BREAKING: COURT BREATHES NEW LIFE INTO LAKE ERIE BILL OF RIGHTS LEGAL FIGHT
By Suzanne Forcese
An Ohio court of appeals reversed a previous trial court order, ruling residents suing to enforce the Lake Erie Bill of Rights (LEBOR) and hold the State of Ohio accountable for its failure to protect Lake Erie have stated a legitimate claim.
The court also suggested the State of Ohio has been hypocritical and may not be fulfilling its obligations toward Lake Erie and her people. The state argues it is protecting Lake Erie—which is the people of Toledo’s drinking water supply – but instead it is attempting to slow down the people of Toledo from advancing historic Rights of Nature protections for the imperiled lake.
“The state keeps claiming it has the sole power to protect Lake Erie,” WATERTODAY heard from Tish O’Dell, Community Environmental Legal Defense Fund (CELDF) Ohio Organizer.
“The people have no illusions that the courts or this ruling will save them or the lake. Lake Erie turns green and poisonous with toxic algae year after year and the state not only does nothing, it protects the polluters and fights the people who are attempting to protect the lake. This ruling at least validates the people’s instinct to keep fighting for the lake and their community any way they can.”
Markie Miller adds, “While it helps to claim a victory in court, that is not the only way we build a movement. Laws should reflect our ethics, not guide them. We can’t throw these debates to the courts.”
Original article 2020/5/22
LAKE ERIE REMAINS VULNERABLE AND WITHOUT PROTECTIONS AMIDST THE COVID-19 PANDEMIC
“COVID-19 is a tragic event but my hope is that it is getting people to think about what they want the world to look like when we come out of this. Change can be slow but this pandemic has made us shift pretty quickly. We are capable of change.” - Raj Gill, Great Lakes Program Director, Canadian Fresh Water Alliance
As the world has been adapting to the abrupt life changes that the COVID-19 pandemic has thrust upon us, governments scramble to enforce legislation and restrictions for the health and safety of their citizens. At the same time, the protection of Lake Erie, the survival of the lake’s ecosystems and the source of drinking water for people in Canada and the United States are issues that are quickly becoming grave concerns as officials refocus priorities.
Those concerns are mounting as the Environmental Protection Agency (EPA) in the United States issued a sweeping suspension of its enforcement of environmental laws.
Companies need not meet environmental standards during the coronavirus outbreak. A Memorandum dated March 26, 2020, from Susan Parker Bodine (Assistant Administrator For Enforcement and Compliance Assurance) states, “companies should try to minimize the effects and duration of any noncompliance with environmental laws and should keep records of their own noncompliance with identifying how the coronavirus was a factor.”
WaterToday spoke with Markie Miller who together with a group of volunteers called Toledans For Safe Water (TFSW) was instrumental in establishing
LEBOR (Lake Erie Bill of Rights)
“Today there are no protections in place for Lake Erie and the people who rely on her for drinking water.” - Markie Miller, Toledans For Safe Water
LEBOR was an effort to grant Lake Erie and the entire watershed the “Rights of Nature” which recognizes that nature itself, a forest, river, lake or underground aquifer have the same type of inalienable rights that people do.
In recognition of their right to legislate and pass laws that safeguard their community and resources TFSW had come together to defend Lake Erie and her vulnerability to frequent and intense algal blooms.
In August 2014, the Western Basin of Lake Erie was devastated by a harmful bloom of cyanobacteria (blue-green algae). Nearly 500,000 Toledo area residents had no drinking water, or safe water to bathe in for three days due to the high levels of Microcystin.
The algal blooms are in large part a result of agricultural run-off from fertilizers and the dumping of manure especially along the Maumee River which feeds Lake Erie.
“It is important for us to do our part in Ontario,” Raj Gill told WaterToday in a telephone conversation, “But what happens in the US happens to Canada. The lake knows no borders. Once the algal blooms are in the lake they are everywhere.”
WaterToday also spoke with Tish O’Dell, of CELDF (Community Environmental Legal Defense Fund), who advised TFSW in bringing LEBOR to life.
“People tend to think of Toledo as an isolated incident. But what happens in any community on Lake Erie affects the entire watershed,” O’Dell said in a reiteration of Gill’s comment. “Environmental groups tend to get caught up in their own issues not realizing the issues are far more wide-reaching.”
O’Dell adds that she is working with communities all around Lake Erie and that CELDF would be more than happy to work with communities and organizations in Canada in the fight for Lake Erie.
“We are currently working with the community of Ashtabula where a pig iron plant owned by a South African Company is to be constructed beginning this June.” The Ashtabula River flows into Lake Erie.
O’Dell is also working with the communities of Cleveland and Buffalo where a proposed wind turbine project would have devastating effects on the watershed.
“There will be the dredging of the lake that will stir up toxins, not to mention the effects of the vibrations on wildlife and people. And it’s not even an American company nor are there any regulations in place to protect the environment.”
“What we did with LEBOR was visionary,” Miller adds. “Our current laws are not protecting us if they are not protecting the environment. The laws have to change. There will be many court cases lost and we know what walls we are going to hit but we are doing it anyway. It’s not about ownership it’s about stewardship.”
The assaults on Lake Erie continue to threaten the symbiosis of life between humans and nature as conflict wages on between stewards of the lake and corporations. It remains an uphill battle.
- Hours after LEBOR became law on February 26, 2019, an agricultural corporation (Drewes Farms) sued the City of Toledo, claiming LEBOR unconstitutional; therefore, the City cannot amend its charter.
- Ohio’s Attorney General joined the action against LEBOR, citing conservation of the lake as the State’s sole purview, and was recognized by Judge Zouhary as second plaintiff in the case.
- Judge Zouhary would not allow LEBOR’s authors to serve as co-defendants with the City of Toledo as Lake Erie’s fate came to rest in the judge’s hands on January 28, 2020.
- On May 5, 2020, and citing budgetary constraints, the City of Toledo withdrew its appeal of District Judge Zouhary’s February 27, 2020, ruling to invalidate the Lake Erie Bill of Rights.
“Budgetary constraints? There is cost and there is price. What will be the price of a dead lake? Without clean water there will be no city, no jobs, no ecosystem” – Markie Miller
“There is a feeling of betrayal,” Markie Miller (TFSW) told WT. “We had no communication with the City, and it was very frustrating. We are such a strong group that pushed for change and were told to be patient and wait. We saw the City made a motion to appeal on March 27 and then they just quietly dropped it.”
On March 13, 2020, the international corporate law firm Vorys, Sater, Seymour and Pease LLP, filed a motion demanding $293,750 in corporate attorney fees from the City of Toledo, for its legal defense of the LEBOR.<
“LEBOR was enacted in response to a public water crisis. It established an enforceable human right to water,” Miller continued. “Now as our government is dealing with the COVID-19 pandemic, the plaintiffs are attempting to collect scarce and necessary taxpayer funds to punish us for defending our water.”
“This decision by the city is unacceptable. Not only is it short-sighted from a public health and safety perspective, it is another signal that democracy by the people is not a priority of the government.”
In 2014 Toledo residents and surrounding communities experienced life without safe, clean water. Businesses closed, people suffered, the hospital only took the most critical cases. And when that crisis was over the city was forced to pay to upgrade the water system resulting in higher water rates for citizens. Now with COVID crisis, some residents are facing water-shutoffs because of an inability to pay their water bill.
“Toledo residents and Lake Erie cannot afford a repeat of the past. It is clear the future of Lake Erie and the health of the community are up to us. People have two choices. We can continue to watch the slow death of the lake that sustains all life in this city or take action to protect her and our future.”
“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 above profit. No judge can take that away.” – CELDF
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