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The Lake Erie Bill of Rights: Legal Challenges to Granting Rights to Nature

  

Allison M. CollinsPublished in Michigan Environmental Law Journal, Summer 2019, Vol. 37, No. 1, Issue 106 [view full issue].
Cite: 37 Mich Env Law J 1 (2019)

by Allison M. Collins, Associate, Foster Swift Collins & Smith, PC 

On February 26, 2019, the citizens of Toledo, Ohio, voted to amend their City Charter to include the Lake Erie Bill of Rights (“LEBOR”).[1] The LEBOR is the latest effort to develop rights of nature laws within the United States by granting rights to ecosystems themselves, like Lake Erie. Relying on the Ohio Constitution’s Article 1, Sections 1 and 2, the LEBOR is premised on declaring an immediate emergency within Lake Erie’s ecosystem caused by global climate change, industrial discharge, and agricultural runoff that is not adequately addressed by state and federal laws.[2] The irrevocable rights to be extended to Lake Erie include the lake’s right to exist, flourish, and naturally evolve, and the right to a clean and healthy Lake Erie.[3]

The rights declared in the LEBOR are self-executing, and permit Toledo, its residents, or Lake Erie itself to enforce these rights by imposing strict liability upon any government or corporation that engages in activities in violation of the Lake’s rights.[4] The LEBOR also provides that Toledo will refuse to honor any permit or license issued by a state or federal entity to a corporation that would result in a violation of Lake Erie’s rights, and that Toledo will refuse to “deem[] valid” any state laws or regulations that are inconsistent with Lake Erie’s rights.[5]

The efforts to enact the LEBOR were spurred by Toledo’s concern for its drinking water, which is drawn from Lake Erie.

Toledo grappled with emergency shutdowns of its water supply in 2014 due to harmful, toxic algae blooms in Lake Erie caused by extensive water pollution. The Community Environmental Legal Defense Fund (“CELDF”) assisted local Toledo rights group, Toledoans for Safe Water, in drafting the LEBOR. CELDF has led similar efforts in other states to recognize personhood rights for nature and ecosystems to address historical issues of standing in environmental litigation.[6]

While the LEBOR is being touted as one of the first, large scale successes of the rights of nature movement within the United States, it is not unique. Other countries, including Ecuador, Bolivia, Colombia, and India have recognized the rights of rivers and ecosystems to afford natural and national treasures additional protections under the law. Other communities in the United States, with the assistance of the CELDF, have also sought to enact ordinances or constitutional amendments to afford rights to natural environments to safeguard against fracking and industrial and agricultural pollution.[7] The LEBOR has sparked fear in farming communities in Ohio as well as Michigan, since the LEBOR would permit Toledo or any of its citizens to initiate suit against farming operations with run-off or who discharge into Lake Erie pursuant to valid federal and state permits.[8]

The day after the LEBOR was approved by voters as an amendment to Toledo’s City Charter, an Ohio farm filed a federal lawsuit against Toledo in the United States District Court for the Northern District Court of Ohio challenging the LEBOR as unconstitutional and unlawful.[9] The State of Ohio filed a Motion to Intervene in the lawsuit, which was granted

on May 1, 2019.[10] The State of Ohio filed its Complaint against Toledo on May 24, 2019, requesting declaratory judgment and injunctive relief based on the LEBOR being unconstitutional under the United States and Ohio Constitutions, as well as preempted by state and federal law.[11] The State of Ohio contends that the LEBOR “conflicts with the Ohio Enabling Act, years of legal precedent, and the Ohio Revised Code, which have long recognized that the State holds the waters of Lake Erie within the boundaries of Ohio as trustee for the people of the State and for the protection of public rights.”[12]

Lake Erie and Toledoans for Safe Water also filed a motion to intervene in the lawsuit, which was denied by Judge Jack Zouhary on May 7, 2019.[13] Judge Zouhary held in part that the Lake Erie Ecosystem lacked capacity to intervene because the “rights of nature” legal concept is not recognized in the United States.[14] An appeal to the Sixth Circuit Court of Appeals filed from the order denying intervention Lake Erie Ecosystem’s intervention in the lawsuit was dismissed by stipulation of the parties.[15] Both the State of Ohio and the Ohio farm have filed motions for judgment on the pleadings, which will be decided in the coming months.[16] In the meantime, the parties have agreed to a preliminary injunction precluding Toledo from administratively incorporating the LEBOR into its Charter, and forbidding any enforcement actions pursuant to the LEBOR until the lawsuit is resolved.[17]

This is not the first attempt to have the rights of nature recognized in the United States. The issue of whether nature or natural features should have rights, and therefore legal standing to enforce those rights, was considered by the United States Supreme Court in Sierra Club v. Morton.[18] The United States Supreme Court held that environmental objects do not have legal standing to sue for their own preservation. Justice William O. Douglass penned the lone dissent, stating that “[c]ontemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation.”[19]

Overall, the LEBOR has been hailed as a valiant effort to afford further protections to our valuable natural resources and nationally treasured natural features. While it is unlikely that the LEBOR will overcome the significant legal challenges raised to its constitutionality and validity, the LEBOR serves as a powerful symbol and signal of the continuing public call for heightened environmental protections.

[1] Toledo Charter, ch XVII, §§ 253-260.

[2] Id. at § 253.

[3] Id. at § 254.

[4] Id. at §§ 254-256.

[5] Id at § 255.

[6] See generally Community Environmental Legal Defense Fund, Press Release – Rights of Lake Erie: One Step Closer to the Ballot, One Step Closer to Recognition (posted December 6, 2018) (accessed July 24, 2019).

[7] Id.

[8] This includes opposition to the LEBOR by the Michigan Farm Bureau, see generally Michigan Farm Bureau, Lake Erie Bill of Rights (accessed June 24, 2019).

[9] Drewes Farm Partnership of Ohio v. City of Toledo, Complaint, filed February 27, 2019 (Case No. 3:19-cv-00434-JZ) (ND Ohio).

[10] Drewes Farm Partnership, unpublished order of the District Court, issued May 1, 2019 (Docket No. 21).

[11] Drewes Farm Partnership, Complaint, filed May 24, 2019 (Docket No. 31).

[12] Id. at p 2.

[13] Drewes Farm Partnership, Order Dismissing Appeal pursuant to the stipulation of the parties, issued June 24, 2019 (Docket No. 40), Sixth Circuit Case No 19-03435.

[14] Id. at p 4.

[15] Drewes Farm Partnership, Notice of Appeal to the Sixth Circuit Court of Appeals, filed May 13, 2019 (Docket No. 26), Sixth Circuit Case No. 19-03435.

[16] Drewes Farm Partnership, State of Ohio Motion for Judgment on the Pleadings, filed June 6, 2019 (Docket No. 34); Drewes Farm Partnership, Drewes Farm Partnership Motion for Judgment on the Pleadings, filed June 7, 2019 (Docket No. 35).

[17] Drewes Farm Partnership, unpublished order of the District Court, issued March 18, 2019 (Docket No. 9).

[18] Sierra Club v. Morton, 405 US 727; 92 S Ct 1361 (1972).

[19] Id. at 741-42 (Douglas, J., dissenting).


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