Rural America

Tuesday, Feb 11, 2020, 8:00 am

Does Lake Erie Deserve Legal Rights? A Federal Court Hears Arguments

By Stacey Schmader

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This photo shows a toxic algae bloom in Lake Erie in September 2017. Such algae blooms are caused when excessive amounts of phosphorus are added to the water, often as runoff from fertilizer, according to a NASA study. The Lake Erie Bill of Rights is designed to protect the lake from such pollution.   Photo Credit: Aerial Associates Photography, Inc. by Zachary Haslick/NOAA

Last week, the Lake Erie Bill of Rights (LEBOR) was debated in federal court, where arguments were presented defending the right of Lake Erie to exist, flourish, and evolve, and residents’ right to clean water. The groundbreaking law was adopted by popular vote in Toledo one year ago, and immediately challenged by a purported agribusiness corporation.

The City of Toledo’s robust defense of LEBOR included arguments that no agriculture corporation has a constitutional right to pollute, and that the actions of Toledo residents are an emergency response to a heating planet.

"Industrial dumping and with some of the environmental issues and pollution caused by large scale agriculture," the city argued, "in combination with climate change, has put the citizens on notice that they feel that they are in an emergency situation as it relates to water quality and the need to protect their water, which is certainly a compelling and significant interest.”

“We are making headway,” stated Tish O’Dell, organizer for the Community Environmental Legal Defense Fund (CELDF), which advocates for rights of nature. "This is the first time the rights of a specific ecosystem were argued in a U.S. federal court. What we are seeing here is the beginning of a new phase for the movement, where more detailed and concrete questions of what it means to enforce the rights of nature get discussed in the broader culture. This is an idea whose time has come — regardless of the judge's decision."

Attorneys representing the corporate plaintiff, which seeks to overturn the democratically passed law, articulated the structural significance of LEBOR. They pointed out that LEBOR strips claimed corporate constitutional rights of business entities that violate the recognized rights and embodies an empowered local democracy, where municipalities can expand human and ecosystem rights to build on state and federal protections. 

Attorneys for the State of Ohio made the claim that the state has “ownership” of the Lake. This “ownership,” the state argued, is violated by the way LEBOR seeks to re-allocate the State’s power by allowing the City of Toledo, and any of its 276,000 residents, to bring an action to protect the Lake Erie ecosystem.

“This is exactly what the people are attempting to do,"  said O’Dell. "Why? Because the state has not fulfilled its responsibility to protect the people and waters of Ohio. They have repeatedly issued permits that protect the polluters and legalize harm to the Lake." CELDF assisted residents in drafting the measure.

The court proceedings contained dramatic and entertaining moments. A corporate attorney feigned complete ignorance as to common word meanings within LEBOR: 

“They are not common words with common or plain meanings. Natural water is ripe to multiple meanings….Community of organisms is also not defined. I have no idea what it means....  Soil is even ripe for multiple interpretations…. Section 1A [of LEBOR] purports to create the rights to exist, flourish, and naturally evolve. None of those phrases, terms, are defined anywhere in LEBOR.... It's undefined what it means to the right to exist.... What does the right to flourish mean for soil?... .Can you plant, or are you supposed to just let wild seed go wherever? Can you harvest the plants? Can you mow? Can you have a golf course?”

The City attorney replied this way:

“In response, Your Honor, I'd start by saying that this long list of subjected hypotheticals and fear of what may happen or potential liability, as described in the plaintiff's complaint, does not establish Article III or prudential standing here. It further demonstrates not that the law is vague, but that the plaintiff doesn't have standing to pursue the action. And life, liberty, and the pursuit of happiness have been litigated in terms of what those terms mean. It provides to citizens, and it includes things like a healthy and safe environment. In their brief Drewes Farms Partnership concedes...that protecting Lake Erie is a legitimate interest.”

“The plaintiff’s implied argument that ecological and scientific concepts are too complex for the courtroom exemplifies a larger challenge we face: bringing our laws in line with ecosystem health and science,” O’Dell added. “Let’s do this.”

A central point that emerged from the discussion was whether the plaintiff has been “harmed” by LEBOR.

CELDF-affiliated attorney Terry Lodge, who consulted with the City of Toledo’s attorney, said, “this federal lawsuit should be dismissed and the people should get more chances to try to enforce LEBOR and try to define what it means.”

Markie Miller of Toledoans for Safe Water, the group behind the law, responded this way: “I think it’s criminal what the state is trying to get away with, including saying that we have trampled the constitutional rights of a company seeking the right to pollute us.”



Stacey Schmader is the co-founder of the Community Environmental Legal Defense Fund.

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