Toledo, Ohio residents last month overwhelmingly voted in favor of the innovative Lake Erie Bill of Rights (LEBOR), an amendment to the city charter which declares Lake Erie has enforceable legal rights. What that vote signals may turn out to be more important to Lake Erie than the well-intentioned but legally flawed LEBOR itself.

LEBOR states that Lake Erie has the right to exist, flourish and naturally evolve, and that the people of the City of Toledo have the right to a clean and healthy environment, including a clean and healthy Lake Erie. LEBOR prohibits any corporation (defined to include any business) or government from violating these rights, and it allows the city or any resident of the city to sue in state court to enforce these rights and prohibition. The amendment further provides that Lake Erie itself may enforce its rights, as a named plaintiff and real party in interest, through a suit brought by the city or any resident of the city. A corporation or government that violates the LEBOR rights or prohibition is subject to criminal fines and strict liability for all harms resulting from its violations, including damages for the cost of restoring Lake Erie.

A law recognizing that a natural resource has enforceable legal rights is highly unusual, if not unique, in the United States. However, the concept is neither unprecedented nor new. So-called “rights of nature” laws have gained a foothold in some foreign nations, including Ecuador, New Zealand and Bolivia. Nearly half a century ago, Professor Christopher Stone wrote a provocative and influential law review article titled Should Trees Have Standing?, and U.S. Supreme Court Justice William O. Douglas in a dissenting opinion asserted that natural objects should have standing to sue for their own protection.

Legal Validity of LEBOR

Lake Erie in recent years has been plagued by harmful algal blooms (HABs) caused by excessive nutrient loading to the lake and its tributaries, resulting in ecologic and economic damage and threatening public health. LEBOR purports to provide another legal tool in the fight to protect Lake Erie from HABs and nutrient pollution, going beyond environmental statutes and common law claims such as public nuisance and the public trust doctrine. In my view, however, LEBOR suffers from multiple legal flaws that likely will thwart its good intentions. Let me highlight just a few.

• LEBOR creates a cause of action to be heard in the Lucas County Court of Common Pleas, an Ohio state trial court. But LEBOR, as an amendment to the City of Toledo charter, is merely a municipal law.  A municipality cannot create a new cause of action in state court.
• According to LEBOR, no permit or authorization issued by a federal or state entity is valid in Toledo if it would violate rights under LEBOR; corporations which violate LEBOR cannot assert preemption by state or federal laws as a defense; and state laws are valid in Toledo only to the extent they do not conflict with the terms of LEBOR. So, for example, under LEBOR a corporation sued with violating the rights of a clean and healthy Lake Erie by discharging pollutants into a Lake Erie tributary could not defend itself on the basis the discharge of pollutants was authorized by a Clean Water Act permit issued by Ohio EPA or U.S. EPA. LEBOR impermissibly turns principles of preemption and the Supremacy Clause on their heads. Municipal law cannot trump state or federal law.
• The rights of nature asserted in LEBOR cover the entire Lake Erie watershed, which extends far beyond the City of Toledo borders to include much of northern Ohio, parts of four other states (Indiana, Michigan, New York and Pennsylvania), and a significant portion of the province of Ontario, Canada. A municipality in one state cannot extra-territorially make law for other states and nations.

A farm filed a lawsuit against the City of Toledo the day after the election challenging LEBOR as unlawful, asserting multiple claims under the U.S. Constitution and various Ohio state laws. More litigation over LEBOR is likely to follow. That LEBOR will withstand such legal challenges and be enforced is questionable at best.

The Importance of LEBOR

So why do I think the vote for LEBOR is nonetheless important? Because it signals that the people of Toledo – in the immortal words of the Howard Beale character in the classic film Network – are mad as hell and they’re not going to take it anymore.

Lake Erie was a polluted mess prior to the enactment of the federal Clean Water Act in 1972. But largely due to that statute’s regulation of industrial and municipal point source polluters, Lake Erie became demonstrably cleaner. Since the turn of this century, though, HABs have been growing increasingly prevalent in Lake Erie. The thick green scum has been particularly troublesome in the western basin near Toledo, which is the shallowest and warmest part of the lake and receives the most nutrient loading. The excessive algae adversely impacts recreation, tourism, fishing, lakefront property values, and aquatic life. Perhaps most importantly, HABs can produce toxins that can cause illness or even death to humans. In August 2014, nearly half a million persons in the Toledo area were left without safe public drinking water for 2 ½ days when elevated levels of the toxin microcystin were detected in the city’s drinking water system.

Scientists say that the principal cause of the HABs in Lake Erie is excess nutrients entering the lake and its tributaries, primarily from agricultural stormwater runoff of manure and fertilizer. The solution, they agree, is to significantly reduce the amount of nutrients entering the lake, especially from agricultural runoff. Unfortunately, the federal Clean Water Act does not regulate nonpoint source pollution such as agricultural runoff; instead, regulation of agricultural runoff is left to state law. But Ohio, like many farm states, traditionally has been reluctant to regulate agricultural pollution. And nearly five years after the Toledo drinking water crisis, not much has changed. Ohio legislators and agencies have done little to regulate agricultural runoff, and HABs continue to choke Lake Erie every summer or fall.

Last month’s vote for LEBOR signals that the people of Toledo are tired of waiting for their state government to take action, so they are trying to take matters into their own hands. Hopefully, Ohio’s elected officials, and the agency personnel they appoint, will get the message: Either take action to reduce nutrient loading to Lake Erie by regulating agricultural runoff, or the people of Toledo – and the many other voters in Ohio who care about Lake Erie — will cast their ballots in the next election against those who failed to take the steps needed to solve the HABs problem in Lake Erie.

Kenneth Kilbert is a professor at the University of Toledo College of Law, where he also serves as director of its Legal Institute of the Great Lakes.  He also is a graduate of the University of Pittsburgh School of Law.

Suggested citation: Kenneth Kilbert, Lake Erie Bill of Rights: Legally Flawed But Nonetheless Important, JURIST – Academic Commentary, Mar. 14, 2019, https://www.jurist.org/commentary/2019/03/kenneth-kilbert-lebor-important/.

This article was prepared for publication by Kelly Cullen, JURIST Managing Editor. Please direct any questions or comments to him at commentary@jurist.org