The controversial legal bill will allow citizens to sue a polluter on behalf of the lake and for penalties to be imposed
Tue 19 Feb 2019 06.00 EST Last modified on Tue 19 Feb 2019 15.07 EST
Satellite images capture the algae bloom in Lake Erie in 2017. The algae bloom is caused in part by phosphorous runoff from farms and poses a health risk. Photograph: OLI/Landsat 8/NASA
In early August 2014, Crystal Jankowski was late in her pregnancy and knew she was about due. In was hot and humid where she lived in Toledo, Ohio and she remembers just wanting to relax in a cool shower.
But the graphic designer could not take one. The water source for Toledo is Lake Erie, and an algae bloom caused in part by phosphorous runoff from farms had sickened the lake with an overload of “microcystin” bacteria. The city banned drinking the water for a week and “children, the elderly and pregnant women” were instructed not to even shower.
“My gynecologist told me: ‘Don’t even touch the water, it could make you and your baby very sick,’ and that really got to me,” she said.
“So many of us in the community realized we had to do something about this.”
They did, and the citizens of Toledo, on the western basin of Lake Erie, will now be voting on a controversial legal bill on 26 February. What they will be deciding is whether Lake Erie has the same legal rights as a corporation or person.
There have been cities and townships in the United States that have passed ordinances making some types of polluting illegal, but no American city or state has changed the legality of nature in a way that is this big and this extensive – effectively giving personhood to a gigantic lake.
Called the Lake Erie Bill of Rights, it would grant personhood status to the lake, with the citizens being the guardians of the body of water. If passed, citizens could sue a polluter on behalf of the lake, and if the court finds the polluter guilty, the judge could impose penalties in the form of designated clean-ups and/or prevention programs.
“What has happened in Toledo is that we have lost our faith in the current mechanisms of power, and decided to take things into our own hands,” said Bryan Twitchell, a Toledo school teacher.
“We decided it was our personal responsibility to take action and pull us back from that brink so we can live near a healthy lake.”
This type of action has been happening in other parts of the world, but usually has involved smaller ecosystems and legal settlements with indigenous people. New Zealand granted legal personhood to the Te Urewera forest in 2014, and an Indian court granted legal personhood to the Ganges and Yamuna rivers in 2017.
“We need to create a new legal paradigm … to protect [areas like] the Great Barrier Reef,” said Michelle Maloney of the Australian Earth Laws Alliance. “The drafters of the Lake Erie Bill of Rights in Toledo share this understanding, that existing environmental laws are simply not sufficient to protect and restore the lake.”
In the United States, the Ponca nation in Oklahoma was the first Native American tribe to recognize the rights of nature in statutory law in 2017, a reaction to earthquakes and water pollution caused by fracking. Ponca leaders say they are “thrilled” with what is happening in Ohio.
“We have to clean up the mess we have made to bring our generations together,” said Casey Camp-Horinek, noted Ponca councilwoman and film actor. “What they are doing in Toledo gives us all a tremendous boost of energy, one that will help enlighten humans around the world and show how people in Ohio really do care for the relationship between water and life, and the natural rebalance we are all trying to achieve.”
What is unusual is the relative silence politically about such a controversial vote. Little national media has discovered this environmental movement in a midwest urban area that has suffered from population loss and manufacturing decline. Even large environmental organizations like the Sierra Club have been quiet.
But the local political view of the Great Lakes has changed somewhat. One of the reasons for so little organized opposition is that the region has rediscovered the five Great Lakes as important assets. For example, the Trump administration wanted to cut much of the $300m funding for the Great Lakes Restoration Initiative last year, but outcry from both Republican and Democrat congressional representatives got it restored.
The Ohio Farm Bureau is opposed to the proposal, but has done so in a low-key manner. Changes in farming practices need to be based on science and not public votes, and law-abiding business may be unfairly brought into expensive and unnecessary legal proceedings, according to Yvonne Lesicko, vice-president of public policy for Ohio Farm Bureau.
“But this is still a complex issue, and if you say it is not a good idea and it will bring about unnecessary lawsuits, you get portrayed as being anti-Lake Erie and anti-environment and we’re not,” she said.
But the key question is: what will happen if this passes? Lake Erie is roughly 10,000 square miles of surface water, about 250 miles long and 60 miles wide, with 871 miles of shoreline in four US states and two countries. The lake provides 11 million people with drinking water from those political jurisdictions. Will a court in Toledo have jurisdiction over an environmental dispute 200 miles away in Erie, Pennsylvania?
“There will be all sort of litigation if this passes to sort things out,” said Ohio attorney Terry Lodge, who helped craft the bill. “The authority will be questioned, and all sort of business leaders and political groups will be fighting this to protect their own interests and not be responsible stewards of the environment.”
“But what these groups finding problems with this bill are missing is why this thing came about in the first place,” Lodge says. “The people in Toledo have realized for a long time their water and their health was in danger from excessive pollution in the lake. Over the years they called for the cavalry repeatedly to help them. But the cavalry never came. So they have decided to be their own cavalry.”