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The Press – State files to invalidate lake bill of rights

Published by news@presspubli… on Fri, 05/31/2019 – 4:00pm

By: Larry Limpf

Backers of the Lake Erie Bill of Rights find an irony in the Ohio Attorney General’s office seeking a permanent injunction to invalidate the proposed Toledo city charter amendment. Attorney General Dave Yost’s office filed a complaint May 24 in U.S. District Court for the Northern District Court of Ohio for the injunction. It argues, among other points, the charter amendment “purports to grant rights that exceed the city’s authority and conflict with Ohio environmental, agricultural, natural resources, and corporate laws. Thus, the charter amendment is preempted by the general laws of Ohio.” Voters approved the LEBOR on Feb. 26 and a lawsuit against its implementation was filed the next day by Drewes Farm Partnership. The state then moved to intervene in the case. LEBOR grants legal rights to the Great Lake and its watershed to “exist, flourish and naturally evolve.” “The lake is dying and the AG says only the state of Ohio has the power to protect it. But it’s not. A generation has passed during which the Ohio legislature and governors have stood by enabling a corrupt system of permitting and willfully ignoring scientific data that has caused water quality and the Lake’s condition to worsen to crisis levels. “The people have had enough. The state claims to be the sole trustee of Lake Erie, but they have forfeited that trust by their inaction. The lake and the people have suffered direct harm due to the state’s failure to protect the health, safety and welfare of the people and the lake. Our Constitution states that the people can step in when their government fails them,” said Tish O’Dell, Ohio organizer for the Community Environmental Legal Defense Fund. The CELDF assisted a local organization, Toledoans for Safe Water, with drafting the ballot initiative. Markie Miller, of Toledoans for Safe Water, said it was a lack of action by the state that spurred local residents to press for the charter amendment. “Because of the state’s failure to act on behalf of the people and Lake Erie, we have suffered without water and we fear the next contamination or algae bloom. We know Lake Erie is dying, so this winter, we did what the state would not – we took action. We asserted our inalienable democratic right to pass a law that will actually protect the lake and our community,” she said. But in a 35-page complaint, the state argues the charter amendment is unconstitutional under the U.S. and Ohio constitutions and is preempted by state and federal law. “Due to both federal delegation and state law, Ohio regulates, administers, and enforces environmental, agricultural, and natural resources laws and rules affecting Lake Erie and the waters feeding it,” the complaint says. “Ohio EPA’s environmental laws and rules are general laws applicable state-wide that are part of a comprehensive regulatory scheme prescribing general rules of conduct for all Ohio citizens.” The state also contends the charter amendment would conflict with the lake’s public trust status. “The charter amendment seeks to recognize the ‘Lake Erie Ecosystem’ as a legal entity by utilizing a natural rights theory that unlawfully undermines Lake Erie’s status as public trust waters and lands reserved to the State of Ohio and by attempting to confer legal standing to the Lake Erie Ecosystem separate and distinct from the State of Ohio’s trust estate,” the complaint says. It also argues the federal government delegated authority to Ohio to implement water pollution discharges under the Clean Water Act and the charter amendment would impede that authority. Toledoans for Safe Water was the driving force for getting the measure on the ballot but was denied by the court to intervene in the case.


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