By Will Falk

Featured image: Harmful algae blooms in Lake Erie in 2017. Public domain photo via NASA.

On Tuesday, January 28, at 10 AM, a hearing will be held in the United States District Courthouse in Toledo, OH in the case Drewes Farms Partnership v. City of Toledo. At stake in this case is the constitutionality of the Lake Erie Bill of Rights. It is possible – likely, even – that the Lake Erie Bill of Rights (LEBOR), democratically enacted by the people of Toledo, will be struck down by United States District Judge Jack Zouhary at this hearing.

If Zouhary strikes LEBOR down, he will do so despite a clear expression of the people of Toledo’s political will. LEBOR, after all was enacted with a 61% majority of the 15,000 Toledoans who voted on it. If Zouhary strikes LEBOR down, he will do so despite the ongoing harm current industrial and agricultural processes are causing to Lake Erie and all those who depend on Lake Erie’s water. If Zouhary strikes LEBOR down, he will do so despite the intensifying danger that once again a toxic algae bloom will get so bad that hundreds of thousands of Toledoans will be left without drinking water. And, perhaps the worst if of all, if Zouhary strikes LEBOR down, all those who worked so hard to see LEBOR enacted will be tempted to despair, to give up.

Do not despair. Do not give up. LEBOR represents only one of many tactics that can be used to protect Lake Erie.

To date, we have only employed indirect methods for protecting Lake Erie. We have asked the government and the courts to protect Lake Erie and they have consistently refused to do so. We have asked Zouhary to validate a democratically enacted local law. Hell, we asked Zouhary for permission to simply argue on Lake Erie’s and LEBOR’s behalf in Drewes Farms Partnership v. City of Toledo and he wouldn’t even grant us that. It is time we stop asking. It is time we stop using merely persuasive means for change. It is time we act directly to protect Lake Erie.

What would it mean to “act directly” to protect Lake Erie? The term “direct action” has been used so often in environmental and social movements in so many different contexts that it is in danger of losing its meaning. It is difficult to locate a clear definition of direct action in activist or academic literature rooted in a radical analysis, so I have formed my own. My definition has three parts: First, direct action involves a clearly-defined and obtainable goal. Second, the success of that goal is demonstrable by a quantifiable reduction in the opposition’s physical power. Third, it is primarily the actions of those engaging in the direct action that produce the desired goal.

It is important that a proposed action begins with a clearly-defined and obtainable goal because an action involving a poorly-defined goal makes it difficult to determine the scope of the action. And, proposed actions with unobtainable goals will be, by definition, ineffective. Planning to change the world through an educational program designed to illustrate the evils of the fossil fuel industry, for example, is neither clearly-defined nor obtainable. What does it mean “to change the world?” And, how will you possibly reach enough people to effect this change? Planning to disable a factory farm producing manure runoff into the Lake Erie watershed, however, is both clearly-defined and obtainable. Direct actionists can, without too much imagination, envision a successful action.

Once a clearly-defined and obtainable goal is established, the direct action must be designed to materially affect the opposition’s physical power. Let’s say activists come up with a plan to drop a banner that says “Rights for Lake Erie!” from the rafters of the Ohio State Capitol Building. The plan is both clearly-defined, and with some clever security dodging, obtainable. This action, however, is not direct action because there is no way to quantify how, or even if, the banner affects Lake Erie’s polluters ability to pollute.

Let’s consider another hypothetical plan: Activists plan to blockade trucks transporting manure through northern Ohio where the manure will be spread on farms. And, they plan to blockade these trucks for 24 hours. This plan has a clearly-defined and obtainable goal. The goal also reflects an understanding of power. Trucks transporting manure is one of the primary methods agricultural corporations use to pollute. Depriving these corporations of their manure for one day may not be a big hit to corporate power, but it is quantifiable.

It is primarily the actions of those engaging in the direct action that produce the desired goal. Another way to say this is: There is a clear causal link between the direct action and the desired goal. If the goal is to restrict the movement of trucks transporting manure, for example, then the planned action must literally restrict the trucks. Yet another way to say this is: direct action does not leave it to external decision-makers (governmental, judicial, or otherwise) to produce the desired goal. Direct action is not an appeal to those in power. It does not rely solely on moral persuasion, shame, or economic cost-benefit analyses.

Viewed through this lens, the efforts to enact LEBOR, while heroic, are not direct action. LEBOR was a response to the toxic algae bloom that occurred in August, 2014 and left 500,000 Toledoans without drinking water during the hottest time of year. Toxic algae blooms, which have become a regular occurrence in Lake Erie, are primarily fed by agricultural runoff and are exacerbated by climate change. To stop the algae blooms requires stopping the agricultural runoff. In order for citizens to use LEBOR to stop agricultural runoff, first requires the federal courts to rule that LEBOR is constitutional and valid. Not only do we need Zouhary to rule in favor of LEBOR, but, if Zouhary rules in favor of LEBOR, it’s likely that Drewes Farms Partnership and the State of Ohio would appeal Zouhary’s decision to the Sixth Circuit. Then, if the Sixth Circuit ruled in favor of LEBOR, Drewes Farms Partnership and the State of Ohio, would likely appeal to the Supreme Court.

So, before we could ever use LEBOR to bring actions against agricultural polluters for violating Lake Erie’s rights, we’d have to convince three different courts to uphold LEBOR. Even if we succeeded in convincing each level of the federal courts to rule in favor of LEBOR, we would then, in each case brought against agricultural polluters under LEBOR, need to convince a judge that the actions of agricultural polluters violate Lake Erie’s rights. In other words, LEBOR is not direct action because it relies on external decision makers – the courts – to produce the desired goal.

I am not in any way suggesting that the tremendous efforts Toledoans have put into LEBOR have been a waste. They have not been. The efforts to enact LEBOR placed the question of rights of nature before the people of Toledo and secured a clear, democratic expression that the people of Toledo do, in fact, support rights of nature. This strengthens the moral superiority of our claims. Not only are we justified in stopping agricultural polluters because they are poisoning Toledo’s drinking water, we are justified because the majority of the community believes Lake Erie should have rights to be free from this pollution.

In many ways, it would be easier if we could convince the courts to uphold Lake Erie’s rights. If the courts recognized LEBOR, we could sue polluters. And, in those lawsuits, after finding that the polluters have violated Lake Erie’s rights, judges could order armed men and women (the police) to force polluters to stop polluting. The important thing to recognize though is that the police do not own a monopoly on power. We have the power to stop polluters from polluting, too. Factory farms can be occupied. Access to manure can be limited. The capacity to distribute manure can be impaired.

It is true that those who effectively engage in direct action to protect Lake Erie will place themselves in danger. It is possible that direct actionists will be arrested, that the police will respond violently, and that the media and members of the public will criticize and ostracize us. But the truth is violence is already being used against us. Poisoning a city’s drinking water is violence. And, if we don’t succeed in stopping this poisoning, more nonhumans will be murdered, more humans (especially the most vulnerable among us such as children and the elderly) will get sick and may even die, too. If we don’t succeed in stopping this poisoning, in other words, the violence will only intensify.

Fear in the face of these dangers is understandable. The question is: How do we overcome the fear? Bravery is a personal thing. It is something each individual must find for her or himself. No one can find it for you.

Personally, I find my courage on Lake Erie’s shore. I find it witnessing the sick, pale bellies of dead perch floating through the thick, green scum that forms on Lake Erie’s surface and suffocates fish every summer. I find it in the scent of the rotting corpses of dogs, deer, foxes, gulls, eagles, herons, and the many other animals who drink and feed from Lake Erie. I find it in the looks on the faces of children who arrive cheerfully on Lake Erie’s beaches in the heat of summer only to find the lake is too dangerous to swim in. I find it in the rashes that form on the skin of children who were unaware of the danger toxic algae blooms pose. I find it in the vomit of those unlucky enough to unknowingly drink toxic Lake Erie water. I find it when I read studies about the cancer, Alzheimer’s disease, and other illnesses toxic algae blooms cause. I find it when I remember that only a few short centuries ago, indigenous peoples bathed on Lake Erie’s shores, celebrated the deliciousness of Lake Erie’s fish, and drank freely of Lake Erie’s waters with no inkling of the destruction to come.

I find my courage when I realize that all of this is only going to get worse if we don’t act, directly and decisively, to protect Lake Erie’s life-giving water.

Will Falk is a writer, lawyer, and environmental activist. The natural world speaks and Will’s work is how he listens. He believes the ongoing destruction of the natural world is the most pressing issue confronting us today. For Will, writing is a tool to be used in resistance.

Will graduated from the University of Wisconsin-Madison Law School and practiced as a public defender in Kenosha, WI. He left the public defender office to pursue frontline environmental activism. So far, activism has taken him to the Unist’ot’en Camp – an indigenous cultural center and pipeline blockade on unceded Wet’suwet’en territory in so-called British Columbia, Canada, to a construction blockade on Mauna Kea in Hawai’i, and to endangered pinyon-juniper forests in the Great Basin.

His writing has been published by CounterPunch, Earth Island Journal, CATALYST Magazine, Whole Terrain, Dark Mountain Project, the San Diego Free Press, and Deep Green Resistance News Service among others. His first book How Dams Fall: Stories the Colorado River Told Me was published in August, 2019 by Homebound Publications.

http://willfalk.org/