A Titusville environmental group has filed a motion for a rehearing in the wake of the Florida Fifth District Court of Appeal’s ruling that a city charter amendment can’t be enforced because state law bars the granting rights to bodies of water.
The amendment spearheaded by Speak Up Titusville was approved by 83% of city voters during the 2022 general election. The measure sought to put in place a human right to clean water for Titusville residents, but the appellate court said neither the state constitution nor general law authorized such rights.
But Speak Up filed a motion for rehearing with the appellate court on Jan. 9, arguing that the court had overlooked or misunderstood multiple parts of the law or facts in the case. The amendment granted no rights to bodies of water, although the measure does allow Titusville residents to bring legal actions in the name of the waters of Titusville when their clean-water rights are violated, according to the motion for rehearing.
This is a key difference between the Titusville amendment and a similar measure that was struck down by the courts in Orange County, supporters said.
“The Orange County measure granted rights to nature,” Michael Myjak, chairman of Speak Up Titusville, told the Florida Record. “The Titusville amendment granted the rights to citizens to sue on behalf of nature. In other words, it was a right to nature being clean, rather than a right of nature being clean.”
The amendment’s language does not grant any “rights” to water bodies, plants, animals or other components of the natural environment in the city, according to the motion for rehearing.
Amendment supporters are also critical of the appeals court’s failure to consider the option of “severing” the part of the measure that granted residents to sue “in the name of the waters of Titusville.”
“Severability is a well-known thing in Florida,” Myjak said. “It’s been case law for decades. The fact that that was not considered is a point of contention.”
The Titusville measure contained a section stating that if any of its provisions are found to contradict state or federal laws, they should be severable from the remainder of the amendment, and other provisions should remain enforceable.
Another area of contention is the amendment’s provision for a right to water that “flows, exists in its natural form, is free of pollution and which maintains a healthy ecosystem.” The appeals court found no legal basis for such a right, but the motion for a rehearing says the language is in line with state law, which allows local water-pollution prevention measures to be more extensive than state standards.
“... Under the charter amendment’s definitions of ‘Clean Water’ and ‘Pollution,’ water does not have to be totally free of any substances, contaminants or pollutants,” the motion for rehearing says. “Consistent with state law, such matter must be present in quantities sufficient to be harmful in order to violate the right granted by the charter amendment.”
The appellate court held that the Legislature’s recent revisions to the state Environmental Protection Act simply do not authorize any local government to ascribe “rights of nature” to water bodies or other parts of the natural environment – and that the judicial branch did not have the authority to alter the requirements put in place by state lawmakers.
But Myjak said Speak Up Titusville disagreed with the court’s interpretation.
“We believe they did not follow the state law in their ruling,” he said. “And that’s what we’re asking them to correct.”
If the appeals court rejects a rehearing, the issue could very well go to the state Supreme Court, given that the appellant made multiple legal points to support its argument, according to Myjak