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Lake Erie Now Has Legal Rights To "Exist and Flourish"

                               by Don Kulak

On December 4, 2018 the Toledo, Ohio City Council voted unanimously to place the proposed Lake Erie Bill of Rights law onto the ballot for a vote.

In February, 2019 the citizens voted the Bill of Rights into law. This gives the lake and all its ecosystems rights to a healthy existence, and that anyone violating those rights by polluting or in some destroying the ecological balance would be subject to penalty under the law. This is somewhat like U.S. constitutional laws granting corporations “personhood” and thereby having rights similar to those granted to people.

These laws (the Commerce Clause, Dillons Rule, and the 14th Amendment, among others) protect corporations and their right to conduct business, even at the expense of the environment. Now, most laws still favor corporations over the environment, and ecosystems nationwide pay the price.

This Lake Erie Bill of Rights is the first proposed law to advance in the U.S. that specifically focuses on a distinct ecosystem, securing the Lake’s rights to exist and flourish, according to CELDF (Community Environmental Legal Defense Fund) a non-profit that helps citizens draw up rights of nature ordinances and amendments. They worked with Toledoans for Safe Water to help draw up the proposed legislation.

The Lake Erie ecosystem has suffered major damage over the years, usually from agricultural runoff, and industrial waste entering the lake in a raw, untreated state. A citizen initiative to include this bill gives citizens the right to sue any polluters whose actions harm the health of the ecosystem, and its right to exist and flourish, based on laws in the city charter holding liable any public or private entity that violates provisions in the “Lake Erie Bill of Rights.”

Markie Miller, organizer with Toledoans for Safe Water, congratulated the City Council, stating, “The people of Toledo came together to propose this law, and we thank the City Council for providing an opportunity for the people to vote.”

This type of legislation may be new to the U.S., but other countries have already voted similar measures into law, The Ecuadorian Constitution, for example, covers a broad spectrum of rights for ecosystems. Articles 71 and 72 under title 2 of Fundamental Rights states:
Art. 71. Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution.
Every person, people, community or nationality, will be able to demand the recognitions of rights for nature before the public organisms. The application and interpretation of these rights will follow the related principles established in the Constitution.
The State will motivate natural and juridical persons as well as collectives to protect nature; it will promote respect towards all the elements that form an ecosystem.

Art. 72. Nature has the right to restoration. This integral restoration is independent of the obligation on natural and juridical persons or the State to indemnify the people and the collectives that depend on the natural systems.

In the cases of severe or permanent environmental impact, including the ones caused by the exploitation on non renewable natural resources, the State will establish the most efficient mechanisms for the restoration, and will adopt the adequate measures to eliminate or mitigate the harmful environmental consequences.

The Lake Erie Bill of Rights could set important precedent in the rights of nature movement, so it stands to reason the law would be challenged by potential offenders.

To that point, Drewes Farms Partnerships is challenging the Constitutionality and lawfulness of the “Lake Erie Bill of Rights” in the United States District Court for the Northern District of Ohio, and suing the City of Toledo, Ohio. Their argument is that this law threatens the farm’s ability to properly fertilize its fields because it could not guarantee that runoff from fertilization would not enter the Lake Erie watershed. They go on to say, the Lake Erie Bill of Rights violates the plaintiff’s free speech, equal protection, and due process constitutional rights, and is beyond the city’s authority to enforce. The ruling on this case is yet to be determined.

It still remains to be seen how this Bill of rights holds up against national corporations who contaminate Lake Erie. In the U.S., the hierarchy of power is:
1. Federal Law
2. State Law, and lastly
3. Local Law.

If a corporation wanted to conduct business across state lines, the Federal Commerce Clause specifically grants them the right to do so, even if they violate some local laws.

It remains to be seen how this all plays out in the courts, and how judges will rule on Lake Erie’s Bill of Rights in the face of corporate challengers. Will they favor the long-standing precedent of corporate commerce over local law, or will they recognize the rights of citizens and help to enforce their own local laws

One thing is for sure, this Bill of Rights is setting major precedent in environmental law, and could very well mark the beginning of a seismic shift in our relation to the natural world.