Judge Shoots Down Lake Erie Bill of Rights

Lake Erie.

(CN) – A city in northwest Ohio does not have the power to enforce a sweeping law allowing officials and residents to take action against Lake Erie polluters, a federal judge ruled.

Senior U.S. District Judge Jack Zouhary in the Northern District of Ohio granted a request Thursday from Drewes Farms Partnership to invalidate Toledo’s city charter amendment called the Lake Erie Bill of Rights.

Referred to as LEBOR in court documents, the measure was approved by Toledo voters in February 2019 and granted legal rights to the Great Lake as an ecosystem.

“Lake Erie, and the Lake Erie watershed, possess the right to exist, flourish and naturally evolve,” the bill of rights states.

It defined the watershed as including “natural water features, communities of organisms, soil, as well as terrestrial and aquatic sub ecosystems.”

LEBOR gave the city and its residents the right to sue government entities and businesses that infringe on the lake’s rights.

But Zouhary, a George W. Bush appointee, sided with Drewes Farms and Ohio, which intervened in the case, and found that LEBOR is unconstitutional.

“Lake Erie is not a pond in Toledo. It is one of the five Great Lakes and one of the largest lakes on Earth, bordering dozens of cities, four states and two countries,” he wrote in an eight-page opinion. “That means the lake’s health falls well outside the city’s constitutional right to local self-government.”

Toledo took action to improve drinking water from Lake Erie after its water supply tested positive for a toxic substance in 2014, which rendered the city’s water undrinkable for three days.

The city’s residents collected more than 10,000 signatures to put a referendum on the ballot that would add LEBOR to the city charter. They approved the ballot measure with 60% of the vote.

Drewes Farms, which grows crops in four nearby counties, sued Toledo the day after the election, and the court granted a preliminary injunction in late 2019.

Zouhary agreed with the plaintiff Thursday that LEBOR is unconstitutionally vague.

“The line between clean and unclean, and between healthy and unhealthy, depends on whom you ask. Because of this vagueness, Drewes Farms reasonably fears that spreading even small amounts of fertilizer violates LEBOR,” he wrote.

The judge continued, “Countless other activities might run afoul of LEBOR’s amorphous environmental rights: catching fish, dredging a riverbed, removing invasive species, driving a gas-fueled vehicle, pulling up weeds, planting corn, irrigating a field — and the list goes on.”

Zouhary said it is possible for Toledo to enact a new law to reduce water pollution by being more specific, like a Madison, Wisconsin, restriction on fertilizer that contains phosphorus.

“The ordinance survived a lawsuit like this one. In contrast, LEBOR was not so carefully drafted. Its authors ignored basic legal principles and constitutional limitations, and its invalidation should come as no surprise,” the judge wrote.

Ohio Attorney General Dave Yost, a Republican, applauded the ruling.

“Let’s save Lake Erie, but do it legally,” Yost said in a statement. “As Judge Zouhary said, the Lake Erie Bill of Rights is ‘a textbook example of what municipal government cannot do.’”

Law Director Dale Emch of the Toledo Law Department said in an email that they will look at other solutions.

“The City of Toledo aggressively defended the Lake Erie bill of rights. We understand the ongoing frustration people have with state and federal officials who will not act to protect the lake in a meaningful way. Nonetheless, we respect the court’s decision and will examine our options going forward,“ he said.

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