Wherever they are, Theodore Roosevelt and his allies at Ohio’s 1912 constitutional convention must have smiled Wednesday. That’s when the state Supreme Court refused to yank from Toledo’s ballot a voter-initiated city charter amendment creating a Lake Erie Bill of Rights. It’ll be on the city’s Feb. 26 special election ballot.
The Ohio Constitution guarantees Ohioans’ right to propose (“initiate”) amendments to city and village charters. If Toledo’s voters approve the Bill of Rights, it may – not next month, maybe not this year, but sooner, not later – protect Lake Erie, Ohio’s greatest single natural resource. That’s good, because the General Assembly, corporate agriculture’s best friend, won’t.
Someone might care to remind Ohio’s House (61-38 Republican) and Senate (24-9 Republican) of a couple things the GOP’s Teddy Roosevelt said at the Statehouse in 1912:
“This country, as Lincoln said, belongs to the people. So do the natural resources which make it rich,” TR said. He also said this: “I believe in the initiative and the referendum, which should be used not to destroy representative government, but to correct it whenever it becomes misrepresentative.”
Woven into the Lake Erie Bill of Rights are both those threads of Theodore Roosevelt’s thought – conservation of natural resources, and voters’ right to legislate when Ohio legislators go on strike against the public interest.
Little wonder Toledo petitioners want to protect Lake Erie – someone has to:
In 2014, bacteria produced by a bloom of algae in western Lake Erie forced the shutdown of Toledo’s water system. What creates algal blooms? Here’s what the Alliance for the Great Lakes says: “Lake Erie’s algae blooms are caused by runoff pollution. This type of pollution occurs when rainfall washes fertilizer and manure spread on large farm fields into streams that flow into Lake Erie. This fuels a bumper crop of algae each year that can make water toxic to fish, wildlife, and people.”
Last summer, then-Gov. John Kasich issued an executive order aimed at reducing agricultural runoff in western Ohio’s Maumee River watershed, the Great Lakes’ largest watershed. (A study by three University of Toledo researchers, published in 2015, found that the Maumee’s watershed “delivers the biggest sediment and nutrient load to Lake Erie.”)
Still, the Ohio Soil and Water Conservation Commission, to the cheers of the legislature’s GOP leaders, put the kibosh on Kasich’s order. (It’s called regulatory capture – when regulators get cozy with those they regulate. See also: “Public Utilities Commission of Ohio.”)
The proposed Bill of Rights would establish Lake Erie’s right “to exist, flourish and naturally evolve,” and the right of Toledo residents “to a healthy environment … which elevates the rights of the community and its natural environment over powers claimed by certain corporations.”
If those anti-corporate words don’t freeze-dry polluters’ already cold hearts, these might: “No permit, license, privilege, charter, or other authorization issued to a corporation, by any state or federal entity …
[violating]
this law … shall be deemed valid within … Toledo.” Translation: No Statehouse end runs by lobbyists and their Capitol Square pals.
The idea that a body of water (or another feature of nature) should have rights like a person’s rights might seem odd. But as University of Southern California law professor Christopher D. Stone wrote in a pioneering 1972 journal article, “The world of the lawyer is peopled with inanimate rights-holders: trusts, corporations, joint ventures, municipalities … [And] ships … have long had an independent [legal] life.”
And as U.S. Supreme Court Justice Anthony M. Kennedy wrote in the high court’s 2010 Citizens United decision, “The [Supreme] Court has recognized that First Amendment protection extends to corporations.”
Ohio’s Supreme Court, in refusing this week to knock the Lake Erie Bill of Rights off Toledo’s ballot, evidently was not swayed by anti-Lake Erie Bill of Rights legal briefs filed by the Ohio Farm Bureau Federation; the Ohio Corn & Wheat Growers Association; the Ohio Dairy Producers Association; the Ohio Pork Council, and the Ohio Soybean Association.
True, if Toledo’s voters approve the Lake Erie Bill of Rights, courthouse falderal will only grow. But at least Lake Erie’s protection will be on the judiciary’s agenda – because it sure isn’t on the General Assembly’s.
Thomas Suddes, a member of the editorial board, writes from Athens.
To reach Thomas Suddes: tsuddes@cleveland.com, 216-999-4689
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