The Florida Record examines my commentary on the Flint water crisis

The Faka Union Canal in Florida drains water from the Big Cypress Swamp.  Photo by JaxStrong.

It's always nice when media outlets find, appreciate, and profile your research.  In the wake of the Flint water crisis I wrote about the ways in which the crisis was being used as a proxy for the age-old water privatization vs. human right to water debate.  Journalist Mark Powell of the Florida Record digs into that research in his latest piece, "Infrastructure Lacking in Wake of Flint Water Crisis, says Florida Law Professor."  Article copied below:

With the recent water crisis in Flint, Michigan, an environmental law professor at Florida International University (FIU) took the opportunity to publish a paper on the ethics, law and regulations of our greatest resource.

Ryan Stoa, a law professor at FIU who teaches water resources law, is also the co-director of the International Water Group of the Institute for Water and the Environment. In late February, he published a piece inJurist, which provides academic commentary on prevalent legal issues by law professors and academic experts. In his piece, he highlights both sides of an argument spurred by the Flint water crisis.

The mismanagement of the water supply in Flint had many calling for local government resignations and a law requiring water to be declared a human right. Digging a bit deeper, the debacle has re-invigorated the classic public versus private water supply debate.

Those in favor of water as a government-controlled resource believe it will do away with the corruption of private companies that they believe doomed Flint. In contrast, those in favor of privatization often point to the lack of proper funding in government-controlled programs, and believe Flint’s situation could have been prevented with more oversight.

“I think it is inaccurate to suggest that only one approach can work, when there are many examples of successful public water service providers and private water service providers,” Stoa told the Florida Record. “Along these lines, there are misleading assumptions on both sides.”

Stoa believes that the issue is more complicated than the amount of government involvement, stating that the public and private sectors can–and often do–collaborate to provide the resource.

“Investments in the water sector aren't always invested wisely,” Stoa said. “If funds are available to bolster existing expenditures that usually helps, but re-thinking existing policies may provide some opportunities to improve water systems as well.”

An example of this is the state of Florida, which has a complicated water law system. While Florida does not necessarily privatize its water distribution system, it does give a surprising amount of control to districts, whose parameters are drawn out along hydrologic boundaries.

These districts are often exempt from local or state government overreach unless absolutely necessary. While they are often effective when solving issues within their own districts, they struggle when dealing with problems that occur outside their boundaries.

Despite Florida’s model, it’s easy to see how this model could fail and prove just as ineffective as other systems across the United States. As Stoa points out in his article, the American Society of Civil Engineers gives the country's water infrastructure a D+ rating, yet Congress continues to defund water maintenance.

“Much of our water infrastructure was built to tame and control the natural environment; some of that infrastructure has been effective,” Stoa said. “But re-thinking existing policies may provide some opportunities to improve water systems.”

Coral Gables' aggressive sea level rise agenda

While climate change and sea level rise are a decidedly political and partisan issue on the national level, here in Florida I have only encountered local governments that are trying to be as proactive as possible.  So far I have worked with Miami Beach, Miami, Hialeah, and Coral Gables city officials (for the most part I have no idea what their political affiliations are), and they are all keenly aware of the threats sea level rise present to South Florida communities.  Last week Politico published just the latest story on sea level rise in Miami Beach (read it here).  And several Florida mayors, many of whom have endorsed Republican presidential candidates, sent a letter to those candidates urging them to acknowledge climate change, sea level rise, and the actions needed to address our vulnerabilities.  Their plea became a point of contention in the most recent Republican presidential debate.

Coral Gables has been aggressively addressing sea level rise, with mitigation policies that incentivize energy efficiency and education programs that raise awareness of infrastructural threats.  They are hosting an ongoing speaker series on sea level rise, and it was a pleasure for me to participate last week.  The full video of my talk can be viewed here:

The Politics of Solar Energy in Florida

Rooftop solar in San Marco Island, Florida.  Image: Tai Viinikka

The Sunshine State, perhaps unsurprisingly, ranks third in the nation in rooftop solar potential.  It ranks first among states east of the Mississippi.  And yet Florida ranks a middling 14th in the nation in solar capacity installed.  What gives?  For one thing, Florida doesn't have a renewable energy standard (RES).  RESs require utility companies to source a certain percentage of their energy portfolio from renewable sources.  More than half of states have an RES of some kind.  

Also problematic are legislative barriers to rooftop solar installation.  If you're a Florida homeowner, you are free to purchase and install solar panels on your property.  But Florida doesn't allow third parties to provide those panels for you.  Landlords, for example, can't install panels for their tenants, and third party solar providers can't absorb the up-front cost of installation in exchange for monthly payments (often less than utility bills) from a homeowner.  The only entity that can sell power in Florida is a regulated utility company.  As this map shows, that makes Florida unique, one of only four states (Georgia recently authorized third-party solar) that prohibit third party solar:

Image: DSIRE

The anti-solar climate in Florida is fostering opposition from the usual suspects, including the Southern Alliance for Clean Energy.  It's also creating a partnership between environmentalists and the Tea Party:

Debbie Dooley agrees that change is inevitable and may be coming sooner than many have expected. She is the president of the Green Tea Coalition and Conservatives for Energy Freedom, part of a growing movement among political conservatives who are advocating for solar across the country.

Bills have been awaiting passage "for years," she said, "and they have all stalled in committee. Now we are taking the message straight to the people, giving Floridians the right to decide for themselves."

Other conservatives are likewise frustrated by the rigidity of the state's solar rules:

"It is very frustrating to see how special interests affect politics," he said. "I'm a Republican solar contractor and I'm frustrated with my party in this state for taking donations that do not allow for competition and free market."

The groups are pushing for a constitutional amendment to be placed on the ballot in 2016, which would remove barriers to third party solar installation.  In response, utility companies have started their own solar campaign:

Opponents have started a committee and constitutional amendment of their own: Consumers for Smart Solar, which aims to protect the existing rules around solar power. The Florida Chamber of Commerce — whose board of directors includes executives from five power companies — is a supporter.

Utilities are right to point out that regulation is needed in the energy sector to ensure that energy provision and consumption is safe and reliable.  But there's likely a less extreme option available to the legislature than a blanket prohibition on third party solar.  We'll find out in November 2016 if Florida voters agree.

Follow the Money: Florida's Land Acquisition Trust Fund

WACISSA RIVER, FLORIDA.  PHOTO: FWC

Constitutional Amendment 1 wasn't controversial when it was on Florida's ballot last November.  Dubbed the Florida Land and Water Conservation Initiative, the amendment passed easily.  Controversy has flared up since then, as interpretations of the amendment vary.  Some say the money raised by the amendment - put into the Land Acquisition Trust Fund - can only be used to acquire conservation land.  Others (including legislative budget proposals) claim the funds can be used to cover existing expenses related to land and water management.  I wrote about this back in May, arguing that the language of the amendment probably leaves room for the Fund to cover existing operations, despite the name of the Fund itself.  I also wrote that acquiring land might not be the only mechanism to achieve sound conservation: 

Amendment supporters might consider focusing the debate on outcomes, not inputs.  Land acquisition might not by itself promote conservation, just as operational spending is not per se  unproductive.  An effective conservation framework in Florida requires lands that are thoughtfully managed to advance conservation goals.  So instead of bemoaning operational expenditures, it might behoove amendment supporters to ask for more detail instead:  Will staff salary allocations make new hires in areas where expertise is lacking or merely cover the existing bureaucracy?  What kind of "technology and information services" will be provided to the Department of Environmental Protection?  Will firefighting equipment purchased by the fund prioritize the protection of conservation areas?  Given that sea level rise presents a monumental challenge to coastal communities, will the fund be used to finance climate change adaptation measures Florida's cities are begging for from the state?

The Vero Communique picked up on my piece, and it looks like they've been doing just that by trying to track down the whereabouts and details of two major state-funded projects.  One of them was an allocation from the Land Acquisition Trust Fund to the St. John's River Water Management District:

Another project we researched is one of the [] projects where $ 2,750,000 was allocated to the St. John’s River Water Management District (SJRWMD).  SJRWMD was kind enough to respond to our inquiry about this project, as follows: “The $2,750,000 referenced in Rep. Mayfield’s column is a state appropriation from the Land Acquisitions Trust Fund. The District has not yet determined how this money will be used, but will be making that decision in the near future.”

This is the first instance I've encountered where a water management district has been given an allotment from the Fund with discretion on how to spend it.  It might imply that legislators are willing to place the burden of interpretation on implementing agencies by giving them both funds and the discretion to spend those funds in compliance with the amendment's terms.  It will be interesting to see how the SJRWMD decides to spend the appropriation in light of that power.

Introducing "Cooperative Federalism in Biscayne National Park"

Stiltsville homes in Biscayne National Park.  Photo: Ryan Stoa.

For the past few months I've been working on an article about Biscayne National Park.  More specifically, I've been looking at the unique relationship between the state and federal government when it comes to fishery management.  With the National Park Service releasing its Final General Management Plan for the park last month, I'll be excited to post my draft on SSRN sometime next week.  In the meantime, here is an early draft of the introduction: 

The National Parks of the United States are nothing if not unique.  Active volcanoes, the world’s longest cave system, geothermal geysers, the largest island of the world’s largest lake, and the tallest trees on Earth can be found in the National Park System, among other natural wonders.  Some parks receive millions of visitors and are international tourist destinations – Grand Canyon National Park receives over 4.5 million visitors each year.    Others are so remote they don’t have park facilities and receive around a thousand visitors monthly.  

Biscayne National Park is neither remote nor highly frequented.  Despite its location within Miami-Dade County (population 2.66 million), the park receives only slightly more than half a million visitors annually.  That’s less than Denali National Park in Alaska, which is serviced by a single gravel access road.  North of Biscayne National Park lies the highly developed barrier islands of Key Biscayne and Miami Beach, as well as the Port of Miami, the world’s largest cruise port.  To the south lie the Florida Keys, and to the west the city of Miami, including a solid waste landfill and nuclear power plant visible from the park.  

Nestled between these bustling coastal developments is Biscayne National Park, the largest marine national park in the United States with 95% of its 173,000 acres located underwater.  The marine nature of the park sets it apart in various ways.  Much of BNP’s waters can only be accessed with a boat; on the other hand, with a boat nearly all of BNP can be accessed.  The park has four distinct ecosystems, including mangrove shorelines, estuarine shallows, barrier islands, and coral reefs.  These ecosystems sustain more than 100 species targeted by recreational and commercial fisheries.  In fact, BNP’s lucrative marine resources are what prompted Congress to protect the area in the first place.  As a result, management of the park and its resources plays an out-sized role in the South Florida tourism and fishing industries.  It also becomes highly controversial.

Aside from its marine character, Biscayne National Park is unique in the National Park System for the way in which its implementing legislation dictates the relationship between the National Park Service and the State of Florida.  With respect to fishing, Congress decreed that “the waters within the park shall continue to be open to fishing in conformity with the laws of the State of Florida.”  In other words, the state retains jurisdiction over fishing regulation and management in the park.  For a park that is mostly underwater and whose primary natural resource is fish, this reservation is a significant concession.  The reserved power notwithstanding, Congress simultaneously authorized the Secretary of the Interior to “designate species for which, areas and times within which, and methods by which fishing is prohibited, limited, or otherwise regulated in the interest of sound conservation to achieve the purposes for which the park was established,” giving the NPS the ability to impose their own fishing regulations in the park.  But, in waters donated by the state after establishment of the park, fishing must be regulated in conformity with state law. 

While these seemingly overlapping and contradictory mandates are confusing, Florida and the NPS have agreed in principle to manage fisheries uniformly within park waters.  That is likely a wise approach, as fishing compliance and enforcement would be challenging for all stakeholders involved if a multitude of marine jurisdictions in close proximity to each other had their own regulatory requirements.  On the other hand, it forces the state and federal government into a unique partnership, with each having arguably equal bargaining power over fisheries management. 

States and the federal government have been engaging in “cooperative federalism” for decades, through state implementation of federally-funded programs or state compliance with minimum federal standards.  In the field of environmental law, cooperative federalism takes place through state-managed compliance with the Clean Air Act and Clean Water Act, or the development of Coastal Zone Management Plans.  Cooperative federalism is less common in natural resources law, which is more place dependent and therefore subject to jurisdictional and territorial divides.  It is especially rare in the National Park System, where responsible park management must include state and local stakeholder involvement, but rarely provides so much legal authority to the state.  Biscayne National Park is therefore unique for both its marine and governance characteristics.

This article explores Biscayne National Park’s federalism contours in order to assess whether its management paradigm provides a workable model for replication in waters (or lands) of the United States and around the world.  Materials supporting this research include implementing legislation, state and federal regulations, management policies, inter-agency documents and communications, and direct stakeholder interviews (including consultations with federal, state, and local officials).  Ultimately there are some clear drawbacks to the BNP cooperative federalism model: namely, that dual control over fisheries management lengthens and increases the cost of the joint policy-making process. However, the synergistic effect of joint management is that NPS planning is more integrated with local legal frameworks, is more responsive to stakeholder needs, and receives the sense of ownership from surrounding communities that is so critical to the long-term sustainability of natural resources management.  Cooperative federalism in BNP has expanded the role and influence of the park beyond its borders, producing an overall positive outcome for stakeholders and the marine environment.  The research suggests that, while BNP may be unique geographically and politically, a similar governance model could produce similar benefits for other public lands, waters, and natural resources.

Cuba's New Environment: offshore oil and gas

Photo: United Nations Photo

When Cuba and the United States announced in December 2014 a mutual desire to re-establish and improve diplomatic relations, it was clear the process wouldn't take place overnight.  Members of Congress remain skeptical, while Cuba has a long ways to go to satisfy western standards for human rights and open governance.  But the writing is on the wall, and  governments and foreign investors are lining up for their chance to tap into the Caribbean's largest country (by population and land area) and its vast natural resources.  Last week French President Francois Hollande became the first European leader to visit the island since 1986.  He brought with him a contingent of French business executives, just as diplomats from Japan, the EU, and Russia brought their own private sector leaders in recent visits.  French oil giant Total is now rumored to have struck a deal to explore off-shore oil reserves in Cuba's waters.  More foreign investment agreements are sure to come this year.  

Lifting the Cuban embargo is sure to transform Cuba's economy, and in many ways, the mere anticipation of it already has.  But it will radically transform Cuba's environment as well.  The sectors most likely to see dramatic change implicate environmental laws and regulation that were not designed to absorb rapid changes: transportation, agriculture, tourism, and oil and gas development.  I will be following US-Cuba relations in the coming months with an eye toward what this all means for the environment.  First up: regulation of off-shore oil and gas development.

It would be too simplistic to say that lifting the embargo would be good or bad for the Cuban environment, and that's true of the oil and gas sector in particular as well.  On the one hand, economic isolation has likely depressed oil and gas exploration in Cuban waters, keeping sonar, construction, shipping, and drilling constructions out of marine ecosystems, while keeping fossil fuels in the ground.  The lack of activity means the likelihood of a catastrophic oil spill reaching the shores of Cuba or Florida is low.  On the other hand, a lack of diplomatic relations with Cuba means the US doesn't have a bilateral agreement in place to deal with an oil spill.  The isolation also prevents collaborative research between US and Cuban researchers from looking at ways to improve natural resources management and disaster planning.  Florida state law, for example, prohibits state university researchers from conducting research in Cuba or Cuban waters.  Lifting the embargo may reverse both trends, increasing oil and gas development as well as contingency planning and research.

Cuba understands that its energy status quo is not ideal.  It produces about half of its own oil, mainly for industrial use.  The other half it receives from Venezuela in exchange for healthcare support.  Relying on a single source for half of your energy needs is not ideal under normal circumstances, much less when that source is undergoing political turmoil, so Cuba has an interest in diversifying.  It has plans to increase renewable energy production (98% of electricity comes from fossil fuels), but sees its offshore oil and gas reserves as the path toward energy independence.  Cuba estimates that it's Exclusive Economic Zone (EEZ, waters over which it has oil and gas rights) contains around 20 billion barrels of undiscovered crude oil.  The US Geological Survey has estimated Cuba's EEZ to contain around 5 to 7 billion.  Either way, Cuba intends to find and develop its reserves, and has already partnered with China, Brazil, and Venezuela to develop critical infrastructure.  

There are reasons to doubt an immediate expansion of oil and gas development in Cuba, including low oil prices and new opportunities in Mexico.  But drilling is likely to occur sooner or later, and that's where US-Cuba agreements, regional disaster planning, and US laws are ill-prepared.  An oil spill off the northwestern coast of Cuba would hit Florida within 6 to 8 days.  And yet, Cuba and the United States don't have a bilateral agreement in place to deal with that scenario.  The US and Mexico have a bilateral agreement that regulates oil and gas development in the Gulf of Mexico, establishing safety standards, emergency protocols, and inspection procedures.  A similar agreement is needed to protect the Florida straits.  Domestically, US law impedes oil spill response by limiting the number of licenses issued to companies that are pre-approved to provide oil spill services in Cuban waters.  As mentioned above, it is difficult for researchers to study Cuba's coastal and marine environments without federally-approved licenses and visas.  And if a spill originated in Cuba's EEZ, the Oil Spill Pollution Act wouldn't be able to extract compensation for damages.  The Oil Spill Liability Trust Fund could provide relief, but it lacks meaningful and readily-accessible relief funds.  

Sooner or later Cuba's off-shore oil and gas reserves will be exploited.  Its reliance on Venezuela and a potential increase in demand from economic development and tourism will force it to uncover every rock.  Cuba can help itself by diversifying into renewable energy, particularly as a source of foreign investment.  Negotiations between the US and Cuba should prioritize cooperation over oil and gas development and emergency response, and come up with a treaty that enumerates safety standards, roles, and responsibilities.  Domestically, the US should make it easier for US companies to participate in oil spill response efforts, and ease restrictions on researchers to simulate environmental impacts and collaborate with Cuban universities.  The dominoes are starting to fall, and for the sake of the Caribbean environment and coastal communities in Cuba and Florida, international and domestic laws must be in place to minimize the damage.  

Cuba, the Bahamas, and Florida from space.  Photo: NASA

Does Florida's Land Acquisition Trust Fund really require land acquisition?

Wacissa River, Florida.  Photo: FWC

Last November 75% of Florida voters supported Constitutional Amendment 1, the Florida Land and Water Conservation Initiative.  The amendment was designed to ensure that at least one-third of existing documentary excise tax revenues would be allocated to the Land Acquisition Trust Fund.  The Fund, in turn, would be used to promote conservation and natural resources, primarily through the acquisition of lands for conservation.

Before the Florida legislature abruptly adjourned last month before adopting a budget, supporters of Amendment 1 were outraged by the way in which lawmakers proposed spending Amendment 1's $750 million conservation funding.  Budgets in both the House and Senate propose spending conservation funding on existing operational costs.  The House budget proposal includes funds for staff salaries and firefighting equipment, while the Senate budget funds new patrol vehicles and fish farming regulations.  Supporters of the amendment claim those expenses aren't permitted:

"I don't think the words 'Land Acquisition Trust Fund' could be any more clear," said Will Abberger, chairman of Florida's Water and Land Legacy, the committee that sponsored the amendment. "It's not the 'land management trust fund.' It's not the 'existing agencies operations trust fund.' It's the Land Acquisition Trust Fund."

The sponsor committee claims that out of the $750 million available, only $8-10 million is reserved for the acquisition of land for parks and wildlife areas.  The Speaker of the House believes that is enough to satisfy Amendment 1's objectives:

"We should make sure we can maintain the 5.3 million acres of conservation lands we already own. We believe land should be purchased for strategic reasons, such as wildlife corridors and connecting existing state lands."

Unfortunately for the sponsoring committee, there is some ambiguity in the actual language of the amendment.  It sets aside funding "to finance or refinance" several broad categories of conservation work, including the acquisition and improvement of land; wildlife management areas; lands that protect water resources and drinking water sources; lands in the Everglades Agricultural Area and the Everglades Protection Area; beaches and shores; outdoor recreation lands, including recreational trails, parks, and urban open space; and rural landscapes, working farms, and ranches.

The broad nature of the amendment leaves ample room to interpret existing operational costs as viable uses of the Land Acquisition Trust Fund.  That operational spending would seem to violate the spirit of the amendment may have little bearing: even the ballot summary statement was clear that "management" of conservation lands would be fair game.

While lobbying continues before a special session is convened in June to finalize the budget, amendment supporters might consider focusing the debate on outcomes, not inputs.  Land acquisition might not by itself promote conservation, just as operational spending is not per se  unproductive.  An effective conservation framework in Florida requires lands that are thoughtfully managed to advance conservation goals.  So instead of bemoaning operational expenditures, it might behoove amendment supporters to ask for more detail instead:  

• Will staff salary allocations make new hires in areas where expertise is lacking or merely cover the existing bureaucracy?  
• What kind of "technology and information services" will be provided to the Department of Environmental Protection?  
• Will firefighting equipment purchased by the fund prioritize the protection of conservation areas?  
• Given that sea level rise presents a monumental challenge to coastal communities, will the fund be used to finance climate change adaptation measures Florida's cities are begging for from the state?

If lawmakers can't be forthcoming about proposed allocations, then amendment supporters are right to be skeptical.  Conservation isn't all about acquiring land, but if funds are being channeled toward operations and management instead, it's fair to ask how improved institutional capacities will produce the conservation outcomes that are at the heart of Amendment 1.  

Lake Runnymede Conservation Area.  Photo: Andrew T. Sullivan