Voters in Toledo, Ohio, voted overwhelmingly to approve the so-called Lake Erie Bill Of Rights— a declaration that the lake, which supplies drinking water to Toledo and many surrounding communities, has the legal right to be protected from harm from human activity. The final tally was 61% in favor of the charter amendment and 39% opposed.
Credit: OLI/Landsat 8/Nasa
Toledo As Legal Guardian For Lake Erie
The new law will allow the people of Toledo to act as legal guardians for Lake Erie. It’s as if the residents of Toledo are the parents of the lake and it is their child. Polluters can now be sued to pay for cleanup costs and pollution prevention programs. “It was definitely a long, hard struggle … but all the hard work and countless volunteer hours by everyone in our local community group has paid off,” said Crystal Jankowski, a Toledoans for Safe Water organizer tells The Guardian.
The ballot initiative has been strongly opposed by the business and agricultural community, including Murray Energy, the largest privately owned coal company in America. It is owned by Robert Murray, the man who has the ear of the alleged president and has been instrumental in Trump’s insane campaign pledge to reinvigorate the coal industry.
Within 12 hours of the election, a lawsuit was filed in the US district court in Toledo by the owners of a farm that grows corn, soybeans, wheat, and alfalfa 40 miles southeast of Toledo. It contends that the Lake Erie Bill of Rights measure is unconstitutional and unlawful and will put the fifth-generation family farm at risk.
That may be so, but the prodigious amount of fertilizer and pesticides used on area farms and which then drain into Lake Erie may be essential to conventional agricultural techniques. The Ohio Farm Bureau even admits its members are primarily responsible for the deadly algae blooms that have made Lake Erie water unsafe to drink on several recent occasions. That opposition is compatible with contemporary neo-liberal capitalist theory, which holds it is perfectly permissible to dump your toxic waste on the property of others without paying to clean up your mess because, you know, profits!
Heads We Win, Tails You Lose
The Toledo law comes at an interesting time in America. The EPA under the fossil fuel company stooges appointed by the #FakePresident now takes the position that it is up to the states and local communities to protect waterways. Okay. Toledo is doing exactly what the EPA said it should do. But it won’t be long before the Trumpies are screaming to any judge who will listen that what Toledo did violates federal laws.
This maladministration, which has been said this week to be more like The Sopranos than The Apprentice, wants to shrink the size of the federal government but it wants to retain the power to jam its views on transportation emissions down the throats of California and 18 other states. Its astounding “heads we win, tails you lose” hypocrisy is unfortunately lost on Trump’s hand-picked factotums.
Water & Politics
Water was a big factor in the Trump victory in 2016, as many midwestern and western groups, especially farmers, were bitterly opposed to the burdens placed upon them by the Clean Water Act, claiming it turned every mud puddle and water filled pothole into a federally protected body of water.
Concern for their fellow citizens and the environment have no place in business decisions, they argue, if it means lower profits. Freedom, according to their view, means being able to injure the health and safety of your neighbors without suffering any consequences. How such specious reasoning can capture the minds of theoretically intelligent people is a great mystery to many.
Be Careful What You Wish For
But for Andrew Wheeler and all the “shrink the size of government” advocates, the old adage “Be careful what you wish for, you just might get it” is beginning to play out. Organizers from communities all around America came to Toledo during the most recent campaign to find out what that city was doing and learn how they could take those lessons home to their own communities in Silicon Valley, Salt Lake City, on Chesapeake, Bay and along the Atlantic coast of Maine.
“We had representatives from Florida who came up here to work on our campaign because they want to see what they can do about the recent big algae blooms in the Gulf of Mexico they have suffered from,” says Markie Miller, a local Toledo theater manager and one of the organizers who helped get the Lake Erie Bill of Rights on the ballot.
Protection For Those Most Affected
The farmers cannot be ignored, however. People who face the loss of their livelihood can become fierce political opponents. They are the people who supported Trump in large numbers, believing he would magically restore their jobs in dying industries because he said he would. In the transition to a low carbon economy, the people who will have their lives disrupted the most need to be protected from economic harm. This is one of the basic tenets of the Green New Deal.
Yet farming contributes heavily to the emissions that are driving the world toward an existential crisis. If we are to avoid, 2, 3, or 4 degrees Celsius of global warming, traditional farming has to go away and be replaced with more sustainable methods. If that means eating less meat and dairy, if that means fewer fertilizers and pesticides created from oil, so be it. Nobody has the right to put the world at risk for the sake of profits.
Will The Courts Protect Lake Erie & Us?
In a statement, the Ohio Farm Bureau said it believes “that its passage means Ohio farmers, taxpayers and businesses now face the prospect of costly legal bills.” It also will “likely be found unconstitutional and unenforceable.”
Bryan Twitchell, a Toledo school teacher who worked to get the bill on the ballot, isn’t buying it.
“To be quite frank about this, the reaction of the farmer and business lobbyists and some politicians who had opposed this bill makes me think that they have had long enough time to show results in getting the lake clean from their efforts. We found out we were better off standing up for our interests in this and we can do a better job of running this lake cleanup ourselves,” he said.
It will be up to the courts now. Given the drive to put as many pro-Koch Brothers acolytes as possible on the federal bench, the prospect of getting anything like environmental justice from the courts is mixed, at best, especially since reactionaries have been successful at getting two rabid “turn back the clock” justices on the Supreme Court. “We’ll see,” said the Zen master.
Fighting pollution: Toledo residents want personhood status for Lake Erie: The controversial legal bill will allow citizens to sue a polluter on behalf of the lake and for penalties to be imposed by Daniel McGraw,
There have been cities and townships in the United States that have passed ordinances making some types of polluting illegal, but no American city or state has changed the legality of nature in a way that is this big and this extensive – effectively giving personhood to a gigantic lake.
Called the Lake Erie Bill of Rights, it would grant personhood status to the lake, with the citizens being the guardians of the body of water. If passed, citizens could sue a polluter on behalf of the lake, and if the court finds the polluter guilty, the judge could impose penalties in the form of designated clean-ups and/or prevention programs.
“What has happened in Toledo is that we have lost our faith in the current mechanisms of power, and decided to take things into our own hands,” said Bryan Twitchell, a Toledo school teacher.
“We decided it was our personal responsibility to take action and pull us back from that brink so we can live near a healthy lake.”
This type of action has been happening in other parts of the world, but usually has involved smaller ecosystems and legal settlements with indigenous people. New Zealand granted legal personhood to the Te Uruwera forest in 2014, and an Indian court granted legal personhood to the Ganges and Yamuna rivers in 2017.
“We need to create a new legal paradigm … to protect [areas like] the Great Barrier Reef,” said Michelle Maloney of the Australian Earth Laws Alliance. “The drafters of the Lake Erie Bill of Rights in Toledo share this understanding, that existing environmental laws are simply not sufficient to protect and restore the lake.”
In the United States, the Ponca Nation in Oklahoma was the first Native American tribe to recognize the rights of nature in statutory law in 2017, a reaction to earthquakes and water pollution caused by fracking. Ponca leaders say they are “thrilled” with what is happening in Ohio.
“We have to clean up the mess we have made to bring our generations together,” said Casey Camp-Horinek, noted Ponca councilwoman and film actress. “What they are doing in Toledo gives us all a tremendous boost of energy, one that will help enlighten humans around the world and show how people in Ohio really do care for the relationship between water and life, and the natural re-balance we are all trying to achieve.”
What is unusual is the relative silence politically about such a controversial vote. Little national media has discovered this environmental movement in a Midwest urban area that has suffered from population loss and manufacturing decline. Even large environmental organizations like the Sierra Club have been quiet.
But the local political view of the Great Lakes has changed somewhat. One of the reasons for so little organized opposition is that the region has rediscovered the five Great Lakes as important assets. For example, the Trump administration wanted to cut much of the $300m funding for the Great Lakes Restoration Initiative last year, but outcry from both Republican and Democrat congressional representatives got it restored.
“But this is still a complex issue, and if you say it is not a good idea and it will bring about unnecessary lawsuits, you get portrayed as being anti-Lake Erie and anti-environment and we’re not,” she said.
But the key question is: what will happen if this passes? Lake Erie is roughly 10,000 square miles of surface water, about 250 miles long and 60 miles wide, with 871 miles of shoreline in four US states and two countries. The lake provides 11 million people with drinking water from those political jurisdictions. Will a court in Toledo have jurisdiction over an environmental dispute 200 miles away in Erie, Pennsylvania?
“There will be all sort of litigation if this passes to sort things out,” said Ohio attorney Terry Lodge, who helped craft the bill. “The authority will be questioned, and all sort of business leaders and political groups will be fighting this to protect their own interests and not be responsible stewards of the environment.”
“But what these groups finding problems with this bill are missing is why this thing came about in the first place,” Lodge says. “The people in Toledo have realized for a long time their water and their health was in danger from excessive pollution in the lake. Over the years they called for the cavalry repeatedly to help them. But the cavalry never came. So they have decided to be their own cavalry.”
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It started in a pub. A handful of people, hunched over beers in Toledo, Ohio, were talking about a water crisis that had plagued the city in 2014. The pollution of Lake Erie had gotten so bad that it had taken a serious toll on their lives. The government, they felt, wasn’t doing enough to protect the lake. And so they wondered: What if the lake could protect itself?
The idea they hatched that night ultimately resulted in a special election, which had the citizens of Toledo voting Tuesday on a very unusual question: Should Lake Erie be granted the legal rights normally reserved for a person?
The measure passed easily, which means citizens will be able to sue on behalf of the lake whenever its right to flourish is being contravened — that is, whenever it’s in danger of major environmental harm.
“There’s a lot of nervous energy,” Tish O’Dell, who was at the pub that fateful night, told me while traveling between different polling places in Toledo on Tuesday morning. She was on tenterhooks as she waited for the election results. “It’s like torture.”
If the stakes felt almost unbearably high for the activists who pushed for the Lake Erie Bill of Rights, it’s because this was the first rights-based legislation aimed at protecting a whole US ecosystem: the lake, its tributaries, and the many species that live off it.
The law isn’t without precedent, though. It’s part of the nascent rights of nature movement, which has notched several victories in the past dozen years. Rivers and forests have already won legal rights in countries like Ecuador, Colombia, India, and New Zealand.
Activists in the movement often argue that the environment is the next frontier in humanity’s expanding moral circle: over the centuries, we’ve extended rights to more and more beings, so why shouldn’t nature itself be next?
They reject the conventional Western way of relating to nature — as property that is ours for the taking, as an object rather than a subject — but they recognize they’re going to have to work within the existing Western legal system if they want that to change. They’re betting that the best strategy for protecting the environment is to stretch our society’s understanding of what counts as a person. It’s a bold bet, but with climate change decimating the planet at such a ferocious rate, it might be the kind of innovative thinking we need.
How the rights of nature idea took off
In 1972, the case of Sierra Club v. Morton came before the US Supreme Court, leading to a deliberation over whether nature should have its own rights. The Court decided the answer was no, but Justice William O. Douglas dissented. “Contemporary public concern for protecting nature’s ecological equilibrium,” he wrote, “should lead to the conferral of standing upon environmental objects to sue for their own preservation.”
That same year, law professor Christopher Stone made a splash with an article titled “Should trees have standing?” It catalyzed other academics to write a slew of articles and books considering whether natural environments ought to have rights enshrined in law.
In 2006, that question left the ether of academia and came to bear directly on toxic sewage sludge, which had been dumped in Tamaqua, Pennsylvania. Residents fought for — and won — the first-ever rights of nature law in the world. Two years later, Ecuador became the first country to enshrine the rights of nature in its constitution, thanks in large part to the work of indigenous activists.
Since then, the victories have come fast and furious. In 2014, New Zealand recognized the legal rights of the Te Urewera forest. In 2017, Colombia granted rights to the Rio Atrato river and India recognized the Ganges and Yamuna rivers as legal persons. In 2018, the Amazon rainforest got its own rights, and for the first time, so did a specific plant species: the wild rice known as manoomin, one of the Anishinaabe people’s staple crops.
Granting the status of personhood to a natural environment may seem like a bizarre legal fiction, but it’s no more bizarre than the idea that corporations should enjoy that same status, which has been with us since the 1880s.
If we find it strange to view nature the way we view people, that may just be because we’ve grown up in an anthropocentric intellectual tradition that treats the natural world as an object to be examined and exploited for human use, rather than as a subject to be communed with and respected.
“The idea that we can be separate from nature is really a Western reductionist way of looking at the world — we can trace it back to Francis Bacon and the scientific method,” said Ben Price, the national director for the Community Environmental Legal Defense Fund, a nonprofit public interest law firm that helps people facing threats to their local environment.
Price told me that just as women’s suffrage or the abolition of slavery were once unthinkable but gradually became accepted and normalized, the rights of nature idea seems wacky now but will eventually gain social currency. “For the rights of nature to be understood and become something we’re comfortable with is going require a paradigm shift, just like the end of slavery did,” he said.
That paradigm shift may entail nothing less than a total rejection of capitalism, according to Eduardo Gudynas, the executive secretary of the Latin American Center for Social Ecology in Uruguay. He argues that attempts to reduce environmental devastation while staying within a capitalism framework won’t be enough to address the climate crisis.
“The debate around the rights of nature is one of the most active frontlines in the fight for a non-market-based point of view,” Gudynas told me. “It’s a reaction against our society’s commodification of everything.”
Will this legal strategy be effective?
The rights of nature movement has inspired new legislation around the world, but because it’s still in its infancy, we don’t yet have evidence about how much of a practical difference those laws will really make.
Ecuador, however, offers one example of concrete change. After the country enshrined the rights of nature in its constitution, locals have brought lawsuits against companies they say are causing serious environmental harm. In one recent case, people sued on behalf of a river that was being polluted in the course of a construction project. The court ruled in the river’s favor.
That outcome is inspiring to people like O’Dell in Toledo. And now that Lake Erie has joined the ranks of natural environments with legal rights, the activists in the rights of nature movement are buoyed at the prospect of what comes next.
“There are many different effects we hope for,” O’Dell said. “One is education — that you open people’s eyes to this possibility. Two is to give notice to those doing the environmental harm that we’re not going to tolerate this anymore. Three is the hope that other people will follow you on the path you’ve started to clear.”
To Price, that last hope rises to the level of an existential need, given the pace of climate change. “We’re seeing the results of our narrow-mindedness, of our belief that nature is property and property ownership is the highest right,” he said. “The hope is that by beginning somewhere, like Toledo, the conversation enlarges. You never know what’s going to be the tipping point.”
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