Last week, Steve Medina sent me the information below, for Daily Kos to break the story. The corruption evolves and unravels in a complicated and insidious manner and spans for about a decade, so enjoy the read. All of Medina’s reporting is backed up via extensive public records and court documents. With his permission, here is Steve Medina’s story:
We have learned recently that Florida Governor *Rick “Fifth Amendment” Scott is, how shall we say, ethically-challenged. Actually, that has been known for a long time, but who’s counting the past, this is Florida, land of forgiveness, opportunity, and no state income tax! Give them your relaxed, your wealthy, your huddled plutocrats yearning to breathe free. Put your wretched refuse beneath their teaming shores. Send these, the multi-homed, tempest-tossed, to them: Their elected officials snuff out their lamp beside the golden door.You may know Florida’s immediately past commissioner of the Florida Department of Law Enforcement seems to have been given the heave ho by Governor Scott not only for patently political reasons but without particular attention to Florida law.http://www.dailykos.com/… (In Florida, if you are Governor Scott, perhaps you would not want an FDLE commissioner who actually investigates things, especially potential white collar crimes involving public corruption.)
Meanwhile, you probably don’t know that, for the past two years, thanks to Governor Scott, a veritable fountainhead of toxic waste has been directly dumped every dayinto the heart of “Florida’s American Heritage River,” http://upf.com/… the St. Johns. As discussed below, it is released through what is contended in a legal action to be an illegally-approved pipeline, the circumstances of which Governor Scott, as the current chairperson of Florida’s Trustees of the Internal Improvement Trust Fund, refuses to investigate.
To investigate these circumstances would be to investigate the highly questionable actions of yet another state agency, the Florida Department of Environmental Protection. These actions in turn reach back into the Jeb Bush administration (1999-2007), when then Governor Bush and the Florida Cabinet, over the objection of then Attorney General Charlie Crist, gave preliminary approval for a Georgia-Pacific pipeline from its Palatka paper mill to the St. Johns River.
Tons of toxic waste travel through the pipe to the heart of the St. Johns River every day. The approval was “finalized” through what Florida citizens and environmental groups are calling a grossly misleading newspaper public notice that aimed to cut-off public challenges to the pipeline easement, which the Trustees’ agent, the FDEP, eventually granted.
Ironically, or maybe not, the benefactors of the spewing are Charles G. and David Koch, the foremost, or at least two of the richest, purveyors of “freedom” according to Ayn Rand. Since late 2005, Koch Industries has owned Georgia-Pacific. It began buying up Georgia-Pacific assets the year before. http://www.nytimes.com/… The Koch Brothers have since been active in educating Georgia-Pacific employees about the right way to vote. http://inthesetimes.com/…
This is the same pair of billionaires who have taken an interest of late into shaping the minds of Florida State University students. http://www.dailykos.com/… Students will presumably be encouraged to learn such definitions as
“Freedom (n.): To ask nothing. To expect nothing. To depend on nothing.”
― Ayn Rand, The Fountainhead
The Koch brothers are not too interested in meeting even this sorry definition of freedom on the St. Johns River. But they have an acolyte in Governor Rick Scott to do their bidding, and that beats logical consistency, and possibly the law, any day.The ultimate question is whether Floridians, present and future, and not just FSU students, will be forced to live with these hypocritical plutocrats and their toxic waste, notwithstanding Randian faux freedom, the public trust doctrine, and due process of law.
Follow me below the fold for a brief synopsis that begins to disinter this complicated but important story. At the end is a link to all the public records that give gory details that can currently be known short of a full investigation.
In Florida, the Governor appoints the Secretary of the FDEP. In north Florida, paper mills have been big business since the Depression. So paper companies take a keen interest in who runs the FDEP. Jeb Bush’s FDEP head would eventually leave to take a top position with another transnational paper company, International Paper.In the first half of Jeb Bush’s first term, higher level staff of the FDEP worked closely behind closed doors with Georgia-Pacific to outline how it could best win approval for a pipeline to transfer the Georgia-Pacific paper mill’s point of discharge from Rice Creek to the St. Johns River. This is the “dilution is the solution to pollution” mode of conduct preferred by industry, which would rather not recycle and treat the discharges on land when discharging into a water body will produce cost-savings.
In 2003, Governor Jeb Bush and the Cabinet, with a lone dissenter in Charlie Crist, voted, after the most cursory of consideration of the impacts to the river, to give what the FDEP concedes was only preliminary approval of a private easement into the river for the Georgia-Pacific pipeline. Importantly then, to construct and use the pipeline would require not only an FDEP wetlands permit (called an environmental resource permit [ERP]) and a FDEP water pollution permit (called a National Pollutant Discharge Elimination System [NPDES] permit), but also the finalization of the preliminary approval given by the Governor and Cabinet for issuance of the pipeline easement.
In 2005 FDEP, acting as agent for the Trustees, under mysterious circumstances, buried this “Trustees’” finalization inside a FDEP “notice of intent to issue permit,” which was the wetlands permit or ERP. This grossly misleading, and thereby apparently constitutionally-defective, notice published by Georgia-Pacific Corp. in the Palatka Daily News did not give reasonable Floridians who might have happened to glance at that paper’s legal ads that day open and fair warning that the notice was about not only the wetlands permit but also about the easement. This is a due process problem.
Interestingly, at virtually the same time the public was given an impenetrable newspaper notice, Georgia-Pacific received a clearly labeled and understandable notice that specifically referred to the easement in the title:
CONSOLIDATED NOTICE OF INTENT TO ISSUE ENVIRONMENTAL RESOURCE PERMIT AND EASEMENT TO USE SOVEREIGNTY SUBMERGED LANDS
In 2005 FDEP would have been well aware of the risk of a citizen challenge to the easement. Soon after the misleading newspaper notice involving the Palatka Mill, another nearby mill on the Fenholloway River, represented by the same lawyers as Georgia-Pacific, was able to get a citizen challenge filed in 1997 to a trustee’s decision dismissed because the petitioner died. See: http://www.scribd.com/… andhttp://www.scribd.com/….Another point, substantively-troublesome, that the citizens and environmental groups make, is that under Florida’s public trust doctrine, which not only has constitutional status in Florida but also is enunciated in the Trustees’ own rules, the Trustees are supposed to make a careful full-blown determination of the public interest of the entire project. That means the costs and benefits and the money savings that would be enjoyed by Georgia-Pacific from the river dumping must be on the table and fully considered by the Trustees. This did not occur in 2003, and has never occurred. And, because the public was denied fair public notice, the public never was given the opportunity to request a formal evidentiary hearing on the pros, cons, and just compensation to the public for the pipeline.
We also now know that the pipeline entails a “chronic toxicity” mixing zone, as well as several other mixing zones, that are beyond the boundaries of the preliminarily-approved easement. These, the citizens and environmental groups contend, should be part of any approved final easement and, in any event, must be carefully considered by the Trustees in reaching any final decision. Minimal compensation was eventually paid for the pipeline easement construction itself but no compensation was made for the cost-savings to and profits from the project to Georgia-Pacific, plus none for the areas that would be smothered with toxic waste, including the mixing zones, and for the diminished swimming and fishing use in the affected areas, which as stated involve chronically toxic waste no sensible person would want to swim or fish in.In 2009, without any additional newspaper notice, FDEP staff quietly issued Georgia-Pacific the easement. Meanwhile, the citizens and environmental groups did not knowanything about the easement issuance.
They learned in 2012 that Georgia-Pacific had completed construction of the pipeline and was about to turn on the pipeline and begin spewing toxic waste without an easement that had been finally-approved by the Trustees. They also learned that the project did not even have an NPDES permit with the chronic toxicity mixing zone the company would now be relying upon. FDEP remedied the lack of the NPDES permit by rushing through an NPDES permit with the mixing zones Georgia-Pacific wanted in order to save costs. But neither the Trustees nor the FDEP did anything to remedy the procedural and substantive defects with the pipeline easement.
So, in the summer of 2012, the citizens and environmental groups filed a direct petition in the Florida Supreme Court seeking a mandamus requiring the Trustees to comply with the public trust doctrine and the due process doctrine. The Trustees have never provided any explanation for the curious 2005 newspaper notice. Moreover, the Trustees have completely put their heads in the sand about the lawsuit, allowing FDEP, the apparently inept if not corrupt agent, to do all the talking for them.
The Florida Supreme Court remanded the case to the Leon County circuit court of Bush v. Gore fame. There, Jeb Bush’s hand-picked chief judge of this important circuitelected to keep the case himself. He ultimately granted summary judgment for the Trustees, acting through the FDEP, and Georgia-Pacific, which intervened. He essentially rubberstamped the FDEP and Georgia-Pacific proposed orders, which virtually ignored the gross newspaper notice defects, and focused on the fact that the mixing zones had now received an NPDES permit. In essence, the so-called agent, FDEP, would permanently gut the Trustees’ substantive fiduciary responsibilities, and the Trustees’ responsibilities to give fair notice and evidentiary hearings, and force the public to solely look to the captive-regulatory agency FDEP for any relief.
His decision is now on appeal to the First District Court of Appeal, which is also in Tallahassee. The recently-filed final brief of the citizens and environmental groups sums up the matter:
No responsible landowner would be expected to allow his or her property to become a dumping ground for toxic waste. If he or she had some reason for doing so, he or she would be expected to negotiate a high price for the privilege. Appellants want no more or less for the portions of the public’s property which they use and enjoy in the heart of the St. John’s River. Where their Trustees fail in this regard, Appellants must be able to hold them responsible.They also point out the apparent corruption involved with the newspaper notice, which FDEP labels “character assassination,” but which Governor Scott and the three members of the all-Republican cabinet have failed to investigate:
This situation should be embarrassing both to FDEP and to the Trustees who are effectively countenancing FDEP’s behavior, but that does not make it character assassination. It is the fact-driven context for a patently unconstitutional problem of lack of reasonable notice by publication.
Further, these facts buttress the conclusion that mandamus is necessary because this problem will only go away if the judicial branch steps in and specifically requires it to be remedied. FDEP is not going to impress upon the Board the need to do so. It is the very agent whose conduct needs to be carefully scrutinized by the Trustees. By the nature of the situation it has an obvious conflict of interest and cannot serve as the unbiased reporter of its own failures as an agent. These failures are a central component of the Trustees’ failures. In the premises, FDEP is the antithesis of what a fiduciaries’ agent should be.
Appellants should not be forced to sugar-coat FDEP’s conduct under the pretense of avoiding “character assassination.” Exactly who did what and why at FDEP are obviously not matters FDEP has any intention of divulging. There certainly appears to have been an effort by an unknown person or persons at FDEP to make the prior Trustees’ preliminary approval “final” through a grossly misleading newspaper notice. This notice lacked the truth-in-labelling, openness, and simple readable clarity of the direct notice by mail which FDEP was, at virtually the same time, mailing to Georgia-Pacific. If Georgia-Pacific needed a clear and understandable notice, so, it should be obvious, did the citizens of the State of Florida. If this was not the result of corruption, it is a strangely coincidental case of gross negligence.