The Florida Bar
www.floridabar.org
The Florida Bar Journal
November, 2011 Volume 85, No. 9
The Florida Attorney General’s Environmental Protection Authority

by Roger B. Handberg

Page 26

Last year, the oil spill in the Gulf of Mexico reminded Floridians, once again, of the impact environmental disasters can have on our state. In Florida, the lead agency in managing and protecting Florida’s environment is the Florida Department of Environmental Protection (DEP).1 Another agency with environmental protection authority is the Florida attorney general’s office. This article will discuss three statutes that authorize the attorney general to pursue litigation that serves to protect Florida’s environment from air and water pollution: 1) the Environmental Protection Act of 1971, 2) the Florida Air and Water Pollution Control Act, and 3) F.S. §60.05 (which provides for the filing of an action to abate a nuisance). This article concludes that, of these three statutes, the 1971 act provides the attorney general with the broadest grant of authority to protect Florida’s environment.

Environmental Protection Act of 1971
Environmental protection has long been a priority for Floridians. Fla. Const. art. II, §7 (1968) provided: “It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provision shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise.”2

In 1998, Florida voters overwhelmingly (by a vote of over 70 percent) amended this provision to add “conservation and protection of natural resources” to the list of items for which the legislature was directed to make adequate provision by law.3 Art. II, §7(a) now reads in full: “It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provision shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise and for the conservation and protection of natural resources.”4

The Florida Legislature enacted the Environmental Protection Act of 1971 for the purpose of effectuating the policies set forth in art. II, §7. The 1971 act authorizes the attorney general to file actions or intervene in certain proceedings to protect the environment in three types of situations. In particular, the attorney general can:

• File an action for injunctive relief to compel a noncompliant governmental entity to enforce applicable environmental standards; 5

• File an action for injunctive relief to stop a person or governmental agency from violating an environmental law, rule, or regulation; 6 or

• Intervene in a proceeding to prevent a person from obtaining a license or permit where that person’s actions would result in pollution of the air, water, or other natural resource of Florida. 7

In effect, the 1971 act adopts by reference almost every environmental law that applies in Florida and empowers the attorney general to seek their enforcement through actions for injunctive relief or participation in the licensing and permitting process.

There are three limitations on injunctive relief actions brought under the 1971 act. First, such an action cannot be maintained if the alleged polluter is operating in compliance with a validly issued permit.8

Second, before an action for injunctive relief can be filed, the attorney general or other complaining party must “first file with the governmental agencies or authorities charged by law with the duty of regulating or prohibiting the act or conduct complained of a verified complaint setting forth the facts upon which the complaint is based and the manner in which the complaining party is affected.”9 The relevant governmental entity is responsible for transmitting a copy of that complaint to whoever is allegedly violating an environmental law, rule, or regulation.10 The agency then has 30 days to “take appropriate action.”11 If no such action is taken within that time, the complaining party may file its action for injunctive relief. Any injunctive action that does not follow this procedure is barred. The one exception is that these procedures may be bypassed if a temporary restraining order is needed to “prevent immediate and irreparable harm from the conduct or activity complained of.”12

Third, any complaining party who loses a suit for injunctive relief under the 1971 act is subject to paying the prevailing party’s costs and attorneys’ fees.13

Cases Interpreting the 1971 Act
There are no reported appellate cases involving the attorney general filing an action or intervening in a proceeding pursuant to the Environmental Protection Act of 1971. The 1971 act, however, also permits “a political subdivision or municipality of the state, or a citizen of the state” to file such suits.14 All but one of the 15 reported appellate cases regarding the 1971 act were brought by Florida citizens or non-profit environmental organizations. The one case brought by a political subdivision involved an action by Lee County to enjoin temporarily the South Florida Water Management District (SFWMD) from implementing an emergency plan to discharge fresh water from Lake Okeechobee into the Caloosahatchee River.15 Lee County lost at the circuit court, which was affirmed on appeal. In reaching that result, the district court of appeal found that it was “impossible to characterize SFWMD’s plan to save Lake Okeechobee by temporarily discharging fresh water into the river at a rate slightly exceeding the 28-year daily mean as patently illegal or so palpably abusive of its authority to be commensurate with illegality.”16 The appellate court also upheld the circuit court’s ruling that a likelihood of irreparable harm had not been shown.17

Of the other 14 reported cases, 11 of them were decided prior to 2002, which is when amendments were made to the 1971 act regarding the requirements that apply to citizens seeking to intervene in administrative and licensing proceedings. Prior to the 2002 amendments, Florida appellate courts upheld the ability of citizens or nonprofit environmental organizations to bring a suit or intervene in a permitting proceeding pursuant to the 1971 act in the following situations:

• Injunction sought against alleged pollution of river by use, maintenance, and operation of spillway.18

• Application for permit to dredge and fill storm management system for a residential development.19

• Application for water discharge permit for a phosphate mine.20

• Suit alleging collusive actions by developer and governmental agencies designed to avoid extensive public review of developmental plant changes.21

• Action against utilities that allegedly were polluting the water and the county governmental entity that failed to take action to stop the pollution.22

• Suit against the Board of Commissioners of Orange County.23

By contrast, Florida appellate courts concluded that citizens or nonprofit environmental organizations did not have the right to bring actions or intervene in permit proceedings in the following pre-2002 cases:

• Informal licensing proceedings between Department of Environmental Regulation and operator of phosphoric chemical plant regarding plant’s proposed modifications to plant.24

• Challenge to inclusion of parcel of land in environmentally endangered purchase list.25

• Failure to allege compliance with conditions precedent.26

Most of the pre-2002 decisions did not address the merits of whether an environmental law or regulation was being or would be violated. Instead, they were focused on technical legal issues, such as whether a corporation was a “citizen” who could bring a suit (yes)27 or whether a citizen needed to show some “special injury” to be able to maintain their suit (no).28 In 2002, the 1971 act was amended to provide that a citizen may only initiate an administrative or licensing proceeding if they have “substantial interests” that will be affected, which requires a demonstration “that the proposed activity, conduct, or product to be licensed or permitted affects the petitioner’s use or enjoyment of air, water, or natural resources protected by this chapter.”29 Absent such a demonstration, a citizen is limited to intervening in an ongoing proceeding.30 By contrast, non-profit Florida corporations with at least 25 members in the county where the activity is proposed and which were formed for the purpose of protection of the environment or wildlife resources have “automatic standing to initiate proceedings” without having to show a substantial interest.31

Environmental Laws That Can Be Enforced Pursuant to the 1971 Act
The Florida Statutes and Florida Administrative Code set forth hundreds of environmental standards that the attorney general may seek to enforce pursuant to the Environmental Protection Act of 1971. Rather than attempt to address all of those standards, this article will only focus on two portions of Florida Statutes that seek to protect air and water quality: the Florida Air and Water Pollution Control Act and the Florida Safe Drinking Water Act.

In 1967, the legislature enacted the Florida Air and Water Pollution Control Act.32 According to the legislative declaration, “[t]he pollution of the air and waters of this state constitutes a menace to public health and welfare; creates public nuisances; is harmful to wildlife and fish and other aquatic life; and impairs domestic, agricultural, industrial, recreational, and other beneficial uses of air and water.”33 For that reason, the legislature expressed that “the prevention, abatement, and control of the pollution of the air and waters of this state are affected with a public interest. . . .”34

With respect to air pollution, the Pollution Control Act declares that the public policy of Florida is to “achieve and maintain such levels of air quality as will protect human health and safety and, to the greatest degree practicable, prevent injury to plant and animal life and property, foster the comfort and convenience of the people, promote the economic and social development of this state, and facilitate the enjoyment of the natural attractions of this state.”35 As for water pollution, the act provides that Florida’s public policy is to

conserve the waters of the state and to protect, maintain, and improve the quality thereof for public water supplies, for the propagation of wildlife and fish and other aquatic life, and for domestic, agricultural, industrial, recreational, and other beneficial uses and to provide that no wastes be discharged into any waters of the state without first being given the treatment necessary to protect the beneficial uses of such water.36

Under the Pollution Control Act, the DEP is given the “power and the duty to control and prohibit pollution of air and water. . . .”37 Among other things, the DEP is permitted to adopt rules and establish ambient air quality and water quality standards for the entire state.38

The rules that have been promulgated about air quality pursuant to the Pollution Control Act are contained in several different chapters of the Florida Administrative Code. For instance, Ch. 62-204 establishes “maximum allowable levels of pollutants in the ambient air, or ambient air quality standards, necessary to protect human health and public welfare” and “maximum allowable increases in ambient concentrations for subject pollutants to prevent significant deterioration of air quality in areas where ambient air quality standards are being met.”39 More specifically, Rule 62-204.240 sets forth the ambient air quality standards for sulfur dioxide, PM10 (particulate matter), carbon monoxide, ozone, nitrogen dioxide, and lead.40 Rule 62-204.220 mandates that the DEP may not issue an air permit to anyone who is seeking to build a new emissions unit, modify an existing emissions unit, or take any action that “would result in the release of an air pollutant into the atmosphere which would cause or contribute to a violation of an ambient air quality standard established under Rule 62-204.240, F.A.C.”41

For particulate matter, sulfur dioxide, and nitrogen dioxide, the DEP, pursuant to authority granted to it by the Pollution Control Act, has designated all areas of the state as prevention of significant deterioration (PSD) areas.42 Except for certain national parks and wilderness areas, the areas of the state are designated as Class II PSD areas.43 The DEP has adopted rules that set limits on the allowable increases in the concentrations of particulate matter, sulfur dioxide, and nitrogen dioxide in Class II PSD areas.44

The Pollution Control Act has also authorized the DEP, in setting air quality standards for Florida, to adopt regulations that have been promulgated by the federal government. In particular, Rule 62-204.800 adopts and incorporates by reference federal regulations regarding 26 subject areas: national primary and secondary air quality standards; preparation, adoption, and submittal of implementation plans; approval and promulgation of implementation plans; ambient air monitoring reference and monitoring methods; outer continental shelf air regulations; ambient air quality surveillance; national volatile organic compound emission standards for consumer and commercial products; standards of performance for new stationary sources; emission guidelines and compliance times; national emission standards for hazardous air pollutants; national emission standards for hazardous air pollutants for source categories; compliance assurance monitoring; consolidated federal air rule; state operating permit programs; permits regulation; sulfur dioxide allowance system; sulfur dioxide opt-ins; continuous emission monitoring; acid rain nitrogen oxides emission reduction program; excess emissions; appeal procedures for acid rain program; designation of areas for air quality planning purposes; protection of stratospheric ozone; control of emissions from new and in-use nonroad compression ignition engines; determining conformity of federal actions to state or federal implementation plans; and NOx (nitrogen oxides) budget trading program and CAIR (Clean Air Interstate Rule) NOx and SO2 (sulfur dioxide) trading programs for state implementation plans.45

The DEP has also used its authority under the Pollution Control Act to promulgate regulations regarding water quality. Those regulations cover everything from setting the levels of phosphorus in the Everglades Protection Area to providing minimum standards for the design and operational criteria of domestic wastewater facilities and minimum treatment requirements for domestic wastewater facilities.46

Additional water quality standards are established by the Florida Safe Drinking Water Act. Based on the federal Safe Drinking Water Act that was passed in 1974,47 the Florida act is intended to give effect to the federal act in Florida and to “provide for safe drinking water at all times throughout the state, with due regard for economic factors and efficiency in government.”48 To achieve these goals, the Florida act directs the DEP to adopt and enforce state primary drinking water regulations that are no less stringent than federal standards and secondary drinking water regulations that are patterned after federal standards.49 Pursuant to this directive, the DEP has promulgated drinking water standards that are set forth in the Florida Administrative Code, including rules that adopt federal rules and regulate the water produced by public water systems; set construction, operation, and maintenance standards for public water systems; and adopt federal rules on the actions a water system must take when it is not in compliance with the established standards.50

In sum, the DEP has used its authority pursuant to the Pollution Control Act and Safe Drinking Water Act to establish air and quality standards for Florida. Those environmental standards are just some of the many that may be enforced by the attorney general by use of the 1971 act.

Florida Air and Water Pollution Control Act
Under the Pollution Control Act, the DEP has broad authority to protect the environment from pollution. In addition to the ability to adopt regulations, as was discussed above, the DEP may conduct inspections to ensure compliance with state standards.51 If violations are found, the DEP may pursue judicial and administrative actions to recover damages for any injury to the environment, impose civil penalties, or seek corrective action.52 In each of these situations, the Florida attorney general’s office is responsible for “represent[ing] the state and its agencies as legal adviser in carrying out the provisions of the act.”53 In this role as “legal adviser” to the DEP, the attorney general is able to offer advice and influence policy on the most important issues of the day relating to air and water pollution.

There are two limitations on the attorney general’s role as “legal adviser.” First, the act appears to leave it to the DEP to decide whether to file a suit or administrative action. The attorney general is directed to represent the state in any such suits, but the attorney general does not appear to have been provided with any independent authority to pursue such suits or actions without the consent of the DEP.54

Second, the attorney general’s role as “legal adviser” is limited to the Pollution Control Act. Although this statement is commonsensical, the structure of Part I of Ch. 403 may mislead one into believing that the attorney general serves as the legal adviser with respect to all of the provisions set forth in that portion of the Florida Statutes. The Pollution Control Act, however, is not the only act that is included in Part I of F.S. Ch. 403. Since the act was passed in 1967, other pieces of legislation have been added to Part I. As a result, the Pollution Control Act is no longer a self-contained act. Instead, other acts are interspersed between the various provisions of the act.55 Because the attorney general’s representation of the state is limited to “carrying out the provisions of the act,” the attorney general’s office arguably should limit its involvement to enforcing the Pollution Control Act as opposed to the other acts and statutes that may also be contained in Part I of F.S. Ch. 403.56

F.S. §60.05, Abatement of Nuisances
Prior to the enactment of the 1971 act and the Pollution Act Control, the attorney general’s authority to protect the environment was largely limited to filing suits to enjoin nuisances. In 1917, the legislature enacted a statute that allowed the attorney general and others to file actions to enjoin certain categories of nuisances. The current version of that law, which is codified at F.S. §60.05, provides:

When any nuisance as defined in §823.05 exists, the Attorney General, state attorney, city attorney, county attorney, or any citizen of the county may sue in the name of the state on his or her relation to enjoin the nuisance, the person or persons maintaining it, and the owner or agent of the building or ground on which the nuisance exists.57

F.S. §823.05 defines such a nuisance as follows:

Whoever shall erect, establish, continue, or maintain, own or lease any building, booth, tent or place which tends to annoy the community or injure the health of the community, or become manifestly injurious to the morals and manners of the people as described in s. 823.01, ... shall be deemed guilty of maintaining a nuisance, and the building, erection, place, tent or booth and the furniture, fixtures and contents are declared a nuisance.58

If such a nuisance exists, the attorney general may obtain a temporary injunction without bond.59 The attorney general may also seek a permanent injunction and an order requiring the person who established or maintained the nuisance to pay costs.60 At the same time, however, a court may award attorneys’ fees and costs against the state if it is found that there was no reasonable ground for the action.61

There is one reported appellate case in which the attorney general sought to enjoin air pollution pursuant to F.S. §60.05. In State v. Tampa Elec. Co., 291 So. 2d 45 (Fla. 2d DCA 1974), the attorney general sought injunctive relief against a utility that allegedly was discharging sulfur dioxide, sulfur trioxide, and other chemicals into the air. The attorney general’s suit asserted that such contaminated air resulted in the substantial impairment of the health and well-being of the public.62 The trial court, however, dismissed the attorney general’s action on the ground that the “primary jurisdiction” of the case should be with the DEP under the Pollution Control Act.63

On appeal, the district court of appeal reversed. In so doing, the court acknowledged that the doctrine of primary jurisdiction is recognized in Florida.64 The court explained that the doctrine

applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.65

Nevertheless, the district court of appeal concluded that the doctrine should not be applied to a case involving an alleged public nuisance, because courts have historically handled these types of cases.66 In addition, the district court of appeal noted that nuisance cases do not necessarily rely on technical issues, because “a given activity can constitute a judicially abatable nuisance notwithstanding full compliance with either legislative mandate or administrative rule.”67 Accordingly, the district court of appeal held that the attorney general’s suit was improperly dismissed by the trial court.

A subsequent Florida Supreme Court decision casts doubt on the decision in Tampa Elec. Co. In Flo-Sun, Inc. v. Kirk, 783 So. 2d 1029 (Fla. 2001), former Gov. Claude Kirk and residents of Palm Beach County filed suit against companies in the sugar cane business on the ground that those companies had maintained a public nuisance by harvesting and processing sugar cane in a manner that annoyed the community and injured the health of the community.68 The Supreme Court was presented with the following two issues: 1) Did the enactment of the Florida Air and Pollution Control Act impliedly repeal the statute that permits certain people to file suits to enjoin public nuisances; and 2) was such an action for injunctive relief subject to the doctrine of primary jurisdiction?69

With respect to the first issue, the Supreme Court concluded that the Pollution Control Act did not repeal the statute that is used to enjoin public nuisances.70 Indeed, the Supreme Court agreed with the lower court that “a cause of action for public nuisance relating to air and water pollution still remains a viable option.”71

As for the second issue, the Supreme Court concluded that the doctrine of primary jurisdiction does apply to actions to abate public nuisances. The Supreme Court explained that a claim to enjoin pollution as a public nuisance is still available, but that the trial court should first refer any such case to the agency with the experience and expertise to address the environmental issues presented.72 The Supreme Court distinguished Tampa Elec. Co. on the ground that it was decided prior to the enactment of the modern Administrative Procedures Act, which

subjects every agency action to immediate or potential scrutiny; which assures notice and opportunity to be heard on virtually every important question before an agency; which provides independent hearing officers as fact finders in the formulation of particularly sensitive administrative decisions; which requires written findings and conclusions on impact issues; which assures prompt administrative action; and which provides judicial review of final, even of interlocutory, orders affecting a party’s interest. 73

In short, the attorney general has the authority to bring an action under F.S. §60.05 to enjoin a nuisance that is polluting the environment. Nevertheless, that option may have little practical value, given the likelihood that the case would probably be referred by the court to the DEP.

Interaction Between the Three Statutes
Of the three statutory bases for the attorney general’s authority to protect the environment, the Environmental Protection Act of 1971 provides the attorney general with the broadest grant of authority. The 1971 act permits the attorney general to file suit to enforce “any law[], rule[], or regulation[].”74 As noted above, there are hundreds of such standards that have been established by DEP regulation. In addition, local governmental entities have adopted environmental regulations, and the 1971 act allows the attorney general to enforce those standards as well. In effect, the 1971 act adopts by reference almost every environmental law that applies in Florida and empowers the attorney general to seek their enforcement.

For the most part, the other two statutory bases of the attorney general’s authority are more limited. With respect to the Florida Air and Water Pollution Control Act, the attorney general does not appear to have any independent authority to file suit. Instead, the attorney general’s role appears to be limited to advising the DEP and representing the state once the decision to file an action has been made.

As for actions brought under F.S. §60.05, that statute is probably of limited practical value because of the likelihood that any such suit would be subject to the doctrine of primary jurisdiction. Nevertheless, there is one situation when a F.S. §60.05 action might be the attorney general’s only option. As identified by the court in Tampa Elec. Co., that one situation arises when a given activity constitutes a nuisance, but does not violate any applicable environmental statute or regulation.75

In sum, with two exceptions, the Environmental Protection Act of 1971 provides the broadest authority for the attorney general to act. The first exception relates to the additional remedies (i.e., damages and civil penalties) that are available under the Pollution Control Act. The second exception involves those situations where a given activity constitutes a nuisance, but does not violate any applicable environmental statute or regulation.

Conclusion
The protection of Florida’s environment is of critical importance. Although much of the responsibility for protecting Florida’s environment is vested with the DEP, the Florida attorney general has also been authorized to pursue litigation that serves to protect Florida’s environment from air and water pollution.


1 This characterization of the DEP’s role is from its website, http://www.dep.state.fl.us.

2 Fla. Const. art. II, §7 (1968).

3 Fla. Const. art. II, §7 commentary (William A. Buzzett and Deborah K. Kearney commentary to 1996 and 1998 amendments). A summary of the results of 1998 election can be found on the Department of State’s website.

4 Fla. Const. art. II, §7(a) (1998).

5 Fla. Stat. §403.412(2)(a)1 (2011) (“[T]he Department of Legal Affairs ... may maintain an action for injunctive relief against ... [a]ny governmental agency or authority charged by law with the duty of enforcing laws, rules, and regulations for the protection of the air, water, and other natural resources of the state to compel such governmental authority to enforce such laws, rules, and regulations[.]”).

6 Fla. Stat. §403.412(2)(a)2 (“[T]he Department of Legal Affairs ... may maintain an action for injunctive relief against ... [a]ny person, natural or corporate, or governmental agency or authority to enjoin such persons, agencies, or authorities from violating any laws, rules, or regulations for the protection of the air, water, and other natural resources of the state.”).

7 Fla. Stat. §403.412(5) (“In any administrative, licensing, or other proceeding[] authorized by law for the protection of the air, water, or other natural resources of the state from pollution, impairment, or destruction, the Department of Legal Affairs ... shall have standing to intervene as a party on the filing of a verified pleading asserting that the activity, conduct, or product to be licensed or permitted has or will have the effect of impairing, polluting, or otherwise injuring the air, water, or other natural resources of the state.”).

8 Fla. Stat. §403.412(2)(e) (“No action pursuant to this section may be maintained if the person (natural or corporate) or governmental agency or authority charged with pollution, impairment, or destruction of the air, water, or other natural resource of the state is acting or conducting operations pursuant to a currently valid permit or certificate covering such operations, issued by the appropriate governmental authorities or agencies, and is complying with the requirements of said permits or certificates.”); see also Att’y Gen. Op. Fla. 72-412 (1972) (noting that Fla. Stat. §403.412 “provides that no such action may be maintained against a person operating under a currently valid permit”).

9 Fla. Stat. §403.412(2)(c).

10 Id.

11 Id.

12 Id.; see also Furnans v. Santa Rosa Island Auth., 315 So. 2d 481,482 (Fla. 1st D.C.A. 1975) (“Plaintiffs failed to allege compliance with the three conditions precedent, therefore, the trial court properly dismissed the complaints.”).

13 Fla. Stat. §403.412(2)(f).

14 Fla. Stat. §403.412(2)(a).

15 Lee Cnty. v. South Fla. Water Mgmt. Dist., 805 So. 2d 893 (Fla. 2d D.C.A. 2001).

16 Id. at 897.

17 Id. at 897-98.

18 Florida Wildlife Fed’n v. State, Dep’t of Env’t Regulation, 390 So. 2d 64 (Fla. 1980).

19 Cape Cave Corp. v. State Dep’t of Env’t Regulation, 498 So. 2d 1309 (Fla. 1st D.C.A. 1986).

20 Booker Creek Pres., Inc. v. Mobil Chem. Co., 481 So. 2d 10 (Fla. 1st D.C.A. 1985).

21 Friends of Everglades, Inc. v. Board of Cnty. Comm’rs of Monroe Cnty., 456 So. 2d 904 (Fla. 1st D.C.A. 1984).

22 Save Our Bay, Inc. v. Hillsborough Cnty. Pollution Control Comm’n, 285 So. 2d 447 (Fla. 2d D.C.A. 1973).

23 Orange Cnty. Audubon Soc’y, Inc. v. Hold, 276 So. 2d 542 (Fla. 4th D.C.A. 1973).

24 Manasota-88, Inc. v. Department of Env’t Regulation, 441 So. 2d 1109 (Fla. 1st D.C.A. 1983).

25 Greene v. State, Dep’t of Natural Res., 414 So. 2d 251 (Fla. 1st D.C.A. 1982).

26 Furnans v. Santa Rosa Island Auth., 315 So. 2d 481 (Fla. 1st D.C.A. 1975). The other three pre-2002 reported cases regarding the 1971 act were focused on unrelated issues. Shaw v. Schlusemeyer, 683 So. 2d 1187, 1188 (Fla. 5th D.C.A. 1996) (concluding that attorneys’ fees should not have been awarded where complaint was dismissed without prejudice for a “technical defect”); Town of Surfside v. County Line Land Line Co., 340 So. 2d 1287, 1289 (Fla. 3d D.C.A. 1977) (holding that doctrine of exhaustion of administrative remedies did not apply because the suit was based on the plaintiff’s common law right to abate a nuisance and not on the 1971 act); Wetzel v. A. Duda and Sons, 306 So. 2d 533, 534 (Fla. 4th D.C.A. 1975 (same as Surfside).

27 See, e.g., Florida Wildlife Fed’n, 390 So. 2d at 68.

28 Id. at 67.


29 Fla. Stat. §403.412(5).

30 Id.

31 See Environmental Confederation of Sw. Fla., Inc. v. State, Dep’t of Envtl. Prot., 886 So. 2d 1013, 1016 n. 2 (Fla. 1st D.C.A. 2004); see generally Fla. Stat. §403.412(6).

32 Ch. 67-436, Laws of Florida.

33 Fla. Stat. §403.021(1) (2011).

34 Fla. Stat. §403.021(5).

35 Fla. Stat. §403.021(3).

36 Fla. Stat. §403.021(2).

37 Fla. Stat. §403.061.

38 Fla. Stat. §§403.061(7) and (11).

39 F.A.C. Rule 62-204.100(1) (2011).

40 F.A.C. Rule 62-204.240. The rules further provide that “all areas of the state shall be designated as attainment, nonattainment, or unclassifiable with respect to each air pollutant for which an ambient air quality standard is established under Rule 62-204.204, F.A.C.” and that “[t]he designation of each such area determines which emission limiting standards, new and modified facility review requirements, and other air pollution control measures shall apply to sources and activities which emit the pollutant or the precursor of the pollutant for which the area is designated.” F.A.C. Rule 62-204.320(1)(a). As currently drafted, no area of the state is classified as a nonattainment area for any of the ambient air quality standards. F.A.C. Rule 62-204.340(2). Some areas, however, are designated as “unclassifiable” for certain pollutants. F.A.C. Rule 62-204.340(3).

41 F.A.C. Rule 62-204.220(1).

42 F.A.C. Rule 62-204.360(1)-(3).

43 F.A.C. Rule 62-204.360(4).

44 F.A.C. Rule 62-204.260(2).

45 F.A.C. Rule 62-204.800(1)-(27).

46 F.A.C. Rule 62.302-540 and 62-600 et seq.

47 Safe Drinking Water Act, Pub. L. No. 93-523.

48 Fla. Stat. §§403.851(1) and (3) (2011).

49 Fla. Stat. §403.853(1)(a).

50 F.A.C. Ch. 62-550, 62-555, and 62-560.

51 Fla. Stat. §403.091 (1).

52 Fla. Stat. §§403.121(1) and (2).

53 Fla. Stat. §403.231 (2011); see also State v. General Dev. Corp., 448 So. 2d 1074, 1081 (Fla. 2d D.C.A. 1984) (noting that “section 403.231, Florida Statutes (1981), specifically states that ‘[t]he Department of Legal Affairs shall represent the state and its agencies as legal adviser in carrying out the provisions of the act’”), aff’d, 469 So. 2d 1381 (Fla. 1985); Op. Att’y Gen. Fla. 72-239 (1972) (“The Department of Legal Affairs is named, at §403.231, F.S., as the department’s legal representative.”).

54 See General Dev. Corp., 448 So. 2d at 1082 (“Simply put, section 403.161 sets forth the violations; section 403.141 creates the civil liability in favor of the state; and section 403.121 empowers DEP alone to sue for civil damages and penalties.”). In Flo-Sun. Inc. v. Kirk, 783 So. 2d 1029, 1035 (Fla. 2001), the Florida Supreme Court discussed General Dev. Corp. and noted that the state attorney in that case did not have standing to file suit for civil penalties where he “had independently initiated the action (i.e., not at the direction of the governor, attorney general, or the Department of Environmental Regulation).” Although this statement may suggest that the attorney general may have some independent authority to initiate an action under the Pollution Control Act, that issue was not presented in that case, and the Supreme Court’s statement appears to be limited to a recitation of the facts of that case.

55 The Pollution Control Act is codified in Fla. Stat. §§403.031, 403.051, 403.061, 403.081, 403.091, 403.111, 403.121, 403.131, 403.141, 403.151, 403.161, 403.201, 403.231, and 403.251.

56 Although the attorney general may not be the “legal adviser” for the other acts contained in Part I of Ch. 403, the attorney general still has the authority to enforce those statutes by use of the 1971 act or by filing an action to abate a nuisance pursuant to Fla. Stat. §60.05.

57 Fla.Stat. §60.05(1) (2011).

58 Fla.Stat. §823.05 (2011).

59 Fla.Stat. §60.05(2).

60 Fla.Stat. §60.05(4).

61 Fla.Stat. §60.05(5).

62 Tampa Elec. Co., 291 So. 2d at 46.

63 Id.

64 Id.

65 Id. (quoting Northeast Airlines, Inc. v. Weiss, 113 So. 2d 884 (Fla. 3d D.C.A. 1959)).

66 Id. at 47.

67 Id. at 48.

68 Flo-Sun, 783 So. 2d at 1032.

69 Id. at 1034.

70 Id. at 1036.

71 Id.

72 Id. at 1036-41.

73 Id. at 1040 (quoting State ex. rel. Dep’t Gen. Servs. v. Willis, 344 So. 2d 580, 590 (Fla. 1st D.C.A. 1977)).

74 Fla. Stat. §403.412(2).

75 See also Flo-Sun, 783 So. 2d at 1036 (acknowledging that “something may legally constitute a public nuisance under chapter 823 although it may technically comply with existing pollution laws codified in chapter 403”).


Roger B. Handberg is an assistant United States attorney with the Orlando office of the United States attorney’s office. The views expressed in this article are solely his own and do not reflect any position, policy, or opinion of the United States attorney’s office or the United States Department of Justice.

[Revised: 02-10-2012]