Lake Erie may get right to sue

By Ken McEntee

Lake Erie will become the first body of water to gain the right to sue polluters if a ballot issue passes this month in Toledo, Ohio. The ballot initiative, to be voted on by Toledo residents in a special election on February 26, would enact the Lake Erie Bill of Rights (LEBOR), which would allow any city resident to file suit, on behalf of the lake and its watershed, against any farm, business or government entity anywhere in the watershed, which includes 35 counties in Northern Ohio.

“There have been attempts elsewhere to pursue what’s called the rights of nature which, in essence, is to give legal standing to inanimate objects such as lakes or rivers or forests,” said Joe Cornely Sr., director of corporate communications for the Ohio Farm Bureau. “There has never been a court in Ohio that has held that an inanimate object should have legal standing in court.”

Farms are the primary target of the initiative.

In 2014, phosphorus runoff from Northwest Ohio farms fed algal blooms on Lake Erie that left Toledo residents without public drinking water for several days. The crisis led to new state rules regulating manure and fertilizer application, but some say the rules aren’t strict enough.

Although farms are the primary target of environmental groups who have spearheaded the LEBOR initiative, Cornely said compost manufacturers, wastewater treatment plants and any other business or public agency that spills pollutants into the watershed are equally vulnerable to be sued by the lake.

“If this passes, anybody can be sued,” he said. “The first time something trickles off one of your reader’s compost piles, that nice big concrete pad they put down to protect the environment doesn’t matter. If it trickles off of there you’re liable to be sued.”

Under LEBOR, the watershed includes soil.

Although LEBOR doesn’t exempt any business, farm or public agency from the possibility of being sued, Crystal Jankowski, a volunteer with Toledoans for Safe Water, which organized the initiative, said composters and family farms are not targets.

“I am a composter myself and most of us in the group met at an urban agriculture meeting,” Jankowski said. “So most of us are already into inner city gardening and stuff like that.”

She said the targets of the initiative are large farming operations whose deep pockets allow them to pay fines and continue to violate regulations.

“The people who are worried the most about this vote are the ones who can drop a half million dollars on a dumping fine,” Jankowski said. “The small mom and pop farmers are some of our best supporters. They’re the ones who are affected when the large companies don’t follow the rules and cause stricter and more expensive regulations that small farmers can’t afford.”

Legally, if passed by voters this month, LEBOR would become a part of Toledo’s city charter. It provides that governments and corporations engaged in activities that violate the rights of the Lake Erie Ecosystem, in or from any jurisdiction, shall be strictly liable for all harms and rights violations resulting from those activities.

The document establishes “irrevocable rights for the Lake Erie ecosystem to exist, flourish and naturally evolve, a right to a healthy environment for the residents of Toledo and elevates the rights of the community and its natural environment over powers claimed by certain corporations.”

The Lake Erie ecosystem includes all natural water features, communities of organisms and soil as well as terrestrial and aquatic sub ecosystems that are part of Lake Erie and its watershed.

LEBOR makes it unlawful for any corporation or government to violate the rights of the watershed, and declares that permits, licenses, privileges, charters or other authorization issued to a corporation, by any state or federal entity, that would violate the prohibitions of LEBOR are be deemed invalid within the city of Toledo.

“Any corporation or government that violates any provision of this law shall be guilty of an offense and, upon conviction thereof, shall be sentenced to pay the maximum fine allowable under state law for that violation,” LEBOR says. “The city of Toledo, or any resident of the city, may enforce the rights and prohibitions of this law through an action brought in the Lucas County Court of Common Pleas, General Division. In such an action, the city of Toledo or the resident shall be entitled to recover all costs of litigation, including, without limitation, witness and attorney fees.”

Cornely predicted that if the ballot measure passes, at least one lawsuit against somebody will follow almost immediately. He noted three provisions of LEBOR that would likely be ruled unconstitutional in court.

“It clearly is unconstitutional,” he said. “The problem is that the court cannot find it unconstitutional until there is a lawsuit enacted. A business can feel assured to know it is going to win eventually, but ‘eventually’ takes a lot of time and money.”

One of the three provision that Cornely believes is unconstitutional relates to the ability of Toledo’s city charter to file a lawsuit against an entity outside the city’s boundaries (“activities that violate the rights of the Lake Erie Ecosystem, in or from any jurisdiction”).

“This would allow any Toledo resident to bring a lawsuit against any business or farm or government in 35 counties across the state,” Cornely said. “So we’re looking at 5 million people and more than 420,000 businesses in that region that would be susceptible to a lawsuit from a Toledo resident. A city cannot write rules and regulations that apply outside of its boundaries.”

The other two unconstitutional provisions, Cornely believes, are that, “a city can not create a new type of felony. That is not within the purview of a city government. This does that. And no city can void a permit or license granted by the federal government, yet this ballot measure would allow that to happen. For example, a lawsuit could make wastewater discharge permits invalid.”

He noted that the city of Toledo itself could be sued for any violations at its wastewater treatment plant.

Cornely said the Farm Bureau is encouraging members to be sure their farms are designated as agricultural districts, which, in Ohio, protect farmers against nuisance lawsuits. But he is unclear as to whether that protection would apply to a lawsuit under LEBOR.

“It will probably require yet another court case to determine that,” he said.

Proponents of LEBOR tried to put the measure on the November general election ballot. The Lucas County Board of Elections refused, and the Ohio Supreme Court backed the elections board following a lawsuit. Proponents then asked the Toledo City Council to put it on the ballot in the special February election. After a protest on “home rule” grounds, the Ohio Supreme Court ruled that the city had to place the measure on the ballot.

Toledoans for Safe Water was formed following the 2014 algae bloom. The group worked with the Community Environmental Legal Defense Fund (CELDF) for assistance in drafting LEBOR. CELDF says its mission is to build sustainable communities by assisting people to assert their right to local self-government and the rights of nature.

Agenda21 Course, an organization that focuses on personal and property rights, opposes LEBOR, calling it “eco-terrorism.”

“The voters in Toledo, Ohio are deciding for the other 35 counties whether they will have to live with the many negative ramifications of LEBOR and yet these counties had no say,” according to the organization’s website.

Although LEBOR contains no restrictions about which businesses, farms or government agencies within the watershed can be sued by the lake, Jankowski denied that a Toledo resident could sue somebody outside the city’s boundary on behalf of the lake, unless there was specific environmental damage within Toledo.

“We are not controlling outside our borders,” she said. “That is the biggest misconception. If somebody dumps in Cleveland or Detroit, somebody in Toledo couldn’t sue them unless it literally travels to our jurisdiction. When Detroit has extreme rainfall and overflow you can actually see on satellite when their sewage system overflows and you can see it coming down to Toledo. So this is about Toledo’s jurisdiction only.”

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