Lake Erie Given Status by Citizens of Toledo, But Questions Arise

Adam Ares, Associate Member, University of Cincinnati Law Review

On February 26, the residents of Toledo, Ohio passed a historic referendum that would grant Lake Erie the same legal status and rights in courts as individuals.[1] In an effort to improve the “failing health” of Lake Erie,[2] local conservation organizations proposed the Lake Erie Bill of Rights Charter Amendment.[3] The amendment would grant Lake Erie “rights normally associated with those granted to a person[.]”[4] This article will (1) provide a brief background of the events that led to the referendum; (2) summarize the amendment and the rights that it grants Lake Erie; and (3) highlight the reactions and pending litigation to the amendment.

Toledo, which sits on the shores of the western basin of Lake Erie, has experienced many problems with toxic algae blooms in Lake Erie over the past several years.[5] The primary cause of the harmful algae blooms has been attributed to nitrogen and phosphorous fertilizer runoff from nearby farms within the Lake Erie watershed.[6] The worst of the algae blooms resulted in the 2014 Toledo Water Crisis.[7] The crisis occurred when toxic blue-green algae was detected in the city’s water treatment facility, resulting in the city issuing a three day “do not drink” advisory leaving 500,000 people without clean water.[8] Following the incident, the Toledoans for Safe Water was formed, with the goal of cleaning up and protecting Lake Erie.[9] After several years, the group was able to bring the Lake Erie Bill of Rights Charter Amendment to the ballot this February.[10] In addition to the legal implications of the amendment, supporters believe that the results of the election make clear that Toledoans will no longer tolerate environmental degradation of the lake.[11]

The amendment itself embodies the “rights of nature” movement that began to gain traction in the 1970s and recently has seen a resurgence.[12] The Supreme Court held in 1972 in Sierra Club v. Morton that nature does not, on its own, have standing to sue for its own preservation.[13] However, in recent years there have been several cases around the globe in which the “rights of nature” argument has been successful in courts. In 2008, Ecuador included “rights of nature” ideals in its constitution.[14] Additionally, courts in New Zealand, Colombia, and India have all recognized the rights of forests and rivers in various cases.[15] The Lake Erie Bill of Rights follows in the footsteps of the “rights of nature” movement gaining traction globally. The amendment establishes that Lake Erie

has suffered for more than a century under continuous assault and ruin due to industrialization, is in imminent danger of irreversible devastation due to continued abuse by people and corporations enabled by reckless government policies, permitting and licensing of activities that unremittingly create cumulative harm, and lack of protective intervention.[16]

The proposal further provides that the amendment “establishes irrevocable rights for the Lake Erie Ecosystem to exist, flourish and naturally evolve, [and] a right to a healthy environment for the residents of Toledo[.]”[17] The amendment goes on to state that

[t]he Lake Erie Ecosystem may enforce its rights, and this law’s prohibitions, through an action prosecuted either by the City of Toledo or a resident or residents of the City in the Lucas County Court of Common Pleas, General Division. Such court action shall be brought in the name of the Lake Erie Ecosystem as the real party in interest.[18]

Furthermore, any damages shall be measured by the cost of restoring the lake and all awarded damages shall go solely towards restoration of Lake Erie.[19] The measure became effective on February 26 immediately after approval by the residents of Toledo.[20]

The amendment was put to a vote during a special election and passed with 61% of the vote.[21] However, voter turnout for the special election was less than 9% of registered voters.[22]

The passage of the law has ignited an immediate response from the agricultural industry within Ohio. Already, a lawsuit has been filed by Drewes Farms, based out of northwest Ohio, claiming that the Lake Erie Bill of Rights is unconstitutional.[23] The complaint states, in part, that the law is unconstitutional because it violates the “Fifth Amendment protection against vague laws by exposing Drewes Farms to strict criminal liability and massive damages and fines[.]”[24] Drewes Farms has claims that it has been deprived of its rights without due process.[25] In addition to the question of the constitutionality of the law, the Lake Erie Bill of Rights is also expected to be attacked for overstepping the city’s authority.[26] Jonathan Adler, a law professor at Case Western Reserve University, argues that “[t]he people of one city don’t get to declare how a given resource could be used or protected when that resource is shared with lots of other jurisdictions[.]”[27] Given the Supreme Court precedent in Sierra Club v. Morton, it seems likely that the new law will be found unconstitutional. However, Toledoans for Safe Water said that they are prepared to face any legal challenges and hope that the new Bill of Rights brings about discussion and change.[28]

[1] Jason Daley, Toledo, Ohio Just Granted Lake Erie the Same Legal Rights as People, Smithsonian Magazine (Mar. 1, 2019), https://www.smithsonianmag.com/smart-news/toledo-ohio-just-granted-lake-erie-same-legal-rights-people-180971603/.

[2] Timothy Williams, Legal Rights for Lake Erie? Voters in Ohio City Will Decide, N. Y. Times (Feb. 17, 2019), https://www.nytimes.com/2019/02/17/us/lake-erie-legal-rights.html.

[3] Smithsonian Magazine, supra note 1.

[4] Williams, supra note 2.

[5] Smithsonian Magazine, supra note 1.

[6] Pam Wright, Toledo, Ohio Votes to Give Lake Erie Legal Status, The Weather Channel (Mar. 1, 2019), https://weather.com/science/environment/news/2019-03-01-toledo-ohio-legal-rights-lake-erie-green-algae.

[7] Id.

[8] Smithsonian Magazine, supra note 1.

[9] Id.

[10] Id.

[11] The New York Times, supra note 2.

[12] Sigal Samuel, Lake Erie Just Won the Same Legal Rights as People, Vox (Feb. 26, 2019, 11:00 PM), https://www.vox.com/future-perfect/2019/2/26/18241904/lake-erie-legal-rights-personhood-nature-environment-toledo-ohio.

[13] Id.

[14] Id.

[15] Id.

[16] Lake Erie Bill of Rights, Ballot Initiative, City of Toledo (2019).

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Smithsonian Magazine, supra note 1.

[22] Id.

[23] Plaintiff’s Complaint at 6, Drewes Farms P’ship. v. City of Toledo, OH, (No. 3:19-cv-00434-JZ) (2019).

[24] Id.

[25] Id.

[26] Associated Press, Farmers Sue to Stop Measure Giving Lake Erie Legal Rights, The Washington Post (Mar. 2, 2019), https://www.washingtonpost.com/national/energy-environment/farmers-sue-to-stop-measure-giving-lake-erie-legal-rights/2019/03/02/9e845a68-3d33-11e9-b10b-f05a22e75865_story.html?utm_term=.0e0fffbe783a.

[27] Id.

[28] Id.

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