CONSTITUTIONAL PREMISE FOR SUSTAINABILITY

 

The Fifth Amendment of the Constitution states:

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"No person shall be……deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

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It is recognized that the Preamble, while an introductory document may not be an enacting document. The provisions for enforceable enactment rather are delineated within the specific Articles and Amendments of the Constitution following the Preamble.  Such has been argued over the course of our nation’s history. However, what has not been argued to any noticeable extent, but whose intent is obvious just from its inclusion, is that the administering of the Constitution was to be applied to “ourselves and our posterity”.  Historically, while terms such as “more perfect union” and “promote the general welfare” have been dissected ad infinitum by Constitutional scholars, little attention or meaningful debate has been given to the term “posterity”. It certainly appears a reasonable argument that given this guiding language of the Preamble, that the reference to “persons” within the Fifth Amendment would include both “ourselves and our posterity”. And while it could and has been argued that future generations, which presently do not exist, cannot be given rights per se, it seems quite clear that our Founding Fathers were transgenerational in their thoughts. Consider Thomas Jefferson’s statement in a letter to James Madison.

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"The question [w]hether one generation of men has a right to bind another. . . is a question of such consequences as not only to merit decision, but place also among the fundamental principles of every government. . . . I set out on this ground, which I suppose to be self-evident, 'that the earth belongs in usufruct to the living’.”  

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The word usufruct means use without degradation or destruction. And while many have used this Jefferson quote to suggest he was ambivalent towards the preservation of resources for “posterity”, the word usufruct clearly indicates the opposite. Jefferson’s thoughts on this issue likely find genesis in the  writings of John Locke in his Second Treatise of Government.

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“As much as anyone can make use of to any advantage of life before it spoils, so much he may by his labour fix a property in: whatever is beyond this is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy.”

 

A rationale argument then could be developed regarding the property rights provisions of the Fifth Amendment, that taking of property through due process of law is allowable, and that a filter to determine if this due process has been served would be the usufruct intent. By necessity this requires consideration of intergenerational impact. While our posterity per se, because they do not exist, cannot enjoy the rights granted by the Constitution, there is strong implication that an obligation to posterity is a responsibility of the living—“ourselves”. The nature of this obligation has not been a common item discussed within our court system to date, but it is an issue whose time has come, as evidenced by recent lawsuits around the nation. And it seems reasonable that Florida will become central to these discussion, for it is a State whose economy is so profoundly influenced by actions which have “spoiled and destroyed” environmental resources held in the Public Trust.     

 

We now recognize that the concept of posterity has scientific implications worthy of serious consideration as well—implications of which our Founding Fathers may not have been fully aware. However, when they wrote the Preamble and included “posterity” in the text, they excluded any temporal range or limitation. That is, they did not enumerate beyond their own generation how many generations were contemplated. That they did not include any such limits indicates their intent was to extend posterity as far into the future as possible.

 

Logically then, in society’s implementation and administration of the Fifth Amendment and the remaining text of the Constitution, decisions should be such that we do not purposefully threaten the temporal extension of posterity for mere convenience to ourselves—that is to consume more than our “share”.    

 

Scientifically, the longevity, i.e. the stability or survivability, of a dynamic open system, such as an economy or an ecosystem, is optimized when over a period of a definable and repetitive cycle, there is balance between material and energy inputs and outputs and there is minimal net change in internal materials and energy. This is the essence of sustainability--minimization of the rate of change.

 

Science identifies such systems as those with minimum entropy production, and hence minimum rate of decay. Such systems may adapt over time, and may adjust to a limited range of variations in the movement of materials and energy. However, when perturbations are outside this range of experienced variation, the dynamics are altered, forcing the system to change more rapidly and to change at a faster rate.

 

For example, when the flow of nutrients into Florida’s 33,000 acre (+/-) Lake Apopka—once touted as one of the best bass fishing lakes in the United Sates-- increased by a factor well beyond historical experiences, the existing system could not adjust. It was replaced by another system. The change in Lake Apopka represented a rapid transition from a system in a quasi-dynamic equilibrium with clear water, dominated by eel grass, an extensive littoral zone and a healthy, diverse fishery and wildlife component, to a green, phytoplankton (suspended algae) dominated low diversity system, thrown out of dynamic equilibrium, which proceeded to store excess production as bottom muck, rendering the lake un-suitable for swimming or most recreational uses, with little or no aesthetic appeal.

 

Management decisions made regarding Lake Apopka were the result of inadequate understanding of lake dynamics (Limnology), and an urgency to accommodate the immediate needs of ourselves.

 

Obviously there is a long term economic component involved here.  To recognize this, one need only ask what would be the dollar value of land surrounding a crystal-clear Lake Apopka today, only 15 miles from Disney World?

 

How many jobs were lost because the lake was devalued? In retrospect, was the sacrifice of Lake Apopka’s stability justified, and did its loss impose unfairly upon posterity? If it did so impose, was its purposeful demise in fact unconstitutional?

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Perhaps actions in the past can be forgiven, as the science was not well understood.

But we have no such excuse today.

 

Today, we can expect and project ecological changes based upon increased nutrient loads  and flow disruptions. We can project impacts of insecticides upon pollinators, and the influence that distorted salinity patterns can have on fisheries in Florida Bay. We know that nutrient rich septic tank effluent in Florida seeps into the groundwater and often find its way into downgradient surface waters where it stimulates eutrophication in our lakes and estuaries. We know phosphate deposits are finite and that mobilizing this sequestered phosphorus has caused stress on our surface waters, but we make little efforts to encourage recovery and recycling of this phosphorus once it has been lost.

 

We justify our actions by pointing to how many jobs would be lost or how many people would be impacted if we imposed more heavily upon industry or agriculture or society in general to adjust their procedures and behavior to avoid such heavy imposition upon our environment. What are not asked are how many future jobs will be lost; and how many future lives will be impacted by our need to retain our excesses—to consume beyond our “share”?

 

It is common to hear of how a growing debt as measured by money is jeopardizing future generations. Little is said in the political arena however about what price our posterity will pay from our reluctance to adopt a paradigm of stability and balance in regards to our environment and our economy.

 

At question is whether our present behavior is even legal, and what is the legal reach of the Constitutional Premise for Sustainability?    

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Given these considerations, there is little question that scientific review must be objective and that involved scientists must remain unbiased and true to the scientific method. Furthermore, science must be more seriously considered in policy development and in funding allocation. Rejecting, ignoring or denying science does not eliminate the inevitability of its influence, and any laws, rules, comprehensive plans, regulations, codes, policies, orders, mandates or directives which are based upon a lack of scientific understanding of the issue(s) in question will over the long term likely cost society more than the money it was designed to save.

 

Only scientists, unencumbered by financial or political interests, can assess the nature and impact of this influence. And above all, true sustainability, i.e. pursuing system wide dynamic equilibrium, should be a major filter in determining the wisdom of any such policies and associated budgets.

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STRATEGIES FOR ESTABLISHING SUSTAINABILITY

 

Historical Perspective of Environmental Degradation in South Florida

 

The Florida Everglades historically received water from an expansive watershed which extended northward to a region just west of the city of Orlando, into the Kissimmee River Basin, south to Lake Okeechobee, then via seasonal overflow to the Everglades itself, which fed into the tidal waters of Florida Bay. In addition, Lake Okeechobee also received flow from Fisheating Creek along its western boundary, Lake Istokpoga to the northwest, and from Taylor Creek/Nubbins Slough along its northern boundary.

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This massive, complex Ecosystem is often referred to as the Kissimmee-Okeechobee-Everglades or KOE Basin. It is a very large stormwater and groundwater seepage management system that historically served to maintain high levels of water quality, while allocating flows and nutrients in rather consistent increments to associated lakes, swamps, marshes, and seasonal impoundments within the KOE and to the contiguous basins associated with areas such as the Big Cypress, the Caloosahatchee River, the Loxahatchee River, the Miami River and other systems both to the east and west.

 

This pattern of nutrient and water scheduling provided stability to a collection of interdependent ecosystems which in turn supported a diversity of plants, fish and wildlife of importance to aboriginal indigenous cultures which relied upon this complex eco-structure for their subsistence for thousands of years.

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When European influence became predominant, the KOE was seen not so much as a means of providing sustenance for environmental features important to a developing society, or as a system whose dynamics and physical complexity needed to be protected and respected, but rather as a wet impediment to the expansion and comfort of European style society. As such an impediment, the KOE was perceived by most to have negative value.

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It was eventually recognized that by altering the flow patterns through diking, canalization, drainage, flood control structures, diversion and pumping, the KOE region could support crop agriculture and cattle with its prairies and rich organic soils, and would provide opportunity for residential and commercial development.

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What was not recognized during these early years was that these disruptions, while facilitating short term financial gains, would, over an extended period, impose significantly upon economic stability. 

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During the past five decades, political preference has been given to supporting ecological degradation in favor of short term financial advantage.

 

During this time a handful of scientists and engineers have warned about the risks of making political decisions without proper consideration of scientific evidence—but they did so without any political or institutional power regarding policy development.

 

Whether it was the decision to place a dike around Lake Okeechobee; implement the Central and Southern Florida Flood Control Project which took 1,000 square miles out of the Everglades for agriculture; dredge the Kissimmee River which hydrologically isolated thousands of acres of marsh critical for fish and wildlife breeding and habitation; continue high density septic tank development; allow residential development within historical floodplains; introduce high nutrient wastewaters into the groundwater system; or drain important aquifer recharge areas, there were always political forces which overpowered those suggesting such actions were not scientifically defendable. 

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We are now facing the consequences of these short-sighted decisions.

 

The present Governor says it is a state-of-emergency. The truth is that Florida’s environment has been stressed by constant degradation for several decades, and a state-of-emergency has existed for many years.

 

For example, excessive nutrient loading related to escaped fertilizers, manures and other residuals from agricultural activities, as well as increasing urban development has, per a recent study conducted by the University of Florida, resulted in the accumulation of over 110,000 metric tons of reactive, i.e. available, phosphorus within the Lake Okeechobee Watershed. Within this report, it was estimated this available phosphorus could sustain the high nutrient loads discharged from Lake Okeechobee for 500 years, even if the present incoming loads were eliminated. Many scientists recognized the significance of this legacy phosphorus as early as the seventies, but it is only recently that they have gained people’s attention. How can we with all our wealth and resources fix this? 

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These degradations have occurred because society has not listened seriously to the bona fide scientists, nor have we until recently recognized that poor water management in the KOE can seriously impact the tourist economy on the coast, fisheries in Florida Bay, and water levels and quality within critical aquifer systems such as the Biscayne Aquifer, while decreasing property values and threatening human safety and health. 

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In the past, we have approached management of the KOE and other South Florida Ecosystems through compromise, with the demands of development and population expansion typically given preferential consideration.

 

If we are to be seriously concerned about stability and long term economic balance, any compromising should be in favor of ecological protection, restoration and stability as long as there is no real endangerment to the welfare of the citizenry. 

 

While we read glowing reports about how well various programs are doing, the evidence tells us we are not doing enough.

 

Within the KOE and throughout Florida it is suggested the following measures be considered if we really want to be serious about our obligations to ourselves and to our future generations.

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Management Measures for Sustainability

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1.  Initiate immediately the critical CERP programs as needed to provide interim protection of coastal communities from excess freshwater releases from Lake Okeechobee. This would include full funding of projects associated with the Florida’s recent Amendment 1, designated for purchase of lands south of Lake Okeechobee for water storage. Make provisions for future appropriation of monies for land purchases for purposes of environment restoration and protection.

 

2.  Eminent Domain or negotiated direct purchase should be considered to secure and restore lands critical to the economic and environmental sustainability.

 

An obvious example is the Everglades Agricultural Area (EAA).  Purchase of these 650,000 (+/-) acres would allow development and implementation of a long-term plan for returning at least a portion of the EAA to a viable Everglades type marsh, while dedicating other areas to needed water storage and extension of the boundaries of Lake Okeechobee.

 

Included with any Eminent Domain action would be a long-term, objective and comprehensive comparative economic analysis of the present use and a reclaimed system. This economic review regarding the EAA for example would include a detailed evaluation of the impact of the fixing of sugar prices; the economic impact of excess sugar consumption; loss and creation of jobs; benefits which would result from restoring the EAA  and associated flows to include long-term high-value job creation; the expected increase in property values; the value of increased recharge to the Biscayne Aquifer; the value of improved fisheries; the increase in tourism related to improved water quality and fish production; and the long-term value of recovering and recycling phosphorus. 

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3.  Economic evaluations of similar scope and intent as noted in Item 1 should be mandated for any proposed environmental disruption. Short-term economic gains without consideration of long-term economic impacts should no longer be deemed acceptable. Rhetoric such as “job-killing regulations” should not be used to bias public opinion without evaluating the counter argument regarding “job-killing deregulation”. The idea that environmental restoration must come with some economic pain can be applied only when the economic benefits associated with such restoration are not considered, and reclamation is designed without an adequate transition plan and a lack of sensitivity to existing economic factors.  

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4.  Restorative actions should include consideration of removal of existing infra-structure and reclamation of critical habitat. For example, the design and implementation of a controlled breach within the Okeechobee Dike might be considered, with the possible construction of dikes around population centers. This will permit excess flows to move south through a reclaimed EAA and into the Shark River Slough and the Everglades. Attendant with this action would be the placement of a sustainable treatment system between this breach and the reclaimed EAA to ensure water quality is high enough to meet Everglades’ standards.

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5.  Encourage, fund, develop and implement programs that promote regional scale application of renewable energy and the sequestration of greenhouse gases, while facilitating the reduction of fossil fuel consumption.

 

6.  Solicit participation by the private sector through long-term guaranteed payback programs which provide payments for water quality improvement. This may be by institutional purchase of removed nutrients on a “per pound” basis—removal meaning actual capture, processing and out-of-basin reuse, or to a limited extent in-basin reuse. Programs such as this could stimulate the development of new agri-industries which provide environmental restoration while creating a diversity of new jobs.

 

7.  Encourage, fund, develop and implement programs that reduce the impact of sea level rise associated with Global Climate Change.

 

8,  Encourage, fund, develop and implement programs that reduce threats to human health and safety, including the management of human activities associated with air pollution and water pollution. This would include expanding research, management and ultimate reduction of cyanobacteria blooms and red-tide events. 

 

9.  Eliminate the hunting of critical species such as the Black Bear, and use Eminent Domain or negotiated direct purchase to secure lands which would allow expansion and connection of habitat for these species. Providing such habitats and corridors will encourage species diversity and an improved predator-prey balance, as well as a higher degree of system stability. 

 

10.  For many of the lakes in Florida which are stressed from heavy nutrient loading and accumulation, place multiple kidney-type treatment systems to remove, recover and reuse sediment stored nutrients (legacy nutrients), while also continuing to reduce loads from the contributing watershed. It is anticipated with effective incentives such a program could be enhanced by private sector involvement.

 

11.  Replace the widespread use of herbicides with mechanical harvesting of aquatic plants from waterways. Conduct meaningful bioassays on all pesticides and herbicides which are targeted for application, to include any associated moieties, and any adjuvants and surfactants used in their delivery, with such bioassays to include beneficial algal species, such as the green microalgae Selenastrum capricornutum, in addition to the vertebrate and invertebrate animal species typically tested.

 

12.  Back-fill canals as necessary to recover historical flow patterns. 

 

13.  Provide subsidies to farms, commercial enterprises, individuals and industries which demonstrate sequestration of greenhouse gases or which use phosphorus and nitrogen recycled from the impaired surface waters.

 

14. Encourage and provide incentives for the replacement of highly subsidized landscaping with native landscaping and xeriscaping.

 

15. Encourage and provide incentives for recycling of solids wastes and the reduction of bio-resistant packaging, such as polyethylene, and replacement with biodegradable materials.

 

16.  In situations in which water quality standards including Total Maximum Daily Loads (TMDL) have not been achieved, consider restrictions on future development programs. Consider placing TMDL compliance as a condition within Comprehensive Land Management Plans. 

 

17.  In counties in which septic tanks are at a density of more than one per acre, consider restrictions on future development programs. Consider placing septic tank removal from high density areas, and replacement with effective regional wastewater systems, as a condition within Comprehensive Land Management Plans. 

 

18.  Proceed to design and implement, using good engineering practices, and sound scientific rationale, combined wetland/open water impoundments as emulations of historical floodplains.

 

19.  Reconsider road design in critical floodplain areas, where such roads would be impediments to necessary flow patterns or would interfere with wildlife corridors. This would include the possibility of replacing stretches of existing roads with elevated roads and bridges.

 

20.  Purchase through Eminent Domain or negotiated direct purchase mineral rights within South Florida, and grant to traditional aboriginal indigenous people their rightful use of lands as granted by past agreements and treaties, without interference or unauthorized use or entry by others; among these areas would be the Big Cypress National Preserve and contiguous lands as might be negotiated with the Council of the Original Miccosukee Simanolee Nation Aboriginal Peoples as represented by Bobby C. Billie, a Spiritual and Clan Leader with the Council, and others as he may so designate. 

 

21.  Fund recovered nutrient buy-back programs and regional stormwater utilities through expansive Authorities, with the right to impose fees based upon user’s pollutant contributions. 

 

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SUMMATION

The time has arrived for all people to pause and consider the nature of our obligations to the welfare of future generations—our posterity. It is neither morally acceptable, nor legally defensible to knowingly damage, disrupt or destroy elements of our world for the interest of short-term financial gain for the few, or for the excesses of an avaricious society in general at the expense of our future generations. Decisions must be based upon scientific evidence, not political whim nor money-induced corruption. There are critical environments associated with Florida that are vital to quality of life, a healthy and sustainable economy, and a spiritual balance. These must be protected, restored and sustained for ourselves, and for our posterity.