Florida isn’t just on the front line for climate change in America – it’s also a testing ground for new legal questions about how to deal with its consequences.
In the latest episode of Real Cases, we speak with Assistant Professor Jaclyn Lopez, Director of the Jacobs Public Interest Law Clinic for Democracy and the Environment. We discuss public access to environmental justice, new legal problems raised by increased flooding, and the role the Jacobs Law Clinic is playing in fighting to extend federal Endangered Species Act protection to the ghost orchid, a rare and famous flower unique to the region.
Transcript:
Speaker 1 (00:01.464)
There these two overlapping theories of how we want to govern ourselves. So on the one hand, in the U.S., we really pride private property ownership. It is one of like a fundamental expectation of adulthood that you own your little piece of earth and that is yours to do whatever you like with it. You know, we understand that in a local government context, maybe subject to what your neighbors might feel about it. But we also have this
reality we must grapple with, which is there are things that move across the earth that we all share, like air and water biodiversity. And to address those public shared resources, we have laws that attempt to seek a balance between an individual's right to do what they want on their land and the right of everyone else to enjoy these common resources.
This is Real Cases, a legal podcast presented by the Stetson University College of Law. We'll sit down with Stetson Law faculty and students to examine today's critical cases and debates in environmental, international, elder, and business law, plus the role of social justice in these fields. Join us as we open the case file.
I'm Daniel O'Keefe, Master of English Literature from Indiana University. Today we're joined by Assistant Professor of Law and Director of the Jacobs Public Interest Law Clinic for Democracy and the Environment, Jaclyn Lopez.
Professor Lopez teaches courses on environmental practice, professional responsibility, and advanced legal research and writing. She came to Stetson from the Center for Biological Diversity, an environmental nonprofit organization where she served as Florida director and senior attorney for over a decade.
Speaker 2 (01:58.112)
In addition to her JD, she holds a master of laws and environmental and land use law and a master's degree in urban planning. She writes and lectures on access to courts and decision makers, corporate interference and democracy, climate change, water and air quality, environmental injustice, and the extinction crisis.
So first off, I'd like to start out by asking you, so you're the director of the Jacobs Public Interest Law Clinic for Democracy and the Environment. I'd like to ask you a little bit about what is that clinic and how does it work?
Yeah, so thanks for having me. I was hired last September, so that would have been September of 2022 to establish and direct a public interest law clinic at Stetson, which is the first of its kind where we bring in law students that are in their second or third year of law school and we assign them to clients that have real world problems that they need help with. So the types of cases or matters that they work on include
issues that arise in the context of environmental issues or conservation issues like clean water or biodiversity protection, as well as democracy issues. And that could come in the space of access to the courts, transparency with decision makers, or certain first amendment protections. And the work that the students do through the clinic is
is all very practical and hands-on and skills-based. And that's the whole purpose of the clinic is to provide the students with opportunities to interact with clients, to develop skills like interviewing a client, drafting a brief, advising a client, presenting before a professional audience so that when they leave law school, not only are they prepared to pass the bar, which they need to do to practice law,
Speaker 1 (03:54.146)
but they also have practical skills that they bring into their new job.
What do you feel like are some of the practical skills that students that you work with usually need the most work with or that you find that they benefit the most from working with you in the clinic?
The skills that law students have access to are traditionally in the doctrinal space. So when people think of going to law school, they're like being in the library, reading, outlining, maybe having some kind of Socratic conversation with their peers or with their professors. And that's necessary and valuable for developing analytical skills. What the clinic does is it takes that foundation to the next level so that
We're starting to demonstrate the skills that we expect lawyers to have, which includes the ability to see a problem that a client has, understand the client's goals, come up with a plan for achieving those goals, and then adequately communicating all of that to the client and to the adversary and to whoever else needs to be involved in that problem solving. And so sometimes for some students that come into the clinic,
who maybe are coming directly out of undergrad or for whatever reason haven't had a lot of life experience under their belt just yet. they've never had access to those types of skills development. And the clinic provides at a minimum a semester long, a three to five credit hour opportunity, but you can take it for more than one semester to work with not hypothetical or simulated people.
Speaker 1 (05:39.938)
but real people with real problems and real expectations that are all, and the students are practicing under and through my bar license, which means that all of those ethical obligations for having sort of the responsibility and duty of competence to a client that we expect of our bar attorneys, we're instilling in our law students. And these are invaluable skills that students maybe,
Maybe this falls outside of the scope of what students coming into law school think about when they think about the movies that portray what it looks like to be a law student hunkered down in a library. No, it really, it has a lot to do also with the development of these communication skills, research skills, writing skills, oral advocacy that you don't otherwise get great access to in a conventional doctrinal course.
I was wondering if you could tell me a little bit about the connection between, on the one hand, the environmental issues that the clinic deals with, and at the same time, you were also saying that it deals with issues of democracy, because I think obviously these are things that are profoundly related and yet not necessarily in a way that might be intuitive to a lot of people who don't spend a lot of time thinking about some of these concerns.
Yeah, that's right. Our concepts are notions of democracy. So how we do democracy in the United States is through a representative democracy, right? We have folks in our community that we elect to represent us in the state and federal levels, and we do that through Congress. And those individuals are then supposed to take their constituents' ideas and preferences and pass them into law. So that's what we call our legislative branch, and that exists at the state and federal levels. Now, when we have...
encumbered access to our decision makers, either because we have voting rights that are being impacted, or we have decision makers that are being unduly influenced by corporate interests, which are not the same as regular citizen interests, then we have an access to democracy or a problem with democracy because there's an unbalance there. Now, normally, the way that our system is supposed to work is you have a check.
Speaker 1 (07:51.01)
to these systems. So we have the legislative, that's where we elect people and they represent our will, but then we also have the executive. That's our president, that's our governor, that's the head of our agencies. And those individuals are supposed to likewise be responsive to the will of the people. And sometimes as a consequence of just the slow moving creature that is bureaucracy, but also sometimes due to again, undue corporate influence, either through lobbying or unfair practices and manipulation.
though that executive agency can fail as a check on the legislative agency. So the executive agency is responsible for implementing and enforcing the laws that the legislature passes. And when that doesn't work the way that it's supposed to, we need a way to hold that institution, that branch of government accountable, which brings us to the third branch of our government, both at state and federal, which is the judiciary.
Judiciary is only as good as our access to it. And we've seen in some instances where access to the courts are becoming limited as a consequence of changing jurisprudence or as a consequence of new laws that are passed that restrict access through concepts known as standing or through the chilling effect of some recent fee shifting provisions. And so in each of these three branches,
the clinic seeks to lift our clients matters that often arise in this conservation or environmental space and highlight where there might be vulnerabilities in democracy that are sort of the root cause of whatever the environmental injustice might be.
That's interesting what you were saying just now. Could you talk a little bit more about that about what you were saying are some of these new laws that are restricting access to the judiciary, specifically with regards to environmental law.
Speaker 1 (09:43.06)
one of the bills that's under consideration would change the language of an existing law, which currently says that when you as a citizen or you as someone who's been denied a permit application to do some sort of development, you wish to seek judicial relief. Ordinarily in the United States, each party pays their own costs and fees, their own attorney's costs and fees. There are certain exceptions and those are usually legislatively created.
So in Florida right now, if you bring a lawsuit and you want to challenge the issuance or denial of an environmental permit, you go to state court, you win or you lose, but each side generally pays their own costs and fees, attorney's fees and the costs associated with bringing a lawsuit, unless a judge makes a decision that you or your client has brought this lawsuit frivolously, no foundation in law or fact, and then it might assign
the costs and the fees against you. That's what we have as status quo. The proposed bill right now would remove that language and instead say, if you lose your lawsuit, you have to pay the other side's costs and fees. Maybe in another system or different state or different nation, that might strike you as rather ordinary. You got to pay the other side.
brought the lawsuit, now you're responsible for everybody, but in the United States it's not how we do it. And the reason we don't do it that way, especially in the context of these sort of citizen suit provisions which allow us to step into the shoes of the government and say, hey, you didn't do this right, you need to protect this public good, is because the state legislature or the federal lawmakers
have recognized that sometimes our executive does break down and needs a little bit of support in implementing and enforcing these laws. And so they wanna encourage people to bring those types of lawsuits to a judge that can then make a decision about whether everything was done correctly. This proposed bill would have a chilling effect on people who wanna bring these types of lawsuits because not only would they be saddled with their own attorney's fees,
Speaker 1 (11:58.21)
but then the other side's fees as well. That's an example of an access to justice issue that the clinic is concerned with and the clinic's clients are concerned with. If you like, can give another different example of our legislature, because it's relevant to this session, is considering actions that affect our clients. So for example,
Yeah, that would be great.
Speaker 1 (12:26.186)
there is a pending proposal that would make it unlawful to protest in front of what this bill would call critical infrastructure. Be aware that environmental activists, and let's say in the context of oil and gas, like climate change activists, will sometimes take an approach or a tactic of protesting
Hmm.
Speaker 1 (12:53.142)
in front of a decision-makers building or in front of the headquarters of a corporation or in some cases, even near the actual infrastructure, chain themselves to a pipe or something like that. This would de facto make this form of protest unlawful. And the reason that's concerning is because our first amendment rights to speech and to petition our government for action
enshrined in our Bill of Rights, federally protected through our Constitution, are fundamental and essential for informing democracy. that infrastructure requires that if you're going to preempt a particular type of speech in time or place or content, you have to have a really good reason for doing it. And this bill as proposed doesn't provide that really good reason.
It just says, well, we're kind of cranky about you speaking your mind about these issues and we don't want you to be able to do that. That's sort of the, and so these are the types of things that concern some of our clients that we try to engage in and explain either through advocacy or litigation or other avenues, how they can harm democracy, at least democracy as we know it in the United States.
Yeah. So Stetson's Jacobs Law Clinic has filed suit in US District Court in Southern Florida, along with other conservation agencies, to get the US Fish and Wildlife Service to extend Endangered Species Act protection to the ghost orchid. Yes. I was wondering if you could tell us a little bit about those efforts. Yeah.
That's correct.
Speaker 1 (14:32.31)
Yeah, so the Jacobs Law Clinic represents three environmental nonprofit organizations, the Institute for Regional Conservation, the Center for Biological Diversity, and the National Parks Conservation Association. And those three entities had authored a scientific petition to the US Fish and Wildlife Service seeking Endangered Species Act protections for this really charismatic orchid.
called The Ghost Orchid. And The Ghost Orchid was made famous in popular culture anyway through a book by Susan Orion, which was later turned into a movie.
I'm familiar with the movie more than the book, but yeah.
Yeah, right. And it has maintained its popularity, not just in pop culture, but also with collectors that find where it is in the wild and then poach it. And that threat, combined with the threats of climate change and specifically hurricanes, so hurricanes that are becoming more intense and more frequent that cross the Atlantic and then hit the peninsula of Florida,
threaten the species continued existence. And so those three environmental organizations petitioned the Fish and Wildlife Service under a federal law called the Endangered Species Act. And the purpose of the Endangered Species Act, which was passed in the 70s and has a great track record of preventing extinction. The purpose of this act is not just to prevent extinction, but also to recover our plants and animals
Speaker 1 (16:10.348)
to a place where the protections of the endangered species act are no longer necessary. So for example, for the ghost orchid, that would look like federal penalties for poaching a ghost orchid in addition to whatever state penalties might be available, additional funding for habitat restoration. So one of our recent hurricanes that came through and hit Big Cypress National Preserve, which has a substantial population of these ghost orchid,
saw mortality of 20 to 30 % because the hurricane came through and took out a bunch of the trees that the ghost orchid was habitating at the time. And so the purpose of the lawsuit is to compel the federal agency charged with implementing and enforcing the Endangered Species Act to issue a decision about whether it intends to protect the ghost orchid under the Endangered Species Act.
by, well, not by the statutory deadline that Congress prescribed, which has long since passed, but by some other imminent deadline so it can get those protections. The petition was met by a positive response by the agency. So the agency received the petition, read all the information, and made a determination that the petition presented substantial scientific information indicating that listing may be warranted. And the next step
according to Congress was that the agency was supposed to then do a more robust analysis and produce a finding within 12 months of receiving the petition. And the agency just never did that. And then when asked when it intended to do that, it said not for several more years, which is well outside the scope of what Congress intended. And the reason Congress prescribed these tighter deadlines is because we're talking about species extinction, which means not just the loss of one or two
individuals that we might call by name, you know, there's ghost work at C16 or whatever. What we mean by extinction is the entire loss of a species, every single individual gone, only found in fossil records moving forward. And that's what we're trying to prevent. And we can only achieve that goal if once we identify those species that are warranting that type of protection,
Speaker 1 (18:31.468)
we actually list them and only then do the protective measures of the Endangered Species Act kick in, like the enhanceable and criminal penalties for poaching, like funding made available for habitat restoration, like whatever the agency determines might be necessary to not only prevent the extinction, to stave off that threat, but as well as to recover it, make the population resilient and robust so that it can withstand the hurricanes that are gonna keep.
on coming through and the occasional poachers that get away with taking these plants out of their house.
What avenues are available now that you've received this information that they, yes, they ostensibly agree that this should be done, but then they project that they won't do anything about it for possibly several years?
So what we've done in this instance to compel a decision is we've filed a lawsuit in federal district court, which was envisioned by Congress. So when Congress drafted the Endangered Species Act, it included a section that addressed citizens' ability to bring a lawsuit. So when citizens identify a failure of the agency to enforce or comply with the provision of the act, and in here the provision would be, you must issue a decision within 12 months,
then a citizen can bring that lawsuit to a federal judge who can then make a decision as to whether or not this deadline was missed. Here, a judge could come in and say, yes, I'm reading the statute along with you. And yes, I see the provision of the statute where it says you must issue this decision in 12 months. So I find that the Fish and Wildlife Service has violated the Endangered Species Act. But then what comes next is the remedy. So once you have just a
Speaker 1 (20:15.202)
declared judgment, that's not enough. We know that there's been a violation. What we need is action. And so the judge has the discretion to order the agency to then make a decision by a date certain, which is what we're hopeful we'll accomplish with this lawsuit.
I see. Okay. Okay. So I misunderstood. I thought that at first that you were involved in the initial petition, not that the lawsuit wasn't response to the in this case the coincidentally yes both actually both. Yeah. So I'd like to ask you a little bit about, especially in light of bringing up the ghost orchid, and as you said, something that is so... The ghost orchid is something that has been active in the popular imagination because of the Susan Orlean book and then the movie. But then also, there's a very strong association as a consequence of those things with Florida in particular. And I'd like to ask you just a little bit about someone, such as yourself, doing environmental law in Florida.
You know, it's well known throughout the country that Florida is a state that's uniquely vulnerable to the consequences of sea level rise. And yet I would like for you to just, if you could rehearse with us, just what are some of the particulars in that regard that people might be less familiar with or some of the consequences of that issue and how they've been playing out at a state level. I'd like to find out a little bit more about that.
Speaker 1 (21:38.646)
Yeah, for sure. So Florida really is ground zero for not just sea level rise, but climate change. Although sea level rise is probably maybe the most cinematic after hurricane. What I mean by that is we have the gradual sea level rise, which our records show is happening at a rate much faster as well as correlated with greenhouse gas emissions. So there's an established causation from
the production of greenhouse gas emissions, which come from all different sources, which then create this greenhouse effect, which helps trap heat, which then disrupts our climate. And one of the things that is a consequence of that is the thermal expansion of our oceans, as well as the melting of ice, which causes the sea level to literally rise. And we can measure this in all kinds, and Canon have been measuring this in all kinds of different ways. So the,
kind of ongoing daily nuisance of sea level rise happening here in St. Pete, like in a neighborhood in Shore Acres, for example, that makes local news and maybe even national news now, but as them and down in Miami as well is what we call sunny day flooding, which is something that happens when there's no rain, but because the sea level continues to rise, our conventional gravity fed storm sewers, which ordinarily just empty out
They take the water that we ordinarily would see hitting the surface and then it channels it out into the ocean or to surface waters. We see seawater coming back up into them and flooding neighborhoods, parking garages, you name it. That's one consequence. Another consequence is in areas that haven't been developed, so are less urban, like in some areas of the Keys, for example, we have existing natural beach areas.
Our nesting shorebirds and sea turtles are being affected by rising seas because they are being, the beaches where they have a preference for a particular temperature and moisture of that sand where they lay their eggs is being affected by the rising seas. It's changing that. And in some cases, so for example, with sea turtles, this has more to do with temperature and moisture than it does just
Speaker 1 (24:03.212)
sea level rise in isolation is that we see nearly 100 % of our hatchlings from loggerhead sea turtles in Florida are now all female, which is gonna have profound long-term consequences for that population as the sea turtles then mature and they don't reach sexual reproductive age for over a decade. But in the future, there's gonna be consequences for that population when we have nearly 100 % reproductive age females swimming around in very few males.
to help with the propagation of the species. Other things that happen is we saw during Hurricane Ian, the combination of rising seas and then when we get a storm that comes in, the storm surge with those rising seas pushing water further inland. So we saw what ordinarily would have been coastal flooding down where the area of impact was, which like Sanibel Captiva, we saw those waters push in more than 20 miles into the Peace River.
into DeSoto County, which has no coastal property at all, totally interior, seeing flooding, not from the rain, but from the sea level rise plus the storm surge that forced all that water up into a freshwater ecosystem. So have sea level rise as a consequence of climate change. We also see increased heat. So Florida's already hot. It's going to continue to get hotter.
but very importantly, the heat index, is what it is like the feels like temperature. So combining the humidity as well as the heat, our area is going to see the most rapid increase in heat index, which is really concerning because we have really vulnerable populations in Florida. We're the fastest growing state and a significant portion of the people that live in Florida are elderly, they're older.
individuals which can be more susceptible to the effects of heat, as well as people with pre-existing conditions and then the very young. And so as Florida continues to get more hot and we don't have adequate infrastructure to help cool people off or our outdoor workers are also vulnerable, we don't have policy and guidance for employers to help protect them from these harms, we're gonna start to see increased human health impacts from this.
Speaker 1 (26:24.758)
Other concerns with climate change include flooding from precipitation. So just these more intense rain storms that we get. So normally, Florida is a very wet place. And when we used to have tons of wetlands, we used to be the highest percentage of wetlands coverage out of any state. What would happen is our wetlands slow down that precipitation. So when it hits the ground, rather than just run off on concrete and then go back into the ocean, it would hit these
plants and lush soils, slow the water down, clean the water through the plants, removing the nitrogen and the phosphorus, which the plants treat like fertilizer, so they grow. But then we're taking those other things out of the water before it hits our coastal areas where it can then feed like red tide and harmful algae blooms. And then we also give the chance to the earth to then soak up the water.
to refill and recharge our aquifers. But now when we have these really heavy rain events and coupling that with the changes in land use where we have a lot more pavement than we do wetlands or relative to what we used to have, the earth doesn't have an opportunity to absorb that water, recharge our aquifer, and we are pushing that water out into our coastal or near coastal areas full of
things like phosphorus and nitrogen, which then have the effect of feeding these harmful algae blooms. So all of these things are deeply interconnected. They're very unique to Florida, but there are lessons learned for other states depending on how Florida ultimately reacts to it.
Yeah, I'd to ask you a little bit more about those algae blooms that you just mentioned, because I know that you've written some scholarship on this topic and specifically how it's related to agricultural runoff. So could you tell us a little bit about what you've written about that?
Speaker 1 (28:23.788)
Yes, in Florida, we have several sources of what they call nutrient pollution. And all nutrient pollution is when we have levels of nitrogen or phosphorus and other things as well, like suspended solids and other things that are out of balance with whatever aquatic ecosystem they end up in. So when we think about agricultural impacts, and in Florida, this is really region specific.
So of course in Pinellas where we are, where the law school is, we're very urban. We don't have a ton of agriculture. So our sources of nutrient pollution are different. But in inland Florida and on the East Coast, like the Indian River Lagoon, we have isolated areas of agriculture. And what can happen is if these sort best management practices for agriculture, which depends
dramatically on what type of agriculture you're producing, which can include like sheep and cows or oranges or sugar, is that the fertilizers or pesticides that are applied to that land can enter nearby waterways as a consequence of whatever the agricultural practices. And when they enter the nearby waterways and you're coupling that with atmospheric deposition of nitrogen, so like our car emissions,
send all that into the air, and then when it rains, it brings it back down to the earth. Or with other land uses, like I mentioned, paving over wetlands doesn't give the ground an opportunity to clean the water and recharge it. We see additional inputs of phosphorus and nitrogen into water systems. Now, how that relates to harmful algae blooms is when a water body is receiving too much of this nutrient pollution, it can have the effect of
feeding algae. Now algae is naturally occurring. And also the dinoflagellates, which are a little bit different, which is red tide, which is more of a West coast of Florida thing. these things that we sort of group together as harmful algae, which is something that's naturally occurring, but gets fueled to a super bloom out of control and out of what is typical for that ecosystem or for that species of algae.
Speaker 1 (30:42.35)
Some of this algae can be harmful because the algae itself is toxic. So when you're exposed to cyanotoxins, for example, that can cause neurological effects, not just on people, but on their pets, on marine wildlife. There are some studies that indicate that they can have a neurodegenerative effect on the brains of marine mammals and potentially people nearby. But also,
When harmful algae doesn't have toxic properties, it can nonetheless be really damaging for an ecosystem. Because if you imagine like what happened in Indian River Lagoon with all those manatees that had been starving for the last few years, Indian River Lagoon is a popular spot for the manatees. They like to congregate there during the winter because there's a little bit of warm water that comes out of a power plant. And that
that lagoon used to also have a lot of seagrass. So not just the warm water that manatees need during the cold season, but food as well. What started to happen was a shift in the ecology there because of nutrient pollution, feeding what they call macroalgae, so the bigger species of algae, which are not necessarily toxic to the manatee, but what it does is these algae rise to the surface of the water. They then populate the surface of the water, which then provides like this giant umbrella over the seagrass.
which just like the grass you might find in your neighborhood, needs the sun. It needs the sun for the chlorophyll production to exist as a grass. Seagrass is no different. Seagrass needs clear water. When you have macro algae blooms, you're putting a giant shade over that seagrass and it doesn't have enough sun and it dies. So the manatees come into the lagoon because that's what they've been doing generations now, looking for the food, looking to hunker down for the cold snap.
and finding no food. And their biological prerogative is to stay warm. They can tolerate an amount of hunger. They can't tolerate months on end, season after season of no food. And so that's why we've been seeing this cascading effect from the nutrient pollution that's affecting the Indian River Lagoon that has had the consequence of reducing the seagrass and killing hundreds of manatees, thousands of manatees at this point now.
Speaker 2 (33:01.978)
I feel like this is a naive question because I'm sure that there's a whole complicated areas of law that I'm entirely unfamiliar with that govern how this works. I mean, just from a layman's perspective, it seems like the issue of agricultural runoff must be a particularly complicated and nuanced sort of problem from the standpoint of property law, right? And so I'm wondering if you could like just run me through a little bit about how that works.
It's a really good question. so how environmental law overlaps with private property is really important in the United States. And there are these two overlapping theories of how we want to govern ourselves. So on the one hand, in the US, we really pride private property ownership. is one of like a fundamental expectation of adulthood that you own your little piece of earth and that is yours to do whatever you like with it.
You know, we understand that in the local government context may be subject to what your neighbors might feel about it. But we also have this reality we must grapple with, which is there are things that move across the earth that we all share, like air and water biodiversity. And to address those public shared resources, we have laws that attempt to seek a balance between
an individual's right to do what they want on their land and the right of everyone else to enjoy these common resources. So the way that that works with nutrient pollution and agriculture, for example, is the government and that's at the federal and the state and the local level look at all the different water bodies and they say, okay, what are these water bodies used for? Are they traditionally ones that we fish in, swim in, get water, municipal water from?
Speaker 1 (34:58.592)
Okay, so they identify what those uses of the water need to be. And then they say, well, are those waters meeting those uses? Are they suffering from pollution such that we can't take up water? So for example, in Lee County on the West Coast was receiving harmful algae from Lake Okeechobee discharges. They were trying to pull, had always pulled water from the Kaloo-Sahatchee River to supplement their municipal drinking water.
and they couldn't because they didn't have the technology to remove that harmful algae from the water. So that's a consideration. So the agencies, the government gets together and says, okay, well, if it's not meeting its purpose, the water is being impacted somehow. What do we need to solve that? So scientists look at the data and they say, okay, well, this water body, we're gonna put it on a diet, just like a person, you 2000 recommended calories a day. Well, this water body is having way too much nitrogen.
So we've got to cut the nitrogen. Okay, well, what do you do when you need to go on diet? You go in your pantry and you're like, the Oreos have got to go, get rid of the Doritos, whatever. So the agencies along with the local partners look at the water body and say, what are the sources of nitrogen here? Well, a certain percentage of it is atmospheric. Well, that's a challenge to grapple with because that's tailpipe emissions. A certain percentage of it though might be coming from this piece of agricultural property over here.
Okay, well, let's look at that. Then the state comes up with what they call best management practices, which in theory, when implemented correctly, should reduce the amount of runoff from that land to the water body. Again, looking at fertilizer and pesticide application principally, but it can also include different things you can do on your land to help prevent that.
pollution from leaving your property. Again, the whole notion of this framework is that you can do what you want on your property as long as you're not harming people off your property. So put all the fertilizer, pesticide, anything else you want on there. But if it's leaving your property and affecting this common shared resource, we have to work on that. And so in the context of nutrient pollution and clean water, we have these best management practices.
Speaker 1 (37:21.794)
that agricultural producers are supposed to adhere to.
there are certainly issues with the implementation and enforcement of that. Cause if you can imagine we have thousands and thousands of thousands of people that that applies to. And we have agencies that perhaps are not adequately funded to go out and monitor. Or we have people that are reticent to allow people on their property to inspect whether these best management practices are being followed. So there is a tension there in the implementation and enforcement, but in theory on paper it should work.
And then I imagine all sorts of problems develop as a consequence of the discrepancy between the theory of how it should work and then what actually does occur.
Precisely, which is the space where our clients that we represent through the clinic operate in. They operate in bridging the theory. First of all, fact checking that theory. For example, do you have management practices? Have they ever been tested? Do they actually work? Even when properly implemented, do they work? Okay, well then making sure we have that and then carrying it over. Well, what's the reality? What kind of participation do we have in these things? Are the agencies adequately funded to make these site checks?
Yeah.
Speaker 1 (38:36.558)
Are we testing the waters? That's actually a question we have to ask. Are we testing the waters or are we presuming a certain level of water quality improvement because we are presuming that best management practices are being followed and we're presuming that they are achieving their intended goals.
Yeah. There's another article that I was looking up on your CV that I'm interested in asking you about. So you've written a little bit about the National Flood Insurance Program, and specifically about two different aspects of it that I thought were fascinating. One, about this idea that it obscures risk. And then also about the idea that it puts vulnerable communities at risk.
And so I'm curious to ask you a little bit about if you could explain a little bit about the scholarship you've done in that regard.
Yeah, so at this point, it's fairly well established, not just through my scholarship, which largely details and regurgitates the scholarship and prior findings of other individuals that show that the program, the National Flood Insurance Program, which has been in place for decades now, actually obscures risk rather than mitigates. And what I mean by that is that for areas that we now know
are in repeat flood areas. So previously, this was all done through just road mapping and analysis of what area is within an area where they call 100 year flood probability or 500 year flood probability. And then there's other sort of special hazard areas. So just through mapping, not taking into account climate change or anything else, elevation, elevation and traditional precipitation, do these areas flood? So we've known for a long time the areas that flood. We allow people
Speaker 1 (40:30.86)
to still develop in those areas. Again, this notion in America that we want people to be able to own land and do what they want with their land. So we permit it, we don't prohibit it. What the flood insurance program did was it said that if you're going to use money from a bank that is federally insured, you need to comply with certain, again, sort of best management practices if you're gonna be developing in this way.
And that's what the sort of the bare bones of this program is. And that gives us some reassurance that for individuals that are going to be building in flood prone areas that when they do get flooded, they're not going to be flooded as badly. And that we'll have some kind of funding to help provide relief through the Federal Emergency Management Agency, FEMA. But what has happened instead is we have
rates of flood insurance that do not accurately reflect the risk. So for homes or businesses that are located in an area that has repeat flooding, if you were the insurer, think about this just very logically, what rate would you apply? If I was the insurer, I would apply a rate that covers the entire replacement value.
with however often it tends to be flooding and that would be your rate. We don't do that. Instead, we adjust the rate so that people can afford the rate. But the perverse effect of that is people are paying into a system that is destined to fail. It's not just like car insurance. We pay car insurance hoping and expecting we're not gonna get into a car accident. When you...
build in flood areas, especially high flood areas. It's not if it's when you lose your property or diminish your property value. And so one way that the program could be improved is to say, no, the reality is this area should be abandoned or you should independently insure it, which you can do. Again, this only this only this program only attaches to federally backed loans. So
Speaker 1 (42:54.24)
If you are just independently wealthy, you don't need to opt into the system and that's fine. You're also not gonna, you shouldn't get a bailout. That's another problem that I talk about, which is that without reform, we have instances where people who have not their primary residence, but a second or third residence that gets damaged, get relief from this program in a full-grown area. These are things that the public shouldn't be subsidizing, but is. The other problem with this is that
depending on your region, what we call flood prone from a very human perspective is actually pretty valuable habitat from a biodiversity perspective. Because we're talking about in Florida, we're talking about lowland, wetlands, places that are really rich with plants and animals. And the flood insurance program, which incentivizes development in these areas because it masks the true risk of removing the wetland and putting down pavement in your home in a low area is at the same time contributing to one of the leading causes of species extinctions, which is habitat destruction.
Yeah, that as you say that that reminds me of something else that I saw that you had written about, which is this topic of coastal squeeze. Yeah, could you could you talk a little bit about that? that seemed that was a fascinating topic and one that I feel like I hadn't really heard much about before or really considered. Yeah.
Right.
Speaker 1 (44:23.106)
Coastal squeeze is the phenomenon of plants and animals being trapped between rising seas and just the ocean and urban development. So sea level rise as it occurred historically and just natural accretion and erosion, absent human interference and development happens on a time scale that's much slower.
that provides biodiversity an opportunity to adapt and evolve. So as the sands shift, they build new dune systems that are old ones, the biodiversity kind of moves with it. But now in the time of climate change where sea level rise is accelerating, it's changing much faster than it did historically, and coupling that with the pressure of urban development,
mean, in Florida, you're never more than 70 miles away from the coast. And the majority of the people in Florida live in a coastal county. We like being near the water. We have a lot of development on our coastal areas. So we do a lot to control that environment for the benefit of property protection, not necessarily for the benefit of species protection. And that squeezes our coastal species between the threat of the rising seas,
and the urban development, which leaves no place for biodiversity to retreat to or to naturally migrate to.
How exactly do the species respond to being squeezed into these areas as a result of them moving into like urban areas? Or I know this is something, so I'm from New Jersey originally, and I know that this is something that we frequently hear about when it comes to black bears because there are people in all sorts of communities will frequently be told, well, you have to lock up your trash or you have to do various things in order to prevent bears from migrating into neighborhoods where they're not supposed to be.
Speaker 2 (46:21.9)
But very frequently, this is also ascribed to the fact that there's overdevelopment, which is the reason why as we encroach into their natural habitat, it makes all the more sense that, of course, they're going to start wandering around people's neighborhoods. So I'm curious to hear a little bit about what have been some of the consequences when it comes to coastal squeeze and how have regulatory agencies responded to deal with it, if at all.
I'm so glad that you brought up the Florida panther as an example of a species impacted by coastal squeeze. Cause I think it's one that we wouldn't typically put in that category. When we think about it reflexively, we think about plants and animals that make their home in the coastal areas, which the Florida panther does not. an interior. mean, it occasionally finds its way onto Marco Island, but traditionally it's an inland species. And so what we're talking about there is this carryover effect of
the coastal areas becoming so congested as well as vulnerable to sea level rise and storms that people are already and will increasingly move inland. So as I mentioned, the majority of people living in Florida live in coastal counties. There's gonna be a demographic change with that in the coming years. A group called A Thousand Friends of Florida put out a study a few years ago that projected our population shifts within Florida.
all the way through 2070 and showed that our interior counties are gonna have tremendous population pressures. Because again, we are the fastest growing state. We are number one once again. And that's probably not gonna slow down anytime soon. And so there's this pressure to find places to put these people. And we can discuss what that means because there's the pressures applied in different ways. But in the context of Florida Panther, where it's the last remaining habitat.
less than 5 % of its original expansive range throughout the southeast is now just into one area of southwest Florida, south of the Clusahatchee River, largely north and west of Everglades, in an area that's facing tremendous development pressure. As the coastal areas of southwest Florida become either uninhabitable for humans or are just too, there's just no land left for people to build on.
Speaker 1 (48:35.022)
there's gonna be spillover into the interior portions of Lee County and Collier County, which is the last stronghold for panthers. Now panthers, gosh, they are wide ranging animals. They need lots and lots of land to roam, to breed, to hunt. And they are particularly vulnerable to habitat fragmentation. So as we are facilitating development in interior Florida,
What's the one thing we need to get? Roads. Roads take people to development. And the leading cause of panther mortality in Florida is getting hit by cars. The more roads we put in, the more panthers that are getting hit. The second leading cause of panther mortality is something called intraspecies or specific to within a species aggression. So males killing males because there's not enough territory. The territory becomes further divided and
sort of like a death by a thousand cuts when we think of what's left of remaining Florida panther habitat. There are some areas in South Florida that are less vulnerable to these impacts, like to the extent that the panther uses Big Cypress National Preserve and we can keep that free of urban development, that'll be a good thing, but that's just an even smaller chunk of what's available. Now the problem for Florida panther is,
when you start to reduce its numbers to just a few dozen, which is what's going to happen if we continue to develop and fragment the habitat, it will see, it'll cease having reproductive success. It'll suffer from inbreeding. And when species continue to inbreed, so they don't have enough genetic diversity within the pool, they can not only have developmental issues like
what had happened historically with Florida Panthers, they would develop kind of a crook in their tail, some other changes, but they can cease to be reproductively successful. So between getting hit by cars, the inner species, the specific aggression, and the loss of the genetic diversity, Florida Panthers are in a really vulnerable place right now.
Speaker 2 (50:52.462)
Shifting gears a little bit, I would just like to ask you just a little bit about your personal and professional background. What was it that led you personally to the particular field of law that you work in now? What led you to want to focus on environmental law?
grew up in Florida. grew up fishing in Tampa Bay and swimming in those waters. I grew up in apartment complexes throughout the area, hunting little cubaninols, and just spending a lot of time outside but in kind of urbanish areas. And so I've always I think been kind of connected and interested in life outdoors. And as I developed academically, I was really worried about
the consequence of how humans are changing the environment. Just, I think probably from personally observing it. And so the area of law that I find myself in, in this conservation space, is a consequence of that upbringing. It's only been probably in the last, I don't know, maybe 10 years or so for myself, where I've been able to, it's come into sharp focus for me that our conservation problems
Well, it's not passive. It's not just happening. There are actors. There are reasons we are suffering some of these water pollution issues and biodiversity crises. And so if there are actors, there are people that can be held accountable or there's actions that can be corrected. And so that pairing of conservation with democracy
I feel is really elemental and essential for addressing, if we're to address systemically these bigger problems, we have to look at it because there's not enough time and not enough resources to do it case by case, know, ghost or get here, Florida panther here. these, the lawsuits take a long time. The advocacy is very resource intensive. The science has to be there. And it's, and it's not a comprehensive systemic approach that I think is necessary. And what is available.
Speaker 1 (53:01.118)
and accessible to most people. And we start talking about the access to democracy issues. The good news in Florida is that I think, you know, like what inspired me inspires a lot of people, whoever, people who were born here, people who seek to move here. It's so that they can be outside and enjoy all the cool things we have here. And so I think the good news is that most Floridians really care about the environment.
and it's not necessarily a partisan issue. Maybe we need some clarification on the root causes and who should be accountable and how we can do things better, but at least we agree on the issue. It's not like an issue that we see a lot of divisiveness in the United States right now on other topics. The environment in Florida anyway, is one that I think the majority of us are pretty is worth protecting.
Do you feel like it was your concerns, particularly about, like you said, the particular actors that caused some of these problems and then the desire to address the systemic nature of the problem? Do you feel like those are the things that drew you specifically to focusing on environmental law as opposed to just going into environmental science? Yeah.
I think that that's right. think the science part is certainly essential to informing how we create policies. But at the end of the day, Earth is dominated by people. We're having an incredible impact. And we're at an inflection point where we can decide whether it's going to be a positive or negative impact. And so
For me, I see law as one piece of that puzzle and a really significant one. And it's where I've chosen to invest my time.
Speaker 2 (55:02.799)
Well, thank you so much for being here. I really appreciate you being on the podcast.
Thank you for inviting me.
This has been Real Cases. Thank you for listening. Check back for more episodes about an array of legal topics presented by the Stetson University College of Law. Learn more at stetson.edu.
Topics: Real Cases Podcast
