Three Toledoans who said they worked on the campaign to pass the Lake Erie Bill of Rights took action in Lucas County Common Pleas court that they believe could help it from being invalidated.
Michael Ferner, of Point Place; Bryan Twitchell, of West Toledo, and John Michael Durback, also of West Toledo, said in a complaint that the citizens of Toledo deserve a court order that affirms the validity of the ballot initiative, which calls for Lake Erie to be recognized as an ecosystem with rights to exist and flourish without threat of being degraded by pollution.
The target of the complaint is the state of Ohio and its attorney general, Dave Yost, who have signed on to a lawsuit filed on behalf of the agricultural community immediately after 61 percent of the voters participating in a Feb. 26 special election passed the Lake Erie Bill of Rights.
The complaint also alludes to a separate case in federal court in which Mr. Ferner’s group, Advocates for a Clean Lake Erie, is a party to a lawsuit brought against the U.S. Environmental Protection Agency by the Midwestern-based Environmental Law & Policy Center.
That case pertains to a cleanup strategy which the federal government and the state of Ohio have described as heavy-handed. The jurist overseeing it, Senior U.S. District Judge James Carr, has said in open court and in filings that it’s obvious to him the state has not done enough to stop algae-forming phosphorus and other common farm nutrients from getting into western Lake Erie and its tributaries. The judge, though, convinced the ELPC to drop its initial complaint because of a procedural issue. The U.S. Department of Justice recently filed a motion to have the refiled case dismissed.
The newly filed complaint from the three Toledo activists comes in the aftermath of those suits, as well as a budget bill now pending in the Ohio General Assembly which contains a provision which could nullify the Lake Erie Bill of Rights.
The complaint said it’s important to get on the record that the measure is legally binding.
“The Lake Erie Bill of Rights is enforceable against governments violating the right of the people of Toledo to a clean and healthy environment and, also, violators of the Great Lake Erie’s rights to exist, flourish, and naturally evolve,” it states in one section.
In another, it adds this: “The people of Toledo passed LEBOR based on the belief that existing laws ostensibly enacted to protect them, and to foster their health, prosperity, and fundamental rights do neither; and that the very air, land and water — on which our lives and happiness depend — are threatened.”
The referendum that voters approved in February calls for an amendment to Toledo’s city charter to declare the Lake Erie watershed has legal rights to “exist and flourish” and gives the world’s 11th largest body of fresh water rights as an ecosystem that citizens may be legally entitled to defend.
The controversy over it centers around how broadly that could be applied.
In an email forwarded by a staffer Thursday night, Mr. Yost called the filing a “junk lawsuit.”
He also continued to defend the cornerstone of Gov. Mike DeWine’s announced plans for addressing Lake Erie pollution - a new program called H2Ohio, which the administration describes as a trust fund that could possibly generate as much as $100 million a year for improving the lake and other Ohio waterways. It is now before the Ohio General Assembly.
“Just as pain is the body’s way of signaling that something is wrong, junk lawsuits are sometimes warning signs for the civic body,” Mr. Yost said. “Lake Erie needs to be protected, and the people of Toledo have made their voices heard. This lawsuit is unlikely to succeed on its merits, for a long list of robust legal reasons. Gov. DeWine has proposed meaningful action to protect Lake Erie and the General Assembly ought to act on it.”
The Lake Erie Bill of Rights is part of a “rights of nature” movement gaining popularity across the United States and in some other countries. The United Nations had several people involved in the local campaign speak at an event at its headquarters this past Earth Day.
First Published June 27, 2019, 3:38 p.m.
