Change can bring with it a corresponding resistance. The legal recognition of the rights of Nature has spread throughout the world’s property-based systems of governance in recent years, prompting significant backlash along the way. Currently in Florida, local groups are seeking to have the legal rights of Nature recognized in their charters and ordinances. In response to these efforts, the Florida legislature currently has two Right of Nature Bans working their way through to the floor. This is an effort on behalf of the state to preempt the home rule of the local government, a tactic that has been used before.

According to the Florida Bar, Florida’s state preemption “precludes a local government from exercising authority in a particular area and involves inconsistency with the state constitution or state statute.” This can be either express or implied. When there is no constitutional prohibition of a particular action, Florida has a history of state preemption of local governments. In 2019, at least 18 preemption bills were proposed. In 2011, the state legislature adoptive Florida Statutes section 790.33(1) which provides:

“Except as expressly provided by the State Constitution or general law, the Legislature hereby declares that it is occupying the whole field of regulation of firearms and ammunition…to the exclusion of all existing and future county, city, town, or municipal ordinances or any administrative regulations or rules adopted by local or state government relating thereto. Any such existing ordinances, rules, or regulations are hereby declared null and void.”

In 2019, the legislature passed and Florida Governor Ron DeSantis signed the so-called Sanctuary City Ban, even though no such cities existed in the state of Florida. The statute reads,

“Except as otherwise expressly prohibited by federal law, a state entity, local governmental entity, or law enforcement agency, or an employee, an agent, or a representative of the entity or agency, may not prohibit or in any way restrict a law enforcement agency from taking any of the following actions with respect to information regarding a person’s immigration status…If a local governmental entity or local law enforcement agency violates this chapter, the court must enjoin the unlawful sanctuary policy.”

While the long history of preemption in Florida has frequently been used to get out in front of progressive reforms by Florida’s citizens, preemption has been used to encourage sustainable and progressive initiatives as well. In 2019 the legislature signed into law a bill regarding vegetable gardens which states, “Except as otherwise provided by law, a county, municipality, or other political subdivision of this state may not regulate vegetable gardens on residential properties. Any such local ordinance or regulation regulating vegetable gardens on residential properties is void and unenforceable.”

There are currently five counties in Florida with advocacy groups working to have the government recognize the intrinsic rights of their local ecosystems. These local, grassroots initiatives are turning to their city and county commissions for the formal acknowledgement of these rights. The main concern centers around one of Florida’s most beloved entities, its water. In an effort to protect the other-than-human entities in our Earth Community, Florida’s citizens are seeking the recognition of these rights and the prohibition their violation.

Inspired by the efforts of Toledoans for Safe Water surrounding the Lake Eire Bill of Rights (LEBOR), passed on 2019 and currently in litigation, Florida communities are also seeking this recognition of Nature’s right to “exist, flourish, and naturally evolve,” and to have recourse against those that would violate these rights. For example, the Santa Fe River Bill of Rights (SAFEBOR) wants to amend the Home Rule Charter of Alachua County, Florida to include the following language in Article 5,

“The Santa Fe River possesses rights including, but not limited to, the right to naturally exist, flourish, regenerate, and evolve; the right to restoration, recovery, and preservation; the right to abundant, pure, clean, unpolluted water; the right to natural groundwater recharge and surface water recharge; the right to a healthy natural environment and natural biodiversity; the right to natural water flow; the right to carry out its natural ecosystem functions; and the right to be free of activities or practices, as well as obstructions, that interfere with or infringe upon these rights.”

Beyond local ordinances and charter amendments, another goal is to give Floridians the opportunity to vote on these measures on the 2020 ballot. Residents are in agreement that the rights of nature are intrinsically tied to their own well-being. According to Melissa Martin from Brevard County, “We have a community of good people fighting a broken system to protect our waters. We must unite in the realization that the system has failed us. It doesn’t work – at least, not for us. We must therefore shift our paradigm and plainly declare the inherent rights of nature.”

However, lawmakers are utilizing this preemption strategy to make any such efforts illegal. Florida is currently attempting to give legal rights to fifteen waterways. Senator Bill Albritton, a Republican Senator from District 26 who serves as Chair of Agriculture Community and Vice Chair of Environment and Natural Resources Committee, is attempting to preempt these measures. In a statement, he said he believes that “these proposals would restrict a local government’s ability to pass ordinances, adopt regulations, and issue permits that may implicate these ‘new’ rights. This could include developmental approvals, zoning, or infrastructure projects. This is not in the best interest of local communities.” He also does not “believe that elevating nature to the status of a human being is good for society” and that doing so will have a “terribly negative impact on Florida’s economy.” To ensure the economy take precedence over everything else in Earth Community, the Senate currently has CS/SB 1382 in the Appropriations Subcommittee on Agriculture, Environment, and General Government. This bill states:

“A local government regulation, ordinance, code, rule, comprehensive plan, or charter may not recognize, grant, convey, or extend legal standing or legal rights, as those terms are generally construed, to a plant, an animal, a body of water, or any other part of the natural environment which is not a person or a political subdivision as defined in s. 1.01(8), unless otherwise specifically authorized by state law or the State Constitution.”

In addition to the Senate, the House also has HB 1199 on the judiciary agenda for February 12, 2020. Similar to its Senate counterpart, this bill states:

“A local government regulation, ordinance, code, rule, comprehensive plan, charter, or any other provision of law may not recognize or grant any legal rights to a plant, an animal, a body of water, or any other part of the natural environment that is not a person or political subdivision as defined in s. 1.01 or grant such person or political subdivision any specific rights relating to the natural environment not otherwise authorized in general law or specifically granted in the State Constitution.”

“Mother Earth’s rights are inherent. Any law that denies these fundamental rights are illegitimate and a violation of all the Natural Laws of Creation. We can preserve, protect, and fulfill our sacred duties to live with respect in this wonderful Creation. We have the power and responsibility for change.”

— Ponca Elder Casey Camp Horinek at the opening of the Rights of Nature Tribunal in Quito, Ecuador

These efforts by the state reflect a lack of understanding of the role humans play in the complex interdependent ecosystem. The idea that human good can be achieved at the expense of the Earth Community is an illusion that is crumbling before our very eyes. These community-based grassroots efforts to finally recognize the inherent rights of Nature, of which humans are an integral part, is the first step in creating a legal system that accurately reflects and respects the natural order of the ecosystem and not the way we have ordered it to work for us. This is a pivotal moment in Florida’s history.

Thanks to CEJ’s Earth Law and Policy Fellow Rachel Shaw for her research on this post.