Audubon of Florida Executive Director Eric Draper reports from the Florida Supreme Court case regarding the state's rule making process:
Today I watched legal legend Sandy D’Alemberte argue before the Florida Supreme Court that an executive order shutting down the state’s rule making process and inserting new review of rules by the Governor’s office is “change of law” and “oversteps” his constitutional authority.
Audubon filed an amicus curiae brief in a case brought by Rosalie Whiley, a blind woman whose application for food stamps was put on hold by Scott’s rule suspension. Audubon’s brief argues that Scott acted contrary to Florida’s laws on rulemaking and the effect of his actions included halting an important rule proposed to protect freshwater flows in Biscayne Bay.
Scott’s lawyers argued the Governor has “supreme executive power”. They pointed out the legislature subsequently ratified part of Scott’s approach to constraining rules including environmental rules with the passage of HB 993. That bill not only set up new economic tests and process for the validity of rules – it changed the burden of proof for challenging environmental agency’s permits and decisions (Audubon and others fought HB 993 but were out-maneuvered when Department of Environmental Protection Secretary Hershal Vineyard asked Senators to add the burden of proof language to the bill).
Scott appears to not understand the concerns of the challenges to his executive order. Due process is not an issue for him. Only the ends matter and thus rewriting rules in some backroom out of the sunshine is justified.
The oral arguments on rulemaking demonstrate a clear fault line between the Florida’s acclaimed Administrative Procedures Act, which provides an open and citizen friendly process for rule-making, and Scott’s “forget the public” if there is money involved approach.
In discussing the case with reporters afterwards, I was asked why Audubon is involved in a case about a blind woman getting food stamps. In fairness I answered - to protect Florida’s water and wildlife citizens need access to the rulemaking process. If decisions are made in secret using only the loose criteria of economic impact, there is no need for valid rules. In other words, Scott would throw the rulebook out the window and substitute the judgment of lobbyists for agency expertise.
When it comes to protecting Florida’s springs, rivers, wetlands and the Everglades from the effects of pollution and water supply we need rules. By throwing out the rulebook, Scott undermines environmental protection.
