Lake Erie Bill of Rights’ Survival ‘Longshot,’ UT Legal Expert Says

While a federal judge has already invalidated Toledo’s Lake Erie Bill of Rights (LEBOR) and the city has dropped its appeal due to coronavirus-related budget constraints, the municipal ordinance will receive a hearing on the merits in the Lucas County Court of Common Pleas, according to a University of Toledo (UT) legal expert.

U.S. District Court Judge Jack Zouhary invalidated LEBOR earlier this year, but “rights of nature” advocates have continued to push the case in state courts. The city of Toledo added LEBOR to its city charter after voters approved the measure 61 percent to 39 percent in February 2019. (See The Hannah Report, 2/28/20, 2/27/19.)

Kenneth Kilbert, director of the UT College of Law’s Legal Institute of the Great Lakes, said the Ohio Sixth District Court of Appeals recently reversed the Lucas County Court of Common Pleas’ decision to dismiss for “failure to state a claim,” ordering the lower court to further consider LEBOR. Kilbert was speaking during the virtual Great Lakes Water Conference sponsored by the UT College of Law.

“The appeals court, in its opinion, emphasized that the issue before it on appeal was a narrow procedural one -- does the complaint state a claim based solely on the facts alleged in the complaint and assuming them to be true? The appeals court said yes, so the case can continue in the trial court,” Kilbert said. “But the appeals court made clear that it was not addressing the merits of the case, that is, the validity of LEBOR or whether the state had violated any law by intervening in the federal court case. Indeed, the opinion indicated that the plaintiffs themselves had acknowledged that the Drewes Farm ruling likely killed LEBOR, and that they were unlikely to prevail on the merits in this state court.”

However, Kilbert said, there is a “shot” that the Lucas County Court of Common Pleas could find that LEBOR is valid and enforceable, as the federal court ruling doesn’t moot the state court case because the federal decision is not binding on state courts.

“In my view, I tend to agree with Judge Zouhary that LEBOR is fatally flawed, legally. I think it’s a longshot at best that LEBOR, as written, can legally survive,” Kilbert said. “Nevertheless, it is also my opinion that regardless of whether LEBOR has any legal value, it does have some political value. The February 2019 special election showed that being in favor of a clean, healthy Lake Erie is a winning issue at the ballot box. So maybe LEBOR’s success with voters will provide some political will to our elected officials who to date have been fearful of taking action to regulate agricultural runoff.”

Kilbert said while rights of nature laws are unusual, they are not unprecedented, pointing to the 1972 dissenting opinion by former U.S. Supreme Court Justice William Douglas, who wrote in Sierra Club v. Morton that natural objects should have standing to sue for their own protection.

“In recent years, rights of nature laws have taken root in some foreign countries, including in the constitution of Ecuador and via legislation in New Zealand. And in this country, starting with Pennsylvania’s Tamaqua Borough in 2006, a growing number of communities have enacted local rights of nature laws in an effort to protect their natural resources from polluting activities, whether it be spreading sewage sludge, fracking, etc. Whether such rights of nature laws in the U.S. actually have any legal juice, any legal power, is an open question. To date, I’m not aware of any case in which a rights of nature law in the U.S. has been successfully enforced.”

Kilbert said rights of nature advocates have emphasized that despite the lack of enforcement, these laws provide procedural, substantive and rhetorical advantages.

“Procedurally, it could make standing less of a hurdle. Instead of having to show that an individual plaintiff has suffered an injury in fact, the plaintiff could establish standing just by the lake itself showing that it’s been injured by the pollution. Substantively, recognizing that a lake has rights could act as a counterbalance to laws that treat the lake as property or literally permit pollution of the lake, like the Clean Water Act. If a fictional entity like a corporation can benefit from having rights like in Citizens United, why not a lake? And rhetorically, advocates may find it more powerful to be viewed as arguing on behalf of the lake itself, rather than just some individual or group,” Kilbert said.

Kilbert added that these kinds of laws could help stop pollution, even if they are not enforceable.

“Anytime there is a law on the books, it acts as a deterrent to some extent. The price of being right to say that it is unconstitutional or unenforceable, you have to go through litigation, right? So just being right costs a lot of money, potentially. And of course there is a risk that you will lose, and thus be subject to enforcement if you go ahead and do things,” Kilbert said, adding that he’s not sure that’s a good result. “I’m sympathetic to the idea of people polluting in Lake Erie less, but in general I don’t like the idea of laws that are not really legally right or enforceable being on the books to discourage conduct that may very well be lawful.”

Responding to a question, Kilbert said a state constitutional amendment with language similar to LEBOR would have a better chance of being enforceable than a municipal ordinance, but would still have to overcome due process issues under the U.S. Constitution.

Story originally published in The Hannah Report on November 6, 2020.  Copyright 2020 Hannah News Service, Inc.