The Reluctant Heretic
Clay Shaw, Big Sugar and the Everglades
In obituaries, Florida Congressman Clay Shaw has been roundly praised as a moderate Republican and champion of the Everglades. A little too roundly. Shaw served 26 years in Congress, at a time when the GOP perfected polarization tactics as well as any southern Democrat. It is not enough to note, in passing, a Republican leader who stood up for protecting one of the most threatened ecosystems in the United States. How Clay Shaw was a friend of the Everglades deserves a closer reading and involves the story of a Republican who braved dissent of the Jeb Bush orthodoxy at the time and in a state that determined the outcome of the most contested presidential election in US history.
In June 2001, Shaw was in the entourage when President George W. Bush visited the Everglades. According to a New York Times report at the time, “Mindful, perhaps, that the president was not seen as having lavished sufficient praise on Representative Shaw at the Everglades event, speakers went out of their way to pay homage to him here. Al Cardenas, the state Republican chairman, singled out Mr. Shaw for “special recognition” as “someone who fights so hard for Florida every day in Congress.” (“Florida GOP sees Bush visit as latest slight”, NYT, 6/14/2001)
The fact of the Everglades as a political swamp could not have been lost on any of the participants. In a region where every developed acre of wetland involved the vigorous application of persuasion skills — from zoning applications, to sales, to mortgages and political contributions — , the sixty mile wide watershed of the River of Grass — stretching more than a hundred miles from the boundaries of Orlando and Lake Okeechobee to the Florida Keys — represented more a totem for platted subdivisions, strip malls culture, sugar cane and rock mining (for cement) than a herald for ecological harmony.
The vaunted balance between man and nature in the Everglades is often preached and more often breached. By that summer 2001, political leaders at the speaker’s podium were doing what they had been doing for decades before and since: promising to re-arrange the multi-billion dollar water infrastructure in one of the nation’s fastest growing states to give some chance of survival to the once-magnificent biodiversity of America’s only tropical wilderness, including iconic predators like the Florida panther roaming a shrunken, degraded habitat. Protect the environment and the economy.
Democrats, including Al Gore during the 2000 election, had been badly boxed in by the political weight of Florida developers and Big Sugar. Jeb Bush, who gained his first elected office as governor of Florida in 1998, had substantially benefited from the builder lobby and the sugar billionaires. Scarcely six months earlier, on the same day the US Supreme Court decided in favor of George W. Bush, Jeb signed with President Bill Clinton in the Rose Garden the Comprehensive Everglades Restoration Bill.
As a former mayor of Fort Lauderdale, one of the fastest growing cities in Florida, Shaw’s political career spanned small segregationist towns to sprawling metropolis and suburbs marching to the Everglades. The state was filled with millions of new voters whose weak connections to a splendid wilderness just on the other side of the Florida Turnpike represented new political opportunities for the exploiters.
In 1993, at the very spot in Everglades National Park where in 2001 President George W. Bush affirmed his commitment to America’s Everglades, a Democratic White House and the late governor of Florida Lawton Chiles, celebrated peace and progress on of the nation’s most enduring environmental challenges.
Democrats in Congress, in Florida, and the Clinton White House wanted a bill – any bill – to settle decades of litigation. Republicans wanted a bill that would keep all the economic stakeholders and interests who depended on exploiting the Everglades – for cheap water, for limestone, for sugar – in play. While the distinction is actually blurred (only a Democratic sugar billionaire had the weight to get a phone call to President Clinton during one of his Oval Office trysts), Clay Shaw was one of the very few Republicans in Congress who understood and despaired the corrupting influence of the sugar subsidy in the Farm Bill. Congressman Shaw viewed the 2000 achievement of federal legislation called CERP as great progress. He would be its watchdog.
Governor Jeb Bush had different ideas. In 1994 Jeb — a well-connected, first-time political candidate — had been defeated by Lawton Chiles. Although Chiles surrendered the sword of litigation to the federal government, he had also carefully cultivated support among Florida’s builders, developers, and Big Sugar. If the Everglades would be saved, it would be in the spirit of not “rocking the boat”. Meanwhile, through his Foundation for Florida’s Future, Jeb had been tinkering with conservative ideas to unleash the power of profit as motivation for public good instead of what he derisively called “command and control environmental regulation”.
For industry — the sugar industry –, those ideas mainly related to shifting the costs of pollution, or, cooking the books at the expense of the Everglades and the public. This was the swamp that Congressman Clay Shaw straddled, as a pragmatist who trusted that the federal court settlement in the Miami courtroom of Judge William Hoeveler a decade earlier, established the facts of pollution by Big Sugar and deadlines to fix the Everglades.
For example, the biggest cost component of the original $7.8 billion price tag for CERP was a technology called aquifer storage and recovery (ASR, by acronym). Fully $3 billion of the price tag was aimed toward sinking 300 wells to store “excess” water in the hydrological equivalent of political sausage grinders. These wells, it was asserted with confidence, would replace the need for taking hundreds of thousands of acres out of sugar production. (The single federal agency qualified to judge the utility of applying ASR wells in Florida, the United States Geological Survey or USGS, was not consulted in the plan’s formulation.) In theory, ASR wells provided a vertical plane to store vast quantities of water instead of the horizontal plane: taking private lands in sugar cane production for surface water storage.
For ASR to work, Governor Bush attempted a significant re-write of Florida water quality law. In April 2001, Sierra Club issued a state-wide alarm: “The Florida Legislature is now considering a law that would eliminate the standards for total coliform and other biological and chemical contaminants in our underground drinking water supply when water is pumped down from the surface. Our drinking water supply, the Florida Aquifer, would become a septic tank.”
What did Big Sugar want? Simple. Big Sugar had an extraordinarily profitable and successful business model based on taxpayer subsidies and the support of the Florida legislature, Congress, and the White House. Sugar gets what it wants, when it wants, and any regulatory initiative that begins to tamper with that model — given its de minimus contributions in the form of “best farming practices” — is anathema.
The public outcry in 2001 against changing state water quality standards forced a rare policy retreat (one legislator in Georgia, when she heard of the Florida plan to store contaminated water in drinking water aquifers, trenchantly called the Jeb Bush plan “dumber than dirt”.) Bush was furious with environmentalists and never again acknowledged Sierra Club or its role in the hearts and minds of Florida voters. Nevertheless, ASR remained the “driver” of Everglades restoration plans for years within agencies like the US Army Corps of Engineers and EPA even while the scheme retreated further and further into the background. Its leaders on the ground and in Washington knew better than buck political orthodoxies in Florida.
As a supporter of the 2000 Everglades restoration plan, Congressman Clay Shaw accepted aquifer storage and recovery and, like other political officials, had little complaint if the state moved in the direction of simplifying permitting. The Everglades were dying — they are always dying — and changes had to be made even if the water, first injected and later recovered, contained fecal matter, arsenic, or carcinogens. The Bush lieutenants were deaf to entreaties by environmentalists pleading for a Plan B. At any rate, the events of September 2001 shoved environmental issues into deep and distant pastures. Suddenly Floridians were preoccupied with terror and Al Qaeda jihadists letting off steam in Fort Lauderdale strip clubs before knocking down the World Trade Towers.
Meanwhile Big Sugar planned its next attack: to re-write pollution standards for the Everglades without upsetting the 1994 settlement agreement between the state and federal government. The opening of this new front against the Everglades was rationalized as progress by Gov. Bush. In early 2003, Big Sugar flooded Tallahassee capitol hallways with lobbyists. ”Now the sugar brigade has stormed Tallahassee to try to muck up the Everglades Forever Act, the very cleanup bill that has worked such wonders that Big Sugar pushed it through the Florida Legislature nearly a decade ago. In addition to moving the cleanup deadline back from 2006 to 2026, the industry’s bill would have weakened the phosphorus standard from 10 to 15 ppb, prevented the state from converting any more sugar fields into artificial marshes, and basically eliminated any threat of enforcement. “An absolute betrayal,” says Charles Lee, an Audubon Society lobbyist who has worked on Everglades issues for 30 years.” (Sugar Plum, Michael Grunwald, The New Republic, April 24, 2003)
That spring, Congressman Shaw was chairman of the Florida congressional delegation and point person for federal Everglades funding. He confronted the Bush political camp.
Joined by fellow Republican Congressman Porter Goss, Shaw strongly objected to the draft Bush legislation, saying it was “inconsistent” with both the Everglades Forever Act and the 1992 court settlement. The bill “creates significant ambiguity and diminishes the standard” for water quality, would “have negative impacts” on Interior Department resources, “limit the state’s ability” to protect the Everglades environment and “does not reflect state intent to fully fund water-quality improvements.” Shaw met with the leaders of the Florida legislature and with Governor Bush. (Governor Must Veto Glades Clean Up Bill, Key West Citizen, 4/30/2003)
Unaccustomed to heresy within GOP ranks, Bush accused Shaw in the press of being uninformed. (Bush: Sugar bill no Glades Threat, Miami Herald, April 8, 2003) Shaw ratcheted up his response. In a letter to the Florida legislature, Goss and Shaw called the legislation a potential “fatal error”. “Only a few years ago, following months of negotiations, a diverse group of stakeholders reached a consensus that ensures the long term protection and habitat of the Everglades… ” (“Congressmen warn state about tinkering with Everglades, AP, April 4, 2003)
In the middle of the legislative session, Judge Hoeveler called for a hearing — at which Congressman Shaw testified — , cutting through criticisms leveled by Bush lieutenants like FDEP Secretary David Struhs in lockstep with sugar industry spokesmen who derided environmentalists for being “Chicken Littles” and “crying wolf”.
On May 9th, Judge Hoeveler issued an extraordinary order: “This Cause comes before the Court upon a hearing held on May 2, 2003 called by this Court to address state legislation concerning the Everglades restoration efforts which, as of the date of this Order, the bill in question had not yet been signed by the Governor into law. The Court now feels compelled to comment on the present situation, and take action, as described … During the hearing, the state parties repeatedly reassured this Court that the new state legislation, should it become law, will have no effect on the hard-won agreement reached by the parties more than a decade ago, and entered by this Court as a Consent Decree. To be clear, I wish to reiterate in the strongest possible terms that insofar as the new legislation, proves inconsistent with the Decree, the parties’ obligations as yet forth in the Decree remain unaltered. The agreement embodied in that Decree remains binding upon the parties, and I intend to enforce it as it currently reads, unqualified. This Court does not yet have cause to attempt to apply the legislation, and I sincerely hope I am never obliged to do so, for the bill is clearly defective in many respects. The loose language it employs in describing compliance with its own mandates, such as “”maximum extent practicable,” robs it of meaning or binding effect. It opens the door to ten or more extra years with no showing that such a lengthy extension is necessary. While I am deeply troubled by the content of the bill, I am dismayed by the process that led to its passage. The bill was moved quickly through the legislative process, reportedly at the behest of more then forty lobbyists for the sugar industry. There simply is no acceptable explanation for the speed by which this was accomplished, given the fact that the deadlines remain three and a half years off and given the State’s assurances much of the cleanup project is proceeding on track. The important issues addressed, namely, the plan for funding and completing the restoration project, warranted serious consideration by Florida’s elected representatives. Moreover, the sponsors of the bill should have allowed time to consider input from the broad range of interests impacted. Yet the treatment of the bill seemed calculated to avoid federal participation or public scrutiny… In the words of Theodore Roosevelt, “Conservation means development as much as it does protection, I recognize the right and duty of this generation to develop and use the natural resources of our land, but I do recognize the right to waste them or to rob, by wasteful use, the generations that come after us.”
On May 20. 2003 Gov. Jeb Bush brushed off the federal judiciary and signed the Everglades bill into law. He also spurned a massive outcry by civic leaders, environmentalists and every newspaper editorial board in the state. In the Palm Beach Post Sally Swartz acidly observed, “… deluded officials, clueless legislators and a governor who won’t admit a mistake intend to “fix” the bad law with a still-secret new one. Sure they will.” (“Marketing the Everglades Bill, Palm Beach Post, May 21, 2003)
The controversy over the Jeb Bush/ Big Sugar attempt to change the Everglades Forever Act had deep repercussions. David Struhs, the Bush lieutenant who lied to the press that federal agencies had “approved” the proposed changes in order to speed the bill’s passage, eventually resigned. After objections by Big Sugar, Judge Hoeveler, one of the most respected members of the federal judiciary, was removed from Everglades litigation that remains the landmark of a storied career. The passage of the 2003 legislation lead to a new Clean Water Act lawsuit by Friends of the Everglades and the Miccosukee Tribe of Indians. In 2013, that litigation finally resulted in a major win for environmentalists and a settlement requiring, ultimately, more than $880 million in water treatment marshes to protect Everglades water quality. Although Governor Rick Scott claims credit for state commitment, in fact it was the result of another federal lawsuit. Big Sugar and the state of Florida continue to appeal the ruling by Hoeveler’s successor in Everglades related litigation, Judge Alan Gold.
In August 2003, Stephen Goldstein for the Fort Lauderdale Sun Sentinel wrote on Congressman Clay Shaw. (“Don’t let deal sour project”, Fort Lauderdale Sun Sentinel, August 20, 2003): ”Big Sugar owns Jeb Bush and the Republican-dominated Florida Legislature — but not U.S. Rep. Clay Shaw. So, when the industry unleashed some 46 lobbyists to get a sweetheart bill passed giving it carte blanche to pollute the Everglades, elected officials of both parties melted. It was politics at its most saccharine in Tallahassee — but led to one of Shaw’s finest hours. ”I never read a worse drafted piece of legislation in my entire life,” says the Washington veteran, who ought to know good from bad after representing South Florida for nearly 23 years. He says it was full of “weasel-words,” that turned previously negotiated timetables and standards holding Big Sugar accountable for Everglades clean-up into gaping loopholes allowing for the dumping of deadly phosphorous willy-nilly. ”No one will confess to authorship of this bill,” Shaw adds, aghast at the machinations of members of his own party. “This legislation puts greater burden on the taxpayer. It’s a new tax. It flies in the face of the mandate from the electorate that polluters pay. It’s an incredible thing — one industry’s hold on Florida. I would never have believed it.” … He pledges that he’ll “never give up on the Everglades”; it’s his “passion”: “As long as I live and breathe, I’ll be devoted to cleaning up and preserving it.” The River of Grass is “full of life”; “we’ve messed it up, but we have no right to change the cycle of life” there. He says he’s “been around long enough to know you don’t pick up your marbles and go home. You keep moving. The game is never over.”
In the Fort Lauderdale Sun Sentinel obituary for the late congressman, Jeb Bush praised Shaw, “… as being an an ally on Everglades restoration. “Politics doesn’t have to be about elbows and knees and mean-spiritedness,” Bush said.
The record — on both Jeb Bush and Clay Shaw — shows otherwise, although Shaw was never mean-spirited.
In 2006 I wrote to a colleague, “I’ve seen Clay Shaw at work in federal court, defying Jeb Bush on the Everglades and it was a sight to behold. He deserves our gratitude: I can’t think of another Republican from Florida who has taken as many real risks as Shaw in defense of the Everglades.” That November Congressman Clay Shaw was defeated by a Democrat who received campaign finance support from Big Sugar. While Shaw died after a long battle with lung cancer, the battle he will be best remembered for, goes on.
Alan Farago is president of Friends of the Everglades.