by Sheryl Cunningham
Originally from the 2021 Winter Agraria Journal

Farmers often talk in terms of acres, and the Ohio revised code, which defines what agriculture is in the state, follows suit. It uses the language of “parcels, tracts, or lots” to describe agricultural land—the purpose of which is to bound the land into different categories so that property lines can be defined, and properties can be bought and sold. This conception of land as the only property does not make a lot of ecological sense, particularly when it comes to water. Anyone who has dealt with a heavy rain knows that water does not respect these constructs, and that boundaries can quickly become meaningless. Water needs to move, and will move. It makes more sense, then, to think of farms as parts of ecosystems rather than just property. That was the thinking behind the Lake Erie Bill of Rights (LEBOR) passed in 2019 by the citizens of Toledo.

The bill created legal standing for an ecosystem by giving individual citizens the right to take legal action on behalf of Lake Erie and its watershed. The motivation for the group behind the legislation, Toledoans for Safe Water, is widely referred to as the “Toledo Water Crisis,” during which the city’s residents were told not to drink their tap water for three days in August of 2014 because of an algae bloom that developed in the Maumee River near a water intake station for the city. Microcystin, a toxin created by blue-green algae that can affect the liver and neurological system, was found in the water, making it potentially dangerous to drink. Though the water crisis occurred in 2014, in 2019 the Toledoans for Safe Water argued that legislators had done little to improve the quality of the lake or protect it from pollution since the crisis. The opening declaration of the LEBOR states:

“We the people of the City of Toledo declare that Lake Erie and the Lake Erie watershed comprise an ecosystem upon which millions of people and countless species depend for health, drinking water, and survival. We further declare that this ecosystem, which has suffered for more than a century under continuous assault and ruin due to industrialization, is in imminent danger of irreversible devastation due to continued abuse by people and corporations enabled by reckless government policies, permitting and licensing of activities that unremittingly create cumulative harm, and lack of protective intervention. Continued abuse consisting of direct dumping of industrial wastes, runoff of noxious substances from large-scale agricultural practices, including factory hog and chicken farms, combined with the effects of global climate change, constitute an immediate emergency.”

The LEBOR was considered by some to be harmful to farmers in Ohio because it might open them up to lawsuits due to agricultural runoff. Farm runoff is a main contributor to what the state calls “nutrient pollution” in rural areas. This pollution, mostly excessive amounts of nitrogen and phosphorus in water, is what leads to the development of harmful algal blooms. Nutrient pollution flowing through waterways has also created dead zones—where no aquatic life can survive— the largest of which covers 6,000 miles of the Gulf of Mexico.

In 2019 the Toledoans for Safe Water were successful in gaining citizen support and the LEBOR was passed at the municipal level. In response, a lawsuit from a local farmer was filed immediately after its passage. Legislative maneuvering by the Ohio Chamber of Commerce also led to a rider attached to the state budget bill for the year; the amended language invalidated the LEBOR by stating, “Nature or any ecosystem does not have standing to participate in or bring an action in any court of common pleas.” So, though citizens of the municipality voted to give Lake Erie a kind of legal standing, the state budget bill made the municipal legislation unenforceable as the case worked its way through the court system. LEBOR was declared unconstitutional in 2020, mainly on 14th Amendment due process grounds that the law was too vague. The court also noted that the Lake Erie watershed affects more than just citizens of the municipality that passed the legislation and thus overstepped its bounds by affecting those living outside of the city. In other words, laws made for Toledo cannot be enforced outside of the boundary of Toledo. So even though the actions of farms and farmers outside the city affect the water quality of those in the city, those in the city cannot legally protect their water from these kinds of harms.

Those behind the LEBOR were attempting to illustrate the ways in which contemporary legal structures limit thinking about things like farms. The Community Environmental Legal Defense Fund (CELDF), which helped draft that legislation, is now advocating for legal systems to begin accounting for the Rights of Nature. According to the CELDF, Rights of Nature “means recognizing that ecosystems and natural communities are not merely property that can be owned. Rather, they are entities that have an independent and inalienable right to exist and flourish.”

Within the United States, the idea that the courts might be used to create legal pathways for the protection of things like ecosystems is not a new concept—in 1972 Christopher Stone wrote an article for the Southern California Law Review called “Should Trees Have Standing: Toward Legal Rights for Natural Objects.” In his article, Stone talks about how who or what becomes a rights-bearing entity changes over time, with corporations being one such example in the United States. He writes: “We have become so accustomed to the idea of a corporation having ‘its’ own rights, and being a ‘person’ and ‘citizen’ for so many statutory and constitutional purposes, that we forget how jarring the notion was to early jurists.”

When the LEBOR was passed by the citizens of Toledo there were articles that seemed to try to grapple with this very jarring, with provocative headlines like “Should this tree have the same rights as you?” and “Lake Erie now has legal rights, just like you.” Opponents of the LEBOR also noted the change in thinking, arguing that people could now be “sued by Lake Erie,” usually in a derisive attempt to mock what they considered an absurd idea. For some, Rights of Nature may seem like a stretch, and an idea too jarring to be considered, but ecological thinking requires a reframing; thinking of farms as property rather than as parts of ecosystems continues to allow the devastation and abuse of waterways.

And, in fact, the algal blooms in the Lake Erie watershed are persisting. The Ohio Department of Health publishes a beach report online so that people can check the water quality at public beaches throughout the state. As I write this in August of 2021 the beach at Maumee Bay State Park is in its fifth day of a public health warning. The alert? Microcystin.

Sheryl Cunningham is president of the Agraria Board of Trustees and a communication professor and faculty sustainability coordinator at Wittenberg University.