Filing # 116380988 E-Filed 11/09/2020 04:10:48 PM

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT

DELANEY REYNOLDS, et. al.,

Appellants,

v. CASE NO.: 1D20-2036

THE STATE OF FLORIDA; RON DESANTIS, in his official capacity as Governor of the State of Florida, et. al.,

Appellees. /

______

ANSWER BRIEF OF APPELLEES, STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, NOAH VALENSTEIN, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, AND THE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND ______

JUSTIN G. WOLFE General Counsel

JEFFREY BROWN, FBN 843430 KELLEY CORBARI, FBN 103692 OFFICE OF GENERAL COUNSEL

RECEIVED, 11/09/202004:11:37 PM,Clerk,First District CourtofAppeal STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION 3900 Commonwealth Boulevard, MS 35 Tallahassee, Florida 32399-3000 Telephone (850) 245-2007 Facsimile (850) 245-2298 Email: [email protected] [email protected]

TABLE OF CONTENTS

TABLE OF CONTENTS ...... ii

TABLE OF AUTHORITIES ...... iii

GLOSSARY OF BRIEF REFERENCES ...... vi

STATEMENT OF THE CASE AND FACTS...... 1

I. THE COURT SHOULD REJECT PLAINTIFFS’ EFFORT TO CREATE A NEW FUNDAMENTAL RIGHT...... 1

A. THE COURT SHOULD ACCURATELY CHARACTERIZE THE ASSERTED RIGHT...... 2

B. THE COURT SHOULD NOT, IN THE GUISE OF INTERPRETING THE DUE PROCESS CLAUSE IN THE FLORIDA CONSTITUTION, ADOPT NEW REGULATORY PROGRAMS OR CREATE POLICIES ON ECONOMIC SYSTEMS...... 4

II. FDEP HAS PRIMARY JURISDICTION OVER REGULATION OR GREENHOUSE GASES, AND THE LOWER COURT SHOULD HAVE DISMISSED THE COMPLAINT UNDER THE PRIMARY JURISDICTION DOCTRINE...... 9

CONCLUSION ...... 14

CERTIFICATE OF SERVICE...... 15

CERTIFICATE OF COMPLIANCE...... 16

ii

TABLE OF AUTHORITIES

Cases

Albright v. Oliver, 510 U.S. 266, 272 (1994) ...... 4

Chakra 5, Inc. v. City of Miami Beach, 254 So. 3d 1056 (Fla. 3d DCA 2018) ...... 3

Chancellor Media Whiteco Outdoor Corp. v. Dep’t of Transp., 796 So. 2d 547 (Fla. 1st DCA 2001) ...... 10

Clean Air Council v. United States, 362 F. Supp. 3d 237(E.D. Pa. 2019) ...... 8

DeShaney v. Winnebago Cty. Dep’t of Soc. Services, 489 U.S. 189 (1989) ...... 5

Dep’t of Law Enf’t v. Real Prop., 588 So. 2d 957 (Fla. 1991)...... 4

Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971) ...... 8

E.P.A. v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014); ...... 10

Fed. Emp. for Non-Smokers’ Rights v. United States, 446 F. Supp. 181(D.D.C. 1978) ...... 8

Flo-Sun, Inc. v. Kirk, 783 So. 2d 1029 (2001) ...... 9, 12

Florida Fish & Wildlife Conservation Comm’n v. Pringle, 838 So. 2d 648 (Fla. 1st DCA 2003) ...... 9

In re Agent Orange Prod. Liab. Litig., 475 F.Supp. 928 (E.D.N.Y. 1979) ...... 8

In re Florida Power and Light Co., Case No. 17-4388-EPP (Fla. DOAH July 20, 2018) (Recommended Order), adopted as modified, DEP Case No. 17-0922 (Fla. Siting Board December 13, 2018) ...... 13

In re: Tampa Electric Company, Case No. 18-2124-EPP (Fla. DOAH May 30, 2019) (Recommended Order), adopted as modified, DEP Case No. 18-0198, (Fla. Siting Board July 29, 2012) ...... 13

iii

Juliana v. United States, 217 F. Supp. 3d 1224 (D. Or. 2016) ...... 8

Juliana v. United States, 339 F. Supp. 3d 1062 (D. Or. 2018) ...... 8

Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020) ...... 8

Key Haven Associated Enterprises, Inc. v. Bd. of Trustees of Internal Imp. Tr. Fund, 427 So. 2d 153 (Fla. 1982)...... 13

Kneipp v. Tedder, 95 F.3d 1199 (3d Cir.1996) ...... 5

Lake v. City of Southgate, No. 16-10251, 2017 WL 767879, at *3–4 (E.D. Mich. Feb. 28, 2017) ...... 8

Lindquist v. Woronka, 706 So. 2d 358 (Fla. 4th DCA 1998) ...... 5

Lochner v. New York, 198 U.S. 45 (1905) ...... 1, 4, 6, 7

Massachusetts v. E.P.A., 549 U.S. 497 (2007) ...... 10

Pinkney v. Ohio Envtl. Prot. Agency, 375 F. Supp. 305 (N.D. Ohio 1974) ...... 8

SF Chapter of A. Philip Randolph Inst. v. U.S. EPA, No. 07-4936, 2008 WL 859985, at *7 (N.D. Cal. Mar. 28, 2008) ...... 8

Silvio Membreno & Florida Ass’n of Vendors, Inc. v. City of Hialeah, 188 So. 3d 13 (Fla. 3d DCA 2016)...... 7

Tanner v. Armco Steel Corp., 340 F. Supp. 532 (S.D. Tex. 1972) ...... 8

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Florida Statutes

§ 120.536, Fla. Stat...... 13

§ 120.54(7), Fla. Stat...... 12, 13

§ 120.68, Fla. Stat...... 12

§ 403.061(36), Fla. Stat...... 10

§ 403.502, Fla. Stat...... 11

§ 403.504(10), Fla. Stat...... 12

Agency Rules

Fla. Admin. Code R. 62-204.800 ...... 10

Fla. Admin. Code R. 62-204.800(3)(b) ...... 11

Fla. Admin. Code R. 62-204.800(8)(b)88 ...... 11

Additional Authorities

Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379 (2011) ...... 6

v

GLOSSARY OF BRIEF REFERENCES

The following abbreviations/references will be used in this Answer Brief:

Abbreviation/Reference Description of Abbreviation/Reference

FDEP Appellees, State of Florida Department of Environmental Protection, and Noah Valenstein as the Secretary of the Florida Department of Environmental Protection

BOT Board of Trustees of the Internal Improvement Trust Fund of the State of Florida

State Parties All Appellees other than FDEP, BOT, and the Florida Department of Agricultural and Consumer Services (i.e. the State of Florida and parties joining the brief of the State of Florida)

Plaintiffs All Appellants

Greenhouse Gases Carbon dioxide and other substances contributing to global warming, commonly referred to as “GHGs”

Amended Complaint Plaintiffs’ “Supplemental First Amended Complaint,” located at page 702 of the Record on Appeal

I.B. Appellant’s Initial Brief

[R. X at Y] Citation to the record, with volume and page number

[T. X at Y] Citation to the transcript, with volume and page number

Unless stated otherwise, all citations to the Florida Statutes are intended to refer to the Florida Statutes (2020).

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STATEMENT OF THE CASE AND OF THE FACTS

FDEP and BOT adopt the Statement of the Case and of the Facts included with the Answer Brief of the State Parties.

I. THE COURT SHOULD REJECT PLAINTIFFS’ EFFORT TO CREATE A NEW FUNDAMENTAL RIGHT.

FDEP and BOT join in the position asserted by the State Parties in their separate answer brief and respectfully submit that the order of dismissal should be affirmed for the reasons stated in that brief. The purpose of this brief is to elaborate on related issues that would support the same request for relief.

Plaintiffs present, as a foregone conclusion, that freedom from climate change is a fundamental right within the context of substantive due process. From this premise, they leap to the unsupported conclusion that the Court must expand subject matter jurisdiction and direct the lower court to disregard the political question doctrine. In their separate Answer Brief, the State Parties show that the assertion of a new constitutional right has no bearing on whether the circuit court appropriately dismissed the complaint. In addition, Plaintiffs’ premise is emphatically wrong. There is no plausible claim that the Florida Constitution protects the unenumerated right described in the Plaintiffs’ Amended Complaint.

The formulation of a remedy for climate change is a serious and complex issue, but it does not justify judicial overreach or a repetition of the discredited approach of courts in the Lochner era.

A. THE COURT SHOULD ACCURATELY CHARACTERIZE THE ASSERTED RIGHT.

According to Plaintiffs’ Amended Complaint, articles I, sections 1, 2, and 9 of the Florida Constitution include a fundamental right to a stable climate system.

Plaintiffs characterize this right as a condition where the atmosphere and the oceans are free of dangerous levels of carbon dioxide and other greenhouse gases.

[R. 780 ¶ 189]. As alleged, each of the Appellees have violated this right by creating and managing a “Fossil Fuel Energy System” [R. 781 ¶ 193], which the

Plaintiffs define as the “policy, practice and custom with respect to fossil fuels and

[Greenhouse Gas] emissions in Florida.” [R. 703 n.1]. As characterized in the

Amended Complaint, decisions on energy policy have enormous ramifications on the state’s economy, and Florida’s economic interests would be promoted if the

State prohibited the use of fossil fuels. [R. 744 ¶ 112, R. 746 ¶ 118, R. 756 ¶ 134].

Plaintiffs ask for a declaration that the state has violated their rights because the

State has adopted an energy policy they believe to be imprudent. According to this theory, Plaintiffs are entitled to the creation of a new policy which would require the State to prohibit its residents from using fossil fuels. [R. 784].

The Initial Brief does not mention any actual text within the Florida

Constitution that might imply the existence of such a fundamental right. At best,

Plaintiffs can only allude to “substantive due process rights” that supposedly arise under sections 1, 2, and 9 within Article I of the Florida Constitution. [I.B. 6]. 2

Sections 1 and 2 do not suggest any textual basis to assert the creation of a due process right of any kind. By process of elimination, Plaintiffs’ theory can only survive if it could be fit within Florida’s current interpretation of the Due Process clause in article I, section 9 of the Florida Constitution. For this to be true, it must be among the type of unenumerated rights deemed worthy or protection in the absence of an express guaranty of that right. The first step, however, is to describe carefully what the right is and what it means. For example, when an owner of an entertainment complex has difficulties with local land use restrictions, the result is more accurately viewed as a zoning dispute. A court cannot accurately characterize a zoning dispute as an impingement of any broad and limitless right to pursue a chosen profession. Chakra 5, Inc. v. City of Miami Beach, 254 So. 3d

1056, 1068 (Fla. 3d DCA 2018).

Applying this approach, Plaintiffs do not accurately describe the asserted interest. The Plaintiffs’ asserted interest has two essential components. First,

Plaintiffs are asking the courts to protect them by restraining the allegedly harmful conduct of third parties – the consumers and producers of petroleum products.

Second, they are asking the court to second-guess the Florida Legislature’s decisions on how to manage the state’s economy. Just as a zoning dispute is not an impingement on a club owner’s right to pursue a profession, a dispute on economic systems or preferred environmental regulations is not an impingement on the

3 fundamental rights of any party. The asserted interest is nothing more than a preference that the government create a new economic system and regulate the activities of third parties for the ostensible benefit of the Plaintiffs.

B. THE COURT SHOULD NOT, IN THE GUISE OF INTERPRETING THE DUE PROCESS CLAUSE IN THE FLORIDA CONSTITUTION, ADOPT NEW REGULATORY PROGRAMS OR CREATE POLICIES ON ECONOMIC SYSTEMS.

Courts have invoked substantive due process to protect citizens from government intrusion, with an emphasis on marriage, family, procreation, and the right to bodily integrity. Albright v. Oliver, 510 U.S. 266, 272 (1994). Florida courts also invoke the doctrine to prevent abuses in the criminal justice system and in criminal forfeitures. See Dep’t of Law Enf’t v. Real Prop., 588 So. 2d 957, 960

(Fla. 1991). Two common threads emerge when courts evaluate whether to acknowledge a new fundamental right for purposes of fundamental rights. First, courts are more likely to recognize unenumerated rights to prevent government intrusion upon a plaintiff, as compared to requiring the government to prevent other private citizens from harming the plaintiff. Second, at least since the demise the Lochner era, courts have avoided intrusion into legislative decisions on economic systems. Given those principles, the Plaintiffs cannot reasonably ask the

Court to recognize their asserted interests as a fundamental right.

The Due Process clause imposes no affirmative duty on the part of government to protect individuals from harm by third parties. DeShaney v. 4

Winnebago Cty. Dep’t of Soc. Services, 489 U.S. 189, 196 (1989). Courts have recognized one narrow exception to this rule. Such a duty may arise when the state takes physical custody over an individual and knowingly allows the individual to suffer a physical assault or other physical injury. See, e.g., Lindquist v. Woronka,

706 So. 2d 358, 362 (Fla. 4th DCA 1998) (rejecting plaintiff’s theory based on exceptions to DeShaney when intoxicated plaintiff suffered injuries after release from custody, because claim was “a far cry from the case most favorable to plaintiff’s position, Kneipp v. Tedder, 95 F.3d 1199 (3d Cir.1996).”) The Eleventh

Circuit has held that, based on a Supreme Court opinion following DeShaney, it no longer recognizes a “state created danger” or “special relationship” exception to the holding in Deshaney for cases not involving custodial relationships. White v.

Lemacks, 183 F.3d 1253 (11th Cir.1999).

Again, Plaintiffs’ theory does not maintain that a government must refrain from intruding on the Plaintiffs. The Plaintiffs argue that the state government must take action against private citizens to protect them from harm. The narrow exceptions to the DeShaney principle prove the rule. The Court should apply the

Deshaney principle and reject the theory.

At one time, state and federal courts extended substantive due process to the protection of contract rights. The one case epitomizing that doctrine, Lochner v.

New York, 198 U.S. 45 (1905) is commonly placed on a short list of the most

5 discredited decisions in the history of the United States Supreme Court. Jamal

Greene, The Anticanon, 125 Harv. L. Rev. 379, 417 (2011). The Plaintiffs are asking this Court to make the same mistake. An opinion from the Third District helps to illustrate one of several difficulties in Plaintiffs’ preferred version of substantive due process. After summarizing the history of the Lochner era, the

Court observed:

The error of this jurisprudence, it is sometimes said, was to constitutionalize free market economics. This criticism slightly misses the mark. If any economic model deserves to be elevated to a constitutional plane, it would surely be the free market system, which holds a uniquely central position in American society.

The problem of Lochner's subjective due process is that it elevated to a constitutional height any economic theory or, for that matter, any social theory, thereby allowing judges to use a non-constitutional policy to replace the choices made by the legislature. As Justice Holmes pointed out in his famous dissent, the “Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.” Lochner, 198 U.S. at 75–76, 25 S. Ct. 539 (Holmes, J., dissenting).

Silvio Membreno & Florida Ass'n of Vendors, Inc. v. City of Hialeah, 188 So. 3d

13, 24–25 (Fla. 3d DCA 2016).

If Plaintiffs’ allegations are to be accepted as true, the use of petroleum products is not only the product of free market economics, but the decisions of

6 elected officials who have promoted the Fossil Fuel Energy System. But is not the role of the judiciary to favor one economic theory over the other. An elected state government may prefer to promote free market economics, socialism, or any social or political system that it chooses. It may prefer to subsidize solar power in some instances, and it may prefer to promote tourism or the citrus industry. However if the State of Florida is to create a “zero-CO2 economy” by government fiat, that fiat should not come from the judiciary. The appropriate remedy for climate change is a serious and complex issue, but the issue does not justify the same approach taken by courts in the Lochner era.

A court may entertain, as a possibility, the notion that any human condition

(or the opposite of that condition) is a human right. However, courts have generally deferred the improvement of human conditions to legislative bodies and the democratic process. This is true in disputed questions of environmental policy.

For five decades, beginning near the enactment of the Clean Water Act and the

Clean Air Act, Federal courts consistently rejected claims based on constitutional

7 rights to environmental quality, or to a clean or “healthy” environment.1 Ely v.

Velde, 451 F.2d 1130, 1139 (4th Cir. 1971) (rejecting argument for the

“constitutional protection for the environment”); Clean Air Council v. United

States, 362 F. Supp. 3d 237, 250 (E.D. Pa. 2019) (rejecting substantive due process right based on “fundamental right to a life-sustaining climate system”); Lake v.

City of Southgate, No. 16-10251, 2017 WL 767879, at *3–4 (E.D. Mich. Feb. 28,

2017) (no fundamental right to “be free from bodily harm”); SF Chapter of A.

Philip Randolph Inst. v. U.S. EPA, No. 07-4936, 2008 WL 859985, at *7 (N.D.

Cal. Mar. 28, 2008) (no fundamental right “to be free from climate change pollution”); In re Agent Orange Prod. Liab. Litig., 475 F.Supp. 928, 934 (E.D.N.Y.

1979) (no “constitutional right to a healthful environment”); Fed. Emp. for Non-

Smokers’ Rights v. United States, 446 F.Supp. 181, 185 (D.D.C. 1978) (no constitutional right “to a clean environment”); accord, Pinkney v. Ohio Envtl. Prot.

Agency, 375 F.Supp. 305, 310 (N.D. Ohio 1974) (same); Tanner v. Armco Steel

Corp., 340 F.Supp. 532, 537 (S.D. Tex. 1972) (same). During those five decades,

1 Previously, there was one outlier, a set of decisions from a United States district judge in the Ninth Circuit, where the Court denied the United States’ dispositive motions with respect to claims similar to those presented in this case. Juliana v. United States, 217 F. Supp. 3d 1224 (D. Or. 2016) (denying motions to dismiss); Juliana v. United States, 339 F. Supp. 3d 1062 (D. Or. 2018) (denying, in part, motions for judgment on the pleadings, for summary judgment, and to certify order for interlocutory appeal). The Ninth Circuit reversed those decisions, with directions to dismiss those claims for lack of Article III standing. Juliana v. United States. Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020). 8 the United States and the State of Florida have made remarkable progress in the protection of natural resources from pollution sources. They will continue to do so. The Court should not disregard accepted limitations on substantive due process doctrine, and this appeal presents no valid reason to do so.

The Court should, for this additional reason, reject Plaintiffs’ argument that the Court should expand the subject matter jurisdiction of the lower court because of an alleged fundamental right. Plaintiffs cannot plausibly suggest that their asserted interests can be characterized as a fundamental right. For this additional reason, the Court should affirm the circuit court’s order of dismissal.

II. FDEP HAS PRIMARY JURISDICTION OVER REGULATION OF GREENHOUSE GASES, AND THE LOWER COURT SHOULD HAVE DISMISSED THE COMPLAINT UNDER THE PRIMARY JURISDICTION DOCTRINE.

Where a plaintiff brings a civil claim related to a complex matter within the area of an administrative agency’s special expertise, Florida law requires that the claim be deferred until the agency has rendered a decision on the matter. Flo-Sun,

Inc. v. Kirk, 783 So. 2d 1029 (2001) (primary jurisdiction doctrine required deferral of nuisance action related to Everglades restoration, when subject of action was subject to complex environmental regulations); Florida Fish & Wildlife

Conservation Comm’n v. Pringle, 838 So. 2d 648, 650 (Fla. 1st DCA 2003) (“The issue raised in the complaint involves technical expertise in the area of fishing gear specifications and prohibitions. Such expertise is outside the ordinary experience 9 of judges and juries, but within the special competence of the Commission.

Therefore, the Commission, not the circuit court, should have ruled upon the issue first.”) As an additional reason to affirm the dismissal of the Plaintiffs’ claims, the

Amended Complaint should also have been dismissed because FDEP has primary jurisdiction over the regulation of Greenhouse Gases.

FDEP regulates the emission of Greenhouse Gases as authorized by state law, through the State’s implementation of the Clean Air Act. The Clean Air Act is based on the principle of cooperative federalism, whereby Congress offers state government the choice between applying federal standards or allowing federal regulations to preempt state standards. See E.P.A. v. EME Homer City Generation,

L.P., 134 S. Ct. 1584, 1616 (2014); Chancellor Media Whiteco Outdoor Corp. v.

Dep’t of Transp., 796 So. 2d 547, 552 (Fla. 1st DCA 2001), as clarified (Oct. 9,

2001) (Benton, J., dissenting). Florida has opted to apply federal standards. The

Florida Legislature has directed DEP to exercise its responsibilities as a state for purposes of the Clean Air Act. § 403.061(36), Fla. Stat. For purposes of the Clean

Air Act, Greenhouse Gases are defined as an “air pollutant.” Massachusetts v.

E.P.A., 549 U.S. 497, 532 (2007) (“Because greenhouse gases fit well within the

Clean Air Act’s capacious definition of ‘air pollutant,’ we hold that EPA has the statutory authority to regulate the emission of such gases from new motor vehicles.”) Florida follows the practice of incorporating federal air regulations as

10 its own rules. See Fla. Admin. Code R 62-204.800(8)(b)88 (incorporating federal regulations on Greenhouse Gases for electric generating units).

Private citizens have the right, through the Florida Administrative Procedure

Act (Florida APA), to litigate the effectiveness of Greenhouse Gas regulation. One common and likely area of dispute arises in the regulation of electrical power plants, a subject matter which is largely delegated to a specialized agency. The

Governor and Cabinet, sitting as the Florida Siting Board, have responsibility for permitting certain categories of power plants. See § 403.502, Fla. Stat. In considering whether to approve, approve with conditions, or deny a power plant site certification license, the Siting Board possesses broad authority under the in evaluating a power plant certification application. § 403.509, Fla. Stat. FDEP serves in a staff function for the Siting Board, and issues federally delegated permits to those power plants. § 403.504(10), Fla. Stat.

Florida’s state agencies can, and do, regulate Greenhouse Gas emissions through a permitting process. The duties of those agencies are part of a legislative framework that the Florida Supreme Court has described as “a detailed and exhaustive regulatory system to address issues which arise in connection with the preservation and protection of the environment.” Flo-Sun, Inc. v. Kirk, 783 So. 2d

1029, 1034 (Fla. 2001) (citing to various chapters of Florida Statutes and the

Florida Administrative Code). Administrative agency decisions are subject to

11 review through the Florida APA. Id. If Plaintiffs wish to advocate for more stringent control requirements on power plants or other permitted facilities on a case-by-case basis, they have an administrative remedy to do so through a petition for administrative hearing under the Florida APA. Likewise, if Plaintiffs wish to petition BOT, DEP or any other agency to pursue some broader policy initiative through rulemaking, they have the right to do so under the Florida APA. See §

120.54(7), Fla. Stat. Any agency decision arising from those administrative proceedings is subject to judicial review. See Flo-Sun, Inc. v. Kirk, 783 So. 2d

1029, 1034 (Fla. 2001); § 120.68, Fla. Stat. Substantially affected parties would retain the right to raise any alleged violations of the Florida Constitution on appeal.

See Key Haven Associated Enterprises, Inc. v. Bd. of Trustees of Internal Imp. Tr.

Fund, 427 So. 2d 153, 157 (Fla. 1982).

Private citizens in Florida can, and have, sought administrative remedies to advocate for more stringent control of Greenhouse Gas emissions. See In re:

Tampa Electric Company, Case No. 18-2124-EPP (Fla. DOAH May 30, 2019)

(Recommended Order), adopted as modified, DEP Case No. 18-0198, (Fla. Siting

Board July 29, 2019) (siting approved; findings reflect substantial decrease of greenhouse gases with approved modernization project); In re Florida Power and

Light Co., Case No. 17-4388-EPP (Fla. DOAH July 20, 2018) (Recommended

Order), adopted as modified, DEP Case No. 17-0922 (Fla. Siting Board December

12

13, 2018) (siting approved; findings reflect substantial reduction of Greenhouse

Gas emissions, consistent with “Best Available Control Technology”). In addition to the legislative process, citizens maintain the right to challenge existing agency rules on the regulation of Greenhouse Gases, or to petition the agency for rulemaking on the subject. §§ 120.536, 120.54(7), Fla. Stat. As with any other dispute related to the regulation of air pollutants, the matter should be initially addressed by the agency with authority to address the issue.

The topic of regulating air pollutants is a matter of special expertise, and one typically delegated to regulatory agencies. Under federal and state law,

Greenhouse Gases are air pollutants. Florida circuit courts do not maintain the resources to regulate air pollutants. In addition to the reasons stated in the order of dismissal, the circuit court’s order should also be affirmed under the doctrine of primary jurisdiction.

13

CONCLUSION

For the reasons set forth herein, the Court should affirm the dismissal of the

Amended Complaint.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION (for all Appellees named in the caption of this brief)

JUSTIN G. WOLFE General Counsel

/s/ Jeffrey Brown JEFFREY BROWN, FBN 843430 KELLEY CORBARI, FBN 103692 3900 Commonwealth Boulevard, MS 35 Tallahassee, Florida 32399-3000 Telephone: (850) 245-2007 Facsimile: (850) 245-2298 [email protected] [email protected] [email protected] [email protected]

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CERTIFICATE OF SERVICE

I HEREBY certify that a true and correct copy of the foregoing has been furnished via electronic mail to the following on this 9th day of November 2020.

GUY M. BURNS, FBN 0160901 F. WALLACE POPE, JR., FBN 401 East Jackson Street, Suite 3100 124449 Tampa, Florida 33602 911 Chestnut Street [email protected] Clearwater, Florida 33756 [email protected] Email: [email protected]

ERIN L. DEADY, FBN 0367310 MITCHELL A. CHESTER, FBN 54 ½ SE 6th Avenue 288136 Delray Beach, FL 33483 150 S. Pine island Road, Ste. 300 [email protected] Plantation, Florida 33324 [email protected] [email protected]

DEB SWIM, FBN 336025 JANE WEST, FBN 159417 1323 Diamond Street 24 Cathedral Place, Ste 504 Tallahassee, FL 32301 St. Augustine, FL 32084 [email protected] [email protected] [email protected]

MATTHEW D. SCHULTZ, FBN ANDREA K. RODGERS, 64032 WSBN 38683 pro hac vice 316 South Baylen Street, Suite 600 3026 NW Esplanade Pensacola, FL 32502 Seattle, WA 98117 [email protected] [email protected]

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KAREN A. BRODEEN, ESQ. NICHOLAS A. PRIMROSE, ESQ. FBN 512771 Deputy General Counsel Senior Assistant Attorney General Executive Office of the Governor Office of the Attorney General 400 South Monroe Street, Suite 209 The Capitol, PL-01 Tallahassee, Florida 32399 Tallahassee, FL 32399-1050 [email protected] [email protected] [email protected]

/s/ Jeffrey Brown JEFFREY BROWN Office of General Counsel

CERTIFICATE OF COMPLIANCE

I HEREBY certify that the foregoing is typed in Times New Roman 14- point font and therefore complies with the font requirements of rule 9.210(2),

Florida Rules of Appellate Procedure.

/s/ Jeffrey Brown JEFFREY BROWN Office of General Counsel

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