Florida Wildlife Federation v. State Dept. of Environmental Regulation, 58135

• Decision Date: 06 November 1980
• Docket Number: No. 58135,58135
• Citation: 390 So.2d 64
• Parties: , 11 Envtl. L. Rep. 20,169 FLORIDA WILDLIFE FEDERATION, Appellant, v. STATE DEPARTMENT OF ENVIRONMENTAL REGULATION et al., Appellees.
• Court: Florida Supreme Court

Page 64

390 So.2d 64

15 ERC 1282, 11 Envtl. L. Rep. 20,169

FLORIDA WILDLIFE FEDERATION, Appellant, v. STATE DEPARTMENT OF ENVIRONMENTAL REGULATION et al., Appellees.

No. 58135.

Supreme Court of Florida.

Nov. 6, 1980.

Thomas E. Kingcade and Jack S. Cox of Levy, Plisco, Perry, Shapiro, Kneen & Kingcade, Palm Beach, for appellant.

William E. Deane and Randall E. Denker, Asst. Gen. Counsels, Tallahassee, for the State of Florida Dept. of Environmental Regulation.

Robert Grafton, Thomas J. Schwartz, Stephen A. Walker and Irene Kennedy Quincey, West Palm Beach, for South Florida Water Management District.

Philip S. Parsons of Macfarlane, Ferguson, Allison & Kelly, Tallahassee, and Robert M. Rhodes of Thompson, Wadsworth, Messer & Rhodes, Tallahassee, for Florida Sugar Cane League, Inc., Florida Chamber of Commerce, Dairy Farmers, Inc., Florida Agricultural Research Institute, Florida Farm Bureau Federation and Indian River Citrus League, Inc., amici curiae.

McDONALD, Justice.

This is a direct appeal from a circuit court order dismissing the federation's complaint and declaring section 403.412(2)(a), Florida Statutes (1977), ¹ an impermissible incursion into this Court's power to adopt rules of practice and procedure. We have jurisdiction ² and reverse.

In May 1979, the Florida Wildlife Federation (federation) filed suit against the Department of Environmental Regulation (DER) and the South Florida Water Management District (district) pursuant to section 403.412, the Environmental Protection Act (EPA). Alleging pollution of the C-18 canal and surrounding waters by the use, maintenance and operation of the S-46 spillway (located near Jupiter, Palm Beach County), the federation sought mandatory injunctions against the district and DER, attorney's fees, and money damages. Both DER and the district filed motions to dismiss which were granted with leave to amend.

The federation duly filed an amended complaint which DER answered. The district, however, filed another motion to dismiss, arguing, inter alia, that because the federation failed to allege special injury it did not have standing to bring suit. Agreeing with the district that section 403.412(2)(a) is an impermissible invasion of this Court's prerogative to adopt rules of practice and procedure, the trial court dismissed the complaint. Claiming that the order precluded further amendment, the federation requested that the court issue a final order. The court complied, and this appeal followed. (Although a codefendant in the trial court, appellee DER joins the federation in arguing for the constitutionality of the statute in this appeal.)

Over a decade ago, the electors of Florida amended the state constitution to add section 7 to article II of that document. That section states the public's intent that it "be the policy of the state to conserve and protect its natural resources and scenic beauty." Section 7 further provides that "(a)dequate provision shall be made by law for the abatement of air and water pollution." To help effectuate that policy, the legislature enacted the EPA as section 403.412 in 1971.

While providing that state citizens as well as state agencies may institute suit to compel governmental agencies to perform their duties and to enjoin the violation of laws, rules, and regulations, section 403.412(2) sets out numerous conditions precedent to the bringing of such actions. An interested party must first file a complaint with the appropriate agency. The complaint must set out the facts upon which it is based and the manner in which the complainant is affected. Thereafter, the agency has thirty days in which to act on the complaint. Only after meeting these requirements and giving the agency the opportunity to act may a complainant file suit in a court of law.

The federation followed this procedure and finally filed suit in circuit court. In its complaint, the federation alleged that the S-46 spillway is a present and continuing source of pollution of the Loxahatchee River, that federation members use the waters surrounding the spillway for recreational purposes, and that the federation's members have been irreparably damaged by the spillway's operation. The federation contends that its complaint adequately sets forth a cause of action pursuant to 403.412(2)(a) which should not be disallowed because the legislature saw fit to create a new cause of action by creating capacity in private citizens to enjoin pollution of the state's natural resources.

The district, on the other hand, claims that the legislature has tried to abrogate this Court's special injury rule of standing to sue. Thus, the district sees 403.412(2)(a) as a rule of procedure, passage of which was not within the legislature's power.

Although the trial court agreed with the district, we do not. We hold that by enacting section 403.412 the legislature created a new cause of action, giving the citizens of Florida new substantive rights not previously possessed. This statute sets out an entirely new cause of action. By providing that the manner in which a potential plaintiff is affected must be set out, the statute ensures that the minimum requirements of standing-injury and interest in redress-will be met.

As a new cause of action, the statute is substantive law. Substantive law has been defined as "that part of the law which creates, defines, and regulates rights, or that part of the law which courts are established to administer." State v. Garcia, 229 So.2d 236, 238 (Fla.1969). By the enactment of section 403.412(2)(a) the citizens of Florida have been given the capacity to protect their rights to a clean environment-a right not previously afforded them directly. This, then, is the difference between the instant case and Avila South Condominium Association, Inc. v. Kappa Corp., 347 So.2d 599 (Fla.1977), wherein this Court found that the statute under attack there sought to define proper parties rather than to set out substantive rights. The instant statute, however, does not suffer from the same defect. Section 403.412(2)(a) is not an impermissible incursion into this Court's power over practice and procedure in the state's courts.

The district further contends that approval of the statute should not extend to abrogating the special injury rule in this instance. Again, we disagree because the legislature has manifested its intent that that rule of law not apply to suits brought under the EPA.

This Court originally formulated the special injury rule as a method of forestalling a multiplicity of suits. See Brown v. Florida Chautauqua Ass'n, 59 Fla. 447, 52 So. 802 (1910); Case Comment-Public Nuisance: Standing to Sue without Showing "Special Injury," 26 F.S.U.L.Rev. 360 (1974). Under the rule, which developed in the area of public nuisance law, an individual could maintain suit to enjoin a nuisance only if that person could show injury different both in kind and degree from that suffered by the public at large. 59 Fla. at 451, 52 So. at 804. The rule has been extended to taxpayer's suits, Rickman v. Whitehurst, 73 Fla. 152, 74 So. 205 (1917), and zoning suits, Boucher v. Novotny, 102 So.2d 132 (Fla.1958). The rule is not absolute, however, and exceptions to it have been carved out by both this Court and the legislature. See State ex rel. Gardner v. Sailboat Key, Inc., 295 So.2d 658 (Fla. 3d DCA 1974) (individual may bring action, in name of state, to abate public nuisance without necessity of showing special injury); Brown v. Firestone, 382 So.2d 654 (Fla.1980) (taxpayers); Department of Administration v. Horne, 269 So.2d 659 (Fla.1972) (taxpayers); Renard v. Dade County, 261 So.2d 832 (Fla.1972) (zoning); City of Key West v. Askew, 324 So.2d 655 (Fla. 1st DCA 1975) (who is an "interested person" for purposes of bringing suit under the Administrative Procedure Act).

If the legislature had meant for the special injury rule to be preserved in the area of environmental protection, it could easily have said so. We presume legislative awareness of the law of public nuisance with its special injury requirement. That the...