The latest showdown over the ever-controversial Lake Erie Bill of Rights has an added twist: Would a federal judge actually invalidate a citizen-led initiative that passed at a special city election and, if so, what might that mean to the home-rule concept in general?
And could such decisions — whether they involve Lake Erie or not — be interpreted as power grabs by the state of Ohio, whether they happen in Toledo or somewhere else? In other words, when municipalities pass laws that Columbus doesn’t like, does Columbus have the right to butt in?
There’s another dynamic that hasn’t gotten much attention, either.
Hours after Toledo voters approved the Lake Erie Bill of Rights last Feb. 26 — literally the next morning — a Custar, Ohio-based agricultural corporation called Drewes Farms sued the city of Toledo in U.S. District Court. It claimed the Lake Erie Bill of Rights is unconstitutional and, therefore, the city cannot amend its charter to recognize it.
But can it do that? Can a corporation 40 miles away in southwest Wood County tell Toledo what can and cannot be printed in the city’s own charter?
Drewes Farms asserted that right, contending in its complaint that it has reason to believe LEBOR could drive up costs or even devastate its farming operation. The Ohio Farm Bureau Federation has lent its support, claiming there are industry-wide ramifications for northwest Ohio agriculture if the measure stands and is strictly enforced, as environmentalists behind the measure wish.
Eventually, the state of Ohio joined in and was recognized by Judge Jack Zouhary as a second plaintiff in the case. But the judge would not allow LEBOR’s authors — members of the activist group Toledoans for Safe Water — to serve as co-defendants with the city.
That’s always been a hard pill to swallow for the group’s chief organizer, Markie Miller. The judge issued that decision, ironically, barely two weeks after she and other Toledoans for Safe Water members returned from New York after being invited by the United Nations to give a special Earth Day presentation April 22.
“LEBOR and community rights have always been about giving a voice to the community,” Ms. Miller said Friday. “To be literally shut out is really frustrating.”
She said it has the patronizing feel of being told to “wait and be patient while the adults have a discussion.”
So while both sides have prepared for weeks for what appears to be a pivotal hearing Tuesday morning before Judge Zouhary, nobody seems entirely clear on what to expect from him.
The hearing, open to the public, is scheduled to start at 10 a.m. in Courtroom 209 in the federal courthouse at 1716 Spielbusch Ave.
“The city will continue to defend these Charter sections as approved last year by the voters,” City Attorney Dale Emch told The Blade on Friday. “We will not comment specifically about the litigation while it is pending.”
None of the attorneys representing Drewes Farm or the state of Ohio responded to requests for interviews.
In what will likely be the final case filing before the hearing, Judge Zouhary laid out in writing eight legal questions he wants lawyers from both sides to be prepared to answer in court.
They include such questions as to whether they believe LEBOR could be applied to polluters located outside of Toledo; whether the state of Ohio meets the “injury-in-fact” requirement for standing; whether or not the case could proceed if the state has standing but Drewes Farm does not, and other legal matters.
One of his questions for attorneys poses this: “LEBOR became part of Toledo’s charter through ballot initiative, not legislative enactment. Does this circumstance affect standing or the merits?”
Ms. Miller described Tuesday’s hearing as “a big moment” in her group’s struggle to get Lake Erie recognized as an ecosystem worthy of rights, a concept it had trouble getting past the Lucas County Board of Elections and Toledo City Council for last year’s special election but ultimately prevailed in getting onto that ballot.
“The very essence of community rights is being attacked,” she said. “It’s hard not feeling very anxious about what’s going to happen.”
The idea that a federal judge could invalidate the wishes of a majority of voters at a special election on any issue “should outrage people,” Ms. Miller said, but that subtext is overshadowed by focus on the main issue of whether ecosystems like Lake Erie’s warrant rights.
“This could happen to anything you support or believe in,” she said. “Values evolve and change. Our legal system has to change.”
LEBOR is but one chapter of an international “rights of nature” movement that has become more popular, with varying degrees of success, in recent years.
Such laws have been promoted by the Pennsylvania-based Community Environmental Legal Defense Fund in at least 10 states and the nations of Nepal, India, Cameroon, Colombia, and Australia.
Adam Sharp, the Ohio Farm Bureau Federation executive vice president, predicted after the LEBOR vote that “Ohio farmers, taxpayers, and businesses now face the prospect of costly legal bills fighting over a measure that likely will be found unconstitutional and unenforceable.
Some of the staunchest opposition came from the Toledo Regional Chamber of Commerce and an 11th-hour ballot committee called the Toledo Jobs and Growth Coalition, the latter of which ran an anti-LEBOR advertising campaign on nine Toledo-area radio stations.
It later was learned that corporate lobbying campaign was bankrolled by Houston-based BP Corp. North America Inc., whose $302,000 wire transfer on Feb. 12 accounted for nearly all of the anti-LEBOR war chest.
Those supporting LEBOR included a group of Catholic priests.
The Toledo Social Justice Subcommittee of the Association of U.S. Catholic Priests said days before the election it liked the initiative because it promotes the “right to a healthy environment for the residents of Toledo.”
On Thursday, Toledoans for Safe Water said it has a letter of support signed by more than 500 individuals and organizations, both locally and from such distant locales as Canada, Australia, Sweden, Italy, France and England.
Among the various groups are First Nations, environmentalists, the Vermont National Lawyers Guild, Great Lake Commons, We the People of Michigan, Greenpeace USA, Physicians for Social Responsibility Pennsylvania, and various nurses, librarians, spiritual leaders, biologists, business owners, politicians, rights-of-nature activists, and others.
LEBOR has become an international story — and not just because of traditional media outlets.
It was the subject of a 2019 comedy sketch on The Daily Show with Trevor Noah. But perhaps its biggest claim to fame was its inclusion as a question during a 2019 episode of the Jeopardy! quiz show, according to a presentation Terry Lodge made Nov. 8 at the University of Toledo College of Law. Mr. Lodge is a Toledo lawyer who would have represented Toledoans for Safe Water in the pending lawsuit if the activist group had been allowed by Judge Zouhary to serve as a co-defendant.
First Published January 26, 2020, 1:20 a.m.
