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Wednesday, December 26, 2018

Citizen-Led Ballot Initiative Will Allow Toledo Residents to Vote on 'Lake Erie Bill of Rights'

Posted By on Wed, Dec 26, 2018 at 9:05 AM

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After a long and arduous process that has gone through the Ohio Supreme Court and various public agencies, citizens in Toledo, Ohio will finally get their chance in February to vote on a bill that has caught the attention of environmental groups worldwide.

The citizen-led ballot initiative, called the "Lake Erie Bill of Rights," has an odd premise for an industrial Midwest city. Voters in Lucas County will decide if the lake is more or less a private corporation, and has similar rights of redress and compensation for harm that a private company might have when harmed by another. If approved on the Feb. 26 ballot, Lake Erie would be considered a company and the citizens its shareholders.

The initiative is complicated to begin with, and obviously has had some enviro lawyer noodling to make it even more complicated. But this paragraph up high explains it in basic terms:

“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.”

How this would play out in the courts if passed is difficult to predict. In recent decades, Bolivia, Columbia, India, Sweden, Nepal and New Zealand, among others, have moved to recognize the rights of nature; but in most cases, those have been done to satisfy the protests of indigenous groups that have made claims against the country. In this case, the citizens of Lucas County are deciding if people who live there can take the agricultural businesses, for example, to court for polluting the lake with phosphorus and other nutrient loading from the Maumee River watershed that flows into the lake.

“We have the right to self-govern,” said Tish O’Dell, with Community Environmental Legal Defense Fund, one of the bill sponsors. “This will allow people to bring an action before the damage is done. It will give people in the community standing, so they can sue over a certain practice, and say ‘this has to stop.’”

“If it passes, the ‘Lake Erie Bill of Rights’ will be the first law in the U.S. to recognize rights of a specific ecosystem,” said O’Dell in a recent interview. “A lot of the news we see focuses on jobs and profits instead of environmental issues. But the harm that results from reckless actions, with respect to Lake Erie, also translates into money lost.”

How this will play out legally if passed is total speculation at this point. The rules and regulations as applied to Lake Erie have the influence of two countries (Canada and the United States), four states (Michigan, Ohio, Pennsylvania, and New York), and numerous cities and counties. So how courts will interpret all this is impossible to predict.

And would the citizens of cities like Cleveland have the right to sue polluters if this passes? Hard to tell. The initiative does make specific references to Toledo in most parts, but expands its purpose to include every part of the 10,000-square-mile lake in others. For example: “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.”

As it stands now, if an agriculture business violates state watershed polluting regulations, it would have hearings before state agencies and be asked to comply if found to have violated state or federal laws. The business might get a small fine, and then be asked to change their practices. Future testing would then be done, but would include lots of lobbying by agricultural interests and lots of policy debate by the legislature. It is usually the exception when the individual businesses doing the polluting will be fined heavily and made to change their practices in a reasonable time frame.

What passage of this initiative could do is to bring the polluter to court and have a local judge decide if the pollution violated state or local laws and assess what cost the pollution caused. The “harmer” of the lake might then have to pay large amounts to the local city or county for cleanup costs and/or prevention programs. It also could include criminal penalties and loss of business permits and operating licenses for violators. The backers of this bill say the real benefit will be to have a threat in place that will reduce pollution.

This all began in August of 2014, when the western basin of Lake Erie was hit by a harmful bloom of cyanobacteria (blue-green algae). Nearly 500,000 Toledo-area residents had no clean drinking water for three days due to high levels of microcystin. Citizens groups popped up and wanted to find ways to prevent future algae blooms, and this ballot initiative is the result of that work.

Toledo attorney Terry Lodge, who helped craft the initiative, told the Toledo City Paper this year that “giving large, regional natural systems like watersheds and forests a right to exist and be protected and sustained for all time makes much more sense that issuing permits to destroy them, bit by increasingly large bit, for one generation’s profit. It says that the corporate state no longer has the controlling say in how a valuable common resource will be managed, because all of us are named as Lake Erie’s guardians. So people, not corporations, will be able to directly confront systematic poisoning of our common water.”

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