An Alternative Approach to the Phosphate Mining Agreement
A recent attempt to settle pending litigation between local governments and Mosaic, the world’s largest phosphate mining company, stalled when Sarasota County failed to ratify a proposed settlement agreement compact. The compact essentially prohibited local governments from opposing phosphate mining, in return for enhanced environmental protection. While some felt the compact was balanced and equitable, others, including myself, did not.
I propose an alternative settlement agreement designed to reconcile the disagreements that have been the subject of litigation rather than eliminating the right to litigate. But first, it is important to understand the details of the compact that failed to reach consensus.
The Mosaic company is offering environmental standards that are stricter than those presently required by law. These new standards require that future mining activity will avoid dewatering impacts to preserved wetlands, maintain downstream water quality, and mitigate adverse impacts to the quantity and timing of surface water flows into the Peace and Myakka River basins.
The compact also prohibits Mosaic from mining or constructing slime ponds (clay settling areas) within some, but not all, 100-year floodplains. It also requires slime pond construction standards that can withstand a hurricane. Mosaic further agrees to provide insurance coverage to pay for cleanup and restoration costs from slime pond failures and to enhance the flows of the Peace River for local governments’ future water supplies.
In return, local governments agree to dismiss all pending permit challenges and can not initiate any new permit challenges or make any comments opposing Mosaic’s mining activities to any permitting agency for 15 to 30 years.
Local governments would also be prohibited from Mosaic appears to be giving up more than local governments. But closer scrutiny of historical evidence and a standard known as “do the right thing,” reveals a bias that strongly favors Mosaic’s interests.
First let’s consider the concessions expected from local governments. Local governments are being asked to give up all rights to go to court to protect their community’s welfare, and would also agree to what amounts to a “hush order,” which would prohibit them from participating in the permitting process. These two provisions are critical and fundamental rights that have been the most effective tools in holding the phosphate industry accountable for unnecessary environmental destruction in the past. While local government concessions are few in number, they are significant in terms of effectiveness, as evidenced by Mosaic’s eagerness to eliminate them.
One of two scenarios must be true about Mosaic’s proposed concessions. The first scenario assumes that current environmental standards allow for adverse impacts to preserved wetlands, the degradation of downstream water quality, the construction of slime ponds in floodplains that are vulnerable to failure from hurricanes, inadequate insurance coverage and impacts to future water supplies. The second scenario assumes that Mosaic is offering us something that we already have. Either way, we are being offered a minimum standard that any effective environmental protection agency should already be using. This outlandish exchange also requires citizens to surrender one of their most coveted rights — the right to protect their interests in a court of law and the right to voice their opposition in a legal review process that affects their health and welfare.
It is inconceivable, but now demonstrably true, that Florida’s environmental regulations governing phosphate mining are pathetically inadequate, to the point where they are now being used as leverage against local governments’ ability to protect their communities. It is shameful that existing environmental regulations do not already preserve preserved wetlands, protect water quality and floodplains.
This is not a balanced settlement and I will continue to oppose it.
As an alternative settlement agreement, I suggest that local governments agree to hold pending litigation in abeyance in return for an agreement by Mosaic to partner with local governments to support changes to state environmental protection rules that will codify the enhanced standards offered by Mosaic in the pending settlement agreement.
Since the lack of these environmental standards led to virtually all recent litigation, adopting the standards into law will minimize, if not entirely eliminate the need for local governments to resort to litigation to protect their community’s interests in the future.
Mosaic suggests it is a “community partner” and willing to “do the right thing.” Well, this is the right thing to do. Expecting present and all future local governments to surrender their legal rights for up to 30 years in return for Mosaic’s willingness to protect the environment is unreasonable. It’s obviously financially viable for the industry to continue to mine phosphate with the heightened environmental standards — otherwise they would have never been offered. If they are feasible, viable and the right thing to do today, they should be the legal standard for the future.