In two weeks the citizens of Toledo, Ohio, will go to the polls and decide whether to pass a legally dubious “Lake Erie Bill of Rights” to give residents the ability to sue farmers on behalf of algal-bloom-threatened Lake Erie.
Environmentalists say the novel city charter amendment will give citizens the power to do what Ohio politicians are afraid to do: take polluters to court and fight back against algal blooms that poisoned Toledo drinking water in 2013 and 2014.
The Feb. 26 vote from America’s industrial center, which largely went for President Donald Trump (R) in 2016, comes at a time when Democrat coalitions are coalescing around a Green New Deal in Congress.
But the move to endow natural resources with special “community rights” to sue has sunk everywhere else such laws were passed in the United States, and the activists behind Toledo’s move know they have precarious legal footing.
A group pushing a similar legal theory in Pennsylvania was sanctioned $52,000 for bringing a “frivolous” claim.
Even though the courts will probably invalidate the effort, Crystal Jankowski, an organizer with Toledoans for Safe Water, told Bloomberg Environment Feb. 12 that her group will keep bringing similar local laws up for a vote.
“Toledoans get tired of it, they’re getting fed up,” she said. “They’re tired of water filters and tired of buying bottled water. People are starting to react.”
Firms Have Rights, Why Not Lake Erie?
Jankowski and other activists are pushing the big idea across the country. In the crosshairs are businesses and local governments the activists say are spoiling America’s natural resources.
In Ohio, activists have their sights aimed at reducing phosphorus runoff from farms that scientists say contributes to blue-green algal blooms, which can affect the 2.5 million people who rely on Lake Erie for drinking water.
Contamination in 2014 left more than 400,000 people in Toledo and parts of southeastern Michigan unable to drink tap water for two days.
The activists’ main target is the 800-pound gorilla of Ohio’s economy: the agriculture industry.
Lake Erie is an economic engine with a booming tourism industry estimated at around $1.7 billion and a large sport-fishing sector that catches more fish than all of the other Great Lakes combined. But that economic impact is dwarfed by Ohio farming.
The agriculture and food production economy employs more than 400,000 Ohioans and adds roughly $33 billion to the gross state product, according to 2015 Ohio Farm Bureau statistics, which are the latest available.
The farming association says the local law would unleash an unworkable, unconstitutional morass of lawsuits against up to 490,000 businesses in northern Ohio, as well as citizens of other states and Canada.
“It’s zany, you’re giving a citizen of Toledo the right to sue any business or government in the northern 35 counties of our state,” Yvonne Lesicko, vice president of public policy for the bureau told Bloomberg Environment Feb. 12.
The costs to farmers could be immense, she said, despite the lawsuits being frivolous. Any farmer in the Lake Erie watershed that puts phosphorus into a field could be sued, she said, despite the inability to determine whether that action contributed to phosphorus levels in the lake, or what that farmer “owed” the lake.
Dead on Arrival?
The Lake Erie Bill of Rights likely won’t survive a constitutional challenge, Peggy Hall, assistant professor and field specialist in agricultural and resource law at The Ohio State University, told Bloomberg Environment in a Feb. 12 email.
Earlier in February, Hall published a legal paper describing how recent “community rights” movements had been rebuffed by courts in Colorado, Pennsylvania, Washington, and New Mexico. Similar efforts in Columbus and Youngstown, Ohio, were also killed by courts.
Toledo Mayor Wade Kapszukiewicz (D) declined to comment on the initiative, which faced extensive legal battles all the way up to the Ohio Supreme Court before its petition won a spot on the Feb. 26 special election ballot. During that process two board of elections commissioners said that the law was unconstitutional, but they couldn’t stop citizens from voting on it.
The law could be challenged on several grounds, including the legal standing for rights of nature, conflict with the U.S. Constitution’s Supremacy Clause and Equal Protection Clause, preemption by state law, and lack of legal authority over Lake Erie waters, Hall said.
But a court is likely to instead quickly deny a claim because the law exceeds a municipality’s authority under the Ohio Constitution, she said.
The law creates a new local “cause of action,” which isn’t permitted under Ohio law.
Like similar “community rights” laws, the Lake Erie Bill of Rights also says the city has the power to disregard any permit granted by the state or federal government if that permit allows harm to the lake.
That would give Toledo the power to ignore permits issued by the Ohio or U.S. Environmental Protection Agencies, Lesicko said.
But organizers of Toledoans for Safe Water say a court loss won’t be the end of the story. “We’ll learn; we’ll mold ourselves; we’ll fix our issues, and we’ll do it again,” Jankowski said.
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