Poor Lake Erie - it's the Great Lake with the saddest reputation. Declared "dead" decades ago, recipient of flaming waters from the Cuyahoga River, and infested with zebra mussels, Lake Erie has woes upon woes. Decades ago, the Clean Water Act helped Lake Erie regain some health by reducing point sources discharges, but then nonpoint souces, like stormwater and agricultural runoff caught up with it. Nutrient pollution has been increasing, and with it algae blooms that extend for miles along the shore. Lake Erie is also the source of drinking water for many communities, like the City of Toledo.
Now, as reported by Tom Henry in the Toledo Blade, "Toledo voters have reached a consensus: Lake Erie — the world’s 11th largest lake and one that provides drinking water to 12 million U.S. and Canadian citizens — deserves to have its own bill of rights. In a special election that drew only about 9 percent of Toledo’s registered voters to the polls, the citizen-led Lake Erie Bill of Rights referendum passed by a 61-39 margin on Tuesday night, according to unofficial election results. Now, it’s up to lawyers to sort out what the citizenry’s impassioned plea for the lake really means in practice — that is, if it will be more of a symbolic gesture or, as its supporters claim, a new approach to planning and enforcement that will hold more polluters accountable."
The Bill of RIghts says in part: "We, the people of the City of Toledo, declare and enact this Lake Erie Bill of Rights, which establishes irrevocable rights for the Lake Erie Ecosystem to exist, flourish and naturally evolve, a right to a healthy environment for the residents of Toledo, and which elevates the rights of the community and its natural environment over powers claimed by certain corporations." Full text of the Lake Erie Bill of Rights can be found below by clicking the "Read More" link.
A law suit was filed in US District Court the day after the election, asserting that the Lake Erie Bill of Rights is unconstitutional . According to the Toledo Blade, "The first of what could be multiple lawsuits challenging the legitimacy of Toledo’s newly passed Lake Erie Bill of Rights was filed Wednesday morning in U.S. District Court. In a 28-page complaint, attorneys representing Drewes Farms Partnership of Custar, Ohio, are asking for the successful ballot initiative to be thrown out on the grounds it is “unconstitutional and unlawful.”
“Courts have routinely invalidated similar governmental overreaches across the country, including many backed by some of the same groups behind LEBOR [Lake Erie Bill of Rights],” the document states."
In 2014, the City of Toledo shut down it's water supply due to the presence of microcystins - a toxin produced by algae. A half-million people went three days without safe water, in the hottest time of the summer. According to the New York Times, this was the second city's water supply that was shut down because of Lake Erie algae. In September of 2013, Carroll Township, Ohio, had to shut off water to its residents as well.
Despite the seriousness of these problems, Ohio did not designate Lake Erie as 'impaired' until 2018. New rules for fertilizer management were delayed by the Ohio legislature in the last days of the Kasich administration in December of 2018. Farm groups oppose the rules, which are seen as onerous and inflexible. Next month we will post a report here on the Ohio rules from the Midwest Cover Crops Council, including feedback from farmers, so watch this space!
Click "Read More" for full text of the Lake Erie Bill of Rights.
LAKE ERIE BILL OF RIGHTS
ESTABLISHING A BILL OF RIGHTS FOR LAKE ERIE, WHICH PROHIBITS ACTIVITIES AND PROJECTS THAT WOULD VIOLATE THE BILL OF RIGHTS
We the people of the City of Toledo declare that Lake Erie and the Lake Erie watershed comprise an ecosystem upon which millions of people and countless species depend for health, drinking water and survival. We further declare that this ecosystem, which has suffered for more than a century under continuous assault and ruin due to industrialization, is in imminent danger of irreversible devastation due to continued abuse by people and corporations enabled by reckless government policies, permitting and licensing of activities that unremittingly create cumulative harm, and lack of protective intervention. Continued abuse consisting of direct dumping of industrial wastes, runoff of noxious substances from large scale agricultural practices, including factory hog and chicken farms, combined with the effects of global climate change, constitute an immediate emergency.
We the people of the City of Toledo find that this emergency requires shifting public governance from policies that urge voluntary action, or that merely regulate the amount of harm allowed by law over a given period of time, to adopting laws which prohibit activities that violate fundamental rights which, to date, have gone unprotected by government and suffered the indifference of state-chartered for-profit corporations.
We the people of the City of Toledo find that laws ostensibly enacted to protect us, and to foster our health, prosperity, and fundamental rights do neither; and that the very air, land, and water – on which our lives and happiness depend – are threatened. Thus it has become necessary that we reclaim, reaffirm, and assert our inherent and inalienable rights, and to extend legal rights to our natural environment in order to ensure that the natural world, along with our values, our interests, and our rights, are no longer subordinated to the accumulation of surplus wealth and unaccountable political power.
We the people of the City of Toledo affirm Article 1, Section 1, of the Ohio State Constitution, which states: “All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.”
We the people of the City of Toledo affirm Article 1, Section 2, of the Ohio State Constitution, which states: “All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly.”
And since all power of governance is inherent in the people, we, the people of the City of Toledo, declare and enact this Lake Erie Bill of Rights, which establishes irrevocable rights for the Lake Erie Ecosystem to exist, flourish and naturally evolve, a right to a healthy environment for the residents of Toledo, and which elevates the rights of the community and its natural environment over powers claimed by certain corporations.
Section 1 – Statements of Law – A Community Bill of Rights
(a) Rights of Lake Erie Ecosystem. Lake Erie, and the Lake Erie watershed, possess the right to exist, flourish, and naturally evolve. The Lake Erie Ecosystem shall include all natural water features, communities of organisms, soil as well as terrestrial and aquatic sub ecosystems that are part of Lake Erie and its watershed.
(b) Right to a Clean and Healthy Environment. The people of the City of Toledo possess the right to a clean and healthy environment, which shall include the right to a clean and healthy Lake Erie and Lake Erie ecosystem.
(c) Right of Local Community Self-Government. The people of the City of Toledo possess both a collective and individual right to self-government in their local community, a right to a system of government that embodies that right, and the right to a system of government that protects and secures their human, civil, and collective rights.
(d) Rights as Self-Executing. All rights secured by this law are inherent, fundamental, and unalienable, and shall be self-executing and enforceable against both private and public actors. Further implementing legislation shall not be required for the City of Toledo, the residents of the City, or the ecosystems and natural communities protected by this law, to enforce all of the provisions of this law.
Section 2 – Statements of Law – Prohibitions Necessary to Secure the Bill of Rights
(a) It shall be unlawful for any corporation or government to violate the rights recognized and secured by this law. “Corporation” shall include any business entity.
(b) No permit, license, privilege, charter, or other authorization 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.
Section 3 – Enforcement
(a) Any corporation or government that violates any provision of this law shall be guilty of an offense and, upon conviction thereof, shall be sentenced to pay the maximum fine allowable under State law for that violation. Each day or portion thereof, and violation of each section of this law, shall count as a separate violation.
(b) The City of Toledo, or any resident of the City, may enforce the rights and prohibitions of this law through an action brought in the Lucas County Court of Common Pleas, General Division. In such an action, the City of Toledo or the resident shall be entitled to recover all costs of litigation, including, without limitation, witness and attorney fees.
(c) 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.
(d) The Lake Erie Ecosystem may enforce its rights, and this law’s prohibitions, through an action prosecuted either by the City of Toledo or a resident or residents of the City in the Lucas County Court of Common Pleas, General Division. Such court action shall be brought in the name of the Lake Erie Ecosystem as the real party in interest. Damages shall be measured by the cost of restoring the Lake Erie Ecosystem and its constituent parts at least to their status immediately before the commencement of the acts resulting in injury, and shall be paid to the City of Toledo to be used exclusively for the full and complete restoration of the Lake Erie Ecosystem and its constituent parts to that status.
Section 4 – Enforcement – Corporate Powers
(a) Corporations that violate this law, or that seek to violate this 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, nor shall they possess any other legal rights, powers, privileges, immunities, or duties that would interfere with the rights or prohibitions enumerated by this law, including the power to assert state or federal preemptive laws in an attempt to overturn this law, or the power to assert that the people of the City of Toledo lack the authority to adopt this law.
(b) All laws adopted by the legislature of the State of Ohio, and rules adopted by any State agency, shall be the law of the City of Toledo only to the extent that they do not violate the rights or prohibitions of this law.
Section 5 – Effective Date and Existing Permit Holders
This law shall be effective immediately on the date of its enactment, at which point the law shall apply to any and all actions that would violate this law regardless of the date of any applicable local, state, or federal permit.
Section 6 – Severability
The provisions of this law are severable. If any court decides that any section, clause, sentence, part, or provision of this law is illegal, invalid, or unconstitutional, such decision shall not affect, impair, or invalidate any of the remaining sections, clauses, sentences, parts, or provisions of the law. This law would have been enacted without the invalid sections.
Section 7 – Repealer
All inconsistent provisions of prior laws adopted by the City of Toledo are hereby repealed, but only to the extent necessary to remedy the inconsistency.