FRIENDS OF PERDIDO BAY, INC. AND JAMES LANE, APPELLANTS,
v.
FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, APPELLEE
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Friends of Perdido Bay and James Lane challenged the constitutionality of Florida Statutes section 403.088 on cross-appeal after prevailing in the lower court's denial of International Paper's wastewater discharge permit. The First District Court of Appeal dismissed the cross-appeal for lack of standing, holding that prevailing parties who were not adversely affected by the agency order lack constitutional standing to challenge the statute.
Friends of Perdido Bay and James Lane lack standing to bring the cross-appeal because they were prevailing parties in the lower court, were not adversely affected by the agency order, and do not face any consequence from application of section 403.088. To challenge a statute's constitutionality, a person's rights must be injuriously and directly affected by the statute's operation.
[1] A party must be adversely affected by a final agency action to be entitled to judicial review.
[2] A person may not challenge the constitutionality of a statute unless their rights are injuriously and directly affected by its operation.
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Join FLexlaw to unlock all legal intelligence“A party who is adversely affected by final agency action is entitled to judicial review.”
Establishes the foundational requirement that standing requires adverse effect from the agency action.
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Join FLexlaw to unlock all legal intelligenceInternational Paper Company sought a wastewater discharge permit and related authorizations to upgrade and operate its Cantonment, Florida paper mill …
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International Paper Company appealed a final order of the Florida Department of Environmental Protection which had denied a wastewater discharge permit and related authorizations requested by International Paper to upgrade and operate its Cantonment, Florida paper mill under the *651National Pollutant Discharge Elimination System program. Friends of Perdido Bay and James Lane cross appealed arguing that section 403.088, Florida Statutes (2007), is unconstitutional. International Paper has voluntarily dismissed its appeal; thus, the only matter before us is the cross-appeal challenging the constitutionality of section 403.088. Because the Friends of Perdido Bay and Lane were the prevailing parties below, they were neither adversely affected by any provision of the order under review nor face any consequence here by the application of section 403.088. See section 120.68(1), Florida Statutes (2007) (“A party who is adversely affected by final agency action is entitled to judicial review.”). As a result, they have no standing to bring this appeal. Dep’t of Health v. Fresenius Med. Care Holdings, Inc., 935 So.2d 636, 637 (Fla. 1st DCA 2006); Fla. Chapter of the Sierra Club v. Suwannee Am. Cement Co., Inc., 802 So.2d 520, 521-23 (Fla. 1st DCA 2001). “It is fundamental that a person may not challenge the constitutionality of a statute ‘unless his rights are in some way injuriously and directly affected’ by the operation of the statute.” Southeast Volusia Hosp. Dist. v. State, Dep’t of Ins., 432 So.2d 592, 598 (Fla. 1st DCA 1983) (quoting E.M. Watkins & Co., Inc. v. Bd. of Regents, 414 So.2d 583, 588 (Fla. 1st DCA 1982)). Save Anna Maria, Inc. v. Department of Transportation, 700 So.2d 113 (Fla. 2d DCA 1997), relied upon by Friends of Perdido Bay and Lane, is distinguishable. In that case, the Department of Environmental Protection rejected the hearing officer’s contrary finding on public interest and ruled that the bridge project was “clearly in the public interest.” Id. at 115. Here, the Department accepted the administrative law judge’s finding that the public interest criteria of section 403.088 had not been met. Accordingly, we dismiss this appeal.
DISMISSED.
HAWKES, C.J., BENTON, and VAN NORTWICK, JJ., concur.
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Fla. Dep't of Env't Prot. v. Fla. Reemployment Assistance Appeals Comm'n & Katie M. Swango, 123 So. 3d 1154 (Fla. 1st DCA 2012)…of standing. “An appeal of a wholly favorable judgment must be dismissed.” Dep’t of Health v. Fresenius Med. Care Hold [*1155] ings, Inc., 935 So. 2d 636, 637 (Fla. 1st DCA 2006). See also Friends of Perdido Bay, Inc. v. Fla. Dep’t of Envtl. Prot., 44 So. 3d 650, 651 (Fla. 1st DCA 2010) (dismissing cross-appeal, after appellants voluntarily dismissed appeal, because cross-appellants were the prevailing parties below and were neither adversely affected by any provision of the order under review nor faced any…
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Dep't of Revenue v. Calixto Manuel Lopez, 252 So. 3d 823 (Fla. 1st DCA 2018)…ance Appeals Comm’n, 123 So. 3d 1154 (Fla. 1st DCA 2012) (quoting Dep’t of Health v. Fresenius Med. Care Holdings, Inc., 935 So. 2d 636, 637 (Fla. 1st DCA 2006)); ---PAGE 2--- 2 see also Friends of Perdido Bay, Inc. v. Fla. Dep’t of Envtl. Prot., 44 So. 3d 650, 651 (Fla. 1st DCA 2010) (dismissing cross-appeal, after appellants voluntarily dismissed appeal, because cross-appellants were the prevailing parties below and were neither adversely affected by any provision of the order under review nor faced any…
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Sw. Fla. Reg'l Med. Ctr., Inc. v. State, 53 So. 3d 1220 (Fla. 1st DCA 2011)…PER CURIAM. DISMISSED. See Friends of Perdido Bay, Inc. v. Florida Dep’t of Env’t Prot., 44 So. 3d 650 (Fla. 1st DCA 2010). WOLF, HAWKES and WETHERELL, JJ., concur.…
Authorities Cited
- Fla. Chapter OF THE Sierra Club & Save Our Suwannee, Inc. v. Suwannee Am. Cement Co., Inc., 802 So. 2d 520 (Fla. 1st DCA 2001)
- McDONOUGH v. Dep't OF Natural Res., 414 So. 2d 583 (Fla. 1st DCA 1982)
- E. M. Watkins & Co., Inc. v. Bd. OF Regents & Winchester Constr. & Eng'g, 414 So. 2d 583 (Fla. 1st DCA 1982)
- Bell v. State, 935 So. 2d 636 (Fla. 1st DCA 2006)
- Se. Volusia Hosp. Dist. v. State, 432 So. 2d 592 (Fla. 1st DCA 1983)
- Save Anna Maria, Inc. v. Dep't OF Transp. & Dep't of Env't Prot., 700 So. 2d 113 (Fla. 2d DCA 1997)