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

Stacey Schmader February 11, 2020

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.

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.”

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