Litigation Watch: The Lake Erie Bill of Rights

You may have heard of the Lake Erie Bill of Rights (“LEBOR”), an amendment to Toledo, Ohio’s City Charter that was passed in February 2019. But what is LEBOR? LEBOR is the latest effort within the United States to develop “rights of nature” laws, which declare that ecosystems like Lake Erie have their own fundamental rights. Relying on Ohio’s Constitution, LEBOR attempts to declare an immediate emergency within Lake Erie’s ecosystem based largely on Toledo’s concern for its drinking water, which comes from Lake Erie. You may remember that in 2014 the water supply to Toledo had to be shut down due to toxic algae blooms in Lake Erie caused by water pollution.

LEBOR was intended to permit Toledo, its residents, or Lake Erie itself to enforce the lake’s proclaimed right to exist, flourish, and remain a clean water source through lawsuits and refusing to acknowledge state or federal permits issued to any corporation that would infringe on Lake Erie’s rights. Its primary targets: farms, dairies, and industries with run-off or discharges to Lake Erie, even though these discharges are already regulated by state and federal laws.

LEBOR is not the first attempt to have the rights of nature recognized in the United States. In 1972, the United States Supreme Court considered whether nature or natural features should have rights, and correspondingly legal standing to enforce those rights, in Sierra Club v Morton.¹ The United States Supreme Court held that environmental objects did not have legal standing to sue for their own preservation. Justice William O. Douglass penned the lone dissent, stating that “[c]ontemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation.”²

The day after LEBOR was approved by Toledo voters, an Ohio farm filed a federal lawsuit against Toledo. The State of Ohio joined the lawsuit alongside the farm, challenging LEBOR as both unconstitutional and preempted by state and federal law. Interestingly, a motion was filed by parties aligned with Toledo to permit the Lake Erie Ecosystem itself to participate in the lawsuit. The federal judged denied the motion, holding that Lake Erie lacked capacity to sue because the “rights of nature” legal concept is not recognized in the United States.

While the lawsuit is still ongoing, a preliminary injunction was issued stopping Toledo from formally adopting LEBOR as part of its City Charter and forbidding any enforcement actions or lawsuits pursuant to LEBOR until the case is decided. A motion to dismiss the lawsuit has been filed and should be heard in the coming months. In the meantime, other Toledo citizens have also filed a lawsuit against the State of Ohio requesting that LEBOR be found enforceable due to Ohio’s alleged failure to address pollution in Lake Erie.

While LEBOR will likely be struck down, these cases are worth keeping an eye on. Water quality concerns in Lake Erie will remain a hot topic in both Michigan and Ohio, and how to address Lake Erie’s pollution and algae blooms may affect Michigan agri-businesses in the future.

If you have further questions about this case and how it may affect the Ag industry, please contact Allison Collins at (517) 371-8124 or at acollins@fosterswift.com.

¹ Sierra Club v Morton, 405 U.S. 727; 92 S. Ct. 727; 31 L. Ed. 2d 636 (1972)
² Id. at 741-42 (Douglas, J., dissenting).