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LAKE ERIE GRANTED LEGAL RIGHTS : A FIRST IN U.S. HISTORY
By Suzanne Forcese
Holy Toledo! Toledans For Safe Water (TFSW), an advocacy group in Toledo, Ohio, that works to clean up and protect Lake Erie partnered with The Community Environmental Legal Defense Fund (CELDF). The collaborative brought The Lake Erie Bill of Rights Charter Amendment to a vote in February 2019. The referendum passed with 61% of the voters' support giving the lake the right "to exist, flourish and naturally evolve". This marks the first time in the history of the United States that a natural resource has been granted legal status.
The legislation entitles the lake certain rights and empowers citizens to advocate for those rights when they are being violated like bringing law suits against polluters.
The legal strategy has been advanced in other parts of the world. The 200 mile Whanganui Lake in New Zealand was granted legal standing in 2017. Also in 2017 an India court did the same for the Ganges and Yamuns Rivers, though the nation's supreme court overturned their statuses a few months later. Activists in Chile are hoping to secure legal rights for their rivers which are being dammed at a rapid pace for hydroelectric power. Other countries that have adopted the strategy include Bolivia and Ecuador which have granted certain 'rights' to nature.
WaterToday spoke with Tish O'Dell, the Ohio Community Organizer of CELDF, an organization that assists communities to develop first-in-the-nation ground breaking laws to protect rights. O'Dell worked at drafting the legislation. "We worked on this for two years," O'Dell said. "Ohio has suffered environmental harms."
In 2014 half a million people were under a water advisory after tests revealed toxins in the city's water supply, likely caused by algae growing in Lake Erie. Municipal officials asked the residents not to use water for any purpose.
Of all the Great Lakes, Lake Erie is exposed to the greatest stress from urbanization, industrialization and agriculture. The amount of effluent received from sewage treatment plants is the highest of all the Great Lakes. These are all potent sources of phosphorus runoff. Sediment loading due to the underlying geology and land use particularly in southwest Ontario and northwest Ohio also factor into the burden placed on the lake.
In Lake Erie's case, the phosphorus feeds a poisonous algae which produces a toxin called microcystin. Microcystin, also called cyanoginosin causes diarrhea, vomiting and liver dysfunction. The toxin kills dogs and other small animals. Beyond the dangers to people and animals, the algae wreak tens of billions of dollars of damage on commercial fishing and on the recreational and vacation trades.
Because it is the smallest and shallowest of the Great Lakes, Lake Erie warms quickly in the spring and summer making it the most biologically productive. Excessive algal growth in Lake Erie threatens the ecosystem and human health of a water body that provides drinking water for 12 million people in the United States and Canada.
"The way the law was written, Government has few legal options to impose limits and voluntary limits have barely dented the problem." O'Dell said. "The State is
not coming up with a solution. The Government is not making farmers stop fertilizing. They are only spending tax payers' money on testing. Testing is not a solution."
Helen Baulch, Associate Professor at the University of Saskatchewan agrees that something has to be done and "it has to be done more ambitiously."
According to Baulch, algal blooms are becoming a global problem. "Our lakes are becoming more sensitive due to climate change. We have been working with nutrient management but the problems seem to be getting worse. We depend on our lakes for water. We also like to swim and fish in our lakes. Climate change is moving faster and we have not addressed the real solutions."
Algae can persist for weeks during summer by blooms carried by winds and currents eastward through the lake. Recent years have seen record- setting algal blooms and associated 'dead zones' (oxygen depleted areas created when algae die and decompose). These events negatively impact the lake's critical $12.9 billion tourism industry and world class fishery.
Baulch believes we need a better understanding "not just science". More conversations need to take place. There is a difficulty she admits. "It has to be a collaborative solution between what practices need to be implemented and what is acceptable. Farmers have to look at their use of chemicals but they also need to make a living. There has to be a balance."
Kelsey Scarfone, Water Programs Manager, Environmental Defence.ca told Water Today that the public needs to be educated on algal blooms. Scarfone said the "Ontario Government and Federal Government have worked together with Environmental Defence on an action plan " to step up our part".
"We are so inherently tied to our lakes," Scarfone added. "We are part of the system. The Great Lakes are one of the biggest economies in the world. They are a beautiful ecosystem. We need to protect that. We hope people express their love for the lake."
Scarfone did convey some concern about the action plan set forth between the two levels of government. "We really need it to move forward. We have a policy but the work plan that was promised to us for February has not yet been forthcoming."
O'Dell says that it is going to involve a paradigm shift. "Not in our laws but in our culture. People have seen nature as a property to own and exploit. We don't blink an eye when corporate rights are in question. But nature has no rights. Corporations can make a profit while polluting our lakes. However, polluting our lakes also violates our rights. Up to now our legal system has separated us from nature."
Big Corporation is not going down without a fight however. Immediately upon the heels of the bill's passage a lawsuit was initiated by the Toledo Jobs and Growth Coalition. The opposition received funding, in a wire transfer, from British Petroleum North America, based in Houston Texas. To the tune of $302,000. Toledans For Safe Water spent a total of $5,899.57 – and won.
"Law should reflect value and culture," O'Dell added. We have to show people another way to embrace the idea of making the shift. We have had the same environmental regulating issues for the past 50 years. Regulating is different that preventing."
During the 1960's water quality issues in the Great Lakes became a concern and Lake Erie was perceived to be "dying". By the late 1960's, Canadian and American regulatory agencies were in agreement that limiting phosphorus loads was the key to controlling excessive algal growth and that a coordinated lake wide approach was necessary to deal with the phosphorus issue. Open lake phosphorus concentrations declined due to the joint efforts made.
However the situation is worsening.
Scarfone says there are joint efforts between Canada and the US.
The Great Lakes Water Quality Agreement (GLWQA) is a commitment between Canada and the US to restore and protect the waters of the Great Lakes. The Agreement provides a framework for identifying binational priorities and implementing actions that improve water quality. The US Environmental Protection Agency coordinates US activities under the Agreement.
The US and Canada first signed the Agreement in 1972. It was amended in 1983 and 1987. In 2012 it was updated to enhance water quality programs that ensure the 'chemical, physical, and biological integrity of the Great Lakes'.
The Lake Erie Lake-wide Action and Management Plan (LAMP) is a binational eco-system-based management strategy for protecting and restoring the water quality of Lake Erie, the St. Clair River, Lake St. Clair and the Detroit River. The LAMP is developed and implemented by the Lake Erie Partnership which is led by the US Environmental Protection Agency and Environment and Climate Change Canada, which facilitates information sharing, sets priorities and assists in coordinating binational environmental protection and restoration activities.
"We've been using the same laws for decades to try and protect Lake Erie. They're clearly not working" Markie Miller of Toledans for Safe Water says in a press release.
O'Dell reiterates, "The laws have been based on regulating but regulating isn't enough. We need punitive measures for the offenders. Those who are violating the rights of nature."
The Lake Erie Bill of Rights is part of what's being called the Rights of Nature legal movement an idea first floated by environmental lawyer Christopher Stone in the Southern California Law Review in 1972. The idea is based on the legal concept of standing. Typically before harm can be redressed, a plaintiff needs to show that they are directly harmed by an action. By granting rights to the lake, Lake Erie can thus "stand" to sue polluters.
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