TALLAHASSEE — If the aroma of organic fertilizer repeatedly wafts into your yard from a nearby working farm and you try to sue to stop it, it’s likely to be considered a nuisance lawsuit and you’ll be barred by law under Florida’s “Right to Farm Act.”
If you live near the Everglades Agricultural Area and years of inhaling black ash and smoke from sugarcane burning have caused long-term health problems and you want to sue, Florida legislators are giving bi-partisan support to a bill that considers those lawsuits a nuisance, too.
Florida’s powerful sugar industry spent more than $11 million on Florida campaigns in the 2020 cycle, according to records provided by the Florida Division of Elections and analyzed by the Times/Herald Tallahassee Bureau.
Much of it was routed through the political committees run by Associated Industries of Florida and the Florida Chamber of Commerce, which then distributed it to legislators and their committees, effectively shielding the source. But more than $680,000 can be traced to contributions to the Florida Republican Senatorial Campaign Committee, led by Senate President Wilton Simpson, a Trilby Republican who owns an egg farm and is considering a run for agriculture commissioner next year.
Simpson made advancing the farming lawsuits bill (SB 88) a top priority, and the Senate passed the measure 37-1 on March 18 with only Senate Democratic Leader Gary Farmer of Lighthouse Point voting no.
Proponents say SB 88 and its companion in the House, HB 1601, are intended to strengthen a 1979 law that was meant to quiet the finicky neighbor who moves near a farm and doesn’t like a farmer’s pollinating bees or the sight of parking lots with heavy machinery. But opponents say the legislation is also intended to provide new protections for Florida’s powerful sugar industry, which faces a class-action lawsuit over its sugarcane burning and to prevent more lawsuits like it.
Simpson called the updates to the Right to Farm Act “very technical changes” and hailed the bill as an important signal to the agriculture community about how it is valued in Florida.
“If we want to be able to maintain that agriculture, you cannot have what I would consider as a farmer frivolous lawsuits,’' he said after the bill passed the Senate.
From October through May each year, sugarcane farmers prepare for their harvest by burning the outer leaves of cane stalks. Although there is a “green harvesting” alternative that requires no burning, igniting the stalks requires less equipment and makes harvesting more efficient. But it also causes smoke and plumes of soot to fall in what is commonly known as “black snow.”
For decades the practice has been widely accepted as a necessary evil in company towns of Belle Glade, Clewiston and Pahokee where sugar is king. But in 2019, two residents who live in Belle Glade filed a class-action lawsuit alleging that the burning has diminished their property values, caused long-term respiratory problems, and prevented the area from growing economically.
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The lawsuit cites health studies and data to support their argument. The sugar industry cites other studies to support its claim that the air quality there is no worse than other parts of the state.
Environmental groups say the legislation targets the class-action lawsuit and potential future claims by adding complaints against “particle emissions” to the list of things considered nuisance grievances. The bills also raise the legal standard to require claimants to show by “clear and convincing evidence” that farms did not comply with state and federal environmental laws. Only people within a half mile of the agricultural operation would be able to bring a claim and, if they succeed, the bills limit compensation for any harm that they endure to the reduction of their property value.
“What happens when particle emissions, or water pollution and other cases for that matter extend for more than half a mile? What happens when people don’t own their property?” asked Aliki Moncrief, executive director of Florida Conservation Voters before a Senate committee in February.
The sugar industry has remained silent about the intent of the legislation, and U.S. Sugar and Florida Crystals and did not respond to requests for comment. They instead have asked their coalition of collaborators in the agriculture industry, such as the Florida Farm Bureau, the Florida Agriculture Coalition, the Florida Poultry Federation and the Florida Forestry Association to speak in support of it.
The groups argue that farming in Florida is heavily regulated by federal and state government and the public is already protected. Rather than let a court sort it out, the bar to any lawsuit should be high, they say.
In a statement to the Times/Herald last year, U.S. Sugar Corp. disputed the class-action lawsuit as “based entirely on projected numbers, and not on any actual measured air quality data.”
But environmental groups argue that the state and federal regulatory system so favor the sugar industry that regulations are inadequate and people should not lose their access to the courts.
“If this bill passes, you will fundamentally dis-empower the local community members who are most impacted from pursuing protection and push back against this practice through the legal system,’' said Patrick Ferguson, with the Sierra Club’s Stop the Burn campaign. “It’s just another example of the sugar industry exerting their political capital in Tallahassee to get the green light going forward to dump toxic ash on these predominantly Black and brown communities.”
The industry was also one of the largest contributors to legislative Democrats, and its lobbyists and consultants are among some of the most aggressive in Tallahassee.
Agriculture Commissioner Nikki Fried, a Democrat who has been funded by the sugar industry’s indirect contributions, last fall added more restrictions to sugarcane burning that included adding an air-quality index for the first time in 30 years and redesigning the permitted burning zone to account for population growth.
But in a Feb. 3 letter to her, community residents complained that the changes “have brought no positive impact on our quality of life, no noticeable difference in the amount of smoke and ash falling on our homes and schools, and no relief from the damper falling ash has on our economic landscape.”
Fried has said the bill is not needed. “”Florida’s farmers and ranchers are generally good neighbors in their communities and responsible stewards of their lands,’' she said in a statement. “Current statute already allows for stopping of nuisance activities and for bad actors to be held accountable, so I don’t believe this legislation is necessary, and I won’t be advocating for this bill.”
The stated intention of SB 88 and HB 1601 is to expand Florida’s “Right to Farm Act,” which attempts to stop so-called “nuisance lawsuits” from disrupting farming operations. The act was intended to shield farmers as residential development started encroaching on the rural areas of the state.
Both bills now add agri-tourism, such as you-pick-’em operations, field mazes and farm tours, to the list of protected agriculture operations. It also makes lawsuits more difficult to win and harder to file.
The extent of those protections came into focus Tuesday when a freshman legislator offered six amendments to HB 1601 that attempted to make the text of the bill match what promoters say is its intent.
“The stated purpose of the bill is one thing. The text of the bill is another,’' said Rep. Omari Hardy, a West Palm Beach Democrat who had assembled a three-inch binder of background data to help him make his case to the Environment, Agriculture & Flooding Subcommittee. “I agree with the stated purpose, but the text is problematic.”
He attempted to amend the bill to allow long time residents, such as fourth-generation children, to have the right to file a grievance if they can show that sugarcane burning caused them harm. He tried to remove the addition of “particle emissions” from the definition of protected farming operations. He urged his colleagues to limit the protections to activities on the farm, instead of protecting activity off the farm.
He tried to extend the half-mile limit and allow people who lived within 25 miles of the alleged activity to sue. He attempted to remove the limits on damages if someone can prove they have been the victim of harmful activity. Finally, Hardy attempted to clarify that the legislation could not be applied retroactively, demonstrating it was not intended to halt the class-action lawsuit.
All the amendments were defeated on voice votes.
Bad actors ‘not protected’
“This is nuisance law,’' responded Rep. Jayer Williamson, R-Pace, sponsor of the House bill. “A farmer who’s not acting in good faith, who’s breaking the law — state or federal — or is not using best management practices will not be protected under this bill.”
But Hardy insisted the legislation was more than about protecting from nuisances. “It takes the Right to Farm idea and basically makes it more or less a blanket immunity shield for farmers,’' he said.
Hardy noted that when the wind is blowing to the east, state rules prohibit sugarcane burning to avoid the impact the soot and smoke might have on eastern Palm Beach County. During those times, growers continue harvesting without smoke, using green harvesting techniques.
“If it’s good enough for the folks on the coast and Palm Beach County who are much more affluent, then it should be good enough for folks in the Glades,’' Hardy said.
The House Environment, Agriculture & Flooding Subcommittee passed the bill on a 14-4 vote, with two Democrats joining Republicans.
Senate emails reveal intent
While Simpson and sponsors of the bill say the measure has nothing to do with the sugar industry, talking points written by Senate attorneys working for Simpson indicate otherwise.
An analysis of the Senate bill states that the court has ruled that the existing Florida Right to Farm Act “does not bar all of the plaintiffs’ claims,’' specifically allegations that the burning releases toxic pollutants.
According to records obtained by the Times/Herald Tallahassee Bureau, Thomas C. Cibula, the staff director for the Senate Committee on Judiciary, sent several emails over the summer and fall obtaining updates on the status of the class-action lawsuit.
“Is this for big sugar? No but a recent lawsuit against the sugar industry revealed that lawyers may try to find creative ways to sue for longstanding farming practices that everyone thought were protected under the right to farm act,’' Cibula wrote in an email to a staff attorney writing the talking points for the Senate’s Republican sponsor. “This bill is intended to plug holes in the law that we thought had been plugged already.’'
The class-action lawsuit “has revealed that lawyers may try to find creative ways to sue for longstanding farming practices that everyone thought were protected under the Right to Farm Act,’' wrote Eva Davis, an attorney for the Senate Committee on Judiciary in talking points distributed to several Senate Republicans.
Sen. Perry Thurston, a Fort Lauderdale Democrat who has been a frequent supporter of the sugar industry, said he supported the bill because he has talked to residents in the area and concluded “the community is absolutely not supportive of the lawsuit.”
Adam Basford of the Florida Farm Bureau told the House committee Tuesday the bill was needed to provide certainty “to help them as they face other challenges like weather, like pricing, like competitive nature from other countries.”
Rep. Toby Overdorf, a Palm City Republican, noted that local mayors have come out in support of the legislation, naming Mayor Joe Kyle of South Bay and Mayor Pete Wilson of Belle Glade. Hardy responded that he respects their opinion but the issue is whether people who feel harmful effects should have access to the courts to challenge the harm.
Sister Laura Cavanaugh, of the Sisters of the Blessed Sacrament ministry in Belle Glade traveled to Tallahassee Tuesday to tell the House committee to reject the bill. She said she has known families that have “had to relocate from the Glades due to health concerns of family members.”
“I deal with kids that live in tenements, or small apartments, and they walk back and forth in the open air to school, or to the stores, because many folks don’t have cars,” she said. Because many people do not have air-conditioners, or adequate ventilation in their homes, “they and their families, including the elderly, are breathing in the smoke and the soot, as long as the burn is occurring.”
Cavanaugh was joined by the former mayor of Pahokee, Colin Walkes, who also opposed the bill.
“I want to dispel the myth that we, the locals that are opposed to this bill, are opposed to our industry,’' Walkes told the subcommittee. “We’re not opposed to it. We understand the importance of our industry. We understand our industry provides for us. But what we do not want in our community is for any regress or recourse [when] we harmed by our industry to be taken away from us.”
Although the sugar industry chose not to comment on the legislation and has never spoken up about it at a hearing, a report on the health effects of sugar cane burning in the environmental news site Grist, and reprinted in the Miami Herald, drew denials about the impact of burning from the industry.
“Particulate matter emanates from a litany of natural and man made sources—including smoking, barbecuing, and car emissions,’' U.S. Sugar wrote in a statement provided to the Miami Herald. “Sugarcane harvesting in Florida is regulated, safe, and controlled. There is no data or scientific evidence indicating that controlled sugarcane burns, like ours under Florida’s safe and regulated agricultural conditions, are hazardous to human health.”
Hardy said that the issue has exposed racial and environmental injustices, and he is disappointed that the Legislative Black Caucus has not chosen to oppose it.
“I think it’s incumbent on the caucus to take seriously the concerns that have been brought to the caucus about this problem,’' he said. “I don’t think we have grappled with this issue to ensure we are not abandoning Black people whose health is being harmed by sugarcane burning.”
Hardy added that his goal is not to ban the practice of sugarcane burning but to protect people exposed to it.
“Some people in the community who may be looking the other way at this practice, they feel that they have to choose between clean air and a good job,’' he said. “They feel that they have to choose between air that doesn’t give their children asthma, and the ability to put food on the table for those children. That’s not fair.”
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