Extending Fundamental Rights to Lake Erie?

Posted on October 1, 2019 by Steve Miano

An interesting legal battle is playing out in the United States District Court for the Northern District of Ohio over whether the City of Toledo’s establishment of a “Lake Erie Bill of Rights” passes constitutional muster.  On one side are the citizens of Toledo and environmental groups.  On the other, the State of Ohio and farming interests. 

Backdrop:

A recent amendment to the City of Toledo’s city charter, approved by 61% of its citizens, established the Lake Erie Bill of Rights (“LEBOR”). https://beyondpesticides.org/assets/media/documents/LakeErieBillofRights.pdf  The LEBOR sets out several fundamental rights of Lake Erie, including the “right to exist, flourish and naturally evolve.”  The LEBOR also establishes the right of the citizens of Toledo to a clean and healthy lake and lake ecosystem, and authorizes citizens to enforce this right through an action against dischargers to the lake brought in the name of the Lake Erie Ecosystem. 

The LEBOR was enacted in the context of algal blooms and other threats to drinking water supplies and the lake’s ecosystem from chemical and nutrient discharges.  Proponents of LEBOR describe these discharges as assaults which continue to occur in spite of state and federal environmental laws.  The City claims that both the state and federal governments have failed to protect the lake.

Interestingly, the provisions of LEBOR conferring fundamental rights on Lake Erie and the citizens of Toledo are based on two broadly worded articles of the Ohio constitution, Articles 1 and 2, which provide: (1) “[a]ll men are, by nature, free and independent, and have certain inalienable rights, among which [include]… seeking and obtaining happiness and safety” and (2) “[a]ll political power is inherent in the people … and they have the right to alter, reform, or abolish the same, whenever they deem it necessary…”  These articles do not expressly address environmental rights, in contrast to the constitutions of states that have adopted environmental rights amendments.

The LEBOR further provides that “it shall be unlawful for any corporation or government to violate the rights recognized and secured by this law,” and “[n]o permit, license … issued to a corporation, by any state or federal entity, that would violate the prohibitions of this law or any rights secured by this law, shall be deemed valid within the City of Toledo.”  The law also provides for strict liability for civil and criminal penalties against dischargers, and the recovery of legal fees and expenses of those citizens bringing suits to enforce LEBOR.

Perhaps most significantly, the LEBOR states that corporations that violate the law “shall not be deemed to be ‘persons’ to the extent that such treatment would interfere with the rights or prohibitions enumerated by this law.”  Perhaps going beyond what a municipality is empowered to adopt, it provides that such violators shall not have the right to assert that federal or state laws preempt the LEBOR or that the City lacks the authority to adopt the law.  Finally, it provides that laws enacted by the State of Ohio or any agency will not apply in the City of Toledo if they violate the LEBOR.

Unsurprisingly, the LEBOR is being challenged by the State of Ohio and farming interests.  The challenges include claims that the law violates the US Constitution, including:  (1) the right to freedom of speech and the right to petition the courts under the First Amendment; (2) the right of equal protection; (3) Fifth Amendment protections against vagueness, and (4) the right of due process.  Moreover, the challengers argue the law exceeds the City’s authority and intrudes on powers entrusted to state and federal governments by, inter alia, invalidating state and federal laws and permits.  Interestingly, the petitioners also argue that since Lake Erie borders Canada, the law impermissibly interferes with international relations.  (See, e,g., https://www.courthousenews.com/wp-content/uploads/2019/02/DrewesErie.pdf)

The State of Ohio, in response to the LEBOR, also enacted legislation that bans “legal actions on behalf of or by nature or ecosystems.”  The bill, signed by the governor, states: “[n]ature or any ecosystem does not have standing to participate in or bring an action in any court of common pleas. No person, on behalf of or representing nature or an ecosystem, shall bring an action in any court of common pleas.” https://www.nationalreview.com/corner/ohio-bans-nature-rights/

The legal challenges are playing out in the US District Court for the Northern District of Ohio. Drewes Farm Partnership v. City of Toledo, Ohio, No. 3:19-cv-00434-JZ.

Many legal observers believe the LEBOR is unlikely to survive the constitutional challenges.  Nevertheless, it is an interesting case to watch.  This law is part of a trend to try to impart legal rights to nature.