A 2022 city of Titusville ballot measure that allows residents to file civil lawsuits on behalf of local water bodies flies in the face of state law and cannot be enforced, a Florida appeals court said in December.
The Fifth District Court of Appeal’s Dec. 26 ruling marked a defeat for the environmental group Speak Up Titusville, which spearheaded the charter amendment granting the “waters of Titusville” the right to exist in their natural form, free of pollutants. The measure, which drew support from 83% of city voters during the 2022 general election, contradicts a recent state law barring local governments from granting any legal rights to “a plant, an animal, a body of water or any part of that natural environment that is not a person or political subdivision…” the court’s opinion said.
The litigation marks the latest chapter in what has been dubbed the “rights of nature” movement, whose supporters want to confer legal status on elements of the environment. The appeals court ruling parallels the outcome of a similar case in Orange County, whose residents passed a charger amendment conferring rights to bodies of water. In that case, the Sixth District appeals court found the Orange County amendment could not coexist with Florida state law.
“We recognize the overwhelming support of this charter amendment by the residents of the city of Titusville and the admirable policies of the amendment,” the appeals court’s decision states. “However, the Legislature in drafting section 403.412(9)(a) of the Environmental Protection Act has not authorized the types of rights provided for in the charter amendment. As such, an appellate court has no power to change or alter what the Legislature mandated.”
The court found that the idea of a “right” to clean water – for an individual or in the name of a water body – is not authorized in general law or the state constitution. The same goes for the ability to sue for damages based on this “right,” the justices said.
“... Although it is an admirable goal, we know of no provision that is authorized in either general law or specifically granted in the state constitution, nor has one been provided by Speak Up, which specifically provides a citizen the right to have a body of water that ‘flows, exists in its natural form, is free of pollution, and which maintains a healthy ecosystem.’”
The Titusville charter amendment contained a provision for severability in an attempt to allow portions of the amendment to remain in force if the courts found a single provision to be counter to state law, but the appeals court did not seem to find any of the provisions workable.
“To the extent any provision of this section impermissibly conflicts with any superior state or federal law governing the same conduct, such provision shall be severable and all other provisions shall remain fully enforceable,” the amendment’s severability provision states.
The court stressed that while state law allows residents to seek an injunction through lawsuits for violations of laws limiting the fouling of air, water and natural resources, the law does not create the right of natural resources to be completely free of pollutants. Nor does state law provide for citizens to seek monetary damages for such violations – unlike the text of the charter amendment, the opinion states.
The state’s Environmental Protection Act bars local governments from conferring rights related to the natural environment unless “otherwise authorized in general law or specifically granted in the state constitution.” State Sen. Blaise Ingoglia (R-Spring Hill) led the effort to pass that provision about four years ago.
Neither Titusville officials nor Speak Up Titusville responded to requests for comment.