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Florida Vows to Fight After Judge Affirms Approval of Everglades Oil Project

March 21, 2019 by Dan McCue
An alligator takes in some sun in the Florida everglades on the outskirts of Broward County, Florida. Photo By Dan McCue

State officials in Florida vowed to continue to fight the drilling of an exploratory oil well in the Everglades in the wake of a judge’s ruling that the plan can go forward.

“We’re disappointed in the court’s ruling, which goes against the protection of the Everglades,” the Florida Department of Environmental Protection said in a statement Wednesday.

“The department is reviewing [its] options and will continue to work with Broward County and local municipalities to provide technical assistance as they pursue their own action regarding this matter,” the statement continued.

The long-running legal battle began in 2015, when Kanter Real Estate LLC, which owns about 20,000 acres in western Broward County, sought a state permit to drill an exploratory well on a portion of the land to assess the feasibility of extracting oil from it.

The site extends about five acres into what is considered to be an extant part of the Everglades.

The state denied Kanter a permit, and the landowner appealed the case to an administrative law judge who in 2017 concluded the proposed drilling site was already environmentally degraded and isolated from the surrounding land.

As a result, the judge said, there was no reason the permit should not be approved.

After the state Department of Environmental Protection again refused to issue the permit, the Tallahassee-based 1st District Court of Appeals ruled the officials had improperly rejected an order recommended by an administrative law judge.

The state, Broward County, the city of Miramar, which is located about six miles east of the proposed drilling site, and the South Florida Wildlands Association, asked the Court of Appeals for a rehearing of the Feb. 5 decision.

On Monday an announcement appeared in the court’s website saying the “motion for rehearing en banc filed by the appellee, Florida Department of Environmental Protection, on February 20, 2019, is denied.”

A day later, in a revised opinion, the court said that Noah Valenstein, secretary of the Florida Department of Environmental Protection, abused his discretion and misinterpreted the law in rejecting the administrative law judge’s opinion.

The court noted that in rejecting the Kantor request for a drilling permit, Valenstein relied in part on his personal assertion that the Everglades is “world renowned for its unique environmental characteristics.”

But the appeals court said that to rely on that assertion in rejecting the permit would effectively be creating a new rule, without legal authority, banning all oil drilling in the Everglades.

“Appellant (Kanter Real Estate) correctly asserts that (part of the recommended order) is made up entirely of factual findings and that the secretary improperly relied upon or created an unadopted rule by basing its decision on a ‘long-standing policy to deny oil and gas permits within lands subject to Everglades restoration,’” wrote Chief Judge Bradford Thomas.

“We hold, therefore, that the Secretary improperly relied on an unadopted rule which would in practice prohibit all exploratory oil drilling in the Everglades, without statutory authority,” the opinion said.

Judges Harvey Jay III and Robert Long Jr. were the other members of the unanimous panel.

In an email to the Well News, John Kanter, the company’s president, said the court’s decision showed his firm complied with the law.

“Our focus on being responsible applicants and operators has been validated once again by yet another judicial proceeding,” Kanter said. “We are now coordinating our efforts and planning our next steps. We are happy to be finally moving forward”

But Nikki Fried, Florida’s agriculture commissioner, was outraged the court refused to rehear the case.

“This is infuriating,” Fried said in a written statement. “I hope that lawmakers and the Department of Environmental Protection will consider changes to protect the Everglades — our most precious natural resource, the only wilderness of its kind on Earth — from future oil drilling and fossil fuel profiteering.”

Despite Tuesday’s court ruling, the company still has a long way to go before drilling begins. Among other things, it needs a series of permits from Broward County, which also would need to reclassify the site, which is currently listed as conservation land.

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