In a special election Tuesday, voters in Toledo said yes to a ballot measure that amends the city charter to include a Lake Erie Bill of Rights. With about 8.9 percent turnout of eligible voters, the ordinance won approval with over 61 percent of the vote.
According to the unofficial vote count from the Lucas County Board of Elections, more than 16,200 ballots were cast.
The vote is a victory for Toledoans for Safe Water, a grassroots organization that, for months, collected signatures, campaigned, and fought in the Ohio Supreme Court to get the issue on Tuesday’s special election ballot.
The group worked together with a Pennsylvania nonprofit, the Community Environmental Legal Defense Fund, to draft the language for the Lake Erie Bill of Rights.
“It's nice to know that democracy still works, and is alive and well in Toledo, Ohio,” said Julian Mack, an activist and volunteer with Toledoans for Safe Water.
Inside The Bill
Among its various declarations, the Lake Erie Bill of Rights says that Toledoans have the right to sue any government or business entity that interferes with the right of “the Lake Erie Ecosystem to exist, flourish and naturally evolve.”
Supporters say it will discourage activities that contribute phosphorus pollution to the lake, which in turn feeds harmful algal blooms during the warm summer months. In August 2014, some 400,000 Toledo residents were advised not use their tap water for three days due to high concentrations of microcystins, which are toxins produced by the algal blooms.
The passage of the Lake Erie Bill of Rights is also a win for the small-but-growing “rights of nature” movement, which aims to deter activities that pollute the environment by granting legal rights to ecosystems. It’s an increasingly popular tactic, although laws in some states have been ruled unconstitutional.
“I think this whole movement has really been in response to the idea that mainstream environmental law has just been tinkering around the edges,” said Reed Elizabeth Loder, a professor at Vermont Law School’s Environmental Law Center.
The Toledo proposal drew intense opposition from more than a dozen state business associations, including the Affiliated Construction Trades Ohio-Foundation, the Ohio Chamber of Commerce, the Ohio Oil and Gas Association, the Ohio Chemistry and Technology Council, and the American Petroleum Institute.
Organizations representing agricultural producers that also rallied against the measure include the Ohio Soybean Association, Ohio Cattlemen's Association, Ohio Pork Council, Ohio Dairy Producers Association, Ohio Corn & Wheat Growers Association, Ohio Poultry Association, and the Ohio Farm Bureau.
“Obviously we're disappointed,” said Joe Cornely, a spokesman for the Ohio Farm Bureau, which has argued the Lake Erie Bill of Rights exposes agricultural operations—long known to be a major source of phosphorus runoff that feeds harmful algal blooms in Lake Erie—to potentially costly lawsuits. Farmers have already been adopting practices to reduce runoff, he said.
“You solve these issues with science and commitment by farmers and other interested parties,” Cornely said. “You don't really solve them at the ballot box.”
Behind The Ballot
Despite voter approval, the Lake Erie measure almost didn’t make it on the ballot. Last August, the Lucas County Board of Elections denied the group’s request to place the measure on last November’s ballot, according to The Toledo Blade. But supporters of the proposal immediately filed suit against the Board in the Ohio Supreme Court.
In December, the Board of Elections relented, grudgingly voting 3-0 in favor of allowing the measure on the ballot. According to The Blade, democratic Board member Joshua Hughes said he was pained to allow the ballot measure because it was “on its face unconstitutional and unenforceable.”
The Ohio Supreme Court later rejected a request to overturn the BOE’s decision.
The City of Toledo Department of Law did not respond to questions about enforcement last week.
In response to the passage of LEBOR, the Drewes Farms Partnership filed a legal complaint Wednesday against the city of Toledo. The complaint, which was filed in the U.S. District Court for the Northern District of Ohio, seeks an injunction to block the law from taking effect.
“The Charter Amendment is an unconstitutional and unlawful assault on the fundamental rights of family farms in the Lake Erie watershed – like the Drewes’ 5th generation family farm,” said attorney Thomas Fusonie in a statement. “The lawsuit seeks to protect the Drewes’ family farm from this unconstitutional assault.”
The Ohio Farm Bureau said it will support the Drewes lawsuit against Toledo.
“Farmers want and are working toward improving water quality, but this new Toledo law hurts those efforts," said Ohio Farm Bureau vice president Adam Sharp in a statement. "Mark Drewes understands this, and it’s Farm Bureau’s job to back his important actions on behalf of Ohio farmers."
Advocates for the Lake Erie Bill of Rights say they’ll go to court to defend it if needed. Tish O’Dell, the Ohio organizer for the Community Environmental Legal Defense Fund, said that if the city is sued over the new bill of rights, the Community Environmental Legal Defense Fund will offer legal support.
“This is just the beginning,” said Mack, who hopes the Lake Erie Bill of Rights will set a precedent for other communities to follow. “We’re going to continue to fight.”
