BY RICHARD GOLDSTEIN AND ANDREW STEADMAN (2L)
Michael Minton (JD 81, LLMT 82) works in the Sunshine State, but he sees great potential in its rainy days. A burgeoning Florida population taps its diminishing groundwater supply, while treating rainwater as a nuisance to be shunted out to sea. Minton’s big idea? Divert some of the 53 inches of Florida’s annual rainfall to supply drinking water, agriculture and business.
Richard “Chip” Thompson II (JD 95) works on the sunnier side of the street. His Atlanta- based law firm specializes in energy, and business is booming thanks to market forces, technological advances as well as tax and regulatory structures. All are pressing to the fore nuclear power, plentiful natural gas and renewable energy like solar power, setting the table for billions of dollars in deals handled each year by Mercer Thompson LLC.
The natural gas part of Thompson’s business is growing thanks to a drilling method known as hydraulic fracturing or fracking, which has turned the United States into the “Saudi Arabia of natural gas.” But the technique also stirs fear of groundwater contamination while igniting state-by-state political combat.
Carol Browner (JD 79) is the former U.S. Environmental Protection Agency chief and climate czar who led environmental regulation for Florida and the nation. She offers a modest proposal.
“Why not set a national standard based on the best available science and technology, and delegate the day-to-day oversight to individual states that have adequate capacity and capability?” Browner wrote in an email to UF LAW.
Springs grow sicker in Florida as the Southeast faces water shortages. The National Climate Assessment reports that climate change threatens the coasts with inundation and the interior with wildfires. Fracking in the heartland prompts concern over polluted groundwater, and a chemical spill in a West Virginia river fouls the drinking water for hundreds of thousands. Even exotic species like Burmese pythons wreak ecosystem havoc.
Some UF Law alumni and faculty are designing innovative solutions to fix these environmental problems. Others apply regulations and technology to building a solar array in the Arizona dessert or by balancing competing interests of agriculture and water quality in the Everglades. One way or another, Gator lawyers are engaging the perils and opportunities of environmental change.
Rain, Don’t Go Away
In Florida and the nation, water quality and water availability represent a double barreled problem. Minton, a shareholder and former president of Dean Mead, is crafting a response that neatly addresses both.
Grove Land Utilities, LLC wants to provide additional water to supply a growing population. Minton figures he’s the right person to represent the utility that would oversee a “replumbed” water management system. “I actually believed in this concept before there was a project, having done work on it for 20- plus years before there was a project.”
Minton, who is past vice chairman of the South Florida Water Management District, is one of the leaders in a sort of super water-regime, the Central Florida Water Initiative. The group, which includes three water-management districts, environmentalists, utilities and agriculture entities, is devoted to solving a fundamental mismatch. In a few years, there will be too many people in the greater Orlando metropolitan area for the available groundwater.
“Our goal is to find an additional 250 million gallons per day of water supply to aug-ment the groundwater,” said Minton, who represents Grove Land Utilities, located in the Fort Drum Marsh area west of Vero Beach. “We currently have a lot of surface water with all these rain events.”
All that rain is now funneled to the coast via canal systems and discharged into estuaries, which damages their ecosystems. Minton suggests trapping some of the water, storing it in reservoirs and shifting it into the St. Johns River. There, it would be available for drinking water, meaning less demand for groundwater and, potentially, more freshwater to recharge springs. It would also benefit the environment by limiting the flow into delicate estuaries such as the Indian River Lagoon where it changes the natural freshwater-saltwater balance.
A similar system is already in use along the Peace River on the west coast of Florida in DeSoto and Sarasota counties. The Grove Land Utilities proposal for central Florida would “supersize” that project, eventually accounting for in excess of 100 million gallons per day of additional freshwater, according to utility plans. Water conservation measures also would make water supplies stretch farther.
“If we don’t capture this surface water and keep it in the system then you’re going to have everybody fighting for the last drop of groundwater, which is what you’re experiencing now around the springs,” said Minton, who serves as chairman of the Levin College of Law’s Law Center Association board of trustees.
Glenn J. Waldman (JD 83), another Law Center Association board member and a governing board member of the South Florida Water Management District, said the pushpull between the costs and benefits of any kind of regulation is a problem his Water District colleagues must confront on a regular basis.
Covering 16 counties and 8 million citizens, Waldman described the South Florida Water Management District as tasked with handling flood control, managing and protecting water resources, ensuring water quantity, ensuring water quality, and restoring the Everglades.
Those core missions sometimes put the Water Management District’s own programs at odds with each other, which means complex approaches to cost-benefit balancing are often necessary. Further complicating matters is the fact that the federal and state governments each have overlapping regulatory control over various bodies of water or their watersheds.
Enter “back pumping,” the controversial practice of pumping water from flooded agricultural land directly into an adjacent body of water such as Lake Okeechobee. Farmers in the Everglades Agricultural Area south of the lake rely on it to relieve flooding, to free up fields for planting and harvest, and as a backup water source in times of drought.
Jon Mills, director of UF Law’s Center for Governmental Responsibility, said back pumping is a pressing issue in Florida. Floodwater from farmland picks up fertilizers and pesticides, so pumping it into Lake Okeechobee, for example, pollutes the lake.
Waldman said the lake itself is regulated and supervised by the U.S. Army Corps of Engineers, but the Water Management District makes frequent recommendations on lake management through a complex analysis called Adaptive Protocols.
Waldman said limited use of back pumping is an instance of the cost-benefit analysis which the Water Management District must undertake since flood control and water quality are two of the group’s essential missions. Either the district must find less efficient ways of dealing with flood control, or, however undesired, it must move polluted water from the flooded areas into the lake.
“With this current governing board, I reasonably predict that the only circumstance in which we will back pump is for extreme weather conditions and consequent flood control,” Waldman said. “That is one of the better examples of the very difficult balancing tasks that the governing board and the senior staff face.”
Mills said governmental bodies in other parts of the country have prohibited back pumping, but legislatures have carved out exceptions that allow it in certain situations.
The Indian River Lagoon is closely tied to Lake Okeechobee via the Okeechobee Waterway and the St. Lucie River, which physically connect the lagoon and the lake. The lagoon’s ecosystem has suffered a near-collapse as a result of pollution from agricultural fertilizers and urban runoff.
The Legislature voted $170 million for lagoon cleanup in the spring session. This comes on top of millions for water quality improvements in the Everglades that Eric Eikenberg, CEO of the Everglades Foundation, called “historic.”
Proponents of Florida springs revitalization were disappointed when a large-scale plan died during the same session. In November, a ballot measure would dedicate revenue already collected on house sales to conservation land acquisition, including the restoration of spring watersheds. Minton suggested that springs and other water legislation would find favor next year.
“I think you’re going to see the big push for water legislation in the next Legislature,” Minton said. “This year the big focus was on the Everglades and Indian River Lagoon.”
Thompson, a founding partner of the Atlanta energy firm Mercer Thompson LLC, summarizes his firm’s business this way: “Major solar projects in five states, wind projects in the Appalachian mountains, a huge nuclear project in Georgia, and gas-fired projects almost everywhere.”
The boutique, transactional law firm of 18 lawyers does not shape the regulations and policies that protect the environment. It just lives in their world. “The regulations are already in place and driving behavior as or before we enter the picture,” Thompson said.
That behavior is manifest in the construction of huge renewable energy plants. In line with that development, Mercer Thompson just opened a Washington, D.C., office with a team of attorneys who specialize in renewable energy deals.
“In the past five years you’ve seen a surge of wind and solar deals — with solar becoming a particularly hot market, with module pricing having dropped significantly year over year,” Thompson said. “There’s a lot of competition and there are critical deadlines to getting projects built now before tax credits expire.”
Mercer Thompson handles power plant deals all over the world, but the largest solar plants are usually built in western states like California, Arizona and Nevada where sunshine is most plentiful, Thompson said. The lawyers supply legal expertise for the financing, including U.S. Department of Energy loan guarantees, land acquisition, equipment purchases, construction contracts and other contracts peculiar to the energy business, including long-term power sales agreements.
Tracey Holmes Thompson (JD 96) leads the land transaction side of the firm. Tracey and Chip are husband and wife who met at UF Law. Partner Jason Yost, a 1990 UF undergraduate, handles energy matters around the world, and has recently been traveling regularly to Mexico City to close a deal involving huge gas turbines. David Cayce (JD 00), who joined the firm in 2013, focuses on energy development, finance and merger and acquisition, and Richard Thompson Sr., Chip’s father and the law firm’s senior financial adviser, has a 1965 UF bachelor’s degree. How did so many Gators come together in one Atlanta law firm? “By the grace of God,” Thompson quipped.
Going for Gas
Fracking technology has also driven the construction of gas-fired power plants, Thompson said, as natural gas prices remain far below what they were before the fracking revolution exploded in the United States. Burning natural gas emits far less greenhouse gases, the pollutants thought to be responsible for global climate change, than coal does.
“The Obama administration EPA has put forward rules to clean up coal plants or shut them down,” Thompson said. “A lot of coalfired generation has been scheduled for retirement. There are tens and tens of thousands of megawatts of coal-fired generation that are being taken off line in the coming years.”
In June, the administration gave another boost toward gas-fired plants and renewable energy as it released a draft rule on tighter carbon emissions that could shut down even more coal-fired plants.
Browner explained the significance rule to combat climate change.
“These plants account for nearly 40 percent of the domestic carbon pollution that fuels climate change,” Browner wrote. “When paired with the energy efficiency, renewable energy production and adaptation elements in the president’s Climate Action Plan, this standard will be critical to achieving real and sustained carbon pollution reductions.”
She said the clean energy grants, loans, tax incentives and research into renewable sources funded by the Obama administration is putting the United States on course to reduce emissions as pledged by 2020.
But sometimes a solution creates a new problem. Many fear environmental damage from fracking because the technique means pumping large amounts of water and chemicals underground to flush out natural gas trapped in shale deposits.
Environmentalists and some landowners have protested expansion of the technology and regulations vary from state to state. Vermont bans the practice and there are calls for a moratorium in California. Pennsylvania, North Dakota and Texas all require disclosure of chemicals used in fracking, according to a 2013 report by Resources for the Future, a Washington, D.C., energy think tank. The same report notes that the “dynamic” regulatory environment has produced a great deal of “heterogeneity” among the states.
Browner advocates a national rule to calm the waters and assure a common standard. “Right now, states have the authority to oversee fracking,” she wrote. “This means that companies could potentially have to comply with 20 to 30 different state requirements for fracking.”
Leading the Field
If Minton, Waldman and Thompson do their work within the regulatory framework, Browner has spent much of her career building it. She was chief environmental regulator in Florida under Florida Gov. Lawton Chiles (JD 55), director of the Environmental Protection Agency under President Bill Clinton and national climate and energy policy coordinator in President Barack Obama’s administration.
Among her accomplishments during the Obama administration was serving as the administration’s public face in the aftermath of the Deep Water Horizon Gulf oil spill and ushering in new fuel-saving automotive standards.
“I coordinated across states and industries to ensure the new automotive fuel economy standards will hit 54.5 mpg by 2025,” Browner wrote. “Over the life of the program, the standards will save consumers $1.7 trillion, save 12 billion barrels of oil, and eliminate 6 billion metric tons of carbon pollution from tailpipes.”
Browner, now senior counselor at Albright Stonebridge Group and a distinguished senior fellow at the Center for American Progress, is the UF Law graduate most closely associated with environmental protection. But she’s far from the only one. Among the legacies of Reubin Askew’s (JD 56) Florida governorship was broad expansion of environmental protection. As House Speaker from 1987-1988, Mills pushed through wetlands conservation and growth management legislation. After his stint in politics, Mills has served as director of the Center for Governmental Responsibility, which includes environmental law within its mandate.
Part of the reason for so many leaders in environmental law is that UF Law trains them in its Conservation Clinic, an arm of the Center for Governmental Responsibility. Under the direction of Tom Ankersen (JD 86), clinic students pump out research papers every year on topics ranging from sea-turtle friendly lighting to urban planning for sea-level rise to combating invasive species.
The best-known invasive species in Florida is probably the Burmese Python. Released pet snakes have multiplied so that they are now altering the ecosystem by supplanting alligators as top predators in the Everglades. Iguanas brought in for botanical gardens have also established colonies.
The state and university have responded to the invasion by organizing hunts for the pythons. The state also issues permits to allow private individuals to hunt them.
Ankersen said the implications of allowing the import of exotic beasts into the state were not carefully considered in the first place.
“The best-case scenario would be prohibiting the introduction of all exotic species unless it can be proven that they won’t become invasive — and that burden of proof should be very high,” Ankersen said. “Florida has made considerable progress toward this legal framework, known as a white list.”
The clinic’s own contribution to combating exotic species dealt with cats. In her 2003 paper, “Feral Cat Colonies in Florida: The Fur And Feathers Are Flying,” Pamela Jo Hatley (JD 03) argued that wild mice, rabbits and birds are all victims of feral cat populations.
She said that free-roaming cats should be considered exotic species under Florida law. Hatley’s report contributed to a change in the way the Florida Fish and Wildlife Conservation Commission dealt with the problem on and around public lands, Ankersen said. Not content to stop there, Hatley also sings folk songs about the issue. The Feral Cat Blues is available for download.
A cleansing history
What made today’s environmental regulations and what got left out
BY ANDREW STEADMAN (2L)
Pipes spewing raw sewage into pristine rivers. Smokestacks belching black clouds. The Cuyahoga River aflame.
These aren’t scenes from an apocalyptic thriller but scenes from 1950s and ’60s America.
Mary Jane Angelo (JD 87), who has spent her career as an environmental regulator and academic studying environmental law, explains that modern regulation was born from the sweeping industrial growth of the 20th century and the need for checks on its environmental damage.
“The really profound environmental impacts we were seeing in the ’60s — rivers on fire, terrible air pollution — led to the current regulatory structure we have now,” Angelo said.
From 1988-1995, Angelo served as an attorney in the U.S. EPA’s Office of the Administrator and Office of General Counsel then for a decade as senior assistant counsel to the St. Johns River Water Management District. Now she’s a UF Law professor and director of the Environmental and Land Use Law Program.
Ohio’s Cuyahoga River was so polluted that it oozed rather than flowed, according to Time magazine in 1969. Raw sewage flowed from open pipes in Cleveland into the river and then to Lake Erie. Multiple Cuyahoga-like conflagrations during the ’50s and ’60s spurred lawmakers to finally address the problem.
Angelo said the Environmental Protection Agency, the Clean Water Act and the Clean Air Act all sprung from this period of regulatory vigor in the 1960s and early 1970s.
“Prior to those programs being in place, there wasn’t much that really limited pollution,” Angelo said. “That was why we had such dramatic problems.”
The laws, agencies and programs that sprang forth showed how regulation can help repair the damage done and prevent future instances of unchecked pollution. To take but one example, the Cuyahoga River no longer catches on fire.
And their relevance today is easy to see. In April, the Supreme Court ruled 6-2 in EPA v. EME Homer City Generation that the government was acting within its authority under the Clean Air Act when it required upwind states to contain air pollution that crosses into downwind states.
And in June the Obama administration issued a long-awaited draft rule under authority of the Clean Air Act that would curtail carbon-emissions drastically. It is expected to hit coal-fired power plants the hardest.
When the source of pollution can be pinpointed, penalties can also be swift and certain. The laws are suited to deal with the aftermath of environmental disasters like this year’s Elk River chemical spill that polluted drinking water for hundreds of thousands in West Virginia and the Duke Energy spill of 39,000 tons of coal ash into North Carolina’s Dan River. The Clean Water Act and other environmental laws give the Environmental Protection Agency the authority to force cleanup. The agency can also impose fines and mandate protections against future pollution.
Some have also argued that the twin spills show the need for greater vigilance and more information available to regulators concerning potential dangers.
“Communities still need an environmental cop on the beat to protect them from dangerous pollution,” observed former top environmental regulator Carol Browner (JD 79).
But much of the pollution now plaguing the land, water and its ecosystems come from largely unregulated nonpoint source pollution. Fertilizers, pesticides, chemicals and toxins leach into groundwater. They pollute springs and other water bodies, destroying wildlife and contaminating drinking water.
“Urban and suburban runoff as well as agricultural runoff have not been regulated by the federal government and has been regulated incompletely by the state of Florida,” Angelo said. “It’s a little harder to get a handle on because it’s diffuse pollution.”
Jon Mills (JD 72), director of the Center for Governmental Responsibility and former Florida House speaker, describes three approaches to environmental policy: regulation, incentives and education.
“You can either regulate an activity or provide economic incentives for people to do what you want them to do,” Mills said. Or, he added, encourage change through schools, which has a sort of “trickleup” effect. “There are some terrific examples of kids who then educate their parents,” Mills said.
Whatever the precise approach, Angelo warns that waiting for the next disaster is not the best plan.
“History has shown that trying to clean things up or restore things is much more expensive than trying to prevent the problem in the first place,” Angelo said.
How to make federal regulations disappear
BY ANDREW STEADMAN (2L)
Fed up with what they regarded as a particularly onerous federal land use initiative, Florida Keys residents came to UF Law for help. A Keys group called Citizens Not Serfs enlisted John November’s (JD 09) assistance in 2009 to fight the Federal Emergency Management Agency’s Downstairs Enclosure Pilot Inspection Program.
Under the program, residents of Monroe County — a coastal floodplain — were required to pay for inspections of basement enclosures when they applied for building permits, renewed their flood insurance, or sold their homes. In some situations, FEMA required that non-compliant portions of the homes be demolished. This state of affairs deterred homeowners from making repairs and drove others to use unlicensed contractors to perform the work, according to a petition written by November.
November worked with the Florida Keys Contractors Association and authored legislation that would prohibit local inspectors in Florida from requiring, upon application for a building permit, the inspection of any portion of a building not directly impacted by the permit.
To push through the regulatory change, November conducted surveys of Keys residents, gauged the regulation’s economic impact and lobbied state legislators as well as U.S. senators.
November, who is now an environmental and regulatory consultant in St. Augustine, credited his training as a UF Law student with giving him the skills to conduct the campaign. One example: Through the UF Law Conservation Clinic, November helped write a conservation easement for a property that was home to seven springs that fed Gum Slough, a tributary of the Withlacoochee River in Sumter and Marion Counties.
He also noted help from UF Law experts after graduation, including Professor Joseph Little, who was November’s torts professor. Little helped November refine the legislation.
“I directed all of my administrative law questions to (Professor) Mary Jane Angelo,” November said. “She not only provided me with guidance on the most appropriate legal strategies, but she also gave me real life advice on how to act in a cooperative manner so all the parties involved could achieve their goals.”
The legislation passed and became Florida Statute 553.79. Federal enforcement of the pilot program ceased on July 1, 2013, and it was officially terminated Jan 14.