Lake Erie’s Failed Algae Strategy Hurts Poor Communities the Most – Circle of Blue

That hasnt been for lack of effort. Just lack of political capital. Citizens advocating for a polluter pays model have as their enemy some of the most powerful lobbying groups in the region, including the Ohio Farm Bureau, whose spending reaches into the hundreds of thousands of dollars per election cycle, and multinational oil companies with fracking interests in the state.

Likewise, the slow-moving administrative state has stymied local activists again and again. The Clean Water Act is a clunky instrument for addressing diffuse pollution. It took a federal lawsuit for the EPA to designate Lake Erie as impaired. The resulting assessment, even as it concludes that Lake Erie is over-polluted, will not have teeth to enforce any nutrient reductions until policymakers say so.

So in 2019, the city of Toledo pulled a hail mary: they made Lake Erie into a legal person and proposed to protect her with irrevocable rights to exist, flourish and naturally evolve, reads the Lake Erie Bill of Rights, known among its supporters as LEBOR (LEE-bore).

Markie Miller, the main organizer behind the bill, began the effort after the 2014 water crisis. In the wake of the emergency, citizen panic had turned to anger and urgency.

We thought, Wait a minute, the citys been monitoring the situation? Why are people hearing about it for the first time? Miller said. It felt unlikely that we were going to succeed going though systems that had already been in place. [The crisis] happened on their watch. We needed something different.

LEBOR was always a long shot. On paper, LEBOR was intended to give rights to Lake Erie. But as a legal document, it would have shifted leverage to protect those rights to individual citizens. Ordinarily, individual citizens have no legal standing to sue unless they can causally link a direct injury to a single polluter. LEBOR was engineered as a response to this collective action problem.

While previous efforts to give legal personhood to natural resources have sprung up around the world, from Bangladesh to Bolivia, so-called rights of nature laws are few and far between in the U.S., and they have largely failed outside of tribal courts. Even its community champions knew that.

Nonetheless, when the LEBOR special election was held in February 2019, 60 percent of Toledons voted their approval despite an opposition campaign backed by the Texas-based oil company, BP North America. The victory was short-lived. A farm operation successfully sued to stop LEBORs enforcement the day after the election.

The whole point was to be challenging. It was our way of confronting those laws and those systems. That was very intentional, because we want things done differently, Miller said.

It came as little surprise when, in 2020, the bill was struck down in federal court for being overly vague. The bills standards may trap the innocent by not providing fair warning, the decision read, and invite arbitrary enforcement by prosecutors, judges and juries.

As a material game-changer, LEBOR was a failure. But it represented the hope and frustration of a community for whom all other means of advocacy had failed. For Miller and LEBOR supporters, it was a meaningful, if utterly fleeting, moment of empowerment.

It had major legal issues, but conceptually it was a good idea, said Schroeck, the environmental lawyer. Its the kind of creative thinking needed to solve the problem.

Indeed, with LEBOR long gone, that is the question once again facing the people on the front lines of the algae blooms: how to flip the leverage back to citizens. The question has less to do with the environment, and more to do with political power, and its bearing on the age-old question of who pays the cost of pollution. Having experienced the damages on the front lines, the two Smith women believe that a solution must start with giving frontline communities a seat at the table.

The majority can no longer be the majority of individuals who have a voice. It has to be the majority for what is fair, just, and doable, says Alicia Smith. That is what the Lake Erie Bill of Rights was asking for: a just engagement for all people.

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Lake Erie's Failed Algae Strategy Hurts Poor Communities the Most - Circle of Blue