Environment & Energy Report

Can Lake Erie Sue You? Activists Defend Legal Theory Saying Yes

March 19, 2019, 9:01 PM

Lake Erie deserves its day in court.

That’s what activists seeking to preserve the Great Lake’s right to sue say.

Environmentalists moved March 18 to intervene on behalf of the lake’s ecosystem in a northern Ohio farmer’s lawsuit challenging the Lake Erie Bill of Rights. That novel charter provision gives residents of Toledo, Ohio, the right to sue any business or government entity they contend is harming the waterbody.

The groups said in their motion that Toledo, Ohio, doesn’t support the bill of rights, so they need to step in and give the lake its own voice in court.

One of the groups, Toledoans for Safe Water Inc., the organization behind the charter amendment, claim that Lake Erie should be granted special standing to sue polluters, much like ecosystems have the right to do in Bolivia, Ecuador, New Zealand, Brazil, Columbia, and India.

U.S. courts have been less friendly to this “community rights” theory, rejecting cases in Ohio, Pennsylvania, and Colorado, according to a recent legal analysis of the movement.

Toledoans for Safe Water and Lake Erie Ecosystem filed their motion shortly after the U.S. District Court for the Northern District of Ohio temporarily blocked the bill of rights.

City Agrees to Injunction

Instead of opposing Drewes Farm’s request to temporarily block enforcement of the Lake Erie Bill of Rights, the city agreed to support it, joining with the farm in a joint order March 18 suspending enforcement until the judge rules on a permanent injunction.

The environmental groups filed their motion only hours later. Community Environmental Legal Defense Fund Ohio organizaer Tish O’Dell told Bloomberg Environment in a March 19 email that activists had to step in because the city’s litigation posture suggested an adversarial stance to the Lake Erie Bill of Rights.

“The people are the ones who brought this legislation forward, had to fight every step of the way to even get to vote on it, passed it, and now have to fight to be part of defending it,” O’Dell said. “Would anyone want to go into a court case with a lawyer who didn’t really believe in him/her or his/her rights?”

Better Luck Overseas

The Ohio EPA has repeatedly said that farming operations outside Toledo are largely responsible for phosphorus runoff that contributes to Lake Erie’s annual algal blooms and endangers drinking water for about 3 million Ohioans.

The Ohio Farm Bureau, which has long fought against the bill of rights out of fear that it would impose court costs on farmers, said the groups’ intervention will only delay the inevitable.

“Since the lake is now a party to this discussion, it probably is going to slow things down rather than speed them up,” Joe Cornely, spokesperson for the Ohio Farm Bureau told Bloomberg Environment March 19.

O’Dell said that the activists were not optimistic that the court would recognize the rights of nature, adding that the fight was still important, and the movement is growing.

“A shift to the legal system and a cultural paradigm shift does not happen with one law or one lawsuit,” O’Dell said.

The case is Drewes Farm P’ship v. Toledo, N.D. Ohio, No. 3:19-cv-434, Motion to intervene 3/18/19

To contact the reporter on this story: Alex Ebert in Columbus, Ohio at aebert@bloomberglaw.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Susan Bruninga at sbruninga@bloombergenvironment.com; Rob Tricchinelli at rtricchinelli@bloombergenvironment.com

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