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Florida Passed a Sneaky Conservative Legal Rule That Let Judges Allow Glades Oil Drilling

In theory, Florida's Constitutional Revision Commission is a useful body: The group convenes every 20 years and considers amendments to the state constitution. But in practice, the CRC lately has been gamed by lawmakers. It has bundled disparate concepts to produce absolutely weird results: a 2018 amendment put up for public vote, for instance, banned both indoor vaping and offshore oil drilling.

At least one other 2018 amendment was demonstrably worse. A trio of Florida appellate judges cited that new law last week in allowing a South Florida real estate company to drill for oil in the Everglades. Environmentalists have called that legal decision a travesty for the still-fragile Glades.

Last year, Florida voters passed Amendment Six, known as "Marsy's Law." The measure gives new rights to crime victims, who now get a say during offenders' bail and sentencing hearings as well as most other judicial appearances. But justice-reform advocates blasted the measure as draconian: Victims can be blinded by rage and push for harsh punishments the state might not otherwise dish out. Moreover, similar laws in other states have significantly slowed criminal proceedings and led to the accused sitting longer in jail. In addition to being inhumane, that costs states money. Crime victims in Florida also already had some legal rights before Amendment Six passed.

(Local cops also cited Marsy's Law as an excuse not to release victims' names after a recent mass shooting in Sebring, Florida. Reporters say the law's provisions are "confusing" law enforcement.)

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Marsy's Law doesn't even have much of a constituency. It's mostly the brainchild of California billionaire Henry Nicholas, whose sister, Marsy Nicholas, was killed in 1983. Henry has used his vast tech fortune to pass related measures across the country. (He was also arrested on drug-trafficking charges in August 2018.)

But in Florida's version of Marsy's Law, the CRC also bundled in a separate provision that outlawed a type of legal review called "Chevron deference" in state courts. It comes from a 1984 U.S. Supreme Court case. It says judges should interpret laws the same way as an administrative agency such as the Environmental Protection Agency does. A quick example: The federal Board of Immigration Appeals recently deported someone for "child abuse," which amounted to driving without seat-belting his children. Under Chevron, courts must respect that interpretation.

Conservatives have attacked this legal doctrine in recent years. Chevron deference, many conservative legal scholars say, gives too much power to the executive branch and regulatory agencies. Supreme Court Justices Neil Gorsuch and Brett Kavanaugh have criticized the concept. In reality, this is likely because Chevron forces courts to respect administrative bodies such as OSHA that limit big business' actions.

In short, that conservative measure was buried in a criminal-justice statute that more than 60 percent of Florida's electorate approved without understanding the full import.

And judges explicitly cited that new rule to justify letting a South Florida family of investors, Kanter Real Estate, drill for oil in the Everglades. In short, the new law let the judges toss out a ruling from the Florida Department of Environmental Protection that said Kanter couldn't drill there. Here's what the three (Rick Scott-appointed) judges wrote (bolding is ours):

Section 120.57(1)(l), Florida Statutes, authorizes an agency to reject or modify an ALJ’s [administrative law judge's] conclusions of law and interpretations of administrative rules.Before the recent passing of Amendment Six to the Florida Constitution, this Court afforded considerable deference to agency interpretations of statutes and rules, affirming such interpretations unless clearly erroneous. However, an appellate court may no longer defer to an agency’s statutory interpretation, but must instead apply a de novo review.

Andrew Pantazi, a reporter at the Florida Times-Union in Jacksonville, first noted the portion of the judicial ruling on Twitter:

Broward County lawmakers have since blasted the judicial ruling as an environmental travesty. One of those angry lawmakers is State Sen. Lauren Book (daughter of ultrapowerful lobbyist Ron Book), who reportedly called the ruling "absurd and horrifying" last week. However, Book was one of the loudest voices pushing to pass Amendment Six in the first place. Book teamed up with her father, former NBA star Shane Battier, and Tracey Mourning (wife of Miami Heat legend Alonzo Mourning) to promote the "Yes on Amendment Six" campaign. Miami-Dade County State Attorney Katherine Fernandez Rundle also cut ads.

New Times asked Book how she squares those two positions. Via email, she said last week that she was furious the measures had been bundled and was looking at ways to prevent similar combinations in the future. She stated that the CRC's coupling of seemingly random items leads to "confusion and consequence." Then she added:

This was a flawed process in which implications of administrative agencies’ interpretations of statute or rule – or the Chevron doctrine – were never discussed. The bundling of issues is a major defect, which we must reverse, but my support of the victims’ rights provision in Amendment 6 and opposition of oil drilling in my district has nothing to do with this specific application of the Chevron doctrine. There may be other cases in which I agree with the doctrine’s application....Don’t conflate my support of victims’ rights with the real issue here: this case demonstrates the type of unintended consequence that can result from bundling, and that is why I am cosponsoring legislation with Senator [Rob] Bradley to end that process.

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