One of the primary themes of my legal adventures today was a recent amendment to the Toledo city charter known as the Lake Erie Bill of Rights, or LEBOR. The main purpose of this amendment is to assert that the people of Toledo have certain rights with respect to how Lake Erie is treated, but there is some significant controversy about the amendment is legally sound. I spent a large part of the first half of my day reading about the issue, and I spent the second half of my day observing a meeting between various parties debating LEBOR.
LEBOR (full text: http://www.lakeerieaction.org/) declares that the Lake Erie ecosystem has a right to "exist, flourish, and naturally evolve," and that the people of Toledo possess a right to a "clean and healthy environment." This sounds like common sense, and in many ways, the substance of LEBOR is. The controversy lies in the enforcement of these stated rights. In fact, the day after the amendment was passed, a group of small farms sued the city of Toledo. I had the privilege of observing a meeting between the plaintiff lawyers, who represent the farmers, the defense lawyers, who are defending LEBOR, and the judge, so I did some research before the meeting on the arguments that each side is using. The main source I use in discussing each side's arguments here is an article by Kenneth Kilbert, which can be found here: https://www.jurist.org/commentary/2019/03/kenneth-kilbert-lebor-important/. LEBOR gives any resident of Toledo standing to sue any person or corporation alleged to have violated these rights. However, since LEBOR is just an amendment to the Toledo city charter, it's only creating a new municipal law, not a new state law. This is of note because cases that involve violation of state law must be tried at the state level, whereas cases that involve violation of municipal law must be tried at a municipal level. The issue with LEBOR that the farmers are highlighting in their lawsuit is that LEBOR creates a cause of action (a set of circumstances that permits a lawsuit to occur) in the Lucas County Court of Common Pleas, which is a state court. This is an issue because municipalities cannot create a case of action in a state court; they can only create a case of action in a municipal court. It seems to me that a viable option could be to alter LEBOR so that it creates a case of action in the municipal court, so I'll investigate why that hasn't been done. Another issue farmers take with LEBOR is that LEBOR says that any permit given by the state or federal government is illegitimate in Toledo. Here is the text of this operative clause: "No permit, license, privilege, charter, or other authorization issued to a corporation, by any state or federal entity, that would violate the prohibitions of this law or any rights secured by this law, shall be deemed valid within the City of Toledo." The issue here is that this conflicts with the Ohio constitution's equivalent of the US constitution's Supremacy Clause. The Supremacy Clause states that when federal laws conflict with state laws, the federal laws take priority over the state laws. This same idea is present in the Ohio constitution: when state laws conflict with municipal laws, the state laws take priority. LEBOR declares precisely the opposite, which is that "no permit... that would violate the prohibitions of this law... shall be deemed valid within the city of Toledo." The legality of this is questionable. The underlying issue seems to be that the state laws aren't robust enough to effectively combat pollution of Lake Erie, so the long-term solution would be to change the state laws. Of course, this is easier said than done. At this point in the case, the main argument of those defending LEBOR is that the farmers don't have standing to sue the city, since they haven't established that they will be injured by LEBOR. The farms claim they already follow industry best practices, so if this is really true, then they should have nothing to worry about, and thus shouldn't be hurt by LEBOR. The farms' concern seems to indicate that they may not be following industry best practices quite as closely as they may say. Regardless of whether or not they are following industry best practices, Ohio laws don't seem to force the farms to be environmentally conscious enough to avoid devastating algae blooms. Perhaps another issue could be that the laws that exist aren't being enforced strictly enough. I'll investigate that as well. LEBOR may be legally questionable, but its underlying goals are essential for maintaining the health of the Lake Erie ecosystem. When the US congress passed the Clean Water Act in 1972, it was seen as a monumental step forward for the health of all US waterways, including Lake Erie. However, the Ohio legislature hasn't managed to pass many effective aquatic environmental protection laws in the meantime. This is in part due to the influence of agricultural and animal farming lobbyists throughout Ohio, since the runoff from these farms is largely responsible for algae blooms in Lake Erie in recent years, such as the bloom in 2017 that rendered thousands of Toledo citizens' tap water undrinkable for 2 days. The legislative inaction in Ohio has made these blooms a regular annual occurrence. While LEBOR may or may not survive the litigation it is currently involved in, the passage of LEBOR represents that the people of Toledo are getting tired of feeling the effects of the state legislature's inaction. The challenge is that the only people who directly feel the effects of farm runoff into Lake Erie are those who depend on Lake Erie for drinking water, which is a minority of Ohio's population. The small number of people affected has made it impossible thus far to vote in a new group of Ohio legislators who will do something about the algae bloom problem, which has led Toledo to desperately try to take measures into its own hands. Fundamentally, this is a classic example of the needs of the minority being ignored at the convenience of the majority. A lone city cannot single-handedly combat this issue that the whole state contributes to. To make long-term progress, a group of people must stick together to vote out representatives who refuse to pass effective legislation that combats this issue. Perhaps a Lake Erie conservation subcommittee could be formed in the Environment and Natural Resources committee of the Ohio General Assembly. This committee could be tasked with researching, proposing, and supporting legislation that would combat the problems Lake Erie is facing, on a state scale rather than just a municipal one.
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