Environmental attorney David Guest talks BP, springs and a Florida fracking boom

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David Guest is the man behind several major environmental victories in the state of Florida.

As managing attorney at the Florida branch of Earthjustice, a nonprofit environmental activist law firm, Guest was involved in the federal ruling on “back-pumping” polluted water into Lake Okeechobee, ruled a violation of the Clean Water Act.

Guest was also key to the withdrawal of plans to build a coal plant in Palatka by the Seminole Electric Cooperative.

After litigating cases on coastal resource protection, offshore oil drilling, water rights, water boundaries and protection of fisheries, sea turtles, manatees and sturgeon, Guest has recently brought litigation on climate change, water pollution and the Clean Air Act.

Guest, a former poverty law and civil rights class-action attorney before turning to environmental law, recently spoke with Margie Menzel of the News Service of Florida.

Among the topics were the recent failure of Florida Legislature to pass a bill that sought to reduce pollutants in springs statewide.

Delays in legislation are significant in two ways, Guest said.

“One is that the problem that we have continues to grow. The other is that the conduct that triggers these problems has been licensed for a longer time.”

Florida will need to take immediate action to stop the problem from becoming worse, especially with new septic tanks installed in areas all through the spring watersheds.

“We have new, massive amounts of fertilizer going in all these spring ‘sheds,” Guest said. “And in many places, we have cattle operations that are being permitted to continue operations in these spring ‘sheds.

“All of those things could have and would have been dealt with this year by a corrective bill in the Legislature.”

Failing to act is not the same as keeping the status quo, he added, but allowing pollution to worsen “in a substantial way.”

Another hot button issue for Guest is the excessive withdrawal of groundwater by urban and agricultural well-fields located near Florida springs.

“What’s happened over the past ten years or so is, you’ve gotten a rapid increase in the number of huge permits to suck groundwater out of the ground in the area around these springs,” he said. “And not only that, not only are they huge increases, but also, they’re long-term increases.”

As an example, the Ichetucknee and Santa Fe areas in north central Florida, in permits that affect springs, 85 percent will not expire in the next five years. At one time, all permits expired within five years; now a majority of them does not. The biggest permit holder — Jacksonville Electric Authority — has a license that does not expire until 2030.

Guest says that the Department of Environmental Protection continues to issue groundwater withdrawal permits. Earthjustice brought a legal challenge to the rule by the Scott Administration on protecting minimum flows in both the Ichetucknee and Santa Fe.

What Guest found was the state was saying nothing had changed in four years, so they could just keep on maintaining the status quo for another five years while they decide what to do.

In the district’s own computer records, he said, just in the last two years, 46 million gallons of new water were permitted to be withdrawn in the area of those springs.

The decision to put off dealing with springs in 2014, Guest told Menzel, will have significant consequences.

“It was a terrible mistake, and we are going to pay for it.”

As for Earthjustice’s challenge of the federal government’s approval of BP’s cleanup plan for the 2010 Deepwater Horizon Gulf oil spill, Guest believes the most important factor was the use of Corexit, a chemical dispersant. Environmentalists believe the Gulf continues to be deeply damaged by the spill nearly four years later, due to BP’s wanton use of the toxic chemicals in Corexit to hide it.

“We had a spill of about 200 million gallons,” he said, “one of the very biggest in American history, one of the biggest in world history.

“It was very difficult to control because (the well) had been permitted improvidently,” Guest added, “and the approach of the government and the approach of BP was to take this chemical problem — you’re adding a chemical to the water that kills fish and wildlife, destroys the shore — and they’re adding more chemicals to it.

“What they added here was two million gallons of one of the most powerful chemicals that exists on the planet to try to control the dispersal of this toxic oil.”

Guest explained that the use of Corexit just “covered up” the problem, and 200 million gallons of oil are still there, still in the Gulf of Mexico.

“It’s just in fine particles instead of together,” he said, “where you can see it all at once.”

Most of the oil failed to wash up on the beach because the dispersant “kept it in the water in small particles.”

Florida is now beginning to see the consequence of that strategy, Guest warned.

“We’ve had 800 dolphins — most of them infants — killed in the last three years,” he said. “And that is, no doubt, a direct consequence of the Corexit and that oil in the water. And we expect to see it continue.

“That’s a signal that that chemical contaminant in the water column that was put in by BP — with the approval of EPA — is having the consequence that we feared.”

Earthjustice filed a lawsuit demanding to know what’s in  Corexit, so the state can take appropriate action.

“And the answer we got was, “It’s a trade secret.”

BP actually controls the company that makes Corexit, Guest said, adding that they managed to get EPA to agree to not going to disclose what’s in it.

Ultimately, BP did release the chemical makeup of the dispersant, with a number of components known toxins. However, the company refuses to say what the “recipe” is, the actual proportions of chemicals in the mix.

“That’s a little bit like saying, ‘well, we’re going to give you all the ingredients in Coca-Cola, but we’re not going to tell you what the ratios are’,” Guest said. “So this could be 90 percent rat poison, or it could be 90 percent corn starch, and we’re not going to tell you which.”

Another concern for Guest is the practice “acid fracking” in Collier County and the Everglades. Acid fracking is a controversial method of injecting acids, chemicals and water underground to split up rock, as a way to loosen up embedded oil for extraction.

“There’s an oil formation that’s deep under the ground,” he says, “over 10,000 feet>

“That’s a very tight formation, hard to get oil out of.”

With a six-decade history of oil development in Collier County and the Everglades zone, many of the wells drilled were simply not economical. Often, what came up was low-grade oil, and in such tight formations, it could not be successfully extracted.

“What we’ve seen is the arrival of a huge oil company,” Guest said. “Dan Hughes is the most successful and most aggressive wildcatter in the United States. He is the second-biggest landowner in the United States.”

Hughes came to Collier County with a production well down near the Fakahatchee Strand, about 40 miles southeast of Naples, and performed what Guest called an illegal fracking operation two days before Christmas.

“There was a correct expectation that no one would be seen,” Guest said. “Somebody turned him in. Nobody knows how that happened, but he got turned in. He almost got away with it.”

Menzel notes that because of Hughes’ fracking, the production rate shot up to 60 barrels a day in that single well, about the same average rate as some of the most productive well fields in the U.S.

“Hughes has established that fracking is effective in Florida,” Guest said. “It’s effective in the Everglades, and you are guaranteed that this is going to increase …  and increase rapidly.

“I foresee that in the next year, we’re going to see a boom — at least, an attempted boom — in fracking down in the Everglades area.”

Phil Ammann is a St. Petersburg-based journalist and blogger. With more than three decades of writing, editing and management experience, Phil produced material for both print and online, in addition to founding HRNewsDaily.com. His broad range includes covering news, local government and culture reviews for Patch.com, technical articles and profiles for BetterRVing Magazine and advice columns for a metaphysical website, among others. Phil has served as a contributor and production manager for SaintPetersBlog since 2013. He lives in St. Pete with his wife, visual artist Margaret Juul and can be reached at phil@floridapolitics.com and on Twitter @PhilAmmann.