Series: Black Snow
Big Sugar’s Burning Problem
This article was produced in partnership with The Palm Beach Post, which is a member of the ProPublica Local Reporting Network.
Update, April 29, 2020: Florida Gov. Ron DeSantis on Thursday signed into law the bill that critics say might hinder a pending lawsuit against sugar companies over pollution and block future legal actions. In his statement announcing the bill-signing, DeSantis, a Republican, included bipartisan statements of support from lawmakers. The law takes effect July 1.
Two years ago, a group of residents from the rural Glades region of western Palm Beach County took powerful sugar companies to court, alleging that the farmers’ harvesting practices were poisoning poor communities in Florida’s heartland.
For sugar companies, the most efficient way to cull crops is to burn away the plant’s leafy outer stalk, which sends plumes of smoke and ash into mostly Black and Hispanic neighborhoods on the northern edge of the Everglades. Some residents say the smoke is making them and their children sick. The industry disputes that claim and has sought to dismiss the lawsuit.
But last week, even as the case works its way through the court system, the Florida Legislature passed a bill that could hinder residents’ legal options and undo the most significant challenge to sugar cane burning, and the industry, in years.
The legislation, which now awaits Gov. Ron DeSantis’ signature, would limit the dollar amount plaintiffs can collect in lawsuits against farmers to the reductions in the plaintiff’s property value. In an area with already low property values, the potential for damages drops significantly in what is poised to be an expensive legal battle, said Matthew Moore, the chief lawyer in the Glades cane burning lawsuit.
And if complainants lose, the legislation demands they pay the farmers’ legal bills — a stark change from existing law.
“They’re trying to make it so we walk away and don’t fight this,” said Moore, who is seeking class-action status on behalf of the more than 30,000 Glades residents who live among 400,000 acres of sugar cane in South Florida. They claim the smoke causes asthma, difficulty breathing and other illnesses.
Sponsors of the Florida bill — Sen. Jason Brodeur, R-Lake Mary, and Rep. Jayer Williamson, R-Pace — insisted that the measure, an expansion to protections in the state’s Right to Farm Act, isn’t aimed at the lawsuit or at protecting sugar growers.
“This has nothing to do with those pending actions,” Brodeur told WFSU, a Tallahassee-based radio station.
But similar legislation in North Carolina that was passed four years ago effectively immunized farmers from future pollution suits.
Large parts of the Florida bill appear to mirror — nearly word-for-word — the legislation in North Carolina that successfully thwarted efforts by poor neighbors of hog farmers to collect damages for years of pollution nuisances.
In that state, poor, mostly Black neighbors of the nation’s largest pork producers had filed lawsuits alleging manure runoff from hog farms was reaching their homes, causing a stench and diminishing property values. As many of those lawsuits worked their way through the court system, though, the North Carolina Legislature in 2017 and again in 2018 passed bills that limited the amount plaintiffs could collect in damages and restricted so-called nuisance suits, named for the impact that businesses can have on individuals.
Juries ultimately awarded plaintiffs in four cases a total of a half-billion dollars, later reduced to $100 million by a judge because of a separate state cap on how much companies can be forced to pay in punitive damages. Hog farmers appealed the rulings, citing the North Carolina laws as reason to toss the lawsuits. A federal judicial panel upheld the original court decisions, as well as the $100 million award.
But the victory was only possible because the law was not retroactive.
The 2018 measure blocked future lawsuits. It prevents people from suing in cases where farmers have been operating for more than a year, regardless of when the alleged nuisance started. Environmental groups filed a lawsuit in 2019 seeking to overturn the legislative changes, in part because the law prevented residents from suing over decades-old pollution practices, said Elizabeth Haddix, a lawyer representing environmental groups in the case, which is ongoing.
“A facility could be in existence for more than a year before it even starts producing a nuisance,” Haddix said. “This law protects them from being sued in a completely arbitrary way.”
Florida lawmakers appear to have taken that exact language in North Carolina and expanded it. The Florida bill includes protections against not only nuisance lawsuits, but challenges over negligence and personal injury.
Unlike in North Carolina, the Florida legislation describes the measure as “clarifying” the intent of the Right to Farm Act rather than changing it. Moore said this opens the door to applying the legislation retroactively.
“What they’ve done here is so egregious, such a power grab, that it has ramifications beyond our lawsuit,” Moore said.
The bill now sits with DeSantis, a Republican, who has until Thursday to decide whether to sign or veto it. If he does neither, the legislation automatically becomes law and takes effect July 1.
From the outset, bill-co-sponsor Brodeur touted the legislation as protection for the agritourism industry, which includes any operations that bring outside visitors to farms, like vineyard tours and farmers markets.
The legislation doesn’t mention sugar cane burning by name. However, deep in the bill, lawmakers expanded the definition of protected farming operations to include “particle emissions,” a broad term that captures several types of pollution, including known byproducts of sugar cane burning.
The bill was a top priority for Senate President Wilton Simpson, a central Florida egg farmer, and passed with near-unanimous support in the upper chamber. Simpson, a Republican, is reportedly eyeing a bid for state agriculture commissioner, which would put him in charge of the agency that oversees the sugar industry, one of the largest political donors in Florida.
Asked about his support for the bill, a spokeswoman for Simpson referred to his comments at a March news conference when he described the bill as one that protects farmers from “frivolous lawsuits.”
Only one state senator, Democratic minority leader Gary Farmer, voted against the bill, calling it a “Trojan horse” for the industry.
“This bill isn’t about protecting family farm operations,” Farmer told The Palm Beach Post and ProPublica. “It is about allowing corporate entities to pollute without any real ramifications.”
In recent years, officials in the major sugar-producing countries of Brazil and Thailand moved to phase out or ban sugar cane burning entirely, citing pollution and risks to health, which also have been detailed in academic studies. They’ve pushed a more environmentally friendly, albeit costlier, alternative called “green harvesting,” where workers remove the leaves with blades.
Environmentalists from the Glades have pressed for the sugar industry to do the same in Florida. But sugar companies and local officials argue that such a wholesale change would deal an economic blow to the industry and result in job losses.
In Tallahassee, five lobbyists for the nation’s top sugar growers — U.S. Sugar and Florida Crystals — disclosed their work on the legislation, and representatives from several farming groups testified in support, including the Florida Farm Bureau, the Florida Agritourism Association and the Florida Fruit and Vegetable Association.
Asked about lobbying on the bill, Florida Crystals released a statement saying it joined other
“farmers and ranchers across the state to ensure that farms that abide by local, state and federal regulations can continue to fulfill their important mission.”
U.S. Sugar did not respond to a request for comment.
A convoy of Glades politicians and residents also showed up to defend the bill, bused in by a group tied to the Belle Glade Chamber of Commerce. Belle Glade Mayor Steve Wilson, who has joined other local mayors in publicly condemning the class-action lawsuit brought by their constituents, pleaded with lawmakers to protect farmers and jobs. The sugar industry is the largest employer in the Glades.
Wilson didn’t speak to the specifics of the legislation, but he instead called on legislators to broadly “support our industry and not try to destroy them.”
A newly elected Belle Glade commissioner, Joaquin Almazan, also defended the bill, though he identified himself at the hearing as a machinist in the cane industry, not as a city official. Reached by phone on Tuesday, Almazan declined to speak about the trip, saying, “I work for the sugar industry,” but refusing to disclose which company he works for before hanging up.
Rep. Omari Hardy, a Democrat from West Palm Beach and one of just seven House members who voted against the bill, sought to amend the legislation to ensure that it could not be used retroactively to harm the ongoing lawsuit. Those efforts, however, were rejected.
He’s now concerned that if the bill becomes law, the residents’ suit will face significant hurdles. “This is the only recourse the Glades residents have to address the problem of cane burning,” he said in an interview. “Not only that, but it’s the only incentive that the sugar industry would have to move away from burning and adopt green harvesting.”
Despite the legislation, Moore’s law firm, Boca Raton-based Berman & Berman, doesn’t plan to drop the suit, he said. Both sides are awaiting a decision from a federal judge, who will determine whether the case can proceed.