Source: Southwest Florida Water Management District
In the four years I spent covering criminal courts for Florida’s largest newspaper, I saw some amazing cases. I saw one involving a pair of bumbling hit men who got lost trying to find their victim. I watched as a pair of identical twins got the court system tied up in knots trying to figure out which one had done what. I saw the trial of a guy accused of bigamy whose defense was, “I forgot I was married.” He was acquitted, too!
There’s a case going on right now involving Florida Attorney General Ashley Moody that is more outrageous than entertaining.
Moody, a Plant City native, is a former federal prosecutor, judge, high school cheerleading captain, and all-around overachiever. She was even the Strawberry Festival Queen.
As the state’s chief legal officer, she’s got her hands full. The A.G.’s office is supposed to protect consumers from fraud, enforce the state’s antitrust laws, go after drug traffickers and gangs, represent the prosecution in criminal appeals, and issue formal legal opinions at the request of public officials.
When Moody ran for attorney general in 2018, she vowed that she wouldn’t politicize the Cabinet-level office. The A.G.’s role, she said during a televised debate, “is not to advance a political agenda or pick topics that are personal to me and use the office to sue anybody I can come up with.”
Avoiding politics would be a big change from her hyper-political predecessor, Pam “Trump Can Do No Wrong As Long As He Gives Me Campaign Cash” Bondi.
Moody reiterated the point a year later in an interview with Politico:
“I did not campaign to be the attorney general to play politics with this office. In my term as attorney general, I will never do the bidding of anyone except the people of the state of Florida.”
Woo-eeeee, folks, it’s a good thing Moody wasn’t under oath when she said that. Otherwise, she’d be facing a perjury charge right now.
Rather than staying politically neutral and focusing on what’s best for Floridians, as she promised, Moody has jumped aboard every right-wing clown car that’s driven past her. She has done so even if the cause she champions is bad for Floridians.
She joined a Texas lawsuit to overturn Obamacare even though Florida has repeatedly led the nation in Obamacare signups. She pushed for including a citizenship question in the Census, despite warnings it would hurt the Florida headcount. She signed onto a lawsuit challenging the Biden administration’s cancellation of the Keystone XL pipeline, which would have been built nowhere near Florida.
She even joined a longshot bid to overturn the 2020 election and reelect Donald “You Say You Want a Revolution?” Trump. It failed, as did all these other kooky crusades.
But now she’s signed onto the most raggedy RAGA lawsuit of all, one that’s aimed at hurting the environment. It’s an attack on our wetlands.
And from what I can see, Florida’s top lawyer has gotten herself mired in a legal swamp.
Land by the gallon
To the early pioneers, wetlands were synonymous with wastelands. You couldn’t plant or plow them, so what good were they? Better to drain them dry or fill them in and build something on top.
Boy howdy, were those early pioneers a bunch of morons.
We know now that wetlands are vital to our existence. They recharge our drinking water supply, protect our property from flooding, filter pollutants from stormwater, and offer habitat for important species. They even soak up the carbon that’s been heating up our atmosphere and causing climate change.
A slab of concrete can’t do any of that.
Florida boasts more wetlands than any state except Alaska. It also has a greater diversity: mangrove forests where shrimp and fish spawn, freshwater marshes that feed migrating ducks, cypress domes offering a refuge for wading birds.
To developers, though, they’re still just an obstacle to be overcome on the way to the bank.
Selling swampland to unsuspecting buyers is a Florida tradition dating to at least 1908. That’s when an ambitious huckster named Dickie Bolles bought a big chunk of the Everglades from our cash-strapped state government.
Bolles dispatched salesmen to the Midwest to fool as many suckers as possible into buying a stake in a phony development named “Progreso.” They told the buyers they were investing in a “Garden of Eden,” a “Tropical Paradise,” a “Promised Land.”
There were lots of promises but not much actual land. What the buyers were sinking their life savings into — literally — was property that was still under water.
When the truth came out, one victim commented that he’d bought land by the foot and by the acre, but this was the first time he’d bought land by the gallon. A national scandal and federal indictments ensued.
The Clean Water Act, first passed in 1972, was supposed to change things.
It was supposed to protect wetlands from rampant destruction by requiring developers to get permits from the U.S. Army Corps of Engineers before dumping fill into any “water of the United States.” You will not be surprised to hear that a lot of the first enforcement actions the feds pursued under the new law were against greedy Florida developers.
But the anti-regulatory Reagan administration pushed the Corps to stop regarding developers as someone to be regulated and instead treat them as customers. Ever since then, the Corps has regularly issued more wetlands destruction permits in Florida than any other state.
Meanwhile, we’ve had years of fussing and fighting (and suing) over what constitutes the “waters of the United States,” or as the bureaucrats call it, WOTUS.
That acronym, by the way, is pronounced “Whoa-tus,” not “What, US?” But a lot of the people caught violating the Clean Water Act have blurted out the latter statement when apprehended.
The most recent wrangling over WOTUS began when the Obama administration came up with a new, broader definition in 2015 that developers, farmers, and oil companies — those great champions of the environment — claimed was too broad.
Then, in 2019, the Trump administration wrote a new definition that was — surprise! — much narrower. The Trumpian definition removed protections for more than half the nation’s wetlands and hundreds of thousands of miles of upland streams. In Florida, that worked out to about 6 million acres that suddenly had no federal protection at all.
Not even the Trumpified Supreme Court could stomach that and overturned it.
In December 2022, the Biden administration unveiled a new definition, one designed to fix the errors of the Trump rule while also meeting the requirements of various court rulings of the past. The new rule “restores protections to waterways that have a ‘significant nexus’ to navigable U.S. waters,” according to Reuters.
Of course, the developers, oil industry, and Big Agriculture are not fans of saving the swamps and opposed the new definition.
In the suit, the Raga-naroks argue that the new wetland definition is “unusually aggressive” and would harm “ranchers, farmers, miners, homebuilders and other landowners.” Apparently “water-drinkers” don’t count.
I asked Moody’s staff to explain why she enlisted Florida in this kooky crusade.
“Florida already has strong laws to protect our waterways, and we cannot allow the federal government to usurp the states’ traditional power over their own waters,” Moody spokesman Whitney Ray told me.
As I have pointed out before, Florida’s “Clean Waterways Act” is a sham, a law designed to fool the public into thinking we’re stopping pollution while not requiring the polluters to lift a finger. Everything in it is voluntary.
We might as well insert “JK” for “just kidding!” after the first word of the law’s name.
A waste of tax money
When I have legal questions about wetlands, the first person I call is Royal Gardner. To me, Royal is the King of Swamp Law.
He’s a professor at the Stetson University College of Law in Gulfport and co-director of Stetson’s Institute for Biodiversity Law and Policy. When he’s not teaching classes, he travels around the world offering his insights on wetlands protection. His Twitter handle is “@swamp_prof.”
The reason I value his views is simple. From 1989 to 1993, he was the top wetlands lawyer for the Corps of Engineers, the folks who issue those wetlands-destroying permits. He’s been on the inside as well as the outside.
So, I asked him what he thought of the new definition of WOTUS.
“EPA’s new regulation is a reasonable interpretation of the statutory term ‘waters of the United States,’” he said. He called it “a great improvement” over the lax regulations that the Trump administration put forward, which he labeled “an abdication of EPA’s Clean Water Act responsibilities.”
Then I asked what he thought of Moody and the Raga-naroks trying overturn it. He didn’t pull any punches, so if you’re politically hypersensitive you may want to skip the next paragraph.
“The lawsuit is a waste of taxpayer money and only underscores that the state is not serious about providing clean water for its citizens,” Gardner told me.
He also answered a question I hadn’t asked, but it’s one that any good lawyer would be wondering about: What happens if these anti-environment A.G.s win?
“If the lawsuit is successful, it’s unclear what the practical implications would be,” he told me. “The immediate effect is that we would revert back to the pre-2015 regime, which is currently being applied by the EPA and is very similar to the new rule.”
In other words, even if the Raga-naroks succeed, they’d fail.
‘You’re out of order!’
You may be wondering if I am — not unlike the OG swamp hustler, Dickie Bolles — making a lot of noise about a lot of nothing.
“So, Florida’s supposedly nonpolitical attorney general is wasting tax money on a political crusade,” you say. “So what? Sure, this bunch of yahoos uses government resources to grab a headline or two and please their big-money contributors. But does it matter?”
In Florida, the answer is yes.
In the waning days of the Trump administration, his Environmental Protection Agency agreed to something that Florida builders had been calling their “holy grail” for 15 years. Trump’s EPA said yes to handing off the job of issuing federal wetland permits to the state Department of Environmental Protection. Florida’s only the third state to do that.
“This action allows Florida to effectively evaluate and issue permits under the Clean Water Act to support the health of Florida’s waters, residents, and economy,” then-EPA Administrator Andrew “Industry Stooge” Wheeler said then. And he kept a straight face, too!
The DEP promptly started giving developers federal wetland permits with all the care and cautious deliberation of a NASCAR racer roaring into the last lap of the Daytona 500.
To make matters worse, the DEP’s wetland permitting decisions have been following the Trump-era narrow definition of wetlands, even after it was thrown out for being legally laughable.
The EPA under Biden has formally objected to Florida’s swampy chicanery, so far to no avail. As a result, the DEP is damaging groundwater recharge, flood protection, pollution filtering, and all the other functions of wetlands.
Is Moody’s move to join this foolish lawsuit a way to give the DEP cover for continuing to kowtow to developers? It wouldn’t surprise me.
But that, dear reader, is where I think you can do something.
You know that scene in the movie “And Justice For All” when Al Pacino’s angry defense attorney flips out and starts shouting “You’re out of order” at everyone? I think it’s time we tell Ashley Moody that she’s out of order.
Drop her a line at Office of the Attorney General, State of Florida, PL-01, The Capitol, Tallahassee, FL 32399-1050. Or you can email her using the form found on her website at http://myfloridalegal.com/contact.nsf/contact?Open&Section=Attorney_General
Tell her you think she stinks for doing what the developers and Big Ag want instead of what’s best for Florida’s environment and citizens.
Use the subject line of “I Object!” That should work. It always does on TV.
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