State preemption blocks BOCC’s rights of nature initiative

When Orange County voters in 2020 approved a charter referendum that attempted to recognize the Wekiva River’s right to exist and the right for all citizens to have clean water, the state answered with a preemption that could prevent Orange and all other counties in Florida from establishing rights of nature.

The Alachua County Board of County Commissioners discussed the topic at its March 9 regular meeting. In a presentation by Assistant County Attorney Corbin Hanson, the BOCC learned that any proclamations or referendum efforts would be futile.

According to the preemption, “A local government regulation, ordinance, code, rule, comprehensive plan, charter, or any other provision of law may not recognize or grant any legal rights to a plant, an animal, a body of water, or any other part of the natural environment that is not a person or political subdivision.

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“Or grant such person or political subdivision any specific rights relating to the natural environment not otherwise authorized in general law or specifically granted in the State Constitution.”

Hanson explained that in order to bring a lawsuit, courts generally limited them to persons who can show injury in fact, and a river cannot act on its own as plaintiff in lawsuit.

According to the preemption, “There are penalties for adopting and enforcing ordinances that are expressly preempted.”

And while Orange County passed its referendum prior to the preemption, Hanson said there are no cases yet to prove that Orange County’s initiative will stand up in court should someone sue on behalf of a spring or river or any other body of nature.

“It hasn’t been challenged yet,” he said.

Hanson referred to a citizen-proposed ordinance that is circulating Alachua County.

He used the Santa Fe River and all of the waters in Alachua County as an example of what that ordinance could aim to protect by gaining rights of nature.

The Alachua County Charter Review Board declined to move the initiative to the 2020 ballot, so Hanson brought it back to follow up since then.

Hanson said the preemption is very clearly aimed at the likes of Santa Fe River and it was “intended to cut off local government” from pursuing the idea.

He referred to the failed plastic bag ban attempt in Alachua County: “A preemption was in place and we got a notice that the ban was in violation.” 

Going against an expressed preemption means attorney fees, Hanson told the BOCC.

Commissioner Anna Prizzia asked if a coalition or organizations could act as a voice for the Santa Fe River.

Hanson said an organization that exists to protect a resource can challenge activities that harm the resource. 

Commissioner Mary Alford suggested the BOCC pursue amending the state constitution as a way to cancel the preemption.

Hanson said depending on wording it might be possible but the preemptive would still already exist. He said changing the state constitution could help at the state level but not at the federal level.

Commissioner Marihelen Wheeler brought up the topic of “ecoside,” which Merriam-Webster defines as “the destruction of large areas of the natural environment as a consequence of human activity.” 

“Ethically it’s something we need to keep on the front burner,” Wheeler said. “Ecoside, that’s a pretty profound idea as we move forward with looking at what we are doing with climate issues. At least Orange County has got it on the books.”

Commissioner Alford asked if the BOCC could create a policy position in support of the idea and a state constitutional amendment to indicate to the public that the BOCC supports rights of nature.

Hanson said the BOCC might consider adopting a resolution to support the concept.

“When the state did the preemption, that really shut the door for us, and we need better state representation,” Commission Chair Ken Cornell said.

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