Filing # 101726973 E-Filed 01/15/2020 04:34:59 PM
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Filing # 101726973 E-Filed 01/15/2020 04:34:59 PM SECOND JUDICIAL CIRCUIT LEON COUNTY, FLORIDA CIRCUIT COURT DELANEY REYNOLDS, et. al, ) ) Plaintiffs, ) v. ) CASE NO.: 18-CA-000819 ) ) THE STATE OF FLORIDA; RON DESANTIS, in his ) JURY TRIAL REQUESTED official capacity as Governor of the State of Florida; ) et al., ) ) Defendants. ) ) SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ CONSOLIDATED RESPONSE TO DEFENDANTS’ MOTIONS TO DISMISS INTRODUCTION This memorandum of law is filed in accordance with this Court’s Order Authorizing Supplemental Pleading (January 6, 2020), to supplement Plaintiffs’ Consolidated Response to Defendants’ Motions to Dismiss,1 which was filed on March 8, 2019 (“Response”). FACTUAL BACKGROUND Plaintiffs, eight young Floridians, have sought judicial protection of their constitutional substantive due process and common law public trust rights. Plaintiffs have alleged that the Defendants have exceeded the limits of their constitutional authority by collectively creating, controlling, and operating a fossil fuel-based energy system that infringes upon Plaintiffs’ 1 The Defendants have filed three separate Motions to Dismiss. For the Court’s convenience the Plaintiffs filed one Consolidated Response. Plaintiffs use the following abbreviations for the three separate Motions to Dismiss: (1) Governor DeSantis’ Motion to Dismiss: “Gov. Mtn,;” (2) the State of Florida, Florida Department of Agriculture and Consumer Services, Commissioner Nikki Fried, and the Public Service Commission’s Motion to Dismiss: “FDACS Mtn.;” and (3) Florida Department of Environmental Protection and Board of Trustees of the Internal Improvement Trust Fund’s Motion to Dismiss: “FDEP Mtn.” 1 fundamental constitutional rights to life, liberty, property, pursuit of happiness, and access to essential public trust resources.2 Plaintiffs filed the proposed Supplemental First Amended Complaint (“Supplemental Complaint”) on October 16, 2019, which was accepted and deemed filed as the Plaintiffs’ operative pleading by this Court on January 6, 2020, and includes recent factual developments and allegations regarding Defendants Governor Ron DeSantis, the Florida Department of Agriculture and Consumer Services (“FDACS”), FDACS Commissioner Nikki Fried, and the Florida Department of Environmental Protection (“FDEP”) that make it increasingly clear that Defendants have control of and are operating Florida’s energy system in a way that places Plaintiffs at risk of continued and worsening harm. In particular, the recent developments include: • FDEP’s recommendation to certify Tampa Electric Company’s fossil fuel infrastructure project at its Big Bend power plant in Hillsborough County, Florida as being compliant and consistent with FDEP’s standard jurisdiction and as serving the public interest, in spite of the project’s significant emissions of greenhouse gases (“GHG”), which are pollutants that accumulate in the atmosphere and cause dangerous climate change. Suppl. Compl. ¶ 3. • Governor DeSantis,’ vote to certify Tampa Electric Company’s fossil fuel infrastructure project at its Big Bend power plant in Hillsborough County, Florida, which produced the majority needed for the Cabinet to approve the certification. This certification locks in the use of significant amounts of natural gas, and substantial GHG emissions, for decades. • FDACS’ recommendation to the Public Service Commission (“PSC”), in PSC proceedings under the Florida Energy Efficiency and Conservation Act (“FEECA”), that it “give serious 2 The Plaintiffs have also alleged infringement of an unenumerated right to a stable climate system that sustains human life. Response at 5-10. 2 consideration to eliminating the [conservation] goal-setting and program implementation process requirements under FEECA,” even though this program is designed to conserve the use of expensive energy resources, “particularly petroleum fuels.” § 366.81, Fla. Stat. • FDACS Commissioner Fried’s issuance of the Florida Energy and Climate Plan to guide the FDACS Office of Energy “in the years ahead,” which illustrates it is within Defendants’ existing authority to prepare a remedial plan like that requested by Plaintiffs in their Prayer for Relief, but nonetheless perpetuates the continued use of fossil fuels in Florida. See Suppl. Compl. ¶ 149(v)-(y), Ex. A-D. The supplemental allegations confirm Defendants’ pattern and practice of unconstitutional behavior through its perpetuation of a fossil fuel-based energy system, despite Defendants’ knowledge that such a system causes Plaintiffs’ harm. See, e.g., Suppl. Compl. Ex. D at i (recognizing that “[t]he climate science is clear: climate change is accelerating because of human activity – and few places are more vulnerable to its effects than Florida. If our state is unprepared to address this climate crisis, Floridians will pay the price.”). Defendants’ recent conduct also supports Plaintiffs’ legal position that this Court has jurisdiction to hear and decide Plaintiffs’ constitutional due process and public trust claims. Response at 2. DISCUSSION I. PLAINTIFFS’ SUBSTANTIVE DUE PROCESS CLAIMS ARE JUSTICIABLE The Plaintiffs seek to protect their substantive due process rights guaranteed by Article I, §§ 1, 2, and 9 of the Florida Constitution. Suppl. Compl. ¶¶ 151-206; Response at 4-10. The recent actions taken by Defendants FDEP, Governor DeSantis, FDACS, and Commissioner Fried confirm the existence of the fossil fuel-based energy system and the systemic nature of the Defendants’ conduct that Plaintiffs’ allege is perpetual and unconstitutional. See Suppl. Compl. ¶ 3 149(v)-(y). Specifically, Defendant FDEP’s recommendation to certify the Tampa Electric Company’s fossil fuel infrastructure project at its Big Bend power plant in Hillsborough County, Florida, and Defendant Governor DeSantis’ subsequent vote to certify the fossil fuel infrastructure project, are recent examples of acts taken as part of the state’s energy system that result in high levels of GHG emissions and contribute to Plaintiffs’ injuries. See Suppl. Compl. ¶ 149(v), (w); see also Suppl. Compl. ¶ 149 (describing Defendants’ aggregate acts and omissions that make up the state’s fossil fuel energy system and cause Plaintiffs’ harm). This fossil fuel energy project, in conjunction with the other actions described in the Supplemental Complaint, would not operate absent authorization from Defendants. As such, the allegations in the complaint, which explain how this action and other similar acts taken under color of state law deprives Plaintiffs of their constitutional rights by exacerbating climate change and endangering Plaintiffs, are assumed to be true and are sufficient to survive a motion to dismiss. Rankin v. Colman, 476 So.2d 234, 236, 237 (Fla. 5th DCA 1985) (assuming as true allegations in complaint that constitutional injury was a result of policies and procedures implemented by the Defendant and explaining that to allege a constitutional violation under 42 U.S.C. § 1983,3 “the plaintiff must allege only that a person acting under color of state law deprived him of rights protected by the United States Constitution or federal statutes.”); Wilson v. County of Orange, 881 So.2d 625, 629 (Fla. 5th DCA 2004) (same). II. PLAINTIFFS’ PUBLIC TRUST DOCTRINE CLAIMS ARE JUSTICIABLE Florida’s public trust doctrine is a long-standing part of Florida’s common and constitutional law. See Response at 11-22. Defendants’ continued implementation of an energy 3 The statute under which plaintiffs’ constitutional claims were brought in Rankin was 42 U.S.C. § 1983 because they alleged the state law actor violated the U.S. Constitution. Here, Plaintiffs allege state government actors have violated the Florida Constitution, but the analysis in Rankin is relevant because Florida courts consistently apply federal due process case law in state constitutional cases. See, e.g., Dep’t of Law Enforcement v. Real Property, 588 So.2d 957, 962 (Fla. 1991) (citing and relying on federal due process decisions in state constitutional due process case). 4 system that foreseeably and substantially impairs Florida’s public trust resources and serves to obstruct public access to these resources implicates Defendants’ duties under the public trust doctrine. Response at 20; Suppl. Compl. ¶¶ 14, 19, 20, 24, 116, 137, 144, 149 (v)-(y), 166, 168, 170, 171, 184; see also ¶ 74 (“Scientific evidence demonstrates that non-linear sea level rise would submerge much of Florida . unless there are immediate reductions in CO2 and GHG pollution.”); ¶¶ 95-98, 101, 114, 120 (detailing the devastating effects of sea level rise in Florida, including the loss of beaches). Therefore, Plaintiffs have adequately alleged that Defendants have breached their legal duty (partially codified in Article X, Section 11 of the Florida Constitution) “to preserve and control [state trust] lands and the waters thereon and the use of them for the public good.” State ex rel. Ellis v. Gerbing, 47 So. 353, 355 (1908). This Court has the jurisdiction to interpret and enforce this mandatory and existing legal duty. Response at 11-19. The recent actions of Defendants FDEP, Governor DeSantis, FDACS, and Commissioner Fried also demonstrate that Defendants have control over the amount of GHG emissions that arise from the state’s energy system. Whether the Defendants are exercising this control in compliance with common law and constitutional obligations is a question that is appropriate for judicial resolution on the merits. For example, Defendant Commissioner Fried’s