Palm Beach Cty. Environmental Coalition v. Florida, Case No. 08-80553-CIV.

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
• Writing for the Court: Donald M. Middlebrooks
• Citation: 651 F.Supp.2d 1328
• Decision Date: 27 July 2009
• Docket Number: Case No. 08-80553-CIV.
• Parties: PALM BEACH COUNTY ENVRONMENTAL COALITION, et al., Plaintiffs, v. The State of FLORIDA, et al., Defendants, Florida Power and Light Company, Applicant-Intervenor.

651 F.Supp.2d 1328 PALM BEACH COUNTY ENVRONMENTAL COALITION, et al., Plaintiffs,
v.
The State of FLORIDA, et al., Defendants,
Florida Power and Light Company, Applicant-Intervenor. Case No. 08-80553-CIV. United States District Court, S.D. Florida. July 27, 2009.

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Barry Morris Silver, Barry M. Silver PA, Boca Raton, FL, David P. Reiner, II, Reiner & Reiner PA, Miami, FL, for Plaintiffs.

Jonathan A. Glogau, Attorney General Office, Kenneth B. Hayman, Department of Environmental Protection, Richard Stephen Brightman, Hopping Green & Sams, Tallahassee, FL, Mark A. Brown, Kristofor R. Swanson, Norman L. Rave, Jr., United States Department of Justice, Washington, DC, Dawn Marie Kelly, Lorin Louis Mrachek, Page Mrachek Fitzgerald & Rose, Leon St. John, III, Palm Beach County Attorney's Office, West Palm Beach, FL, for Defendants.

Gerard Joseph Curley, Jr., Gunster Yoakley & Stewart, West Palm Beach, FL, Robert Anthony Malinoski, Gunster Yoakley & Stewart, Fort Lauderdale, FL, for Applicant-Intervenor.

OMNIBUS ORDER GRANTING [DE 60, 69, 70, 71, 73, and 84] DENYING [DE 49 and 91] DENYING AS MOOT [DE 21, 24/25, 48, 62, 87, 89, 90, 96, and 97]

DONALD M. MIDDLEBROOKS, District Judge.

THIS CAUSE comes before the court on Defendants, State of Florida Department of Environmental Protection and Secretary Michael W. Sole's (collectively, "DEP") motion to dismiss plaintiff's amended complaint [DE 60]; Palm Beach County's motion to dismiss the amended complaint [DE 69]; the State of Florida and Governor Charlie Christ's amended motion to dismiss the amended complaint (collectively, "State Defendants") [DE 70]; Gulfstream Natural Gas System, L.L.C.'s ("Gulfstream") motions to dismiss plaintiff's amended complaint [DE 71]; the United States Army Corps of Engineers and Lt. Gen. Robert L. Van Antwerp's (collectively, "Army Corps") second motion to dismiss the amended complaint [DE 73];

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Palm Beach Aggregates, Inc.'s ("Aggregates") motion to dismiss the amended complaint [DE 84];¹ and intervenor-defendant, Florida Power & Light Company's ("FPL") motion to dismiss the amended complaint [DE 48]. In this motion, when referred to collectively, Gulfstream and Aggregates will be called "Private Defendants." Also, the State of Florida, Governor Crist and the DEP will be referred to collectively as the "State Defendants."² I have reviewed the record and am advised in the premises.

I. Factual Background³

In 2005, intervenor-defendant Florida Power & Light Company ("FPL") began to build a new power plant, the West County Energy Center ("WCEC"), to be located in Palm Beach County, Florida. To supply the WCEC, Gulfstream began to build a new natural gas pipeline from Martin County to the WCEC. [DE 13 ¶ 55-60]. The path of the proposed pipeline impacts federal jurisdictional waters. Therefore, both projects require federal permits from the Army Corps under the Clean Water Act ("CWA") and the Rivers and Harbors Act ("RHA"). [DE 13, ¶ 61, 69]. The South Florida Water Management District ("SFWMD") issued a 20foot-wide easement to Gulfstream, authorizing installation of the pipeline within areas known as the L-8 and L-65 canal rights-of-way, and a 95-foot-wide temporary construction easement along the route. [DE 13, ¶ 62]. The pipeline route passes through 122 water bodies as well as various state-owned wildlife conservation areas that are home to the wood stork, the Southeastern American kestrel, the crested caracara, the bald eagle, the Eastern indigo snake, and the gopher tortoise, whose burrows are located along the berm of the L-65 Canal. [DE 13 ¶ 63-67].

Public meetings on the proposed WCEC were held over the summer of 2006, during which Plaintiffs, the Palm Beach County Environmental Coalition ("PBCEC"), participated. PBCEC also participated in an Administrative Hearing before Administrative Law Judge Mahoney, where their environmental concerns were ignored. The group's concerns were also ignored when they traveled to Tallahassee, Florida to request that former-Governor Bush and his cabinet allow more time for state agencies, federal agencies, and the public to review the project.

Thereafter, the permitting process began with Plaintiff's intermittent objections. In December of 2006, the Florida Natural Gas Storage Company, LLC ("FGS") requested that the Federal Energy Regulatory Commission ("FERC") initiate the National Environmental Policy Act ("NEPA") pre-filing process for a future phase of the project. Plaintiffs allege that they discovered documents authored by the Florida Fish & Wildlife Commission ("FWC"), including an October 17, 2005, letter expressing its concern about the WCEC's potential to harm fish and wildlife. [DE 13, ¶ 48]. Plaintiffs do not specify to whom the letter was sent, but allege

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that the letter and other documents were not made a part of the record when then Governor and the Cabinet held a hearing on the proposed WCEC plant on December 19, 2006. [DE 13, ¶ 47]. Plaintiffs further allege that the power plant project received final certification from the State prior to FWC review. [DE 13, ¶ 51].

During the summer of 2007, construction began on the WCEC Project segment, despite incomplete permitting, according to Plaintiffs. [DE 13, ¶ 52]. In September of 2007, the pipeline's route "was changed with minimal review and was resubmitted for a permit." Id. On December 13, 2007, the South Florida Water Management District ("SFWMD") voted to approve selling a canal right-of-way to Gulfstream for the pipeline. [DE 13, ¶ 53]. Plaintiffs allege that a SFWMD Governing Board Member, Bubba Wade, had "undisclosed financial interests in the affected area," yet nonetheless participated in the voting and voted for the sale. [DE 13, ¶ 53]. The Complaint does not elaborate on Mr. Wade's alleged financial interests. On April 4, 2008, construction of the Gulfstream Pipeline began at the Couse Midden archaeological site, obstructing the gopher tortoise habitat.

Finally, the Army Corps authorized work on the pipeline and the WCEC under a reissued Nationwide Permit 12 ("NWP 12"), which allows utility line activities. [DE 13, ¶ 74]. Plaintiffs allege that the Corps then expanded the authorized work to include construction of a cooling water inlet structure to and within the L-10/12 Canal, causing adverse environmental impact. [DE 13, ¶ 75].

Plaintiffs allege that the pipeline segment described above and the WCEC plant are part of "an even larger series of segmented historic projects." Instead of "finding significant cumulative environmental impacts from the entire, unsegmented projects and supplementing earlier [Environmental Impact Statements ("ESI")], [Environmental Assessments ("EA")] were generated for discrete additions to the earlier phases of the historic project by the Corps of Engineers for the purpose of segmenting these projects and circumventing CWA and Rivers and Harbors Act ("RHA") permitting, and requirements under NEPA to fairly evaluate the cumulative environmental impacts of the entire project . . . ." [DE 13, ¶ 71, 72]. In short, Plaintiffs allege that officials evaluated only the pipeline segment and the WCEC plant, which they allege are merely single elements of a larger project under the NEPA guidelines. Plaintiffs assert that the officials should have evaluated the developments as a whole, but did not do so, in order to circumvent various environmental protection laws.

Plaintiffs allege that the pipeline and WCEC will release "at least 12 million tons of greenhouse gases (C02) per year, will release thousands of tons of other noxious gases in and around sensitive wildlife and natural areas, will consume at least 6.5 billion gallons of water per year at a time of extreme drought in the region, and will literally fuel continued uncontrolled western growth of Palm Beach County, which in turn will destroy the agricultural base of this region and destroy our quality of life still further." [DE 13, ¶ 73].

Plaintiffs also recall former Palm Beach County Commissioners, Tony Masilotti and Warren Newell, who both plead guilty in federal public corruption prosecutions. Although Palm Beach County is a defendant in this action, Masilotti and Newell are not parties to this action. According to Plaintiffs, the misdeeds of the erstwhile Commissioners tainted the state proceedings availing land for the WCEC. Plaintiffs cite to the Factual Basis for Tony Masilotti's Federal Indictment that stated: "Masilotti

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had his brother ... contact ... the President of Palm Beach Aggregates for the purpose of buying an option to purchase ... land ... owned by the Aggregates." [DE 13, ¶ 44]. Count 16 of the indictment continues, "... after receiving this option, Masilotti ... voted ... to allow Aggregates to have [FPL] build a power plant on a different portion of Aggregates property...." Id. Finally, "Masilotti voted on this measure in February 2004 without disclosing to the public that he and his brother Paul Masilotti had a concealed financial interest in the Aggregates property holdings." Id.

Plaintiffs further state that former commissioner Warren Newell failed to disclose his 19% ownership of a company that was to receive money from the "antieipated" contract between the SFWMD and the Aggregates "concerning regional water storage" when he voted on the same. [DE 13, ¶ 45].

II. Procedural History

On August 25, 2008, Plaintiffs filed an amended complaint [DE 13] for declaratory and injunctive relief against the above named defendants,⁴ seeking to stop the construction of the WCEC. Plaintiffs allege that the WCEC will "have devastating and irreversible consequences upon the environment ... [and will] exacerbate global warming, the release of thousands of tons of noxious gases and chemicals into the surrounding environment of the WCEC, which borders the Loxahatchee National Wildlife Refuge and the Corbett...