The holy grail of environmental law is finding scientific evidence that links an environmental disaster or health problem to pollution and then tying that pollution to a polluter.
In few places has that endeavor been more frustrating than at Lake Okeechobee, where the challenge is in figuring out how high levels of harmful nutrients, such as phosphorus and nitrogen, ended up in Lake Okeechobee — the liquid heart of the Everglades — and in waterways linked to the lake.
Science has proven that too much phosphorus and nitrogen are not good for the lake or the River of Grass — although the definition of “too much” remains a touchy subject. High levels of these nutrients in the water cause excessive growth of cattails and other plants that crowd out native Everglades species. The nutrients are also linked to blooms of algae, which reduce oxygen in the water and can cause manatee and fish kills.
But how the nutrients got in the water has kept attorneys pointing fingers for more than two decades. Among the alleged suspects are “Big Sugar,” cattle, stormwater runoff from fertilizer-laden golf courses, ball fields and yards and naturally occurring nutrient-rich muck.
However, now there is a lab test that enables scientists, public health officials and attorneys to identify the source of one of the nutrients — nitrogen. Monica Reimer, an attorney with EarthJustice, a national, public-interest lawfirm that has been involved in Everglades lawsuits for more than 20 years, says the lab test will “change the way we practice environmental law.”
That and other tests that have been emerging hold growing promise for efforts to track pollution, scientists say.
“One of the big problems in environmental law tends to be ‘It’s not me,’” Reimer said. “We go to court and try to tie the problem to the source or multiple sources…. That’s been a very hard burden to carry.”
Recently, professor Brian LaPointe, who honed the test at Florida Atlantic University’s Harbor Branch Marine Institute, explained how it works and what it reveals, at a recent Florida Senate select committee hearing in Stuart on solutions to the environmental crisis in the Indian River Lagoon, St. Lucie estuary and Caloosahatchee River.
The test measures nitrogen isotope ratios. An isotope is a different version of the same element.
Nitrogen originating from fertilizer has a different isotope ratio than nitrogen from human or animal waste or nitrogen that occurs naturally in the environment. LaPointe’s tests revealed that the main source of nitrogen pollution in the Indian River Lagoon, for example, is not fertilizer from crops and yards or manure from cattle ranches north of the lake. It’s from septic tanks.
Mostly, LaPointe has used his test for his research — to determine the source of nitrogen pollution that damages Florida’s coral reefs or causes algae outbreaks. However, the test has proved valuable in court.
In 1996, the first time LaPointe used the test results in court, the evidence linking damage to coral reefs in the Keys to septic tanks was so compelling, “it led Governor (Lawton) Chiles to mandate sewage treatment in the Florida Keys,” LaPointe said.
“It was used in a narrower academic way in the early 1990’s,” LaPointe said. “We can source track major nitrogen sources and then let the wheels of justice do their thing with better evidence.”
Similar tests have been used for years in public health to identify the source of bacteria-related illnesses. The Centers for Disease Control has created a molecule database, called PulseNet, which allows state laboratories and CDC to compare strains of E. coli and other pathogens from all across the United States to detect widespread outbreaks.
In July, the Florida Department of Environmental Protection added new tools to its laboratory to identify pathogens in water at beaches and recreation areas. The new equipment and methods use tracers, such as artificial sweetener that persist in the environment and DNA analysis, to identify whether fecal bacteria — an indicator of the possible presence of pathogens — are related to humans, animals or other sources.
Reimer had been tracking the use of chemical and bacterial fingerprinting and how it has and can be used in court. Scientists found distinct isotope ratios for mercury in rainwater collected near a coal-burning power plant in Crystal River when comparing it to mercury in rainwater collected at other Florida sites not near coal plants.
Unfortunately, there is no isotope ratio test for phosphorus — the highest-profile bad actor in efforts to restore the Everglades. But science is progressing rapidly and “it’s kind of an exciting time for environmental scientists,” LaPointe said.
“It’s kind of like DNA sequencing and look what that did for the criminal justice field,” LaPointe said. “That brought in a whole new line of evidence. I see it being very similar.”