By Joseph Bonasia, Florida Rights of Nature Network
What if your town were told by an energy company that it soon would be storing toxic wastewater from its fracking activities within town limits?
What if your town council, urged by citizens who know stored fracking wastewater often contaminates aquifers and private drinking wells, passed a community rights law enabling it to prevent environmentally harmful activities?
What if the energy company in turn sued your town for violating its constitutional rights and held it responsible for millions of dollars in damages and the reimbursement of legal fees?
What if the company, and the state’s Department of Environmental Protection, also sued on the grounds that your town didn’t even have the right to pass such a law?
This happened in Grant Township, Pa., in 2014, and it could soon happen in Florida.
Senate Bill 856 would preempt the authority of local governments to pass laws protecting citizens from harms posed by energy companies. More specifically, as the Tampa Bay Timesreports, it would “prevent local governments from prohibiting natural gas fracking, nullify their solar permitting ordinances, weaken Southeast Florida’s climate compact, end renewable energy grant programs and eliminate county authority over pipelines along roadways.”
Lawyers for the utility companies wrote the bill, and SB 856 is yet another unconstitutional state preemption that undermines democracy.
The 14th Amendment protects our enumerated rights, such as the right to free speech or to bear arms, as well as those unenumerated rights “deeply rooted in this nation’s history and tradition” and which are “fundamental to our scheme of ordered liberty” (McDonald v. City of Chicago, 2010).
Local self-government has been foundational to an American understanding of liberty since the Mayflower Compact of 1620. Thomas Jefferson codified the principles of local self-government in the Declaration of Independence. We went to war with England over our fundamental right to govern ourselves.
The state, of course, has an important responsibility to establish floor preemptions that set base standards, such as requiring children to attend school. We need an educated, well-informed citizenry — and floor preemptions do not prevent local communities from legislating higher standards.
Ceiling preemptions, however, prevent citizens, through local governments, from acting within our constitutional rights to life, liberty, and the pursuit of happiness by setting standards and protections as high as we deem necessary. Ceiling preemptions, running roughshod over this basic principle of American democracy, result in situations like Grant Township’s where the interests of an energy corporation override the needs and rights of an entire community.
The climate crisis threatens Florida in many ways, from rising seas to higher mortality rates. If towns, cities, and counties want to mitigate these outcomes by pursuing clean energies or want to protect themselves from the health hazards of fracking, what compelling public interest does the state have in denying them their right to community self-government?
What compelling interest did it have in preempting plastic bag bans, sunscreen bans, and Rights of Nature laws? Providing a uniformity of standards and making things easier for corporate interests does not rise to the level of compelling public interest.
Increasingly, political power flows through corporations who have been twisting American democracy in their favor since the 1800s when railroad corporations did not want to pay for the havoc rail construction wreaked upon communities, and when the Supreme Court also recognized corporations as persons.
In a well-known study, Princeton and Northwestern University researchers compared all the laws passed between 1981 and 2002 and voter preferences and concluded that these laws “overwhelmingly didn’t reflect the will of the people, but that of corporations and business and professional associations.”
Our state legislature, at the behest of corporate interests, keeps pumping out ceiling preemptions. SB 856 is just one of many clean energy preemptions this year.
Grant Township thought its battle was over when in 2020 the DEP rescinded the energy company’s permit to store toxic waste within the town, stating it violated the town’s community rights law. But the energy company has sued a second time, and the town’s ordeal continues.
Every citizen and every municipal government in Florida should be alarmed about SB 856 and similar preemption bills and respond accordingly.
Joseph Bonasia is Vice-Chair and SWFL Regional Director of the Florida Rights of Nature Network.
“The Invading Sea” is the opinion arm of the Florida Climate Reporting Network, a collaborative of news organizations across the state focusing on the threats posed by the warming climate.
