Lake Erie Bill of Rights dead in the water

The Lake Erie Bill of Rights was dreamed up on a cocktail napkin at a bar.

At least, that’s what Trish O’Dell, of the Community Environmental Defense Fund, told The Counter, in an August 2019 article. After she and a colleague gave a presentation on “rights of nature” laws in 2016, Toledo activists approached them about their situation. They headed to a nearby pub to discuss.

The resulting bill, which passed in a referendum in February 2019, was heralded internationally as a bold step in establishing a legal framework for environmental protections. But it had all of the legal fortitude of a cocktail napkin, literal or figurative, according to a federal judge’s Feb. 27 ruling.

Not valid

In a decision issued in a lawsuit brought against the city of Toledo, by Mark Drewes, a northwestern Ohio farmer, federal Judge Jack Zouhary ruled the bill invalid. Zouhary could not have been any clearer: the creators of the Lake Erie Bill of Rights, or LEBOR, did not do their due diligence.

“Lake Erie is not a pond in Toledo,” Zouhary wrote. “It is one of the five Great Lakes and one of the largest lakes on Earth, bordering dozens of cities, four states, and two countries. That means the Lake’s health falls well outside the City’s constitutional right to local self-government.”

Farmers and farm groups are hailing this as a victory. And it is. As it stood, LEBOR was perilously broad in its scope. Farmers in the northwestern corner of the state, and other businesses, feared that scope could infringe on any number of activities.

It’s unclear whether that was the intent. If it was genuinely a lack of understanding of how to draft legislation that would withstand federal scrutiny, however, the creators have some work to do. So, LEBOR is dead in the water, pardon the analogy.

Not so fast

But don’t get complacent. The concept of “rights of nature” is not going away. It emerged in the 1970s, lay dormant for a while and re-emerged recently. It has a growing traction nationally and internationally. That group, the Community Environmental Legal Defense Fund, has a number of test cases worldwide.

“Global warming is accelerating and ecosystems are pushed to collapse,” the organization’s website states. “In such a world, we are finding that the human right to a healthy environment cannot be achieved without securing the environment’s own rights first. This means recognizing in law the right of nature to be healthy and thrive.”

As much as we might celebrate the demise of LEBOR, for now, this is not a joke. More than 10 years ago, the organization worked with Ecuador on drafting rights of nature language for its constitution.

It reads: “Nature, or Pachamama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes. All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature.”

Elsewhere, India has applied the concept to the Ganges and Yamuna rivers. New Zealand has done something similar for the Whanganui river. Bangladesh also recently gave legal rights to all of its rivers.

Closer to home, Environmental Health News published an article in February, with this headline: “Could the Ohio River have rights?” There have been similar laws set up in Pittsburgh and elsewhere in Pennsylvania.

“Ordinances of this type, however, are largely symbolic until courts either uphold or strike them down,” Erin West wrote. It’s not without cost, when they do pursue legal action. “Even some environmentalists question if the fight to push an untested area of law is worth the potential financial costs from litigation and loss in community morale if a law is defeated,” West added.

The article examines a 2018 ordinance, drawn up in a township in Huntingdon County, Pennsylvania. The “community bill of rights” banned two types of industrial agriculture. The Community Environmental Legal Defense Fund, which is based in Pennsylvania, helped draft it.

The Pennsylvania Attorney General opposed the ordinance, on the grounds that it violated state law, and urged repealing it, to avoid the expense of court. Township trustees repealed the ordinance in March 2019.

What next?

The legal defense fund is not the only one involved. But it is an example of why I believe this concept will not go away: there is a zeal to continue this fight. Time will tell if there will be an appeal of the LEBOR decision — or if the organizers will regroup.

It’s not impossible. Zouhary even pointed out Madison, Wisconsin, and its phosphorous regulations within city limits. A review of the city’s phosphorous plan shows clear steps to manage it.

Having lived in places where you can’t drink the water, ever, and where pollution is rampant, I understand the principle behind the fervor. We should all be good stewards and advocates of our resources. As farmers, we know this more than most.

This is a discussion that will continue. Farmers, let’s not stop looking for ways to collaborate with others. It can be exhausting and frustrating, sure, but it is necessary. Let’s not stop looking for ways to improve what we do — for the health of our families, future generations, our land and our livestock.

That is the one thing I think we can all agree on: our resources are precious.