Inside Game/Outside Game — EATING THE EVERGLADES

          Some years ago, Joe Browder, a nationally known environmental consultant/lobbyist and former co-chairman of the Everglades Coalition, was typically blunt in his advice to environmental groups. “It’s time to choose sides. Are you for or are you against?” My interpretation is that Browder was asking whether environmental organizations want to play the inside game or the outside game.

          At the heart of the CERP inside game are the National Audubon Society and its Florida chapter. Without question they are among the most enthusiastic and outspoken environmental advocates for the CERP. From the very first they were a key part of the Everglades Coalition, the network of environmental groups that helped make Everglades restoration law. Throughout 1996 and 1998 Audubon of Florida and the Greater Miami Chamber of Commerce worked closely together to promote what they called the “long-term positive impacts of environmental sustainability in south Florida.”

          Here’s my outsider’s interpretation of their overall strategy. Richard Pettigrew, the highly political Miami attorney who had served as the Speaker of the Florida House and was the former Chairman of the Governor’s Commission for a Sustainable South Florida that proposed CERP’s initial structure, was then Chairman of the Board of Directors of Audubon of Florida (a strategic alliance of the National Audubon Society, Florida Audubon Society with 43 chapters and 40,000 members State-wide).

         Now, take a brief moment to reflect on that situation. The basic question that should immediately spring to mind is: what is such a political animal doing on the Audubon Board? A second question is: what signal does that send to other environmental groups and to the power elite? Easy. That they’re playing on the inside and are convinced that they can be more effective as members of the team controlling the ball. Meaning, they think as things progress they will be better able, from the inside, to persuade their new-found friends, the powerbrokers, the Corps and the South Florida Water Management District, to make changes that benefit the Everglades.

          Let’s eavesdrop as Eric Draper, Audubon of Florida’s Director of Policy, testifies before the U.S. Senate Environment and Public Works Committee in 2002.

The Comprehensive Everglades Restoration Plan (CERP) is an outstanding example of how a reformed Corps would repair damage from previous water resource projects, while functioning in a manner that is responsive, accountable, and fiscally responsible.

Audubon strongly urges the Committee to include in WRDA three critical Everglades restoration projects that are scheduled for authorization by Congress this year and contain more than half of the total land area of the Comprehensive Everglades Restoration Plan (CERP). These projects will deliver enormous benefits to the Everglades natural system. Like other parts of the Everglades ecosystem, these projects are largely an attempt to repair previous damage by federal and state projects.

           There’s the key Audubon strategy: friendly persuasion. As a strong indication of its insider position, Audubon lobbyists focused on helping CERP proponents gain momentum and obtain increased funding, not on revising the Plan to include additional environmental benefits. Not surprisingly, given Pettigrew’s influence in the political arena, Audubon of Florida carefully dissociated itself from anything resembling a confrontational approach. Remember, you can’t be part of an effective inside game if you’re not a good team player.

          If you had the occasion to visit its website in 2004 you would have seen Audubon of Florida bragging that it played a key advisory role in providing technical criteria and documentation to Federal agencies that led to the purchase of 50,000 acres from the Talisman Sugar Company in the EAA, land that will be used for habitat restoration. They proudly proclaimed for all to see that they were working in “close conjunction” with the Corps of Engineers in revising the CERP. And was that a triumphant crow I heard to the effect that 80 percent of Audubon’s recommendations were incorporated into the CERP draft that was submitted for Congressional approval? On the other hand if you visit that web site two years earlier you would have seen the whining and complaining about the Washington Post series on Everglades restoration written by Michael Grunwald. Were it not so sad it would be funny.

          CERP’s environmental critics have harshly accused Audubon of Florida of working as a shill for a plan that was Everglades-unfriendly from the get-go. In counter argument, Audubon officials claim to have been fully aware of CERP’s well-known shortcomings. They steadfastly maintain that Audubon of Florida can achieve more by working on the inside than by waging an all-out war to change the CERP from the outside. Can you smell the rotting hand of an experienced political insider at work?

          But Audubon was increasingly isolated in its position. A great many scientists and environmental activists believed it was time to face harsh reality. That the CERP was not what had been promised in 1999. And, even worse, that the environmental groups had been snookered big time by a very sophisticated coalition of south Florida business and political interests. The new message of these opponents was clear. The CERP is not genuine environmental restoration and their organizations would withhold political support until it changed its stripes. Right.

          Barbara Lange, co-chair of the Sierra Club’s Everglades efforts, was not shy about identifying the CERP’s short-comings. “It’s a bogus water-supply project! It’s about time we all admitted it.” Lange, also stated publicly that elements of the Plan “will do incalculable damage to this precious American natural resource.” Which was exactly how you played the outside game.

          That difficult choice, play inside or stay outside, signaled a serious and growing rift within the Everglades Coalition. Some environmental organizations, like Audubon of Florida, are determined to work within the system. They believed it was still possible to persuade the Corps and the South Florida Water Management District to revise the CERP to include more environmental benefits. Others hunkered down and girded for a long and hard battle, maintaining that the only hope for genuine ecological benefits would be to legally require specific restoration progress tied to deadlines. Or failing that, to threaten widespread public opposition followed by litigation. Can’t get more outside than that.

          For many angry environmental groups still on the outside looking in with a mixture of dread and abhorrence, the real sticking point is that the CERP legislation certainly would not have passed Congress without their cooperation and blessing. Talk about guilt, internal recriminations, and a seemingly endless iterations of weeping, wailing, and gnashing of teeth. That’s the real reason for most of their hard feelings toward Audubon of Florida. The troubling truth for many environmentalists is that although there are some water quality components in CERP, they are few and far between and fail to accomplish much of significance. Which means that if people on the inside aren’t successful in demanding and getting the appropriate water quality improvements, restoring natural flows will simply poison the Everglades that much quicker and more efficiently. It’s a problem that bestows extraordinary significance on choosing to play inside or to flail away at the well-armored monster from the outside.

          Several environmental groups, including Friends of the Everglades and the Biodiversity Legal Foundation, started on the outside by opposing CERP even before its passage into law in 2000. Now a number of well-known and not so well-known environmental groups have thrown in with the Plan’s opponents:

Sierra Club                                                             Environmental Defense

Natural Resources Defense Council                          National Wildlife Federation

Florida Wildlife Federation                                        League of Conservation Voters

Republicans for Environmental Protection                  Save the Manatee Club

          In January 2004 the Sierra Club dropped a bomb by formally withdrawing its support for the $10 billion plan to restore the Everglades. Its reason, according to Frank Jackalone, a Florida representative for the Club, was that, “The Federal and the state Bush administrations have both abandoned the plan. So why should we participate?” In a public statement Club leaders maintained that the administrations of Governor Jeb Bush and President George W. Bush have twisted the CERP until it is merely a plan to supply water to cities and farms. Wow, there’s a terrible shock. So, from the late-1990s through mid-2011 it’s been bloody, internecine warfare among the environmental organizations with no cessation of finger pointing, name calling, and blood-letting. With no end in sight.

          The ultimate outside game strategy actually got its start many years ago, long before the CERP arrived on the south Florida scene. One of the key early outside players was the Miccosukee Indian Tribe, which for decades has been a powerful advocate of preserving the Everglades. In 1988, the Tribe, aligned with the Federal Department of Justice and the then acting U.S. Attorney in south Florida, Dexter Lehtinen, brought suit in Federal Court against the State for failing to meet its legal obligation to protect the Loxahatchee National Wildlife Refuge from phosphorus pollution released into surface waters by sugar growers and cattle ranchers.

          The original suit and the resulting settlement and consent decree reached in 1992 were overseen from 1988 to 2003 by Federal Judge William Hoeveler. However, in 2003 Hoeveler was removed from the case by Chief Judge William Zloch for having made comments to reporters that took issue with the actions of Governor Jeb Bush, the Legislature, and the SFWMD in promoting and passing a bill sponsored by the sugar industry that delayed the deadline for the State (and the SFWMD) to reduce phosphorus levels in the Everglades.

          In a June 2005 ruling that seemed to take the State by surprise, the Federal judge who replaced Hoeveler, Federico Moreno, declared that Florida (through the auspices of the SFWMD and the State Department of Environmental Protection) had violated the terms of the 1992 consent decree. Judge Moreno directed a Special Master to monitor future progress under a 1992 state-federal settlement agreement guiding Florida’s efforts to limit phosphorus pollution pouring into the Everglades by means of contaminated water released by the SFWMD through the Loxahatchee Natural Wildlife Refuge. Recently, in September 2011, U.S. District Judge Frederico Moreno ruled that water draining south into the Loxahatchee National Wildlife Refuge continues to exceed pollution limits designed to protect the Everglades. Specifically, Judge Moreno ruled that water from the State-operated stormwater treatment areas exceeded the official limits that the State set for phosphorus, which is agricultural run-off, between 2005 and 2009.

          That victory was a direct result a long-term and sustained legal campaign waged by the Miccosukee Tribe and it attorney, Dexter Lehtinen (the former Federal Attorney for south Florida), and Earthjustice, a coalition of environmental organizations that include the Sierra Club, National Parks and Conservation Association, National and Florida Wildlife Federations, Defenders of Wildlife, Wilderness Society, and the Audubon Society of the Everglades. Without doubt coalitions like those formed by the Miccosukees and Earthjustice are a critical element in the ongoing struggle to save the Everglades and other sensitive Florida environments. Absent those coalitions and similar cooperative ventures by environmental groups, State agencies would have free reign to drag their heels, procrastinate, and spin one phantasmagorical excuse after another to justify their inactions while the wetlands continue to be consumed by the powerbrokers so beloved to State politicians.

          At the end of March 2006, Senior U.S. District Judge William Hoeveler, the federal judge hearing the Lake Belt suit, ruled that the Corps of Engineers failed to protect the environment when it approved permits allowing limestone mining companies to destroy more than 5,000 acres of wetlands in the Everglades to extract limestone for construction. As reported in the St. Petersburg Times, in a devastating 186-page decision issued on March 22, Senior U.S. District Judge William Hoeveler ruled that the Corps rushed its decision into what seemed to be a predetermined approval, ignored available scientific evidence, failed to include citizen participation, and did not consider less-harmful alternatives. Judge Hoeveler determined that from the beginning of the decision-making process Corps officials acted as if the mining permits would be approved. In his ruling, the judge wrote that that “sense of inevitability,” resulted in the Corps changing the rules to give mining companies preference over the public interest. We’ll just have to wait to see if the Corps appeals that judgment or modifies its approach to the Lake Belt Plan. Either way, it is another example of the success of the outside game in altering the worst aspects of the original CERP.

          Adding to the outside game plan, on August 17, 2004, the Friends of the Everglades filed suit in Federal court against the U.S. Environmental Protection Agency under the citizen suit provision of the Clean Water Act. They alleged that the EPA failed to properly review recent Everglades Forever Act Amendments, failed to properly oversee the State of Florida’s pollution abatement permitting efforts, and failed to close loopholes in the State’s pollution regime that allow continued destruction of the Everglades. According to John Childe, attorney for Friends of the Everglades, “Too much disinformation is being peddled by federally subsidized agribusiness and too many backroom deals are being made by too many self-serving politicians and governmental officials for there to be any real hope for the Everglades. Federal Court oversight may be the only solution — the only way to make State officials and politicians keep their promises.”

          As an aside, Friends of the Everglades is also involved in two other Federal court Clean Water Act lawsuits against the SFWMD and one in State Court challenging the Florida Department of Environmental Protection’s lax phosphorus pollution standards. And in March 2005, Judge David M. Maloney of the Florida Division of Administrative Hearings ruled against the State Department of Environmental Protection in a suit filed in 2003 by the Florida Wildlife Federation, the Environmental Confederation of Southwest Florida, and Save Our Creeks challenging the proposed “pollution load limits” for streams running into Lake Okeechobee. Judge Maloney’s ruling stated that evidence presented by the plaintiffs “calls into question at every turn the process that the department followed” in coming up with load limits. “Instead of the examination called for by scientific method, the department conducted a flawed process.” So the legal battles have only just begun.

          Prior to the Sierra Club et al lawsuit, in response to mounting complaints by citizen groups about the Lake Belt plan, in the spring of 2002, Colonel James G. May, Commander of the Corps’s Jacksonville District, tried to calm people’s fears. Not to worry, he said with a patronizing smile slithering across his face, the Corps would ensure that the Lake Belt plan restored more wetlands than it would destroy. According to Colonel Pollyanna May, if in the future it is determined that the mines had caused more environmental damage than expected, the Corps would review the permits. Okay, and do what? Slap the naughty miners on the wrist after they had done their damnedest to destroy the wetlands? Wow, those bad boys will be forced to pay a half-cent fine on every dollar of profit they earned for destroying the Everglades. Hey, any company caught polluting the environment or destroying habitat is more than happy to pay such meaningless and pathetic penalties since they are only miniscule fractions of the money they made in their mode as environmental vandals.

          Anyway, according to our bright-eyed optimist, Colonel Pollyanna May, who sees opportunity under every pile of manure, when the mining is completed the Corps plans to spend $1 billion to use the depleted quarries to store water for the Park, Biscayne Bay, and the area’s residents. “So, what are you bitching about? The Corps will fix things afterwards,” seems to sum up Pollyanna May’s thought process. However, in their August suit, the environmental groups asserted that the mine-first/study-later process made no sense. And, more importantly, it violated provisions of the National Environmental Policy Act. We shall see.

Implications

          Perhaps the most serious dilemma contained in the above materials arises directly from the relationship between south Florida’s Big Three powerbrokers and the environmental groups that have chosen to play the inside game. Many biologists and conservationists are convinced that a fatal poison lies deep in the bones and sinews of the CERP. The presence of that latent poison is rapidly becoming the focus of the fears of people who understand all too well the black hell that is Florida politics.

          The way the poison theory works is fairly simple. The old-line political insider’s plan from the start was to fund the CERP’s water supply improvements and flood control first, in 2010 and 2015 respectively, while promising the world to the relatively naive environmentalists, who traditionally have been outsiders, meaning specifically Audubon of Florida, but delaying delivery of the environmental improvements until at least 2020. Then, after five or however many years of valiant effort to construct the water supply and flood control improvements, the politicians would simply allow the environmental parts of the CERP that were slated to start ten or more years in the future to wither and die from a lack of Congressional support, giving the wide-eyed innocent excuse that over the years the funds had simply dried up and that the Administration would not raise taxes to generate additional funds.

          So, how does that theory square with what has happened on the ground? From 2003 onwards Congress failed to authorize money for CERP projects. As a direct result, all the projects are behind schedule. Although the State boldly took the bull by the horns by allocating $1.5 billion of the State’s own funds to jump-starting eight CERP projects, the Governor and the legislature also ignored water-pollution controls (designed to protect the Everglades from nutrients like phosphorus) to please the powerful sugar lords. The suspicion is that the State’s intention is to fund those aspects of the CERP that will benefit the powerbrokers and leave all the environmental pieces for the federal government. Which will then throw its hands up and walk away, leaving the Everglades to its own devices.

          To almost no one’s surprise, on March 17, 2006, the Orlando Sentinel and other Florida newspapers reported that key Congressional leaders warned the Bush Administration that apparent attempts by the State of Florida to end or reduce a court-ordered cleanup of phosphorus “could discourage Congress from providing full funding for next fiscal year.” Maybe that was one of the first shots fired across the bow to warn environmentalists not the mess around with the CERP formula. Or maybe it was just a bunch of Congressmen searching for a vulnerable, high-budget project to scale back.

          Of course, one of those scenarios would require deep seated collusion between powerbrokers and various elected representatives. Thank heaven that could never happen. Not in sunny Florida or in the U.S. Congress. Aren’t you relieved that’s only a theory proposed by wild-eyed environmentalists?

          However, if you’re inclined to associate smoke with fire and you have a soft spot for conspiracy theories, you might follow that thread a little farther. In a conspiracy scenario the initial trick would to make it look like the moneyed and politically sophisticated south Florida business interests were giving the environmentalists benefits that had tangible value. Benefits so powerful that the naïve and gullible environmentalists would cease their opposition and climb in bed, wet with desire and panting to be part of the action. And to pressure them to demonstrate that they were real team players by helping pass the legislation that authorized the CERP. Which, if I’m not wrong, is exactly what happened. But then, a decade later, the real political insiders would cut the throats of the gullible environmental Judas goats by delaying environmental projects (already accomplished), delaying State requirements to reduce phosphorus levels (already accomplished but in litigation), and in the final insult pulling the funding plug (a distinct possibility given the mood of Congress) long after the Big Three movers and shakers had gotten exactly what they wanted from the deal. Again, let’s get on our knees and thank God that’s only a fictional scenario. After all, who believes in conspiracy theories anyway?

          Trouble is the above nightmare is based on confidence-shaking reality. After all, it’s historical fact that Congress passed far less ambitious Everglades restoration projects in 1989 (known as Mod Waters, which was an effort to produce more natural water flows to Everglades National Park) and in 1994 (Florida Everglades Forever Act). But both projects have been rendered comatose by constant litigation and brutal infighting, largely brought about by the conflict between moneyed south Florida agricultural/business interests and well-intentioned but functionally powerless environmental groups. In the meanwhile, nary a single drop of water has been delivered to the Everglades by either piece of legislation. Wonder if that was an accident or a fiendishly clever plan.

          Okay, here’s another perhaps skewed view about mixing promises with poison. In late-March 2005, the hype about restoring what Bob Graham touted as America’s Everglades hit the harsh reality of Congressional infighting over, what else, money. To cynical but knowledgeable observers of the Florida environmental scene, it should come as no surprise that the wheels of progress are grinding exceedingly slowly when it comes to the CERP. In late March 2005, an anonymous public servant leaked an internal memo to the Public Employees for Environmental Responsibility. In that memo, written by Gary Hardesty, the senior CERP manager for the Corps in Washington, D.C., the message was brutally blunt. Hardesty warned that after five years of effort the Corps was behind schedule, over budget, and at risk of losing congressional support. The Corps’s most serious problems included lagging science studies, missing almost every milestone required in the Programmatic Regulations, scheduling delays, a projected budget that had ballooned by almost $1 billion for the first group of projects alone, and a mounting suspicion in Congress that the original CERP vision of restoring the River of Grass “is dead.” All that in the context of an ever-tightening federal budget and a major shift in political priorities at the highest levels. Perhaps the single most critical comment in Hardesty’s memo is the following: “We do need to talk about all that we’ve done since 1999, yes, but keep in mind . . . it’s [CERP implementation] different from what we told Congress we would do . . . and it’s not restoration!!!” 

          Author’s Note: The three exclamation points are contained in Hardesty’s original text.] At last, a Corps official not afraid to address harsh reality. Hardesty goes so far as to exhort his colleagues to take what is for the Corps an extraordinary step: “We need to be truthful.” Now that’s really pushing the envelope.

          Naturally, the political spin-meisters in State government immediately leapt into the breach and tried to make out like Hardesty’s words were just ho-hum business as usual and nothing to worry about. “Quite frankly, there are several things in there that aren’t really accurate picture of where the overall restoration is,” said Ernie Barnett, director of ecosystem projects for the Florida Department of Environmental Protection. And Corps mouthpiece Dave Hewitt, putting the best possible interpretation on what had to be a vicious kick in the gonads type leak of sensitive materials, said Hardesty’s memo wasn’t meant as a policy statement but only as an internal heads’ up to an interagency team preparing a five-year report to Congress. I’m sure we all believe that Alice in Wonderland viewpoint.

          The current, often brutal competition for federal funds, which includes the Iraq and Afghanistan wars, paying for Medicare and Medicaid benefits, and the ongoing uncertainty about the future of Social Security, is working directly against earlier promises of projects that would have direct environmental benefits for the Everglades. The result is Congress is casting a fish-eye on the restoration effort and is openly wondering if it’s worth the promised $13 billion, and counting.

          Naturally, much of the blame should be laid at Congress’s door, since its foot-dragging on funding major CERP projects has caused this very real problem. Congress also shoulders the responsibility for cutting funding for critical pilot CERP projects, including one that was meant to identify new technology to solve the aquifer storage and recovery (ASR) problem (remember that SWAG?). Technology that was supposed to be developed for pumping 1.7 billion gallons of water daily into the Floridan Aquifer. Yes, that still unknown technology, which was slated by the Corps’s water managers to play a key role of the restoration effort. But in mid-2005 the funding for even the ASR pilot project was suspended and the entire effort is under critical scrutiny that may lead to the financial trimming process. Which royally pissed off members of Congress who correctly interpreted the State’s action as undermining what they had regarded as a once-promising intergovernmental collaboration to favor its powerbroker paymasters.

          However, unlike Congress, which has failed to deliver its promised funds, the State has kept paying its share of the CERP. Although since 2000 Florida has ponied up more than $1.5 billion, about five times more than the funds committed by Federal agencies to date, many Congressional staffers and even Senators and Representatives have become skeptical about the State’s hidden agenda, which many political insiders interpret as pushing key water supply and flood control projects while leaving the Corps and the Federal government with the far more difficult chore of fixing the ecosystem later on, a not unrealistic scenario.

          The State of Florida, a professional when it comes to shooting itself in the foot, didn’t help matters when it rolled back the agreed upon phosphorus pollution standards and gave agribusiness powerbrokers another ten years to reach the ten parts per billion standard. In August 2004, Friends of the Everglades filed suit in federal court, alleging that the United States Environmental Protection Agency failed to properly review recent (2003) State of Florida Everglades Forever Act Amendments, failed to properly oversee the State’s pollution abatement permitting efforts, and failed to close loopholes in the State’s pollution regime that allow continued destruction of the Everglades. Another hardball fired by players of the outside game. Then, in March 2009 the Florida Wildlife Federation, Environmental Confederation of Southwest Florida and Save Our Creeks, Inc., filed a lawsuit in U.S. District Court to compel the U.S. EPA to set more protective pollution standards for Lake Okeechobee and its tributaries.

          So, we’re full circle in what has happened to the Everglades for more than 60 years. Promises and more promises, followed by lawsuits and more lawsuits. That’s what the environmental groups playing the inside game fell for a decade ago when they bought the CERP story line and that’s still the case today. Seductive promises, come-hither panting and heavy groping but no delivery. And the poison I mentioned previously: the danger that the initially promised Federal funds for restoration will not be available.

          You have to remember that environmental groups are just like people. They make mistakes, sometimes big ones. They have been known to make very stupid decisions and to promote embarrassingly ridiculous claims in public forums. On far more occasions than they would like to admit, they have not always been on the side of the angels with regard to environmental issues. So, let’s get down to the heart of the matter. On which side are the angels? Anyone care to place a bet? Problem is we’re not talking about kitchen table nickel-dime poker sessions. What’s at stake is no less than the future of south and central Florida.

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