In 2001, the Florida Legislature passed the Environmental Litigation Reform Act (ELRA). Before ELRA, the Florida Department of Environmental Protection (DEP) could pursue corrective actions and civil penalties for violations only by filing in state court. ELRA, on the other hand, authorizes DEP to act on cases with penalties of $10,000 or less through administrative proceedings. The outcome is swifter, more efficient, more consistent enforcement compared to civil litigation, which can be costly and prolonged.
When a penalty is in order, DEP’s first step is to calculate
it based on the list of violations and associated penalties in
ELRA. Each program covered under ELRA
has a specific schedule of penalties for different kinds of
violations. (Violations involving hazardous waste, asbestos and underground injection are not required to be calculated under ELRA.) If a calculated penalty is $10,000 or less, staff reviews the specific circumstances of the violations to determine whether the penalty should be adjusted because:
- The violator demonstrates good faith;
- The violation was beyond the violator’s control;
- The penalty is beyond the violator’s ability to pay;
- There is a history of non-compliance;
- The violator gained an economic benefit from the
If, after accounting for these considerations, the adjusted
penalty is $10,000 or less, or can reasonably be capped at
$10,000 to quickly and effectively resolve an issue, ELRA
applies and DEP pursues a consent order with the violator.
Consent orders are legally binding
agreements that establish specific actions to be completed
within specific timeframes to resolve the violation. If a
settlement cannot be reached with the violator, DEP issues a
Notice of Violation and pursues administrative litigation.
If the adjusted penalty is more than $10,000, ELRA does not
apply and DEP instead considers program-specific guidelines for
characterizing violations and assessing penalties. These
guidelines reflect two fundamental factors: the violation’s
actual or potential environmental harm; and the extent of
deviation—magnitude or duration—from a statutory or regulatory
requirement. If a settlement cannot be reached consistent with
DEP’s Settlement Guidelines for Civil and Administrative
Penalties (DEP Directive 923)[PDF -
then DEP will file an enforcement action in state court.
Whether enforcing violations in state court or under ELRA,
DEP may settle with a violator to quickly obtain the corrective
actions necessary to protect the environment along with
penalties sufficient to discourage future violations. Remember,
the objective is returning to compliance quickly and staying in
compliance in the future. Enforcement and penalties are simply
one means to that end.
ELRA is in section 403.121, Florida Statutes. Learn more
DEP’s non-ELRA penalty guidelines.