In the first half of Jeb Bush’s first term, higher level staff of the FDEP worked closely behind closed doors with Georgia-Pacific to outline how it could best win approval for a pipeline to transfer the Georgia-Pacific paper mill’s point of discharge from Rice Creek to the St. Johns River. This is the “dilution is the solution to pollution” mode of conduct preferred by industry, which would rather not recycle and treat the discharges on land when discharging into a water body will produce cost-savings.

In 2003, Governor Jeb Bush and the Cabinet, with a lone dissenter in Charlie Crist, voted, after the most cursory of consideration of the impacts to the river, to give what the FDEP concedes was only preliminary approval of a private easement into the river for the Georgia-Pacific pipeline. Importantly then, to construct and use the pipeline would require not only an FDEP wetlands permit (called an environmental resource permit [ERP]) and a FDEP water pollution permit (called a National Pollutant Discharge Elimination System [NPDES] permit), but also the finalization of the preliminary approval given by the Governor and Cabinet for issuance of the pipeline easement.

In 2005 FDEP, acting as agent for the Trustees, under mysterious circumstances, buried this “Trustees’” finalization inside a FDEP “notice of intent to issue permit,” which was the wetlands permit or ERP. This grossly misleading, and thereby apparently constitutionally-defective, notice published by Georgia-Pacific Corp. in the Palatka Daily News did not give reasonable Floridians who might have happened to glance at that paper’s legal ads that day open and fair warning that the notice was about not only the wetlands permit but also about the easement. This is a due process problem.

Interestingly, at virtually the same time the public was given an impenetrable newspaper notice, Georgia-Pacific received a clearly labeled and understandable notice that specifically referred to the easement in the title:





CONSOLIDATED NOTICE OF INTENT TO ISSUE

ENVIRONMENTAL RESOURCE PERMIT AND

EASEMENT TO USE SOVEREIGNTY SUBMERGED LANDS

Another point, substantively-troublesome, that the citizens and environmental groups make, is that under Florida’s public trust doctrine, which not only has constitutional status in Florida but also is enunciated in the Trustees’ own rules, the Trustees are supposed to make a careful full-blown determination of the public interest of the entire project. That means the costs and benefits and the money savings that would be enjoyed by Georgia-Pacific from the river dumping must be on the table and fully considered by the Trustees. This did not occur in 2003, and has never occurred. And, because the public was denied fair public notice, the public never was given the opportunity to request a formal evidentiary hearing on the pros, cons, and just compensation to the public for the pipeline.



In 2009, without any additional newspaper notice, FDEP staff quietly issued Georgia-Pacific the easement. Meanwhile, the citizens and environmental groups did not know anything about the easement issuance.

They learned in 2012 that Georgia-Pacific had completed construction of the pipeline and was about to turn on the pipeline and begin spewing toxic waste without an easement that had been finally-approved by the Trustees. They also learned that the project did not even have an NPDES permit with the chronic toxicity mixing zone the company would now be relying upon. FDEP remedied the lack of the NPDES permit by rushing through an NPDES permit with the mixing zones Georgia-Pacific wanted in order to save costs. But neither the Trustees nor the FDEP did anything to remedy the procedural and substantive defects with the pipeline easement.

So, in the summer of 2012, the citizens and environmental groups filed a direct petition in the Florida Supreme Court seeking a mandamus requiring the Trustees to comply with the public trust doctrine and the due process doctrine. The Trustees have never provided any explanation for the curious 2005 newspaper notice. Moreover, the Trustees have completely put their heads in the sand about the lawsuit, allowing FDEP, the apparently inept if not corrupt agent, to do all the talking for them.

The Florida Supreme Court remanded the case to the Leon County circuit court of Bush v. Gore fame. There, Jeb Bush’s hand-picked chief judge of this important circuit elected to keep the case himself. He ultimately granted summary judgment for the Trustees, acting through the FDEP, and Georgia-Pacific, which intervened. He essentially rubberstamped the FDEP and Georgia-Pacific proposed orders, which virtually ignored the gross newspaper notice defects, and focused on the fact that the mixing zones had now received an NPDES permit. In essence, the so-called agent, FDEP, would permanently gut the Trustees’ substantive fiduciary responsibilities, and the Trustees’ responsibilities to give fair notice and evidentiary hearings, and force the public to solely look to the captive-regulatory agency FDEP for any relief.

His decision is now on appeal to the First District Court of Appeal, which is also in Tallahassee. The recently-filed final brief of the citizens and environmental groups sums up the matter:

They also point out the apparent corruption involved with the newspaper notice, which FDEP labels “character assassination,” but which Governor Scott and the three members of the all-Republican cabinet have failed to investigate:

This situation should be embarrassing both to FDEP and to the Trustees who are effectively countenancing FDEP’s behavior, but that does not make it character assassination. It is the fact-driven context for a patently unconstitutional problem of lack of reasonable notice by publication.

Further, these facts buttress the conclusion that mandamus is necessary because this problem will only go away if the judicial branch steps in and specifically requires it to be remedied. FDEP is not going to impress upon the Board the need to do so. It is the very agent whose conduct needs to be carefully scrutinized by the Trustees. By the nature of the situation it has an obvious conflict of interest and cannot serve as the unbiased reporter of its own failures as an agent. These failures are a central component of the Trustees’ failures. In the premises, FDEP is the antithesis of what a fiduciaries’ agent should be.

Appellants should not be forced to sugar-coat FDEP’s conduct under the pretense of avoiding “character assassination.” Exactly who did what and why at FDEP are obviously not matters FDEP has any intention of divulging. There certainly appears to have been an effort by an unknown person or persons at FDEP to make the prior Trustees’ preliminary approval “final” through a grossly misleading newspaper notice. This notice lacked the truth-in-labelling, openness, and simple readable clarity of the direct notice by mail which FDEP was, at virtually the same time, mailing to Georgia-Pacific. If Georgia-Pacific needed a clear and understandable notice, so, it should be obvious, did the citizens of the State of Florida. If this was not the result of corruption, it is a strangely coincidental case of gross negligence.