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A DAVID AND GOLIATH BATTLE OVER LAKE ERIE BILL OF RIGHTS
By Suzanne Forcese
The ink was drying on the passage of the first law in the United States recognizing the rights of a distinct ecosystem. The reverberations of cheers from protectors of the environment were still echoing around the world celebrating the work of Toledoans who partnered with the Community Environmental Legal Defense Fund (CELDF )to draft the Lake Erie Bill of Rights (LEBOR). In that wake, the State of Ohio filed a motion to intervene in this case on behalf of Corporate Agriculture.
LEBOR granted rights to Lake Erie empowering any Toledo citizen to file lawsuits on behalf of the Lake, giving Toledoans authority over nearly 5 million Ohioans, thousands of farms, more than 400,000 businesses and every level of government in 35 Ohio counties plus parts of Michigan, Indiana, Pennsylvania, New York and Canada.
"It is unfathomable," Tish O'Dell of CELDF told Water Today, "The State of Ohio is claiming that LEBOR will harm the State's ability to protect the Lake. But they haven't protected the Lake. It's dying." Lake Erie is the source of drinking water to 11 million people. LEBOR states "The Lake has a right to exist, flourish and evolve." People have sought to protect Lake Erie from pollution caused by industrial agriculture, open lake dumping, and other harms, for decades. Despite valiant efforts by concerned activists, it continues to deteriorate. Governments and regulatory agencies repeatedly fail to take meaningful action. The cost is to the lake, communities and ecosystems. In 2014 over 500,000 residents in Ohio and Michigan had no access to water for 3 days because of toxic algal blooms.
On Earth Day, environmental scientist and spokesperson of TFSW (Toledoans For Safe Water), Markie Miller delivered a statement at the United Nations in New York City. She spoke of the 3 day water ban which was the impetus for TFSW to be the voice for Lake Erie. "In 2014, I experienced first hand what it felt like to be vulnerable in the face of disaster. For three days half a million people in Ohio and Michigan lost their water. Residents of entire communities were unable to drink, bathe, or even touch the water. Grocery stores were forced to throw out their produce while bottled water became a scarce and over-priced commodity available only to those who could locate and afford it. Hospital patients including mothers in labor were forced to wait for water deliveries. Restaurants and stores sat empty or closed and employees were sent home without pay. We all understood that our economy could not be sustained without a healthy environment."
US District Judge Jack Zouhary imposed a preliminary injunction on the LEBOR passed by Toledo voters in a lawsuit filed by Wood County farmer Mark Drewes. The Drewes Farm website news page lists a 2016 report where Drewes fought against labelling Lake Erie as " impaired" as it would "push agriculture to its breaking point. We are regulated beyond belief."
In a press release Adam Sharp, executive vice president of the Ohio Farm Bureau, has stated, "We are happy to see the Court order a preliminary injunction delaying the enforcement of the LEBOR . This decision is one step closer to protecting farmers in the Lake Erie Watershed from costly lawsuits brought on by LEBOR."
The Ohio Attorney General filed a motion in the Drewes Farm partnership v. City of Toledo case seeking to intervene as a plaintiff alongside the Drewes Farm partnership. The motion argues that the State of Ohio has a significant interest in the protection of Lake Erie, along with a significant interest in supporting Ohio's agricultural, environmental and natural resource laws. The motion further argues that Toledo's LEBOR charter amendment contradicts Ohio's "multi-faceted statutory, regulatory, and civil and criminal enforcement programs that control water pollution."
Counsel for Drewes has stated "The charter amendment is an unconstitutional and unlawful assault on the fundamental rights of family farms in the lake Erie Watershed."
In Miller's presentation at the UN Earth Day event, she spoke of the environmental laws "that we have held on to for decades," laws that held Toledoans "captive by a situation that by all accounts could have been prevented. Through LEBOR we sought to hold polluters accountable: the corporations, governments and individuals who allow, encourage and profit from economic activities, production and extraction despite the known degradation to our life sustaining ecosystems."
WaterToday reached out to Freshwater Future Canada, a bi-national watershed-wide organization dedicated to the needs of community-based groups and actions working to protect and restore the Great Lakes. In a conversation with Alicia Smith WT learned of bi-monthly meetings in a Great Lakes Network where representatives on both sides of the border work to create awareness,
innovations and solutions to write policy. "It's the right time for Canada and the United States to have the conversation. Policy has to be in place."
While Smith respects the democratic process that allows the State of Ohio and Drewes Farm to challenge the LEBOR she also asserts that they have to have grounds. "Corporations have the right to protect their money. But citizens also have the right to seek protection on behalf of nature. The lack of oversight and lack of education that has brought Lake Erie to crisis is not the fault of citizens. It does not matter what side you are on. Forget about sides. Look to your similarities. We all depend on water. We depend on water, air and land for our survival. If our water is contaminated our land is contaminated and so is our air. It is our lives at stake. If we are not healthy we cannot survive economically."
Tish O'Dell agrees. "The laws are not serving us. They have to change. They have to be for the people."
Markie Miller knows full well that the system may rule against LEBOR but "our voices have been heard and they speak loud and clear...we don't lose until we quit and we will never quit.
"Obedience in the face of blatant injustice is offensive. Obedience in the face of our own extinction is simply unacceptable."
In February, residents of Toledo, Ohio adopted the Lake Erie Bill of Rights with 61% of the vote - the first rights-based law in the United States that specifically acknowledges the rights of a distinct ecosystem. The win came after months of government and corporate intent on blocking citizens from voting on their own initiative. Toledo residents even overcame Houston-based BP Corporation's outspending them 50:1 in the company's anti-Lake Erie Bill Of Rights campaign.
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