County Commission discusses giving rights to ecosystems
“We see ecosystems as intelligent, natural, living entities.”
David Moritz, member of the Alachua County Environmental Protection Advisory Committee
BY JENNIFER CABRERA / JULY 12, 2019
At the July 9 Alachua County Commission meeting, the county’s Environmental Protection Advisory Committee (EPAC) presented a recommendation that this policy be included in the county’s Comprehensive Plan: “Ecosystems within Alachua County should have the independent, legally enforceable rights to exist, flourish, naturally evolve, and be restored after damage.” Missy Daniels, the Growth Management Director for Alachua County, said the policy would “be directed to pretty much any ecosystem within Alachua County.” Daniels said this is what the Comprehensive Plan already does. She pointed out that the policy says “should” and not the absolute “shall.”
Daniels continued, saying that the current Conservation Plan lists specific types of ecosystems, along with “strategic ecosystems,” that are protected, and there are policies that allow for “impacts,” usually requiring mitigation. So the new policy “could open you up to additional development order challenges [when] the development review committee or the county commission has approved a development order that allows those impacts. You could take a policy like they’re recommending to say you shouldn’t have allowed those impacts at all… It could end up requiring the county to take legal action against some of those things…It’s not a very strong policy with the ‘should’… and I will say again I think that’s what we do in our Comprehensive Plan. I think we do try to protect all of those resources, and I think we do a pretty good job of it here.”
Daniels listed two cities (Toledo, Ohio, and Blaine Township, Pennsylvania) that have adopted similar policies; both are being challenged in court. “This is very new.”
Commissioner Robert “Hutch” Hutchinson asked whether this policy gives anyone standing in a legal matter who would not otherwise have standing. Assistant County Attorney Corbin Hanson said the purpose of the Toledo policy was to “expand standing to essentially the resource itself. So anybody in that situation could say, ‘You’re impacting the resource, and even though I’m not injured, I’m going to challenge your… development order on behalf of Lake Erie, in that situation. So that is the intent… The idea of whether or not that will be allowed is yet to be determined. However, there is a long history of standing jurisprudence that would say you have to have an injury in fact. And even if you’re an environmental group, you still have to have some sort of an injury to challenge something.”
Commissioner Mike Byerly said, “So I’m really struggling with this one… while I’m pretty sure I support the philosophy behind it, I don’t understand what it would do or how it would work. We do have, still, quite a bit of aspirational language in our Comprehensive Plan. We’ve tried to whittle that down and make it more of a specific document, where we just don’t load all our hopes and dreams into that document, make it something that follows through in land development regulations, and so that’s, I guess, the question I want to ask: What would be the next step? Would there be a next step? If it’s in the Comp Plan, and we would have to straighten out all the contradictions in it that you’ve pointed out, we’d have to change other language in our Comp Plan, probably, to make everything consistent, and I’m not sure what those consequences would be… Do you foresee some kind of land development regulations following from this? Would there be a next step?”
Daniels said, “I don’t see any land development regulations that would come after this. I don’t necessarily find this policy inconsistent with the Comprehensive Plan as it stands now… because it says ‘should’… if it said ‘shall,’ it would be a different case.”
Hanson said, “I think the argument would be that somebody could come in and say, well, your Comprehensive Plan says ‘should,’ and you didn’t necessarily do what they believe the intent of that was, and they might challenge it. That doesn’t mean that a court would agree with them…”
Byerly said, “So I guess the policy decision for the board is whether or not we want to put a new policy in our plan that we know has no practical consequence at all but that we think we’re philosophically attuned to, and I understand the folks who are kind of leading this discussion, I appreciate the fact that they are, are trying to establish a new paradigm, a new way of thinking about these things, and ultimately, in time, establish a new legal framework, and this is the first step… I know there’s discussions going on about having a citizen-led petition drive to amend the county’s charter to include this language, which I think is a much better way to go than asking the Board of County Commissioners to simply adopt language and stick it in the Comprehensive Plan.”
Commissioner Ken Cornell moved to add the policy to the Comprehensive Plan. Commissioner Marihelen Wheeler wanted to make sure the policy was specific enough to support any future legal action against phosphate mines in Union County (earlier in the meeting, the commission voted to authorize an agreement to pay up to $621,302 to a law firm to gather information about the phosphate mine, evaluate its impact on the air and water of Alachua County, and challenge permits for the mine).
Commissioner Chair “Chuck” Chestnut asked, “I’ve heard from staff that through our Comprehensive Plan, we have those protections, and we do try to protect those resources. Am I correct?”
Alachua County Natural Resource Program Manager Steve Hoffstetter replied, “That is correct… we have standards in place for protection of our natural areas, to a certain level… There’s a certain level of impact we authorize, always with the intent that we protect that resource… as much as possible.”
Byerly suggested tweaking the language to make it clearer where they want it to go long-term. He asked for a definition of “ecosystem,” noting that a Walmart parking lot is an ecosystem. “Maybe we should refer the language to staff, let them take a look at it before we put it in our Comprehensive Plan—I don’t want to just graft it in there—see if there’s anything they can do to take the concept and make it more applicable to the other protections we have.”
Hoffstetter said the Comprehensive Plan has a definition of “ecosystem”: “A community of all plants and animals and their physical environment, functioning together as an interdependent unit.”
Byerly said, “That’s every square inch of…” and Hoffstetter said, “Yeah, if we’re going to keep that term, we’d probably have to do a little more description.” Byerly asked about strategic ecosystems, which are specifically listed and mapped by the county (there are 47 of them). Hoffstetter said limiting the policy to strategic ecosystems would narrow its impact. Byerly asked Cornell if he would be okay with changing the motion to refer it to staff to take a look at it.
Wheeler asked about whether additional legal rights would be conferred by the policy. Hanson said, “As it’s a new policy and it does contain the word ‘should,’ it arguably doesn’t confer any rights upon anybody at this point, with this particular language, to legally enforce the rights of an ecosystem or strategic ecosystem or however you’re defining it.”
Cornell changed his motion to refer the policy to staff; he also suggested that they substitute the words “natural resources” for “ecosystems” in the policy and change “damage” to “damage of ecological value,” which is defined in the Comprehensive Plan.
David Moritz, a member of EPAC, said, “Two very important words here are ‘ecosystems,’ which really shouldn’t be changed, because we see ecosystems as intelligent, natural, living entities, and also the word ‘should,’ because… it’s a really great idea… to ask the county commission to change… the Comprehensive Plan… I personally would love to see it say ‘shall,’ but I don’t think that the community or the state or the nation has yet reached a point where it can be ‘shall.’”
Bruce Blackwell, a newly-appointed member of EPAC, said, “Perhaps the time has come to change our thinking and say, hey, these things have a right of their own. A body of water should have a right to say, ‘Don’t suck any more blood out of me with your demand for agriculture.’… A body of water could say, ‘Stop poisoning me with your pollution.’… [This] would give standing to anyone on behalf of this part of nature.. I’d much rather have it ‘shall’… I don’t like [the word] ecosystems, which is only talking about plant communities, it should be much broader than that.”
The motion to refer the policy to staff passed unanimously.