ENVIRONMENTAL CONFED. OF SOUTHWEST FL., INC. v. IMC Phosphates, Inc.

• Decision Date: 31 July 2003
• Docket Number: No. 1D03-1717.,1D03-1717.
• Citation: 857 So.2d 207
• Parties: ENVIRONMENTAL CONFEDERATION OF SOUTHWEST FLORIDA, INC., and Manasota-88, Inc., Appellants, v. IMC PHOSPHATES, INC. and Florida Department of Environmental Protection, Appellees.
• Court: Florida District Court of Appeals

857 So.2d 207

ENVIRONMENTAL CONFEDERATION OF SOUTHWEST FLORIDA, INC., and Manasota-88, Inc., Appellants, v. IMC PHOSPHATES, INC. and Florida Department of Environmental Protection, Appellees.

No. 1D03-1717.

District Court of Appeal of Florida, First District.

July 31, 2003.

Opinion Denying Rehearing October 28, 2003.

David G. Guest and Aliki Moncrief, Tallahassee, for Appellants.

Steven L. Brannock and Sarah C. Weinzierl of Holland & Knight, LLP, Tampa and Lawrence E. Sellers, Jr., of Holland and Knight, Tallahassee, for Appellees.

PADOVANO, J.

IMC Phosphates, Inc., moves to dismiss the appeal in this case on the ground that the Environmental Confederation of Southwest Florida, Inc., and Manasota-88, Inc., are not adversely affected by the order to be reviewed. In the order at issue, the Department of Environmental Protection concluded that the Confederation and Manasota-88 lacked standing to initiate a challenge to a proposed environmental permit. This decision was supported by the terms of a new statute restricting the standing of organizations, but the Confederation and Manasota-88 contend that the statute is unconstitutional. We hold that the denial of the right to initiate a challenge to the permit was an injury that is sufficient to establish the right to judicial review, and we therefore deny the motion to dismiss.

The present legal controversy evolved from a dispute over the issuance of a permit to mine phosphate. In January of 2003, the Department announced its intention to issue an environmental resource permit authorizing IMC Phosphates to engage in phosphate mining in Hardee County, near the town of Ona. The Confederation and Mansota-88 filed a timely petition for a formal administrative hearing to challenge the issuance of the permit.

As alleged in the petition for hearing, the Confederation and Manasota-88 are public interest groups organized to protect southwest Florida's natural resources. Each group has a substantial membership in the southwest part of the state, but neither has a sufficient number of members in Hardee County to meet the group standing requirement imposed by section 403.412(6), Florida Statutes (2002). As conceded in the petition, Manasota-88 has only four members in Hardee County and the Confederation has only one member in the county.

On March 14, 2003, the Department entered an order dismissing the petition on the ground that the Confederation and Manasota-88 did not meet the statutory requirements for organizational standing. By this time, the Department had also received petitions by a number of other governmental and private organizations, all relating to the same environmental resource permit. These petitions were consolidated for hearing, and the Department informed the Confederation and Manasota-88 that they could participate as intervenors in the consolidated proceeding.

The dismissal of the petition in this case was without prejudice and with leave to amend the allegations of standing. However, the Confederation and Manasota-88 could not meet the organizational standing requirements of the new statute. Because they wished to challenge the validity of the statute on appeal, they declined to amend their petition and instead asked the Department to enter a final order of dismissal. When the Department issued its final order, the Confederation and Manasota-88 filed a timely appeal to this court. IMC Phosphates contends that the appeal should be dismissed because the Confederation and Manasota-88 have not shown that they were harmed by the order dismissing their petition before the agency. We reject this argument.

Section 120.68(1), Florida Statutes (2002) states that "[a] party who is adversely affected by final agency action is entitled to judicial review." This statute establishes a right to seek judicial review of a final administrative decision, but limits that right to litigants who will suffer an injury by the order to be reviewed. See Legal Envtl. Assistance Found., Inc. v. Clark, 668 So.2d 982 (Fla.1996)

(holding that a public interest advocacy group was not aggrieved by an order of the Public Service Commission setting conservation goals). An organization is not entitled to seek judicial review of an administrative decision merely because it has a general interest in the issue decided. See Florida Chapter of the Sierra Club v. Suwannee Am. Cement Co., Inc., 802 So.2d 520, 522 (Fla. 1st DCA 2001). Instead, an organization must show that it will suffer an injury in fact or that the action of the agency will adversely affect its individual members. Id.

The Confederation and Manasota-88 were "adversely affected" by the order appealed in this case for the simple reason that the order denied them a right to assert a challenge to the permit. We need not determine whether the mining operations, if permitted, will cause an injury. The harm is that potential litigants were denied the right to initiate an action in an administrative tribunal. An order dismissing an administrative petition for lack of standing is necessarily subject to judicial review. If that were not the case, such an order could never be challenged in court. Certainly, we could not say that a litigant who files a petition that is dismissed for lack of standing cannot appeal the dismissal because he lacks standing. That is the very question presented in the appeal.

The central issue in the dispute over standing in the lower tribunal is the constitutionality of section 403.412(6), Florida Statutes (2002), which places new restrictions on the right of an organization to challenge an environmental permit. The Confederation and Manasota-88 contend that the legislative act adopting these new restrictions violates the single subject rule. We do not address that argument now, except to say that if it is correct, the order at issue must be reversed. Otherwise, the effect of the order would be to employ an unconstitutional statute to deprive a litigant of the right to seek redress in an administrative tribunal.

Under the prior law, an organization could request a hearing to challenge an environmental permit simply by filing a verified petition asserting that the challenged activity would injure Florida's resources. See Manasota-88, Inc., v. Dep't of Envtl. Regulation, 441 So.2d 1109, 1111 (Fla. 1st DCA 1983)

. Standing is much more restrictive under the terms of the 2002 revision of the statute. Subsection (6) provides in material part:

Any Florida corporation not for profit which has at least twenty-five current members residing within the county where the activity is proposed, and which was formed for the purpose of the protection of the environment, fish and wildlife resources, and protection of air and water quality, may initiate a hearing pursuant to s. 120.569 or s. 120.57.

§ 403.412(6), Fla. Stat. (2002). If the statute is valid, the Confederation and Manasota-88 lack standing to initiate a challenge to the petition. Although both groups have substantial memberships in southwest Florida, neither can claim to have twenty-five members in Hardee County.

One aspect of the case that obscures the issue of standing to seek judicial review is that the constitutional argument regarding the validity of the statute has not yet been presented. If an administrative agency had the power to address the constitutionality of a state law and if, in fact, the Department had declared the statute in this case to be valid, there would be little question that the order would be subject to judicial review. The argument has not yet been presented, though, because an administrative agency cannot pass on the constitutionality of a state law. If we were to hold that the Confederation and Manasota-88 have no right to appeal, the validity of the statute could escape review in the courts.

The new statute contains another feature that is relevant to the arguments made on the motion to dismiss the appeal. It provides that an organization failing to qualify for standing to initiate an administrative proceeding may nevertheless participate as an intervenor. Subsection 403.412(5) states in pertinent part:

In any administrative, licensing, or other proceedings authorized by law for the protection of the air, water, or other natural resources of the state from pollution, impairment, or destruction, ... a citizen of the state shall have standing to intervene as a party on the filing of a verified pleading asserting that the activity, conduct, or product to be licensed or permitted has or will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state.

§ 403.412(5), Fla. Stat. (2002). This subsection goes on to define an intervenor as a litigant who joins an "ongoing" administrative proceeding. To emphasize this point, the statute then provides that an intervenor has no right to "institute, initiate, petition for, or request" an administrative hearing. It follows that an organization can challenge a proposed environmental permit under subdivision (5) only if someone else having standing has already initiated a proceeding to challenge the same permit.

IMC Phosphates argues that the Confederation and Manasota-88 have not been adversely affected by the Department's order because they are still entitled to intervene in the consolidated proceeding. The weakness in this argument is that it assumes a litigant who is allowed to intervene has the same rights as a litigant who can initiate the action as a party. That is simply not the case. If the Confederation and Manasota-88 have been wrongfully denied the right to initiate their own challenge to the permit, the harm cannot be cured merely by allowing them to intervene in a proceeding controlled by other litigants.

Florida courts have held that the rights of an intervenor are subordinate to the rights of the parties. See Hoechst Celanese Corp. v. Fry, 693 So.2d 1003 (Fla. 3d DCA 1997)

; Bay Park Towers Condominium...