Court clears way for Everglades drilling

February 5, 2019

By Jim Saunders

TALLAHASSEE --- Overturning a decision by the Florida Department of Environmental Protection, an appeals court Tuesday ordered the state to issue a permit to a major Broward County landowner that wants to drill an exploratory oil well in the Everglades.

A three-judge panel of the 1st District Court of Appeal ruled the department improperly rejected a recommended order by an administrative law judge, who said in 2017 that a permit should be approved for Kanter Real Estate LLC.

The 14-page ruling Tuesday said, in part, that Department of Environmental Protection Secretary Noah Valenstein improperly rejected “factual findings” by Administrative Law Judge E. Gary Early. Those findings included that the site targeted for exploratory drilling was environmentally degraded and was isolated from surface water and groundwater.

“Appellant (Kanter Real Estate) correctly asserts that (part of Early’s 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,’ ” said the appeals-court ruling, written by Chief Judge Brad Thomas and joined by judges Harvey Jay and Robert E. Long Jr.

Kanter, which owns about 20,000 acres in Broward County, applied in 2015 to drill an exploratory oil well on about five acres of its land in the Everglades. The department denied a permit, leading Kanter to take the case to the Division of Administrative Hearings.

Early determined that Kanter had met requirements for a permit, with the recommended order saying that the “greater weight of the evidence establishes that the potential for harmful discharges and the potential for harm to groundwater and public water supply are insignificant.”

But under administrative law, the dispute then returned to the department for issuance of a final order. The department denied the proposed permit, saying in part that the lands involved are “in the environmentally sensitive Everglades” and that state environmental officials had not issued such an exploratory permit in the Everglades since 1967.

Thomas wrote Tuesday, however, that state law requires agencies to accept administrative law judges’ findings of fact unless the findings are not supported by “competent, substantial evidence.” Also, he wrote that state law bars agencies from considering information outside the record of the administrative law case.

“Here, the ALJ’s (Early’s) ultimate finding of fact was that the land in question did not have any qualities that would make it vulnerable to pollution of the land, aquifer or surface waters, a finding the ALJ supported with examples and facts introduced as evidence,” the ruling said.

The appeals court also said the Department of Environmental Protection “improperly recast factual findings to reach a desired outcome, contrary to law.”

Thomas, who was clearly skeptical of the department’s position during a hearing last month, wrote that a Kanter expert testified that there is a 23 percent chance of discovering oil at the targeted site. If oil is discovered, the expert testified that between 180,000 and 10 million barrels could be produced.

The project would not involve the controversial drilling practice known as fracking, which Gov. Ron DeSantis and some lawmakers are seeking to ban in Florida.