Legal Newsline

Sunday, August 25, 2019

Can a body of water have rights like a human? Lake Erie Bill of Rights faces challenge


By Brian Brueggemann | Mar 12, 2019

TOLEDO, Ohio (Legal Newsline) – A new law that gives Lake Erie legal rights that are normally reserved for humans is expected to have a difficult time surviving appeals, but that’s little comfort to Ohio’s farmers right now.

“We believe that eventually, this is going to be found unconstitutional,” Joe Cornely, senior spokesman for the Ohio Farm Bureau, told Legal Newsline

He added, “The potential risk is immense. Minimally, it could be extremely expensive, and to the extreme, it could do serious damage to Ohio’s largest industry.”

Joe Cornely | Ohio Farm Bureau

Environmentalists, however, say it's time for nature to have legal rights. Tish O'Dell, an Ohio representative for Community Environmental Legal Defense Fund, which backed the measure, said regulatory agencies and their regulations have failed to protect the lake, so laws have to be changed.

"Part of this is changing our culture," O'Dell told Legal Newsline. "If we go back, slaves didn't have rights, they were property, so the slave couldn't go and say 'my rights are being violated' because they weren't recognized. Or a woman, before their rights were recognized by the courts, they couldn't go into the courts and get redress because they weren't recognized as having any rights."

She added, "Nature is just viewed as property right now to be exploited for profit. If we go back to our laws and how our laws are made, I think all of us in our country have a very good understanding now, most of us, that many of our laws are written by big corporate entities, corporate industries, handed to our legislators, and they kind of just pass them."

Lake Erie Bill of Rights

Last month, voters in Toledo, Ohio, passed a referendum that created the Lake Erie Bill of Rights. The measure, backed by environmental activists, states that Lake Erie a legal right “to exist, flourish and naturally evolve.”

Generally speaking, lakes and trees and other objects of nature do not have “legal standing,” meaning individuals cannot sue to protect their “rights.” But under the Lake Erie Bill of Rights, the city of Toledo or any Toledo resident could sue any person or entity that violates the lake’s rights. The person bringing the suit presumably would not have to prove that he or she was harmed, but rather that the lake’s rights were violated.

Evin Bachelor, a lawyer and law fellow at Ohio State University who specializes in agricultural law and natural resources law, told Legal Newsline the measure has a tough appellate hurdle to overcome. He said the measure seems to conflict with current law on the matter.

“It looks like it would not necessarily stand up in court,” Bachelor said.

The full effect of the measure is yet to shake out. Until now, Bachelor said, the entities that primarily have legal standing to bring litigation or enforcement involving the lake would be the state of Ohio or its Department of Natural Resources.

“This purports to give the residents themselves the ability to sue on behalf of Lake Erie,” Bachelor said. “This is trying to say that the residents of Toledo can sue, basically, as the voice of Lake Erie. Not just for themselves, but for Lake Erie.”

He added, “This is trying to say that Toledo residents themselves can start doing it, whereas before this, pretty much the only entity with standing would be the state of Ohio.”

Ignazio Messina, communications director for Toledo, told Legal Newsline the city is not making any statements on the issue because of a lawsuit that has been filed. However, some city officials themselves have questioned whether the law can withstand an appeal.

One City Council member, Nick Komives, has said he supports having a clean Lake Erie, but opposed the ballot measure because defending the law in court could cripple the city's finances.

"I think everybody is frustrated," Komives told the New York Times. "The initiative is a powerful tactic. And for me, coming from an activist background, it is important to send messages. But this is probably unconstitutional.”

In 2014, about 500,000 people who are served by Toledo's water system were without drinking water for three days because of an algae bloom in Lake Erie. Farmers have been a target for blame; environmental activists say nutrient runoff from fertilizers and manure are polluting the lake.

Farm impact

Cornely, the Farm Bureau representative, said farmers are aware of the problem and are working to solve it.

"We agree that something needs to be done to fix the lake, but we believe the solution is not in the ballot box or at the courthouse. The solutions are in the laboratory and on the farm, and doing the hard work of science and research," Cornely said.

Among U.S. states, Ohio is ranked as the 13th-largest producer of agricultural products.

"Ohio farmers take this very seriously. We’re often portrayed as just worried about the bottom line and not our environment, but there couldn't be anything further from the truth," Cornely said. "Farmers are very keenly tuned in to the fact that they have a role in helping clean up Lake Erie. I think the argument could easily be made that no one has done more. I don't know of any individuals or any sectors that have spent the same kind of time and energy and money to try to figure this out."

Cornely said farmers and farm groups have spent millions of dollars researching ways to reduce runoff of nutrients - even experimenting with ways to use GPS to pinpoint areas to fertilize or not fertilize.

As for manure, Cornely said if farmers aren't allowed to apply it to their fields as a fertilizer, Ohio farmers would essentially have to stop producing any type of livestock. He said there's no other practical other way to deal with manure.

"The truth is, when it's managed properly, it's an extremely valuable and environmentally sustainable way to fertilize your fields," Cornely said. He said if the spreading of manure were outlawed, the country could lose about 70 percent of its crop yield.

"I'm sure you've seen the statistics that we've got to feed 50 million more people between now and the next 35 years. Can we afford to lose 70 percent of our yield? Um, no," Cornely said.

He added: "If we stopped applying manure, then we would have to stop production of beef, pork, poultry, dairy products - all animal proteins. If you can't make use of the manure, then you can't continue to feed the animals."

Cornely said one problem with Toledo's law is that it appears to give the city and its residents the right to invalidate nutrient-application permits issued by state and federal regulatory agencies.

"So they're overriding the permitting and licensing process of state and federal agencies," Cornely said. That, in turn, creates chaos and uncertainty for farmers, according to Cornely.

Rather than being subject to a hodgepodge of lawsuits that would dictate agricultural practices, farmers would prefer having a consistent set of rules that are set by experts at regulatory agencies.

Ellen Essman, another lawyer and law fellow who specializes in agricultural law at Ohio State University, noted that Ohio already has regulations on when and how fertilizers can be used, and when and how manure can be spread. For example, in the Lake Erie area, manure cannot be spread when the ground is frozen or when snow is on the ground, or when the ground is saturated.

"It's not like nothing is being done," Essman told Legal Newsline. "Farmers are doing something to avoid runoff."

Her OSU colleague, Bachelor, said the university has been looking at what other states are doing to address the runoff and water-quality issue.

"When we look at that, really, Ohio is fairly ahead of the ballgame," Bachelor said.

Ohio, according to Essman, "has been proactive about it."

She added: "Farmers wouldn't use these things if they didn't need to, they wouldn't spend money on them. The nutrients are essential to the crops, especially nitrogen," Essman said. "Farmers aren't just putting it on there because they can. There is a reason for it."

O'Dell, the environmental activist, said she's talked with a lot of farmers "and they all say that there's a better way to practice farming."

O'Dell, when asked if she'd prefer that farmers be completely prohibited from using fertilizers or spreading manure, said: "I think there is a different way of farming. Right now, it's always about profits, the bottom line, and how do you get the most profit in the quickest way, because they're looking for a return for investors."

Challenge mounted

The day after voters approved the measure, a Wood County farm filed suit in federal court challenging the constitutionality of the Lake Erie Bill of Rights, also known as LEBOR.

Fifth-generation farmers Mark and Melody Drewes, along with their son Tyler Drewes, filed the suit as owners of Drewes Farms in the U.S. District Court for the Northern District of Ohio Western Division on Feb. 27.

The suit states that the potential liability to a family farm is "enormous" because a lawsuit filed under LEBOR "could bankrupt any farm, as LEBOR imposes the maximum daily fine allowable under state law per day, purports to impose damages equal to restoring the Lake Erie ecosystem without providing any standards for determining those damages, and would require a defendant to pay all costs of LEBOR litigation."

The suit also argues that "the terms 'exist,' 'flourish' and 'naturally evolve' are undefined" in the Lake Erie Bill of Rights, and that it "provides no standards for determining what activity would violate these undefined rights."

The Drewes family is represented by the Vorys, Sater, Seymour and Pease law firm. A spokeswoman for the firm said it was not making its attorneys available for interviews about the case.

Bachelor, the Ohio State law fellow, said state and federal officials are surely monitoring the case, and might eventually join in challenging the constitutionality of LEBOR. Bachelor said the Lake Erie Bill of Rights could be seen as infringing on the rights of the state of Ohio and the federal government. The lake has traditionally been under the control of the state and the federal government, he said.

"I think what this Bill of Rights is doing, seems to be taking some of the rights that the state would otherwise have -- especially the Department of Natural Resources -- and the state being able to protect Lake Erie," Bachelor said. "I kind of view this as like, if I own a house with some land around it, basically what this is doing is giving someone else, like my neighbor, a right to try to enforce harm against my own property."

Non-human rights?

Since the early 2000s, there has been a growing number of attempts to give human-type rights to elements of nature, such as forests and rivers. Most of those have been overseas. In Minnesota, however, a band of Native Americans passed a law that gave wild rice the enforceable right to “flourish, regenerate and evolve."

Wesley J. Smith, a lawyer and author whose latest book is "The War On Humans," told Legal Newsline that granting human-type rights to non-humans serves to cheapen the rights of humans.

"If everything has rights, what happens to the concept of rights themselves?" Smith said.

Smith said the idea of rights-of-nature laws is to give humans a status of being just another animal in the forest.

"Their idea behind that is, if we see ourselves as just another animal in the forest -- a co-equal species with everything else -- we'll tread more gently on the land and be more responsible. I think the opposite is true: If we see ourselves as an animal in the forest, that's how we'll act."

The environmentalists' theory, Smith said, contradicts the historical view that humans are an exceptional species, "the only species that has duties, including to the environment."

Smith said there are parallel pushes across the country to give human-type rights to all kinds of animals - the latest being an elephant at the Bronx Zoo - as well as robots.

"It's hard to take it seriously," Smith said. "If you start to believe that human beings don't have uniqueness in this world, which is self-evident, then you begin to go a little crazy, and you start to eat your tail."

O'Dell, the environmental activist, said giving rights to entities other than individual humans is not new.

"Well, corporations have all kinds of rights. That’s an inanimate object," O'Dell said. "That's actually part of the problem: Corporations have more rights than the people actually living in the community."

O'Dell said citizens are deciding that the existing system of laws isn't working.

"I think there's a cultural shift that we're all part of. We can't keep consuming and destroying and polluting as much as we are and expect to have nature continue to provide for us," she said.

O'Dell said pollution is merely regulated, not prohibited, under the current system.

"That's different from stopping it," she said.

Lawsuits shouldn't be a heightened fear for farmers and developers under the Lake Erie Bill of Rights, according to O'Dell.

"If you're not doing anything harmful, that shouldn't be a concern," she said.

The vote

According to the Toledo Blade, only about 9% of the city's registered voters cast ballots in the election. It was a special election, with no candidates for public offices on the ballot. The only other item on the ballot was a referendum about the location of a jail.

O'Dell said the three-day water ban in 2014 was a turning point for Toledo residents.

"These people have lived through it, they've had that three days of absolutely no water," O'Dell said. "They know what it's like and have that memory, and they're like, 'We've got to make a shift, something's got to give here.'"

The measure passed with about 61 percent of voters in favor. Critics suspect that environmentalists were able to get the measure passed by flooding the polling places in a low-turnout election.

Smith said, "What you really had was people pretty far out on the spectrum, looking at this and wanting it, and everybody else not taking this seriously and not showing up to vote -- I hope."

Smith isn't confident that the Lake Erie Bill of Rights will be overturned. He said the rights-of-nature movement is still in infancy, and should be cause for concern.

"These people are deadly serious about this, and they're going to use it to effectuate their ideological goals," he said. "I'm worried it's going to end up in the Democratic Party platform, to be honest with you."

There were 16,078 votes cast in the election: 9,867 in favor and 6,211 in opposition. Toledo has about 275,000 residents, according to the Census Bureau.

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Organizations in this Story

Ohio Department of Natural Resources Ohio Farm Bureau The New York Times

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