The Second Amendment v. The Environment: Florida's Transformation of Gun Range Environmental Liability

This Article focuses on Florida’s statutory provisions regulating gun ranges; those provisions provide a stark contrast to traditional environmental regulation. In 2004, Florida enacted legislation that makes lawsuits and other legal actions against gun ranges a “last-resort option” for addressing environmental impacts at the ranges and creates a rule that relies on the industry to define the standards for performance of gun range owners and operators. This legislation provides a good example for examining potential limits to self-regulation, which is important to understand in the current era of rolling back governmental mandates. Evaluating Florida’s environmental regulation of gun ranges also examines the tension created when a constitutional right is invoked to protect a specific activity and the extent to which deference is required when other obligations and rights are impacted. In this situation, it is the obligation of local governments to protect the health, safety and welfare of their citizens and the right of citizens to the beneficial use and enjoyment of their property. Florida’s legislation gives the ranges immunity from all state and local governmental legal actions if the range has made a good faith effort to implement site specific management plans based on a best practices manual issued in 2004, regardless of the environmental impact. The best practices manual was issued by Florida’s Department of Environmental Protection in consultation with the U.S. Environmental Protection Agency (“EPA”) and industry stakeholders including the National Rifle Association. This manual, however, did not go through any kind of regulatory review process. In addition, there is no constitutional or legislative guidance for determining what the terms “best management practices” and “good faith efforts” mean in an environmental regulatory process. Moreover, it is unclear who will be responsible for cleaning up contamination when “good faith efforts” with “best management practices” are insufficient to protect the environment. Florida citizens may retain the ability to bring lawsuits to enforce federal laws in the absence of state action, but those actions are costly and the lack of judicial precedent makes their success uncertain. It is important to understand the implications for the environment in Florida, as well as the health and safety of its citizens, when ambiguous terms are incorporated into legislation that also preempts local and state agency governance and enforcement. In the case of gun ranges and use of firearms, the legislation’s ambiguity is compounded by additional legislation that subjects state and local officials to sanctions for actions that violate Florida Legislature’s “occupation of the whole field of firearms and ammunition.” The result is that regulators are prohibited from taking actions to clarify or interpret the ambiguities. The lack of support for the legislative findings for preempting all state agency and local governmental actions to protect the environment from the impact of gun ranges and the law’s ambiguity undermine the preservation of Florida’s natural resources and protection of its environment.