Update on the Legal and Planning Issues of Climate Change Facing Florida by Erin L

Vol. XXXVIII, No. 4 THE REPORTER July 2018 THE ENVIRONMENTAL AND LAND USE LAW SECTION David J. Bass, Chair • Jacob T. Cremer, Editor • Nikki T. Williams, Co-Editor www.eluls.org Update on the Legal and Planning Issues of Climate Change Facing Florida by Erin L. Deady Without tracing a complete history efficiency and emissions.3 Another guides and compilations of resources back to approximately 2006, the State piece of legislation addressed issues for local governments that want to of Florida has had a relationship such as green building, efficient land start addressing SLR in their policy with climate change, sea level rise use patterns, energy conservation, framework.7 Most recently, the Flor- (“SLR”), and greenhouse gas (“GHG”) GHG emissions in planning, and ida Department of Environmental management longer than most might prompted the Florida Building Com- Protection has formed the Florida Re- think. For this overview, the focus is mission to make recommendations silient Coastlines initiative, awarding on recent advancements in state law on energy efficiency, among other an initial wave of grant funding to and local strategies utilized across provisions.4 local governments for coastal adapta- the state. Local governments contin- Within the current state adminis- tion and resiliency planning. In ad- ue to be on the frontlines of navigat- tration, agencies are still working on dition, the Department will continue ing these concepts. One thing is clear, climate change related issues. This its Coastal Partnership Initiative the law surrounding climate change, administration has focused more on grant program, which funds some flooding, and adapting to changing technical assistance to local govern- resiliency projects implemented by future environmental conditions are ments and emergency management local governments.8 principles that are not going away, planning, with additional support a. Another Drop in the Bucket: but evolving and growing in scope activities. The Florida Fish and Wild- Coastal Resiliency Planning and depth, quite literally. life Conservation Commission is con- I. Climate Change Law in the ducting a significant amount of data Many local governments are incor- State of Florida and Local collection and monitoring of changing porating climate adaptation strate- Government Action conditions impacting Florida spe- gies into their Comprehensive Plans. Florida was an early adopter of cli- cies’ and their habitats.5 The Florida One main strategy is establishing mate change policy when then-Gov- Department of Health has continued “Adaptation Action Areas”- an op- ernor Jeb Bush signed into law the work on the relationship between tion for local governments to address Renewable Energy Technologies and health and climate change, one ex- SLR adaption as part of their Coastal 1 Energy Efficiency Act in 2006. A ample being the Building Resilience See “Climate Change” page 12 major component of the Act was an Against Climate Effects (“BRACE”) advisory board for state energy poli- initiative, which includes partner- cies. In its 2007 report, the Florida ships with institutions such as Flor- INSIDE: Public Service Commission detailed ida State University. The Florida steps and a schedule for the develop- Department of Economic Opportu- From the 17-18 Chair ............................. 2 2 nity (“DEO”), through both its own ment of a state climate action plan. On Appeal ............................................... 3 The report recommended setting statutory mission and funding from targets to reduce GHGs, developing the federal government, has been June 2018 ELULS Case Law Update ..... 4 an inventory of GHGs, and putting doing extensive work on SLR, in- So You Want To Be An Expert Witness? .. 7 the state in a position to lead by ex- cluding pilot planning efforts in sev- 6 The Benefits of Teaching Environmental ample through education and unifica- eral communities. Additionally, the Law and Policy to Engineers and tion of Florida’s energy governance. DEO has sought to provide techni- Science Majors .................................... 9 State-level activity on climate change cal assistance for local governments continued throughout the Crist ad- (through review and comment) on Working to Protect the Nation’s Waters: ministration. One bill created a cap Stetson’s Institute for Biodiversity Law compliance with legislation passed and Policy Files Amicus Curiae Brief and trade program for utilities, set in 2015 related to addressing “peril of in Opposition to Suspension of Clean up a renewable portfolio standard flood” issues in Comprehensive Plans. Water Rule ......................................... 10 for energy, and addressed automobile The DEO has also created numerous From the 17-18 Chair by Janet E. Bowman, Immediate Past Chair The Section Annual meeting and clients in administra- ELULS 2018 Update Seminar was tive and quasi-judicial held June 14th and 15th as part of the proceedings. While the Florida Bar Convention at the Hilton ELULS ultimately did Orlando Bonnet Creek. Events in- not adopt a formal leg- cluded the ELULS Executive Council islative position, the meeting and Joint Reception with the Executive Council be- Administrative Section on June 14th lieved it important to and the ELULS Update and Annual monitor the trajectory Luncheon on June 15th. At the An- of this amendment. I nual Luncheon, new officers for the would like to particu- upcoming year were installed includ- larly thank our Board ing David Bass as Chair. The Annual of Governor’s represen- Update program included participa- tative, Larry Sellers, tion by several administrative law for his guidance and judges and a member of the Florida advice in navigating House, administrative law, procedure the Florida Bar’s pro- and ethics, an environmental legisla- cess for Section en- tive panel and the popular General gagement in adopting Counsel panel discussion of hot topics legislative positions. from the water management districts, Thanks everyone for and state agencies. your participation in CURRENT CHAIR DAVID BASS DISCUSSING HIS During this Spring, members of the ELULS this year! EXCITEMENT FOR THE UPCOMING YEAR the Executive Council engaged with other sections and bar leadership in monitoring the development of language by the Constitutional Revision Commission that restricts the abil- ity of former cabinet and executive agency heads, and local government officials to lobby certain entities on issues of policy, appropriations, or pro- curement for 6 years following public service. Through the expression of concerns by interested section members and others, language was read into the record of the Constitution Revision Commission distinguishing IMMEDIATE PAST CHAIR JANET BOWMAN PRESENTING THE STEPHENS/ between “lobbying” and representing REGISTER AWARD TO EXECUTIVE COUNCIL MEMBER JOAN MATTHEWS This newsletter is prepared and published by the Environmental and Land Use Law Section of The Florida Bar. David J. Bass, Orlando .................................................Chair Jonathan Harrison Maurer, Tallahassee ............................... Chair-elect Rachael Santana, West Palm Beach ....................................Secretary Susan Roeder Martin, West Palm Beach. .Treasurer Janet E. Bowman, Tallahassee ..............................Immediate Past Chair Jacob T. Cremer, Tampa ...............................................Editor Nikki T. Williams, Orlando. Co-Editor Clay Shaw, Tallahassee . Production Artist Cheri Wright, Tallahassee ..................................Section Administrator Statements or expressions of opinion or comments appearing herein are those of the contributors and not of The Florida Bar or the Section. 2 ON APPEAL by Larry Sellers, Holland & Knight Note: Status of cases is as of June FIRST DISTRICT COURT OF Mandamus Against Plaintiff South 1, 2018. Readers are encouraged to APPEAL Florida Water Management District advise the author of pending appeals Paul Still v. SJRWMD, Case No. and Entering Final Judgment on De- that should be included. 1D17-1938; Paul Still v. SRWMD, fendant Everglades Law Center’s FLORIDA SUPREME COURT Case No. 1D17-1940; Ichetucknee Al- Counterclaim. The Everglades Law Lieupo v. Simon’s Trucking, Inc., liance, Inc., v. SJRWMD, Case No. Center sought to require disclosure of Case No. SC18-657. Petition for re- 1D17-2273; and Ichetucknee Alliance, the transcripts of a “shade” meeting view of decision by the First District Inc. v. SRWMD Case No. 1D17-2275. held by the South Florida Water Man- Court of Appeal in which the court Four appeals from final orders dis- agement District Governing Board certified the following question as one missing separate petitions filed by involving discussions regarding me- of great public importance: “Does the appellants to challenge the St. John’s diation between the district and its private cause of action contained in s. River Water Management District’s Governing Board in attorney-client 376.313(3), Florida Statutes, permit orders approving the regional water sessions. The order concludes that the recovery for personal injury?” Si- supply plan. Status: Each final order transcripts of such discussions consti- mon’s Trucking, Inc., v. Lieupo, Case was affirmed per curiam on April 23, tutes communications at a mediation No. 1D17-2065 (Fla. 1st DCA, April 2018. proceeding within the meaning of 18, 2018). Status: Notice filed April THIRD DISTRICT COURT OF Section 44.102(3), Florida Statutes, 30, 2018. APPEAL and therefore is exempt from disclo- The Richman Group

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