State: Make polluters pay, high court urged

TALLAHASSEE -- It has been five years since Floridians went to the polls and voted -- by a whopping 68 percent -- to force farm interests in the Everglades to pay to clean up their pollution.

The "Polluter Pays" mandate went into what seems to be the state's most ironclad document, the Florida Constitution.

But even though voters approved it in 1996, the Polluter Pays amendment has never been enforced. Why? The Legislature never enacted a law to carry it out.

Tuesday, the Florida Supreme Court took up a case filed by Everglades cleanup activists who say ordinary citizens shouldn't be paying property taxes to clean up the Everglades when the state Constitution says polluters, not homeowners, are responsible.

"We think this boils down to one question: Does Florida's Constitution mean anything?" said Charles Lee, senior vice president for Audubon of Florida. "Innocent taxpayers are being asked to clean up clearly identified pollution that's coming from a special interest."

The case could affect 6-million homeowners who pay property taxes to the South Florida Water Management District in a 16-county taxing area that stretches from Orlando to Key West. The tax amounts to about $10 a year on a $125,000 house, and it raises $30-million to $40-million annually to pay for a huge public works project to clean farm runoff.

Lee and other activists say that by collecting property taxes from homeowners, state lawmakers are ignoring the people's will.

At least one Florida Supreme Court justice, Barbara Pariente, seemed to agree Tuesday:

"Can the Legislature thwart the people by simply refusing to act?" Pariente asked. "I mean, it's been how many years?"

State Sen. Jack Latvala, a Palm Harbor Republican, said he crafted a bill the year after voters approved Polluter Pays, but couldn't get it to go anywhere in the Legislature because of "industry and agriculture."

"They had their friends in the Legislature who didn't move it through the process," Latvala said.

Latvala said he was frustrated.

"I felt like when the voters vote on something, we should do the will of the voters," Latvala said. "But I was not successful."

Tuesday, the group Save Our Everglades asked the Florida Supreme Court to send the case back to the circuit court in Orange County for a full trial. The goal is to prove that the water management district's property tax is unconstitutional.

When Polluter Pays passed in 1996, it seemed fairly straightforward. The Everglades were suffering from dirty water that ran off the vast sugar plantations and other farms south of Lake Okeechobee toward Everglades National Park. The fertilizers in the farm runoff tip the natural balance of the delicate marshes.

The amendment said anyone "who causes water pollution" in the Everglades Agricultural Area should be "primarily responsible" for cleaning it up.

Farming interests spent millions fighting the amendment, but lost. Today, they argue against Polluter Pays by saying they are already funding Everglades cleanup through a $25-per-acre tax on farmland.

"We're paying our share to clean up the water that's coming off the farms," said Judy Sanchez, a spokeswoman for U.S. Sugar Corp. "There is no such thing as a non-polluter in the Everglades.

"Everything in the South Florida Water Management District was changed to benefit development. Those canals that drain water off homes and cities are also part of the problem. The farmers were the only ones singled out, and we're paying."

Right after the constitutional amendment passed, the legal fighting began. First, Gov. Lawton Chiles went to the Florida Supreme Court and said the amendment raised lots of new legal questions.

"I am in doubt as to my duties in seeing that Amendment 5 is being faithfully executed," Chiles wrote.

The court came back with an advisory opinion that said the Legislature, not the governor, had to enact a law to put Polluter Pays into effect.

It never happened.

During Tuesday's arguments before the Supreme Court, some of the justices were squeamish about stepping on the Legislature's toes.

"If we allow this to proceed in court," said Justice Harry Anstead, "wouldn't we be substituting court action for what we expect the Legislature to do?"

University of Florida law school dean Jon Mills, a former state House speaker who now represents Save Our Everglades, argued: "We're not asking you to compel the Legislature to do something. We're asking you to protect the citizens. The Constitution has to mean something."

It isn't clear when the Supreme Court will rule. And the case has some prickly questions: What, for example, is the definition of pollution? Is it fertilizer or mercury or some other substance? And if so, what levels are acceptable? Each question could spark years of scientific and legal arguing.

And even though Florida vowed to start cleanup when lawmakers passed the Everglades Forever Act in 1994, the government still hasn't set a clear limit for pollution.

Curt Kiser, a lawyer and former Pinellas lawmaker, said government's inaction makes it impossible to enforce anything.

"They aren't guilty of polluting until they set the standard," said Kiser, a longtime ally of Save Our Everglades. "I mean, you can't be caught speeding if there's no speed limit."

The amendment

Sixty-eight percent of Florida voters approved the "polluter pays" amendment. It says:

"Those in the Everglades Agricultural Area who cause water pollution within the Everglades Protection Area or the Everglades Agricultural Area shall be primarily responsible for paying the costs of the abatement of that pollution. For the purposes of this subsection, the terms "Everglades Protection Area' and "Everglades Agricultural Area' shall have the meanings as defined in statutes in effect on January 1, 1996."

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Lucy Morgan

From the Times state desk