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It seems that lots of people in our area want to know why our water laws are not being enforced, as it was a packed room Monday night, July 25, 2016, when Heather Culp and Traci Deen, lawyers both, discussed this topic in detail. Heather Culp is Associate Director of the Howard T. Odum Florida Springs Institute, and works actively with several important environmental groups. Traci Deen is the Director of the Center for Earth Jurisprudence (CEJ) at Barry University School of Law and focuses on law and policy change, legislative analysis, education, and community outreach to lawyers, students, policymakers and the Central Florida community.
Heather Culp outlined the many federal and state laws and statutes with their intent, including special designations such as “impaired” and “in recovery.” Two problems are encountered regarding these protections: one, the environmental structure is re-active rather than pro-active (defensive instead of offensive), and two, authorities, mainly for political reasons, do not enforce the laws. Under our current environmentally hostile political (non)leadership in Florida, water district management and judges of the Department of Administrative Hearings are appointed by our governor, who in spite of garnering an environmental award, places the environment among the lowest of priorities.
Traci Deen spoke of changes we must make to accomplish better legal protection of nature. Other than the obvious of voting for leaders that will fight for nature locally, in Tallahassee, and D.C., we must recognize that our laws are not designed to protect in the way we may traditionally believe and advocate for change. We must have a more balanced and sustainable relationship with nature. Currently, our laws are reactive rather than proactive, and prioritize short term economic gains over the long term health of the environment. We are dependent on a healthy ecosystem for air, water and food, but fail to fully reconcile that in our legal structures. Currently we are dominating, destroying and depleting nature, and failing to see that nature is finite. If we continue this, Traci Deen said, we are “ultimately writing ourselves out of this story.”
She urged us to think outside of the box when it comes to environmental laws. She discussed Earth Jurisprudence (EJ), which is “a theory of law that recognizes the interconnectedness of Earth’s natural systems, the inherent value of nature, and the dependence of humanity and all living beings on a healthy Earth. EJ requires a shift in how we legally protect the natural systems that sustain life on Earth with a more holistic approach—one that considers the good of the entire Earth community, including future generations, by approaching law through a lens focused on the health of ecosystems.”
She discussed Rights of Nature as a way to better protect nature in court and address the “standing problem.” We must change our way of thinking to accept that nature has inherent rights: rivers have a right to flow and water a right to be clean. We are not used to this concept, as we only think now how we can control it or exploit it. In order to sue on behalf of nature, nature needs “standing” in court. For legal rights, nature must show standing in a court of law. This isn’t possible now, but through a rights of nature approach, “natural systems and species could sue in their own right, through human representatives, focusing the suit on the damage to nature rather than on human impacts.” This is an alien concept to us now but is not a dream. Other countries, such as Ecuador, are recognizing nature’s rights in their constitutions. Dozens of U.S. cities, most notably Pittsburg, are also adopting rights of nature approaches in their legal systems.
Another concept is the public trust doctrine, which is the policy that the government holds the environment in trust, and has “no authority to substantially impair or monopolize resources crucial to the public welfare.” An extension of this would maintain that the government holds the atmosphere in trust, and therefore must accept the responsibility of protecting it. She talked about an Oregon lawsuit in which children are suing the federal government over climate change for failing to protect their future.
A final element is what is known as the precautionary principal, which dictates that we must err on the conservative side if err we must. Even if there is no specific evidence to support a position, such lack of evidence is not cause to postpone a commons sense action. She said “Under a precautionary approach, if there are threats of harm, the lack of scientific certainty of harm will not be a valid reason for failing to implement precaution or prevention of the harm,” and went on to call this common sense policy that we should implement in our laws.
In the span of its short lifetime, the Water Voices series has become one of the most popular environmentally oriented programs of the area. This is due principally to the extraordinary high quality of its content and participants.