Should Lake Erie Have Legal Rights? Toledo Voters Will Decide

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Next Tuesday, Feb. 26, the residents of Toledo will have the chance to vote on an unusual (some might even say radical) proposal: whether to give the fourth largest lake in the United States its own Bill of Rights. If the ballot measure passes, it would be a win for the small but growing “rights of nature” movement, which aims to deter activities that pollute the environment by granting legal rights to ecosystems.

In the days leading up to the vote, the ballot measure has drawn intense opposition from business and agricultural interests who argue that the measure could unleash a torrent of frivolous lawsuits. But those who fought to get the question on Tuesday’s special election ballot are determined to see it through, galvanized by their previous experience of seeing the city’s water supply declared too toxic to drink, or even touch.

A satellite image showing algal blooms in Lake Erie in August 2014. [NOAA Great Lakes Environmental Research Laboratory]

The Water Crisis

For Markie Miller, August 2, 2014, started off like any other Saturday. She got up, showered, and made coffee. But it wasn’t until she turned on the news that she learned city officials, in the early hours of the morning, had issued an alert warning 400,000 residents in and around Toledo not to use their tap water.

"Luckily, I didn’t drink the coffee," Miller said. The warning, however, went further: residents were also advised to avoid bathing, brushing their teeth, and washing clothes.

Officials said that giant floating sheets of algae in Lake Erie had produced dangerously high levels of microcystin, a toxin that can cause rashes, vomiting, and even liver damage. Boiling the water, they said, would not make the water safe; it would only concentrate the toxic chemical. Within hours, bottled water was in scarce supply. The Toledo Blade reported that local residents were driving to Michigan, Indiana, and as far away as Delaware to buy bottled water because local stores had been cleaned out.

After three days, the water was once again declared safe. But the Toledo Water Crisis, as it's now called, left many Toledoans, including Miller, with a lingering fear.

"What’s in my water?” Miller said. “I don’t know if I can trust this now."

Markie Miller, 29, works as a theater manager in Toledo. She volunteers with a grassroots group called Toledoans for Safe Water, which is one of the organizations behind the Lake Erie Bill of Rights. [Adrian Ma / ideastream]

To avoid a repeat, the city’s in the process of a $500 million upgrade to its water treatment plant. And yet, Miller said that she worries because algal blooms continue to return each summer. According to the Ohio EPA, these blooms are fed by phosphorus, largely from agricultural runoff from farms and feedlots in the Lake Erie watershed, though other sources such as sewage runoff and household detergents also contribute to phosphorus pollution.

Solution to Pollution Or Economic Threat?

After the crisis, a community group called Toledoans for Safe Water sprang up. Later on, that group teamed up with a Pennsylvania nonprofit, the Community Environmental Legal Defense Fund (CELDF), to draft a Lake Erie Bill of Rights (LEBOR) and get the proposal on Tuesday’s ballot.

The ballot measure makes a number of declarations, including that residents of Toledo have “a right to a healthy environment,” and that the Lake Erie ecosystem has a right “to exist, flourish and naturally evolve.” However, the provision that seems to be drawing the most worry from the business and agricultural community is this: “Governments and corporations engaged in activities that violate the rights of the Lake Erie Ecosystem, in or from any jurisdiction, shall be strictly liable for all harms and rights violations resulting from those activities.”

The idea is to fight pollution through deterrence, said Miller who, over the past couple of years, has volunteered with Toledoans for Safe Water—canvassing, passing out yard signs, and speaking to the media to generate support for the measure. “We can't keep using the same laws … and expect a different outcome,” Miller said.

While the idea may sound strange to some, similar “rights of nature” ordinances have passed in cities such as Pittsburgh and Santa Monica, so opponents are taking LEBOR seriously.

Earlier this month, a PAC called Toledo Jobs and Growth Coalition ran radio ads, complete with ominous music, saying that LEBOR was being supported by “out of state extremists,” and that the law, if passed, would “make it harder for Toledo families to make ends meet.” Reached for comment, the Treasurer for Toledo Jobs and Growth Coalition, Brandon Lynaugh, declined to say who or what entities were funding the group.

The Ohio Farm Bureau (OFB), a large agricultural lobbying group, has also been campaigning against LEBOR. Yvonne Lesicko, VP of Public Policy said that OFB's members include both small- and large-scale agricultural operations, and that hanging the threat of lawsuits over the heads of farmers and other businesses is “counterproductive” to the goal of improving the health of Lake Erie.

An aerial view of harmful algal blooms in the western portion of Lake Erie in September 2017. [Aerial Associates Photography / Zachary Haslick / NOAA Great Lakes Environmental Research Laboratory]

“We have businesses that every day are trying to meet the bottom line,” Lesicko said. “Now, in addition to everything else that's on their plate, they're thinking to themselves, ‘I could be sued tomorrow.’” Lesicko also argued that LEBOR could hurt Toledo’s economy by driving away businesses that want to avoid operating in a “litigious” environment.

Michael Boyert, who is on the Farm Bureau’s board of trustees, agrees. On top of running a greenhouse business near his home in Medina, Boyert and his sons also grow soybeans and corn, and run a small beef and show cattle breeding operation. As someone who makes a living off the land, he said he understands the concern about Lake Erie.

“It's a very valuable part of everybody’s lifestyle,” he said. However, “it's a hard nut for us to take when we have a group that wants to tell us ... that we're not doing our job.”

In recent years, Boyert said many farmers have taken steps to reduce runoff, such as cutting down on fertilizer, planting cover crops, and storing animal waste. Indeed, 99 percent of cropland in the Western Lake Erie Basin uses at least one conservation practice aimed at reducing nutrient runoff, according to the U.S. Department of Agriculture.

Even so, concentrated animal feeding operations (or CAFOs) are another major source of manure, and thus phosphorus pollution, that flows into Lake Erie.

Michael Boyert and his son Jacob run a small beef and show cattle operation in Medina, Ohio. [Adrian Ma / ideastream]

Joe Logan, President of the Ohio Farmers Union (OFU), said he’s not so worried that LEBOR will affect him.

“If farmers are doing things right and taking care of livestock, acreage, and crops in a responsible manner, they don't have anything to worry about,” he said. According to Logan, OFU's membership is made up of small and medium-sized family farms.

“Nobody wants to have somebody looking over their shoulder,” Logan said. But if LEBOR forces farms or feedlots “to be more judicious and careful in managing their operations, then that may be an idea whose time has come.”

In the meantime, the perennial algal blooms have continued. In the summers of 2015 and 2017, algal blooms in Western Lake Erie were more severe than they were the summer of the Toledo Water Crisis.

In recent years, algal blooms in Lake Erie have been more severe than blooms measured in the early 2000s. [Ohio EPA 2018 Integrated Water Quality Monitoring and Assessment Report/Dr. Rick Stumpf, NOAA National Centers for Coastal Ocean Science.]

“I’m sympathetic to the concerns that prompt an initiative like this,” said Jonathan Adler, a professor who teaches environmental and administrative law at Case Western Reserve University School of Law. However, he added, “I don't think that a particular city or a particular group of people asserting that they get to be the Lorax for this particular place really accomplishes that.” Key parts of the proposal conflict with state and federal law, he said, so it's probably unenforceable.

Reed Elizabeth Loder, a professor of environmental law at Vermont Law School, said that LEBOR is “fraught” with issues that may render it invalid or unenforceable. On the other hand, “it's important for cities and towns to take these steps,” Loder said, “if only to remind governments that people care about these issues and they do not see prevailing environmental law as successful.”

Algal blooms in the Maumee River flowing through Toledo in Sept. 2017. [Aerial Associates Photography / Zachary Haslick / NOAA Great Lakes Environmental Research Laboratory]

The belief that existing environmental regulations are not doing enough to protect Lake Erie is why, on a recent chilly evening, Markie Miller was standing on the sidewalk of a highway overpass with about a dozen other members of Toledoans for Safe Water. Together, they hung a series of signs facing the road so that drivers could see. In big block letters, studded with Christmas lights, the signs spelled out: “VOTE YES LAKE ERIE BILL OF RIGHTS.”

If they get their wish, and the ordinance passes, opponents may challenge its validity in court. In such a scenario, critics say the city of Toledo may have to defend LEBOR at taxpayer expense. The director of the Toledo law department did not respond to a request for comment for this story. However, Tish O’Dell, the Ohio organizer for the Community Environmental Legal Defense Fund, said that if the city is sued, CELDF will offer legal support.

That’s what happened to Grant Township, Pa., after it worked with CELDF to pass a similar Community Bill of Rights aimed at deterring natural gas drilling in the area. Pennsylvania General Energy Company (PGE) sued Grant Township, arguing that the law was unconstitutional. PGE eventually won that case. And according to federal district court records, the company is currently asking the judge to award it $100,000 in attorneys’ fees. Attorneys from CELDF argue that such an award could “bankrupt” Grant Township.

For her part, Miller acknowledged that a lengthy court battle could ultimately end in LEBOR’s defeat. “I might not be the one who sees this go through,” she said.

“But I would much rather say I did everything I could to try and to get this started than to look back and say, ‘We're the generation that didn't step up.’”

 

Correction: An earlier version of this article incorrectly stated that Lake Erie is the fourth largest lake in North America. It is the fourth largest in the United States. The audio has been updated accordingly.

Update: The descriptions for the Ohio Farm Bureau and the Ohio Farmers Union have been updated to describe their membership.

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