Should Lake Erie Have Legal Rights?

February 18th, 2019 by Steve Hanley

Something unprecedented is happening in Toledo, Ohio. On February 26, voters there will be asked to approve the Lake Erie Bill of Rights (starts on page 4), a ballot initiative that would make it possible for citizens to sue those who pollute the lake for damages. The proposal is controversial, quite possibly unconstitutional, but passionately supported by environmental activists who are tired of watching state and federal officials stand by with their hands in the pockets while the Earth’s 11th largest lake slowly dies from man made pollution. In essence, the ballot question asks whether Lake Erie has the legal right “to exist, flourish, and naturally evolve.”

The City of Toledo depends on Lake Erie for its drinking water. In 2014, phosphorous pouring into the lake from nearby farms made the city’s drinking water unfit for human consumption for three long days in the middle of summer. According to the New York Times, “Stores closed. Hospitals accepted only the most seriously ill patients. Restaurants were empty. And some 500,000 people depended on bottled water in the middle of a brutally hot August.”

In recent years, Lake Erie has been covered in green algae that sickened swimmers and dogs. The slicks were large enough to see from space. Yet the ballot initiative is pitting members of the community against each other. Everyone agrees that farms near the lake are largely responsible for the phosphorous and other runoff from fertilizers that cause the algae blooms and undrinkable water. But much of the local economy depends on those same farmers for its existence, especially at a time when the automakers who used to employ tens of thousands of area residents have reduced their operations in an around Toledo dramatically.

Forcing People To Confront The Problem

Thomas Linzey is the executive director of the Community Environmental Legal Defense Fund, a nonprofit group based in Pennsylvania that helped write the Toledo ballot initiative. He says it has two objectives. One, to send a warning the community is fed up with a lack of state and federal action to protect Lake Erie. Two, to force the courts to recognize that ecosystems like the lake “possess independent rights to survive and be healthy.” He says, “There’s no precedent for any of this. It is almost a new consciousness — that a community is not just Homo sapiens.”

Actually, there is a tiny bit of legal justification on the side of the environmental activists, but it is a very slender reed indeed to build an argument around. In 1972, Supreme Court justice William O. Douglas, one of the most fearsome intellects to ever sit on the court, wrote a dissent in the case of Sierra Club v. Morton in which the majority rejected a claim that the natural world has legal rights.

Douglas disagreed, writing, “Contemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation.” Such willingness to “find” novel legal principles buried within the language of the Constitution is, of course, anathema to conservative judges spoon fed on the absurd theory of “originalism” that permeates many of the seminal cases decided by the Court this century.

A 15-Year Campaign

Linzey’s group began working with towns and cities to protect local natural resources 15 years ago. Since then the idea that nature has rights has won support in dozens of municipalities — from cities with long histories of environmental activism to unexpected places like Tamaqua, Pennsylvania in the heart of that state’s coal mining region. It became the first place in the nation to approve a rights-of-nature ordinance in 2006 after it banned companies from dumping dredged minerals and sewage sludge into open pit mines.

Four years later, Pittsburgh approved a rights-of-nature ordinance that prohibited fracking in city limits. Santa Monica, California, has since passed an ordinance that requires the city to “recognize the rights of people, natural communities and ecosystems to exist, regenerate and flourish.” Earlier this year, the White Earth Band of the Ojibwe tribe in Minnesota announced that it had granted wild rice its own legal rights, including “the right to pure water.”

Demonizing Farmers Is Not The Answer

The Toledo ballot initiative has created political fault lines in the community. Yvonne Lesicko, vice president for public policy for the Ohio Farm Bureau acknowledges that farms are the primary contributors to the algae blooms and pollution afflicting Lake Erie. But she also points out other sources of harmful runoff include lawns, septic systems, and golf courses.

Farmers are trying to limit fertilizer and pesticide use, she says, but changes may take up to 20 years to come to fruition. Can the lake wait that long? She suggests the ballot initiative is not a reasoned response to what is a very complex problem. “We care very much about the lake,” she says. “But this is not a solution. In fact, it is counterproductive. This is going to lead to lots of lawsuits and stress.”

City political leaders are conflicted about the ballot question. On one hand, Lake Erie is vital to what makes Toledo a place where people want to live. On the other, the city could be forced to spend hundreds of thousands of dollars on legal fees to defend itself against legal challenges to the new policy if it is approved by voters.

“I think everybody is frustrated,” Nick Komives, a member of the Toldeo city council, tells the NY Times. He says he supports a clean lake but opposed the ballot initiative because it could drain city finances. “The initiative is a powerful tactic. And for me, coming from an activist background, it is important to send messages. But this is probably unconstitutional.”

Capitalism And Sustainability

There is an old, fairly crude expression that goes like this: “You don’t shit where you eat and you don’t eat where you shit.” This seems so obvious that it hardly bears repeating. Yet since the first colonists set foot in North America, the waterways have been used as little more than sewer pipes for carrying industrial, agricultural, and residential wastes to nearby rivers and lakes that carry them on to the oceans.

People may argue about whether human activity has contributed to a warming climate but there can be no debate that algae blooms and phosphorous contamination are caused by human activity. Where did the notion originate that people could treat the environment like a community toilet and never have to suffer the consequences?

Certainly the indigenous peoples knew better than to shit where they eat. What is it about colonizers that makes them think they can destroy the things that make life possible — clean air, clean water, and clean land — with impunity? If the native culture had prevailed, people and nature would have continued to live in harmony. Of course, their would be no interstate highways and SUVs, but the environment wouldn’t be contributing to shortened lifespans and sickness either.

An analogy could be drawn between putting a price on dumping harmful products into the environment and putting a price on the carbon dioxide that pours into the atmosphere as the result of human activity. Behavior that has no consequences rapidly becomes antisocial but can be curbed with appropriate pricing signals.

Yes, the Lake Erie ballot initiative in Toledo would forever change how the local community interacts with the land and the water, but why is that a cause for concern? Just because we have been dumping poisons into the lake for hundreds a year, does that give humanity a license to continue doing so in perpetuity? Is there not some point at which people wake up from their centuries old reverie and say, “We can’t continue to do this anymore?”

The Lake Erie ballot initiative may or may not pass. If it does, it may or may not survive legal challenges. But it is a sign that attitudes are changing and that caring for the environment is no longer something that appeals just to treehuggers and socialists.









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