Surpassing:Florida Judge Asked to Recognize the Legal Rights of Five Waterways Outside Orlando

In the first U.S. enforcement action related to a burgeoning “rights of nature” movement,Surpassing which holds that rivers, mountains and forests have legal rights, an attorney acting on behalf of two lakes, two streams and a marsh outside Orlando argued before a Florida judge on Tuesday that the waterways’ lawsuit against a developer is legally valid and belongs in state court.

Wilde Cypress Branch, Boggy Branch, Crosby Island Marsh, Lake Hart and Lake Mary, along with their co-plaintiff, Chuck O’Neal, filed the lawsuit last year based on a 2020 rights of nature amendment to Orange County’s Charter, the county’s mini constitution. 

That amendment, approved by 89 percent of voters, granted waterways in the county the right to “exist, flow, to be protected against pollution and to maintain a healthy ecosystem.” 

At issue in the case is a permit the Florida Department of Environmental Protection, also a defendant, granted to Beachline South Residential, the developer, to dredge and fill waterways for the purpose of constructing residential and commercial buildings. The plaintiffs, including the waterways, claim that the activity will violate their rights and asked the court to issue an injunction stopping the development.

Beachline South Residential and Florida’s DEP filed a motion to dismiss the case, arguing, among other things, that state legislation preempts the Orange County Charter amendment, effectively rendering the waterways’ rights null. They also argue that the dispute over the validity of the dredge and fill permit is an administrative matter that should be heard before the Florida DEP instead of in state court.

O’Neal, the plaintiff and environmentalist who ran the charter change campaign in Orange County two years ago, said he hoped the case might become a model for the rest of the world and that he was pleased that the rights of nature were having their day in court. 

Excessive pollution and nutrient runoff causing algae blooms “aren’t just Florida problems, they are world problems,” he said. “People around the world will watch what is happening in Florida and it will resonate with them.”

The battle over who gets a say in how the natural environment is protected—whether at the state or local level—is at the heart of the rights of nature movement in the United States. That movement aims to give legal rights to ecosystems like rivers and forests, elevating the level of protection given to the environment compared to standard environmental protection laws. 

Rights of nature laws have been enacted in more than 30 localities across the country, in Ohio, Colorado, Pennsylvania, Minnesota and Florida, among other states. Florida, led by Republican Gov. Ron DeSantis, has become an unlikely hotbed. Other Florida cities like Titusville, Venice, Fort Myers, Naples are in varying stages of developing their own rights of nature ordinances, following Orange County’s example. 

Still, no U.S. court has ever upheld a rights of nature law. Dozens remain on the books, in effect awaiting litigation. The U.S. laws, so far mostly local ordinances, face unique obstacles because of legal precedent that subordinates local government laws and lawsuits to state legislation. The current case involving Orange County’s charter change could be the most consequential legal moment to date for the rights of nature movement in the U.S. legal system. 

Globally, rights of nature provisions have been put in place through legislation, judicial rulings and constitutional amendments in countries that include Canada, Mexico, Colombia, Pakistan, Bangladesh, Bolivia, India, New Zealand, Uganda and Ecuador, where the country’s high court recently upheld a constitutional provision granting the rights of nature and ruled that a mining company threatened the legal rights of the Los Cedros protected area.  

In the U.S., the rights of nature movement has become popular among communities that have grown frustrated with what they perceive to be state and federal government failure to adequately protect the environment. 

In Florida, the problem is particularly acute, with a confluence of pollution from agriculture, industrial facilities, sewage systems and urban runoff causing toxic algae blooms that kill off wildlife and affect the state’s tourism industry. 

During his argument before the court, Steve Meyers, the attorney for the waterways and O’Neal, said that the state of Florida has a duty under the state constitution to adequately protect Florida’s waters, but that the government’s existing laws and regulations have failed. 

“If you walk outside the courtroom, you can see our lakes and rivers are filthy,” he said. “It is clear that the laws are not adequate.”

Meyers also argued that Florida DEP’s issuance of the dredge and fill permit was invalid because it was based on an improper delegation of authority from the U.S. Environmental Protection Agency to Florida’s DEP under the federal Clean Water Act. 

That legislation generally prohibits pollution into waterways unless otherwise permitted. Under federal law, a permitting agency must consider certain issues like effects on wildlife and what local laws say before granting a permit to pollute. 

In Florida, Meyers argued, the state doesn’t have adequate criteria in place requiring the DEP to consider issues like effects on wildlife and local laws before the agency makes permitting decisions. 

“Everyone in the United States has the benefit of the federal clean water act except for people in Florida,” he said. “It is outrageous.” 

Meyers also argued that the waterways’ lawsuit belongs in state court rather than before Florida’s DEP because the case involves interpretation of the county charter amendment and state law.

The state law at issue prohibits local governments from recognizing or granting legal rights to the natural environment and was supported by Florida’s Farm Bureau Federation. The law was enacted after the proposed rights of waterways amendment was put on Orange County’s 2020 ballot, but before the voting took place. 

Attorneys for Beachline South Residential and Florida’s DEP argued, among other things, that the waterways’ challenge to the dredge and fill permit should be made before Florida’s DEP rather than in state court, that state law rightfully preempts the Orange County Charter amendment and that the state legislature is empowered to determine what environmental laws are adequate to protect waterways as opposed to local governments. 

Judge Paetra T. Brownlee did not issue a decision at the hearing and gave the parties 35 days to submit proposed orders on how the court should rule on the defendants’ motion to dismiss.