In his first statement since a federal judge killed the Lake Erie Bill of Rights on Thursday night, Ohio Attorney General Dave Yost said he remains determined to restore the lake’s health — but wants to do so legally.
“Let’s save Lake Erie — but do it legally,” Mr. Yost said Friday in response to U.S. District Court Judge Jack Zouhary’s eight-page ruling. “As Judge Zouhary said, the Lake Erie Bill of Rights is a ‘textbook example of what municipal government cannot do.’”
In his ruling, Judge Zouhary said the voter-approved Lake Erie Bill of Rights, known as LEBOR, was “unconstitutionally vague and exceeds the power of municipal government in Ohio.”
The judge’s decision and Mr. Yost’s reaction to it infuriated LEBOR advocates such as Tish O’Dell, Ohio community organizer for the national Community Environmental Legal Defense Fund. The group has been involved in numerous other “rights of nature” efforts in states such as Hawaii, Florida, and the state of Washington. The common denominator in each location is that communities have grown increasingly frustrated waiting for results from traditional strategies intended to improve environmental conditions, which never seem to materialize.
“LEBOR made history, inspired other rights of nature laws, shifted cultural perceptions, expanded the realm of future possibilities, and advanced a critically important conversation about how we might democratically implement and enforce a system of government that elevates humans and ecosystems about profit,” she said in a prepared statement. “No judge can take that away.”
Ms. O’Dell told The Blade she was particularly galled that Mr. Yost would say he wants to save Lake Erie ‘legally,’ given the number of additional permits the state of Ohio has issued to large livestock facilities for setting up more concentrated animal feeding operations, or CAFOs, in the western Lake Erie watershed. CAFOs are suspected to be a major source of pollution that contributes to western Lake Erie’s annual algae blooms.
The citizen-led referendum asserted that Lake Erie had the right to be free of pollution as an ecosystem. It grew out of frustration over a lack of progress in stopping algae-forming manure and other farm fertilizers from fouling Lake Erie, the world’s 11th largest lake.
Recurrent algal blooms have formed almost annually since the summer of 1995, the high-profile crescendo being the 2014 Toledo water crisis that poisoned the city’s tap water for nearly three days and prompted relief from the Ohio National Guard.
The lawsuit to stop LEBOR was brought by Drewes Farms Partnership, a group of farms based about 40 miles southwest of Toledo in Wood County, near Custar, Ohio.
It was filed on the morning of Feb. 27, 2019, literally hours after Toledo voters approved LEBOR by a 61-39 percent margin at a special election on Feb. 26, 2019. About 9 percent of the city’s registered voters cast their ballots.
The judge later allowed the state to become a co-plaintiff in that suit, but would not allow the group behind the referendum, Toledoans for Safe Water, to be a co-defendant. The lawsuit targeted the city of Toledo because the Lake Erie Bill of Rights became part of the city charter once voters approved it.
Toledoans for Safe Water also gave a written response on Friday to Judge Zouhary’s order, stating the group believes the judge has “joined a long list of enablers complicit in the destruction of the natural world.”
“In an unfortunate but predictable decision, he invalidated the democratically enacted Lake Erie Bill of Rights,” the group said. “This local charter amendment was the first of its kind in the United States.”
Bryan Twitchell, a Toledoans for Safe Water organizer, said it is “insulting for Zouhary to claim that the state has suffered such an artificial injury when 500,000 individuals endured three days without access to clean and safe drinking water,” a reference to the fallout from Toledo’s 2014 water crisis.
“That pain was real, not just on paper, and will live with the people of Toledo forever,” Mr. Twitchell said.
In his ruling, Judge Zouhary recognized how frustrated many people have become about the lingering algae problem. But he said LEBOR’s authors “ignored basic legal principles and constitutional limitations, and its invalidation should come as no surprise.”
“This is not a close call,” he wrote.
Lou Tosi, a longtime attorney from Toledo who has represented industry in the past and argued against LEBOR during a debate inside the University of Toledo College of Law’s auditorium last November, told The Blade he believes Judge Zouhary made the right call. Mr. Tosi said the ruling was “short, sweet, and to the point,” and that he believed there were multiple other reasons the judge could have rejected LEBOR.
He reiterated a statement he made at the UT debate, when he said LEBOR read more like “poetry” than a binding law.
“It’s really more of an aspiration,” Mr. Tosi said.
Though a unique document unto itself, LEBOR is modeled after “rights to nature” laws promoted by the Community Environmental Legal Defense Fund in at least 10 states and in Nepal, India, Cameroon, Colombia, and Australia, among other countries.
Several parts of Florida have shown a keen interest because of what’s been going on in Lake Erie. Ms. O’Dell and Ms. Miller have been down there speaking to various groups in recent months.
Closer to home, the Williams County Alliance was thinking about gathering petitions for vote on a county charter this fall that would have established rights for the Michindoh Aquifer which sits below nine counties in Michigan, Indiana, and Ohio. A judge brought that effort to a halt last year, but activists there are still thinking about reshaping it for a future vote.
“This year is a holding pattern. We were trying to see what was happening with the Lake Erie Bill of Rights first,” Sherry Fleming, Williams County Alliance chairman, said.
She and others see Judge Zouhary’s ruling as a setback for the “rights of nature” movement, but not the death knell of it.
LEBOR has at least accomplished its goal of galvanizing people and getting them to think more creatively about environmental protection, Ms. Fleming said.
“It’s like letting the genie out of the bottle,” she said. “The seeds are there. It’s just going to take time for it to develop and grow.”
Ms. Fleming said the future of water in many parts of the world has “touched something deep in people.”
“We don’t have answers yet, but we’re not giving up,” she said.
Another Toledoans for Safe Water organizer, Markie Miller, who was asked by the United Nations to speak about LEBOR in New York during last year’s Earth Day, echoed that sentiment.
“As long as there is a Lake Erie to protect, we won’t be going anywhere,” she said.
Also Friday, three Toledo residents — Mr. Twitchell, Mike Ferner and John Michael Durback — appealed Lucas County Common Pleas Judge Michael R. Goulding's dismissal of a case they had filed last June in support of LEBOR. The trio had asked for the court's help to enforce LEBOR. Judge Goulding granted the state of Ohio's motion to dismiss that case on Jan. 20.
First Published February 28, 2020, 6:43 p.m.
