22
Feb
Fighting for the Environmental Rights of Lake Erie with a Creative Legal Strategy
(Beyond Pesticides, February 22, 2019) Lake Erie, the 11th largest freshwater lake in the world, is once again plagued with pollution, although in this decade it is due primarily to agricultural runoff — as opposed to the raw sewage and industrial effluents that afflicted it in the mid-20th century. Concerned and weary Toledo, Ohio residents are seeking remedies through the adoption of a ballot initiative, “Lake Erie Bill of Rights,” that will go before local voters this month. It asks: should Lake Erie, as an entity, have the legal right “to exist, flourish, and naturally evolve”? The New York Times reported on this unusual ballot question, which asks whether the lake ought to be granted rights more typically ascribed to people. If the measure passes, people would be able to sue polluters on behalf of the lake, using the argument that Lake Erie’s rights had been violated.
Fifty years ago, prior to the passage of the 1972 Clean Water Act, U.S. water bodies, including the Great Lakes and their tributaries, were in big trouble. One of Lake Erie’s tributaries — the Cuyahoga River — became infamous for literally catching fire due to the sewage and industrial waste that were freely dumped into it. The Michigan Environmental Council, in reviewing the book When Our Rivers Caught Fire, by John Hartig, noted the author’s chronicling of the “rise of Great Lakes industrialization in the early and mid-20th century, when the lakes and their tributaries were considered public sewers and waste disposal lagoons.” Mr. Hartig wrote: “Industry was king, and dirty rivers were considered a sign of prosperity.” That barometer of success is happily behind us, but the agro-chemical sector continues to be a mighty contributor to pollution of the Great Lakes, through its production, marketing, and sales of synthetic, petrochemically derived fertilizers, and pesticides.
Lake Erie has endured, in recent years, summertime algal blooms spurred by terrestrial runoff containing animal manure and synthetic fertilizers, as well as the consequences of invasive fish species. The lake is also at risk of impacts from oil spills, from both vessels traversing the lake and pipelines that operate nearby. Fouling of public resources, despite real and significant progress from the 1970s through the first decade-plus of the 21st century, continues to threaten public health and the integrity of terrestrial and marine ecosystems, as well as the environmental services they provide. Currently, pollution of waterways tends to comprise agricultural runoff (nutrient pollution, especially phosphorous and nitrogen); pesticide contamination; and the occasional industrial (petroleum, chemical, or mining) accident or malfeasance.
Given the current administration in Washington, DC, and its goal for federal agencies of “reducing regulation,” these issues again are rising to the forefront of concern. A 2017 Gallup poll found that across the nation, people are more concerned about water pollution than they have been in nearly two decades: in the poll, 63% of people “worry a great deal about pollution of drinking water,” and 57% “worry a great deal about pollution of rivers, lakes, and reservoirs.”
Toledoans for Safe Water, an advocacy group, gathered 11,000 signatures in an effort to advance the ballot initiative, which was drafted with the assistance of CELDF, the Community Environmental Legal Defense Fund (see more below). The health of Lake Erie is no small thing to Toledo-area residents, who depend on the lake for their drinking water. In 2014, the city all but closed down when the lake became so polluted with the slimy algal mats — from phosphorus runoff from upstream farms — that hospitals and stores and restaurants shuttered, and half a million people had to depend on bottled water in that year’s very hot August.
The text of the ballot question begins: “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.”
This effort, like a number of similar initiatives that have taken place in various municipalities in recent years, rests on a “Rights of Nature” argument, which says that features of the natural world have an inherent right to exist with fundamental integrity intact. Because critical to our legal and judicial system is the notion of “standing” — the legal right to bring suit against an entity by virtue of enduring harm — such efforts look to establish legal status for an aspect, or aspects, of the local natural world, such as a water body, forest, fauna, flora, etc. Legal arguments in litigation brought on this basis often seek to demonstrate that current laws are inadequate to protect nature against environmental harm.
Other, similar initiatives include: Tamaqua Borough, Pennsylvania, approved in 2006 a Rights of Nature ordinance after it banned industry from dumping dredged minerals and sewage sludge into open pit mines. The law said that corporations “could not ‘interfere with the existence and flourishing of natural communities or ecosystems, or to cause damage’ to them within the township.” 2010 saw the passage of a Pittsburgh city ordinance that prohibited fracking within city limits. In 2013, Santa Monica, California passed a law requiring the city to “recognize the rights of people, natural communities and ecosystems to exist, regenerate and flourish.”
In Minnesota, the White Earth Band of Ojibwe recently passed a tribal law establishing the natural rights of a plant central to their culture — wild rice (Zizania aquatica), or manoomin, the Ojibwe term. It is the first time that a plant has been granted “personhood” in the U.S., and is understood to be establishing a foundation on which to mount opposition to an Enbridge Energy oil pipeline that would threaten waters in which local tribes have treaty rights to harvest rice, hunt, and fish. A similar law has been adopted by a Chippewa tribal group, the 1855 Treaty Authority, that represents the beneficiaries of an 1855 land pact between the Chippewa tribes and the U.S. government.
Of course, there are opponents to Rights of Nature initiatives. In the Toledo case, opposition comes primarily from large agricultural operations in the area, which shed the fertilizer runoff (which often include pesticide residues, which can cause fish kills) that feeds the toxic algae in Lake Erie, causing lethal-to-other-life algal blooms that deprive the water of oxygen. Farmers say that if the measure passes, thousands of farms could be sued for damages for polluting the lake and be driven out of business. Proponents of the initiative admit that should the question win at the ballot, it will very likely be challenged in court — either as having little legal footing (i.e., standing) or precedent, and/or as reaching beyond the scope of city law.
During the past decade-plus, other attempts to establish nature-based rights have been supported and guided by CELDF. The organization describes its work as “a paradigm shift, a move away from unsustainable practices that harm communities, and a move towards local self-government.” It helps communities with establishment of legal community rights, including environmental rights, worker rights, rights of nature, and democratic rights. Typically, establishment of such rights happens through creation of local laws that seek to set out one or more of those rights as a basis for preventing activities that a community finds unacceptable — most often, activities such as fracking, water pollution, unhealthful working conditions, pesticide use, or the environmental and/or labor ravages of particular industries, such as mining.
The Toledo effort, and a number of others around the country, perhaps owe some of their grounding to a 1972 Supreme Court ruling in Sierra Club v. Morton (Roger Morton, then U.S. Secretary of the Interior). In that case, the Sierra Club sought — and failed — to prevent development of a portion of the Sequoia National Forest; the court found, 4–3, that the Sierra Club did not have standing in the suit because it failed to show that any of its members had suffered or would suffer injury as a result of the defendant’s actions. But Justices William O. Douglas, Harry A. Blackmun, and William J. Brennan, Jr. wrote critical dissenting opinions, respectively, opining that “standing doctrine should allow environmental organizations such as the Sierra Club to sue on behalf of inanimate objects such as land”; that “when faced with new issues of potentially enormous and permanent consequences, such as environmental issues, the Court should not be quite so rigid about its legal requirements”; and that the Court should have considered the case on its merits. Justice William O. Douglas additionally wrote that “contemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation.”
Of the Toledo ballot initiative, CELDF Executive Director Thomas Linzey has said that the “intent of the initiative is twofold — to send a warning that the community is fed up with a lack of state and federal action to protect Lake Erie, and to force the courts to recognize that ecosystems like the lake ‘possess independent rights to survive and be healthy. In other words, that rivers have a right to flow, forests have a right to thrive, and lakes have a right to be clean.” Even if the ballot measure fails in Toledo, CELDF indicates, such efforts demonstrate the resolve of communities to fight environmental degradation, and send the message that some companies might better look elsewhere to do business. Supporters of Rights of Nature initiatives are, some environmentalists say, inviting a rethinking of nature and the place of humans in it. As Mr. Linzey said, “There’s no precedent for any of this. It is almost a new consciousness — that a community is not just Homo sapiens.”
Beyond Pesticides has written previously about the risks to water, ecosystems, and organisms of nutrient- and pesticide-riddled agricultural runoff, not only from farms, but also, from golf courses and other managed landscapes, and about the advantages of organic land management. (Some time ago, Beyond Pesticides reported about the health of water resources nationally.) Beyond Pesticides advocates for the protective — and regenerative — advantages of organic, ecologically based agriculture. Stay current with developments in efforts to protect human and environmental health through its Daily News Blog.
All unattributed positions and opinions in this piece are those of Beyond Pesticides.
https://www.nytimes.com/2019/02/17/us/lake-erie-legal-rights.html
