THE ENVIRONMENTAL PROTECTION ACT:
“Citizen Suits” for the Environment
By Jennifer B. Springfield and Alexander Boswell-Ebersole
In 1971, the Florida Legislature passed the Florida Environmental Protection Act. This Act, codified as section 403.412, Florida Statutes, authorizes Florida citizens, subdivisions and municipalities of the state, as well as the Department of Legal Affairs, as well as private citizens who meet the standing requirements under the Act, to bring suit in the name of environmental protection. More particularly, section 403.412 allows these entities to initiate actions for injunctive relief in order to either compel enforcement by an agency charged with enforcing laws, rules, or regulations that protect the “air, water, and other natural resources of Florida,” or to prohibit any person, corporation, or government agency or authority from violating such laws, rules, or regulations.
Moreover, in addition to providing the authority to initiate judicial proceedings, the legislation enables these same entities to intervene in ongoing administrative hearings under sections 120.569 or 120.70, Florida Statutes, where the hearings are related to the protection of the “air, water, and other natural resources of the state.”
Finally, the Act also expressly gives not-for-profit corporations organized for the purpose of protecting the environment or natural resources the authority to initiate section 120.569 or 120.70 administrative hearings. The only restrictions are that: 1) the not-for-profit must consist of at least 25 current members who reside in the county where the activity is proposed, and 2) the not-for-profit must have been formed at least one year before the government agency’s initiation of the activity.
Adopted at the height of the environmental movement, the Florida Environmental Protection Act makes up part of the legislative response to Article II, Section 7 of the Florida Constitution, which was added to the state constitution in the late 1960’s. In addition to aspirational language regarding protection and conservation of the state’s natural resources and scenic beauty, Article II, Section 7 requires the Florida Legislature to make “[a]dequate provision . . . by law” to carry out these goals. As a result, the Legislature responded by adopting a variety of laws pertaining to the environment, including the Florida Environmental Protection Act.
Since the Act gives private citizens standing to bring suit to enforce the law, actions brought under it are often referred to as “citizen suits.” Some champion the benefits of the expanded role of citizens in environmental governance that citizen suit provisions can offer. Several states have statutes authorizing citizen suits and virtually all major federal environmental statutes contain citizen suit provisions.
Florida’s citizen suit provision prescribes its use for judicial proceedings in a variety of different ways. For example, it requires, as a condition precedent to instituting a suit, the petitioner to file a “verified complaint” with the agency question in order to give that agency 30 days to attempt to remedy the matter. Section 403.412 also provides for costs and attorney’s fees to be paid to the prevailing party, and restricts venue to the county or counties where the alleged transgression occurs.
Like other types of petitioners, citizens bringing suit under 403.412 must be appropriately situated so as to properly claim standing. That said, among the states with citizen suit provisions, Florida’s standing requirement is relatively lenient because Florida’s 403.412 citizen suit provision does not require a party to prove a special injury, which is typically required to show standing in other lawsuits. In other words, standing under section 403.412 does not require the party to incur an injury “different both in kind and degree” from injury suffered by the general public. This less restrictive standing requirement could be an important consideration when, for example, an activity requires both a state and federal permit, thus giving a challenger the option to challenge in either state or federal court. Yet, despite its lenient standing requirement, very few citizen suits have actually been brought under the Florida Environmental Protection Act.