That question hovered uncomfortably over the Florida Supreme Court on Tuesday as justices took up the latest skirmish between Everglades activists, water regulators and the state's largest sugar growers.

At issue is whether millions of homeowners who live in a water management district that stretches from Orlando to Key West should pay to cleanup pollution that comes from distant farms and fouls a distant treasure, the Everglades.

Echoes of a 1996 constitutional amendment that voters overwhelming approved -- and that the legislature refused to implement -- reverberated throughout the courtroom as attorneys argued the case of Barley vs. South Florida Water Management District.

Attorneys for Everglades Foundation Chairwoman Mary Barley argued the "Polluter Pays" amendment trumped a taxing scheme that lawmakers hammered out two years earlier when they faced the threat of a federal suit. The result was the Everglades Forever Act of 1994. Under it, sugar farmers pay a tax that amounts to an average of $24.89 per acre. Homeowners are levied a tax of 10 cents per $1,000 in assessed value of their homes. The result is millions of homeowners who don't even live near the affected areas have contributed to a cleanup tax that now amounts to $35 million per year, environmentalists complain. Farmers are paying between $11 million and $15 million a year under the act.

Environmentalists have long argued that Big Sugar hasn't paid its fair share, and it might pay more if Polluter Pays is implemented.

"At this point, we are required to pay an unconstitutional tax," Thom Rumberger, an attorney and chairman of the Everglades Trust, told the justices.

Rumberger and his colleagues want justices to order a trial in a lawsuit they first filed in 1998. An Orlando circuit judge and the 5th District Court of Appeal in Daytona Beach each dismissed the case.

The biggest problems environmentalists face is their success at the polls in 1996 with Polluter Pays, also known as Amendment 5, and subsequent legislative inertia. Another appears to be justices who are wary of trampling on legislative turf.

"Are you asking us to basically indicate that a certain portion of Amendment 5 is self-executing?" asked Justice Peggy Quince. "That is the only way that you could get back to the trial court."

Tuesday's arguments lasted about 30 minutes, but the justices won't rule for several weeks.

Polluter Pays was just one of three proposed amendments that environmentalists managed to get on the ballot after collecting 2.1 million signatures. Their cornerstone was a penny-a-pound sugar tax that voters flatly rejected. Regardless, voters approved Polluter Pays by 68 percent and an Everglades trust fund by 57.3 percent.

Polluter Pays says simply, "Those in the Everglades Agricultural Area who cause water pollution within the Everglades Protection Area or the Everglades Agricultural Area shall be primarily responsible for paying the costs of the abatement of that pollution."

The Florida Supreme Court issued an advisory opinion in 1997 that said the amendment is not inconsistent with the 1994 law, but that nobody will know for sure unless the legislature passes a law that says otherwise.

And without that implementing legislation, the environmentalists have no case, argued Paul Nettleton, an attorney for the water management district.

"The basis of their claim does not exist," Nettleton told the justices. "How could they prove under Amendment 5 that they are non-polluters? This is something that the (Florida Supreme) Court has said that the legislature has to define."

Sen. Walter "Skip" Campbell, D-Tamarac, tried to come up with those definitions in 1998, but a bill he proposed never got a single legislative hearing. Campbell doesn't blame his bill's dismal defeat only on the legendary influence Big Sugar in the legislative process. Developers, ranchers and cities also were worried that they would be singled out for higher pollution charges, he said.

"Polluter Pays doesn't discriminate," he said. "I give a lot of credit to the sugar farmers. They have cleaned up a lot of their mess."

Campbell isn't sure whether he will file another bill this year. A spokeswoman for House Speaker Tom Feeney said he would not likely act unless he received direction from the court.

Lawmakers don't need to act, insists Robert Coker, a vice president of U.S. Sugar Corp. Coker warned that Barley's lawsuit could be counterproductive, disrupting the 1994 compromise and setting back the cleanup efforts.

"These are self-serving lawsuits that try to denigrate Florida sugar farmers and don't do anything to help clean up the Everglades," he said.

Coker pointed to statistics released Tuesday by the water management district that show a record-setting 73 percent decline in phosphorous in the water leaving farms in the Everglades Agricultural Area south of Lake Okeechobee.

"We are constantly working in a constructive way and Mary Barley is working in just the opposite direction," Coker said.

Whether the legislature has done its part is a matter of interpretation, said Joseph Little, a law professor at the University of Florida. The best constitutional amendments, such as a ban on laws restricting free speech and press, don't require legislative action at all, Little said. Polluter Pays was a quirk that doesn't necessarily call out for further legislative action, he said.

"Most constitutional amendments are in effect, shields against government action," he said. "The constitution is not a document that regulates private behavior. It's a document that provides structure to government, that puts restraints on government."

jim_ash@pbpost.com