Lake Erie Bill of Rights Court Update

A first-hand account from those in attendance

On January 28, oral arguments were presented for and against the Lake Erie Bill of Rights (LEBOR). At the federal hearing in Toledo, Ohio, Judge Jack Zouhary questioned the City of Toledo, the State of Ohio, and an organization claiming to be an agribusiness farm, about the merits of LEBOR.

Local residents with Toledoans for Safe Water, who petitioned to get LEBOR on the ballot, were denied access to defend the historic law in court. However, Sarah Skow of Spengler Nathanson was hired by the City of Toledo to defend LEBOR, which was passed by residents in February 2019. Thus far, the City is doing an honorable job.

Corporate attorneys from Voyrs, Sater, Seymour and Pease attempted to argue that their corporate client’s ability to dump pollution into Lake Erie is protected by current law. They argued that any municipal law stating otherwise, including LEBOR, violates its constitutional rights. 

The State of Ohio attorneys argued that the state “owns Lake Erie.” Further, they contended that the residents of Toledo have no power to use democracy to protect the Lake and the people who depend on it.

Following the hearing, LEBOR petitioner and host of Great Black Swamp Talk, Julian Mack, interviewed the Community Environmental Legal Defense Fund’s (CELDF) Terry Lodge, who has advised the City of Toledo; Tish O’Dell, CELDF Ohio Organizer; and Markie Miller, organizer with Toledoans for Safe Water, following the hearing.

Below is an abridged version of Mack’s interview, edited by the respective speakers, for clarity. (All quotes are directly attributable.) The full interview can be found on Facebook. 

Julian Mack:

“We just left federal court. I’m here with a couple of representatives—I’m a representative also—of the Lake Erie Bill of Rights. Can you talk to me about what you saw in there today?”

Terry Lodge:

“Yeah. What I saw in there was an interesting civil discussion. It focused an awful lot, and rightfully, on whether the corporate farmers who sued actually have any right to pursue this [lawsuit to overturn LEBOR]. They actually state in their complaint that they don’t believe they violated [LEBOR], but they still feel uncomfortable and at risk, now that the people have spoken. And of course they filed [the lawsuit], what, 10 hours after the polls closed last February?

My overall impression is that the judge was listening well to the arguments the City lawyers made, which were pretty high grade. They put on a very high-quality defense of LEBOR, and it showed today. The corporate attorneys kept hammering away on the fact that there are criminal enforcement provisions in [LEBOR]—and then couldn’t even talk about [how]… the maximum fine for a misdemeanor is about a thousand bucks. The judge even made fun of the corporate attorney, saying, ‘You could have a young associate look that up for you.’ Sort of strange.”

Lodge went on to explain holes in the corporate argument that LEBOR’s recognition of Lake Erie’s right to exist is too “vague.”

Terry Lodge:

“There’s a legal principle that courts are required to follow, which is, when there are things that are possibly interpretable as plain English, that’s what the court’s supposed to do. So to stand there and say, ‘We don’t know what exist means’—it’s just incredible.

Overall, I think the City attorneys gave a very good accounting in defense of LEBOR, and that the judge was congenial, and he’s very bright, and certainly was aware of a lot of the implications.

An awful lot of the discussion went beyond the threshold issue of whether the farm has standing. I think the judge has a very interesting decision to make, because I think the proper legal decision is this case shouldn’t be here. Nobody’s done anything.

I think that, actually, this federal lawsuit should be dismissed and the people should get more chances to try to enforce LEBOR and try to define what it means.

I’d also like to point out, when the Civil Rights Act was passed, or when the Voting Rights Act was passed, when laws are initially passed, there’s a million questions, and a million possible interpretations, which we don’t know the answers to. Frankly, it’s a very weak argument to say, ‘My God, we have no idea what this means,’ when in fact, you have some idea what it means, and there’s some discussion, healthy discussion, about what motivated this. And Sarah Skow, representing City of Toledo, very wisely reminded the court of the big things that are stated in the whereas clauses of the initiative petition. This is about factory farms, and this is about industrial pollution. This is about what’s killing the lake, what’s destroying something that we all depend on.”

What’s to be expected?

Terry Lodge: 

“It’s very hard to predict. It certainly is interesting to me that the court has the power of severability and could cut out things that it believes are not enforceable and leave other things in place, because I think that would leave in place the recognition and acknowledgment of the right of Lake Erie to exist. I think that’s going to be a difficult thing to strike down, even if it remains as some sort of symbolic thing. Then our next step is to come up with new enforcement mechanisms.

I think, if nothing else, it’s a psychological toehold for all of us in the local dialogue about this stuff, and this is about taking some power and bringing some attention to stuff that is affecting us.”

Mack then turned his attention to Tish O’Dell, and asked her what local residents can take away from the day’s events.

Tish O’Dell:

“What should they know? Well, it’s interesting to me that this is all about the lake, and protecting the lake. I’m really glad that we finally got a forum to make that statement, and that it was argued so in-depth.

It was funny being in there, listening to all the contradictions that the state and corporate attorney made. On one side they’re saying, ‘This law will affect us outside the jurisdiction of Toledo.’ But they’re outside Toledo and they’re polluting [outside their property]. So they have a permit to legally do the pollution outside their jurisdiction, but somehow the citizens don’t have a right to protect the Lake within their jurisdiction.

The other comment that really stuck out for me was the state’s attorney saying that the state has ownership of the lake.

I thought that was really interesting. It’s like, seriously? The State of Ohio has ownership, but yet you said that it was multiple states and another country [that border Lake Erie] and all that, when arguing against Toledo’s right to legislate to protect Lake Erie…but the State of Ohio has ownership of the lake? And if they have ‘ownership’ of the Lake, it basically means that [in their eyes] the lake itself is like a slave, right? Because it’s property that the state owns. That comment really stuck out for me. 

They kept talking about criminal liability and all that stuff. Well, legalized pollution is what should be criminal.”

Mack then turned to Markie Miller.

Julian Mack:

“Do you want to say anything, Markie?”

Markie Miller:

“I’m emotional because I think this is just a really beautiful moment. I’m not sad, but I’m trying to observe and honor the history that we’re in right now, for sure. I don’t want [my tears] to be mistaken [for sadness]. But I have watched this law be called toothless and symbolic and poetry, and now today it’s ‘criminal.’ It has gone up and down, and it’s just, whatever argument serves the opponent best is used. I think that I can’t ignore that.

Especially if the corporate attorneys are going to stand up and give a small poetic speech that they wrote ahead of time about ‘what is soil, what is life?’ And yet our law that we wrote,[…]is being called this poetic, symbolic gesture of our social values. Yeah, our access to clean water, our right to a sustainable, healthy environment—I don’t think that’s poetry. I think what’s criminal is what the state is trying to get away with, including saying that we have trampled the constitutional rights of a company seeking the right to pollute us. And they say they feel silenced, though we sat back there in the courtroom, being told to be quiet, and obedient, and to listen while they discuss what we’ve done.”

Lake Erie and the Bill of Rights proposed and passed by the people of Toledo have already won. They achieved what no one else has been able to do in the U.S.: They passed a law recognizing the rights of a specific ecosystem and body of water, and they have organized to ensure that meaningful arguments in favor of not only Lake Erie’s rights to thrive, flourish and be healthy, but also the people’s right to govern locally to protect nature and their own health, were represented in court. The people of Toledo have spoken for Lake Erie and will continue to do so. They hope that others will join them in this growing Rights of Nature movement.