Above: A Summer day on western Lake Eire
A lake, river, creek, parkland, wilderness, or canopy of redwoods or old sugar maples can’t walk to the courthouse to file lawsuits to protect their right to be free from harm, nor can they walk into a precinct and vote. Come to think of it, neither can children who will inherit the earth in the shape we leave it. For children, we have a system to appoint guardians who represent their best interests and even go to court when it is necessary to protect them.
As for the lakes and trees, after the first Earth Day in 1970, our legislators passed laws—including the Clean Air Act, Clean Water Act, Endangered Species Act, and Safe Drinking Water Act—to protect the environment. Several states enacted “citizen suit” laws that granted rights to citizens to file lawsuits to protect the air, water, and natural resources. Then, after University of Michigan Professor Joe Sax’s law review article, air, water, wildlife, and public lands of a special character were understood to be held in trust by government for the benefit and basic needs of citizens. It’s called the public trust doctrine. When it comes to navigable waters like Lake Erie, the Great Lakes or any lake or stream, the government must act in the best interests of citizens, the legal beneficiaries of the trust.
Holy Toledo! The Frustration!
So what happened? Why, nearly 50 years after Congress and the states passed a wave of environmental laws, did the residents of Toledo, Ohio have to go to the ballot box to confer rights on Lake Erie?
In a word—frustration!
Anger and indignation at the health threats and the loss of swimming, beach access, fishing, and other recreation drove voters to take action. They were frustrated by the loss of a right each of us has in common and shares with one another. Loss of respect and faith in government leaders in Columbus, Ohio and Washington, D.C.
In short, the government abdicated its sovereign duty—meaning our leaders stopped doing the job the law imposed on them. Today, governments have not only stopped doing what they are supposed to do, they have attacked these laws limiting a citizen’s standing or right to bring a lawsuit to enforce the duties and protect air, water, the common good. The recent rollbacks of our air and water laws and wetlands protection, deliberate indifference to climate change, and the cutting of budgets reject protection of environment, health, and the common good. In Michigan, for example, legislators and the recently departed Snyder administration flagrantly disregarded or twisted the meaning of water and public trust laws to allow bottled water companies to rob headwater creeks of cold water and passed a law to turn over control of the bottomlands under the Straits of Mackinac for 99 years for a crude oil pipeline.
The dead zones of Lake Erie are perhaps the most glaring example of the government and corporate attack on water, environment, and the common good. The people of Toledo, Ohioans, Michiganders, and Great Lakes communities and citizens have witnessed toxic “blooms” of harmful algae smother the western-third of Lake Erie. These harmful algal blooms from farm runoff started to show up a decade ago, and the Ohio government did nothing. Five years ago, a harmful bloom turned most of the west end of Lake Erie into a slimy mat of green, destroying aquatic life, killing fish, poisoning and shutting off the drinking water of 400,000 people, and closing beaches. Despite the annual recurrence of these blooms, no real action by government is in sight.
Well, not exactly no action.
Ohio and the U.S. Environmental Protection Agency (“EPA”) could have declared the lake “impaired” to start the ball rolling toward action that would have set a phosphorous limit to end the blooms, but they refused to do so. It took a lawsuit by the Environmental Law and Policy Center in Chicago to force a showdown. Ohio and EPA quickly blinked, and conceded that the lake was “impaired,” a shameful admission since it had been quite obvious to anyone living on the lake in Toledo or watching a pea-green Lake Erie from satellite photographs. While this was a “victory” of sorts, it has only triggered a regulatory process that could take years, if it succeeds at all.
Toledo is a Telltale Sign
On February 26, 2019, less than a month ago, the voters of Toledo blew into the voting booth and won—61 percent to 39 percent—and adopted a new local law, a “Lake Erie Bill of Rights” to prohibit activities and projects that threaten or harm Lake Erie!
Is it legal? Maybe. Will it work? Maybe, maybe not. Does that matter? No.
What matters is that in northwestern Ohio, in the year 2019, almost 50 years after Earth Day, citizens from all walks of life and backgrounds have said: Enough! We’re doing it ourselves, and not only for ourselves, but for the things in nature we hold dear, depend on for jobs, health, and life.
Citizens everywhere are taking action against the attack on the common good and the dignity of human beings and our water, air, and community—the vote in Toledo, protests against Amazon’s government-backed subordination of the needs of citizens in New York, and the children’s movement across the globe to stem the deadly future of global warming that threatens to destroy the fabric of their life in less than 30 years.
Toledo is a cry for change, and a harbinger of the coming cultural and political revolution where ordinary people and communities facing climate change and other systemic threats to water, water shutoffs, and lead pipe exposures can rally to break the grip of a government-led plutocracy that puts wealth first and people and their planet last. Toledo is a telltale of not only political change but a shift in the very way we see ourselves and our community, environment, and nature — no longer objects, but living in relationship as part of the common good.
Symbolism, Standing, and Redress
While the vote for Lake Erie’s rights is culturally inspirational, from a purely legal or legal policy standpoint, it doesn’t change the basic reality that only the courts under the common law or people and/or legislatures by constitutional or statutory provisions can declare and grant legal rights in nature, Lake Erie, a river, or trees—first, of standing based on actual, or threat of, harm to a recognized right or interest, and second, of a legal claim that can redress the wrong. A city may do so, by an amendment to a charter, for example, and it may satisfy the first, at least within its boundaries, as to the right threatened and standing, but there are limits outside its own boundaries what it can affect or do.
I suppose a person in the city, once the amendment is adopted, can point to the right and file a lawsuit in the name of the natural living feature, like Lake Erie, and a court may or may not recognize standing of the object, protected by citizens filing suit on its behalf. However, it is doubtful that a cause of action or claim can be created, because that is left to courts and legislatures as noted above. So at best, it may establish standing, at least for the rights of nature, within the municipal boundaries of Toledo. But this does not mean from a cultural, educational, and advocacy viewpoint the rights of nature are not important. I think they are.
Recognizing Rights, and Ourselves, in Nature
Here’s why: With the recognition of rights in nature, people see a relationship between themselves and nature, both connected and worthy of protection as “beings” or a life form. When this happens, they are more likely to protect that relationship when it is harmed or threatened with harm. Courts or legislatures are more likely to be receptive and understand this, too, and therefore articulate new laws or pass constitutional provisions that declare rights, protection, and enforcement where there is a violation of the duty to protect or sustain.
Perhaps equally important, if not more so, people will become more likely to look for ways they can bring civil actions to protect those new “rights in nature” by a local initiative or law or court action.
When citizens do this, they will discover the following: There already exists, in the common law, the public trust doctrine that applies to all navigable waters and arguably all waters and the human activity within a watershed that affect those waters—uses or impacts to land (like nutrient loading from farming) that percolate or runoff into creeks that, in turn, impair or pollute navigable waters like Lake Erie that are subject to the public trust doctrine. Under the public trust doctrine, citizens as legal beneficiaries have a legal right, standing, and right to file lawsuits against government when it fails in its legal duty as trustee to protect these waters and the health of citizens from impairment by private or governmental interests.
The claim exists directly against those who damage the public trust waters and resources and/or interfere with legally protected interests and uses like boating, navigation, fishing, swimming, beach access and walking, and drinking water. There are numerous cases where citizens have protected natural features through public trust cases. The most visible examples are the beach-walking cases and, more recently, the children’s trust cases, like the federal lower court decisions in Juliana v United States: The court recognized the children’s right to proceed to trial on a public trust claim to force the government to reduce greenhouse gases to prevent impairment of their rights to drinking water, sustenance, fishing, and health attributable to climate change.
Michigan, Ohio, and the Public Trust
In Michigan, the legislature in 1970 passed the Michigan Environmental Protection Act (“MEPA”). The MEPA established the right of citizens to bring civil suits against those who pollute, impair, or destroy the air, water, and natural resources or the public trust in those resources. The new law created a claim to protect the commons—air, water, and natural resources—similar to the public trust doctrine. Because these claims already exist, the declaration of rights in Lake Erie of nature can be seen as the inspiration for this new cultural shift to restore the common good above private self-interests of a few through citizen-initiated actions.
Now that Lake Erie is officially impaired and the people of Toledo have spoken through their constitutional right of local government initiatives, the people won’t wait, don’t have to wait, for government to eventually get around to putting an end to nutrient runoff. They have the right and means to file lawsuits under the existing public trust doctrine and take other actions to put teeth into the cry and realization that they’ve had enough.
How? The public trust doctrine offers present rights and claims to stop the impairment of Lake Erie, based on their respective and enforceable “non-impairment” standards. Once there is “impairment,” the public trust doctrine has been violated, and citizens have the legal right to bring actions to stop the runoff—against government and those who are causing the algal blooms. Up the coast, in Michigan, citizens who have had enough can bring citizen suits under the MEPA. Now that people have articulated their relationship with the rights of Lake Erie, they can turn to those rights they already have to protect Lake Erie and the nature they know, care about, and depend on.
A Flag to Rally Around
In short, the rights in nature or Lake Erie are a flag to rally around, a symbol of our relationship and respect for natural features and the links to those features and our own health and well-being. The public trust doctrine already provides the standing, claim, and remedy. This means citizens can take action now based on established legal claims and principles, rather than wait for the uncertain and somewhat difficult prospect of turning an important cultural recognition and inspiration by the citizens in and near Ohio on the shores of Lake Erie into action that actually restores and revitalizes Lake Erie.
It seems that people everywhere are coming to the realization that nature—lakes, rivers, wetlands, trees, prairies, and mountains have a beingness, which means we are moving from perceiving nature as an “object” or “resources” toward seeing them as a relationship or public trust – one in which there is not only a right to protect, but a perpetual duty to do so, meaning we are entering a new era of enforcing rights and duties, and demanding respect for the dignity of nature, community, and ourselves. This is no longer an environmental rights movement. It is the recognition that seeing and saving nature, on which all life depends, is a necessity for all of us.