. Reg. 12778 (March 18, 1997).
43. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Virginia adopted similar language, and this language was approved by EPA. 62 Fed. Reg. 12778, 12780 (March 18, 1997).
Cathy M. Sellers is a shareholder with Moyle Flanigan Katz Raymond & Sheehan, P.A. She practices administrative and environmental law, and teaches Florida Administrative Law as an adjunct professor at the University of Florida College of Law. She received her J.D. with high honors from the Florida State University College of Law and her B.S. with honors from the University of Florida.