Environmental Law Blog Essay

Rights for Lake Erie?

Voters in Toledo, Ohio, passed this February a citizen-based initiative that amends the city charter to add a new section entitled “Lake Erie Bill of Rights,” which allows citizens to sue on behalf of the Lake if the Lake faces environmental harm. The vote wasn’t even close. More than sixty percent of the voters favored the initiative, notwithstanding its far-reaching and demanding terms. The ultimate significance of the Lake Erie Bill of Rights, however, is less likely to be defined by those terms, which are vulnerable to judicial invalidation, than to the important lesson they teach about rising citizen frustration with inadequate environmental protection laws.

The Lake Erie Bill of Rights declares that “Lake Erie, and the Lake Erie Watershed, possess the right to exist, flourish, and naturally evolve,” and further confers on “the ecosystem and natural communities protected by this law” the power, without any further legislation, “to enforce all provisions of this law.” To that end, “[t]he Lake Erie Ecosystem may enforce its rights and this law’s prohibitions” by actions brought by the City or its residents “in the name of the Lake Erie Ecosystem as the real party interest.” It imposes strict liability on both “[g]overnments and corporations engaged in activities that violate the rights of the Lake Erie Ecosystem” and provides that “[d]amages shall be measured by the cost of restoring the Lake Erie Ecosystem.”

What about any possible inconsistency between Toledo’s Lake Erie Bill of Rights and state or federal law? The Lake’s Bill of Rights anticipates and addresses this issue in uncompromising fashion. According to the enactment, a corporation otherwise in violation of the Lake Erie Bill of Rights lacks the “power to assert state or federal preemptive laws in an attempt to overturn this law, and to claim “that the people of the City of Toledo lack authority to adopt this law.” No state laws, whether “adopted by the legislature of Ohio” or by “rules adopted by any State agency, shall be the law of the City of Toledo” unless “they do not violate the rights or prohibitions of this law.”

It takes little imagination to conjure up the potential legal infirmities with what the residents of Toledo are aiming to accomplish by enacting the Lake Erie Bill of Rights, no matter how sympathetic and compelling their goals. That is perhaps why the City of Toledo reportedly did not even bother to defend the Bill of Rights in an action to enjoin preliminarily its enforcement, which a federal judge granted in mid-March. Cities are limited in their ability to pass laws that override contrary laws of their own states. And, because of the U.S. Constitution’s Supremacy Clause, state law cannot of course overcome federal law, including denying any defendant the right to claim that federal law has preempted a state law requirement. Where, as here, Lake Erie is also an interstate lake that borders several cities and states — and not just Toledo and Ohio — and a foreign nation (Canada), there are clearly serious limitations on what any one city can do to address pollution of Lake Erie. 

Putting aside whatever sympathies one might have, as I do, for the important environmental protection policies expressed by the Lake Erie Bill of Rights, one might also fairly question whether these kinds of local-citizen-ballot initiatives are the best way to make law that addresses what are ultimately fairly complex questions of public policy informed by science, economics, and moral judgment. Citizen-based ballot initiatives have been on the rise in recent years and while Toledo’s happens to be liberal in its outlook, many others are not. Toledo’s Lake Erie Bill of Rights today could easily be another city’s effort tomorrow to promote conservative causes that could be an anathema to environmentalists.

The more than sixty percent in favor of the Lake Erie Bill of Rights masks that voter turnout this past February in Toledo’s Lucas County was just shy of nine percent of registered voters, or less than one-seventh of the voters who cast ballots in the November 2016 presidential election. Very few of those who voted either for or against the ballot initiative likely had any knowledge of the actual terms of the Lake Erie Bill of Rights. The ballot itself simply stated: “Shall the Charter of the City of Toledo be amended by adding a new Section to the Charter entitled ‛Lake Erie Bill of Rights’?” One is hard pressed to champion the results of such voting as democracy at its finest.

But neither the wisdom of citizen-based ballot initiatives in general nor questions about the possible legal limits on the Lake Erie Bill of Rights touch on the most important lesson to be learned from the residents of Toledo. That lesson relates to the factual circumstances that prompted what can be fairly characterized as a citizen rebellion in Middle America and how that rebellion relates to a broader and important political movement by environmentalists across the globe. 

Most simply put, the residents of Toledo were fed up with the trashing of Lake Erie. And for good reason: During the past decade, the Lake has been inflicted with algae blooms that release significant amounts of the toxin microcystin that causes diarrhea and vomiting and damages the functioning of livers. There is no mystery about the cause of these algae blooms. Nutrients, especially phosphorous, from agriculture runoff originating in Ohio are the major culprit.

In 2011, harmful algae blooms on Lake Erie’s surface stretched for 120 miles from Toledo all the way to Cleveland. According to U.S. Environmental Protection Agency, “measurements of microcystin during the 2011 bloom were 50 times higher than the World Health Organization limit for safe body contact, and 1,200 times higher than the limit for safe drinking water.” 

When, in 2014, an algae bloom formed over Toledo’s offshore water intake in Lake Erie, the city went without drinking water for three days. The water was fit for little more than flushing toilets. Stores and restaurants closed. Hospitals were able to accept only the most seriously ill patients. The problem also shows no sign of going away anytime soon, and is more likely to get worse. Another major algae bloom occurred in the summer of 2017.

But what is missing to confront this issue is not law, but political will. There is no lack of legal authority, either federal or state, to address what is clearly an extremely serious public health and environmental issue. All affected states, including Ohio, already have existing statutory authority to restrict activities that cause such public health and environmental harm. Under the federal Clean Water Act, the EPA likewise possesses considerable leverage to compel Ohio and other states that border Lake Erie to adopt “total maximum daily load” allocation requirements that limit contaminated runoff from agriculture and any other activity that is causing algae blooms and otherwise degrading Lake Erie and its ecosystem.

Government officials responsible for protecting the public health and welfare of the citizens of Toledo as well as safeguarding the future of Lake Erie have displayed a lack of courage and will to administer and enforce existing law. That is why the people of Toledo are understandably fed up.

Unfortunately, Toledo’s story is not as unique as one might hope. Across the globe in recent years, citizens similarly fed up with the profound lack of action by responsible government officials to address serious, potentially catastrophic environmental have embraced equally far-reaching legal theories based on the “rights of nature” to force government to act.

In 1993, in a path-breaking lawsuit, citizen activists representing children persuaded the Philippines Constitutional Court to rule that deforestation practices in that country violated the children’s constitutional right to live in a healthy environment. In 2016, the Columbian Supreme Court ruled in response to a citizen lawsuit that the Atrato River itself constituted a “subject of rights” and was accordingly entitled as a matter of Columbia constitutional law to protection, conservation, and maintenance. And even more recently, last spring that same court ruled that the Amazon rainforest is entitled to similar constitutional protection because of the impact on climate change of the rainforest’s destruction. The Colombian Supreme Court, accordingly, ordered the country’s President and cabinet ministry, in consultation with affected communities, to prepare short, medium, and long term plans to counteract the Amazon’s deforestation. Finally, back in the United States, an organization representing current and future generations of children, is suing the federal government for past actions and inactions that allegedly threaten the children’s claimed constitutional “right to a climate system capable of sustaining human life.”

But the great successes in litigation achieved in other nations based on “rights to nature” legal theories seem unlikely to be replicated here in the United States given our distinct constitutional traditions and the limited way that most judges, and certainly current Justices, view the judicial role today. One would be hard pressed in current times to find a judge (let alone a majority of judges) like the D.C. Circuit’s Judge Skelly Wright who in 1971 announced it was the “judicial role,” and “our duty” to ensure the full enforcement of the nation’s important environmental protection laws.

In all events, even stirring litigation victories based on rights to nature theories are of limited long-term effectiveness. They can play at best important catalytic functions, sobered by the realization that such legal theories can never be a true substitute for the work of government led by elected officials dedicated to environmental protection. That is why elections of government officials who support environmental protection priorities matter more than lawsuits. And more than citizen based initiatives such as Toledo’s Lake Erie Bill of Rights.

Professor Lazarus would like to thank Nathaniel Levy for his terrific research assistance.