Settle in. It’s a 17-minute read.
On a Saturday morning in August 2014, the 500,000 residents of Toledo, Ohio woke up to a city alert. “Urgent Water Notice! DO NOT DRINK THE WATER. DO NOT BOIL THE WATER.” Hours later, local shops had sold out of bottled water, scattering residents as far as Detroit and beyond in search of water.
Ohio Governor John Kasich declared a state of emergency and released a statement, “What’s more important than water? Water’s about life.” Officials could not say when the water could be rendered safe. An hour and a half north, Flint, Michigan was 17 months from declaring their own state of emergency.
Algal blooms in Lake Erie had infused Toledo’s tap water with microcystin, a potent liver toxin. In the past few decades, excessive phosphorus and nitrogen have spilled into the lake and fueled runaway toxic algae growth. Signs warning “DANGER. Avoid all contact with water” have become summer mainstays for western Lake Erie beaches.
Describing the algae, local boater Dave Spangler commented, “It gets so thick that it slows the boats,” and compared the smell to “Grandma’s basement, that musty smell.”
The blooms affect more than just drinking water. Mats of algae block sunlight from reaching underwater plants. When the algae die, the excessive biomatter sets off a frenzy of microbe activity that rapidly consumes the dissolved oxygen in the lake, suffocating all fish and aquatic life in the process. The resulting dead zone can span over a third of the lake.
The main culprit: runoff from agribusiness operations. Modern fertilizer practices and vast piles of animal waste from concentrated animal feeding operations provide the excess nutrients. Exceptionally heavy rainstorms provide the gradient to push those nutrients into the lake, the source of drinking water for 5 million.
In our garden in Charlottesville, our dugout pond has become a mini Lake Erie. Our neighbors greet the onset of spring with a heavy dose of fertilizer for their lawns. Rainstorms drain the neighborhood into our pond. A couple days after a storm rolls through, green algae will cover the pond’s surface and force us to empty it completely. Before April, we could go weeks between cleanings even with warmer weather and four ducks sharing the small pond. People complain about how messy ducks are, but have you heard anyone acknowledge the mess of lawn fertilizer?
In Toledo, to protect its residents from the toxins, the city has spent $53 million on an ozone treatment system, $6.2 million for a powdered activated carbon system, and $800,000 per year on chemicals. Toledo Mayor Wade Kapszukiewicz declared, “It is a profound injustice that the citizens of Toledo have had to clean up a mess that other people have made.”
Clean Water Act
This isn’t the first time Lake Erie’s polluted waters have inspired outrage. “Lake Erie is dead” was a rallying cry for the passage of the Clean Water Act in 1972. The Clean Water Act set ambitious targets for industrial pollution and sewage treatment plants and provided billions of federal dollars to achieve those targets.
It worked. Cities bordering the lake cleaned up their operations. The lake became swimmable again. The fishing industry returned. For a while. But in the 90s, the algal blooms returned. What happened?
The Act is nearly 50 years old. Generations of new pollutants have been put on the market since 1972. The sources of pollution have changed. Regulation, the Clean Water Act included, has historically been more effective when tackling point sources of pollution. If a sewage plant is spilling pollutants into the lake, that is relatively easy to target and remedy. But when the problem is as diffuse as thousands of independent agribusinesses spread across an entire watershed, pollution becomes practically—and politically—more difficult to regulate.
In the wake of the 2014 debacle in Toledo, those political challenges have been made obvious. Agribusinesses in Ohio have benefited from legal protections that limit vulnerability to pollution-related lawsuits. In 2019, an amendment to the budget bill expanded the definition of farmland protected under Ohio’s Right to Farm law. The state did pass a law in 2015 prohibiting the application of fertilizer on frozen soil but exceptions are easily obtained and compliance with other recommendations is voluntary. Furthermore, the Clean Water Act specifically excludes “normal farming, silviculture, and ranching activities” from regulatory oversight.
In any case, to jumpstart any execution under the Act, a body of water must first be declared “impaired.” The Act requires states to develop a list of impaired waters that do not match water quality standards. As part of the designation, the state is then required to set a Total Maximum Daily Load (TMDL) of pollution for the body of water and construct plans to reach that TMDL.
Four years of grassroots advocacy later, and still the Ohio EPA failed to acknowledge the pollution. Then in 2018, Ohio Governor John Kasich signed an executive order to commission the Department of Agriculture to consider categorizing eight watersheds as “in-distress”. Though its scope was vanishingly narrow, the order was hit with tremendous resistance from legislators, agribusinesses, and from within the Department of Agriculture. In the end, the agency refused to comply.
Finally, Advocates for a Clean Lake Erie sued the Ohio EPA for not designating the lake as impaired. The Ohio EPA relented and admitted that Lake Erie was impaired, but failed to set a TMDL of phosphorus or nitrogen for the lake and failed to provide any plans to abate the pollutant. The group sued again. This time, they sued the federal EPA for signing off without requiring any remediation plans. A ruling is expected soon.
Even if the judge rules against the federal EPA, only one obstacle will be cleared among many more. Any actual implementation could take many years. The state has given every indication that it will drag its feet as much as possible.
For every obstacle the residents clear, another few get thrown in. The Clean Water Act only extends federal oversight to the “Waters of the United States.” In January 2020, Trump rolled back the scope of what can be considered “Waters of the United States”, striking wetlands and small streams from the list, leaving only large, navigable waters. In effect, development and agribusiness operations will be under regulatory oversight only if they directly impact navigable waters—building on the shores of Lake Erie, for example—but not if they pollute small tributaries and wetlands upstream. The repeal removes protection from 67% of Ohio’s stream miles and effectively invalidates using the Clean Water Act to regulate the non-point source pollution at issue with Lake Erie.
The EPA’s own Science Advisory Board called the repeal “counter to science” and said it “does not support the objective of restoring and maintaining these waters.” In a 2015 report, the EPA stated, with remarkably strong language for a scientific paper, “The evidence unequivocally demonstrates that the stream channels and riparian/floodplain wetlands or open waters… are clearly connected to downstream waters in ways that profoundly influence downstream water integrity.” The report is a 400-page “review of the scientific evidence” that confirms, “We all live downstream.”
Meanwhile, Trump’s rollback was praised by the agriculture industry. The president of the National Cattlemen’s Beef Association called the previous regulations an “illegal effort to assert control over private property.” Her sentiment perfectly encapsulates why non-point source pollution is nearly impossible to regulate in the United States. The land-use controls it would require are antithetical to the country’s aesthetic past and its belligerent present, its self-image of the rugged frontiersmen fiercely defensive of his private land and uncompromising against anybody telling him what to do with it.
The flip side is the people downstream whose land and communities are trespassed by groups asserting their right to pollute. The truancy of politicians has not stopped people from trying to protect their drinking water.
The 2014 poisoning of tap water has inspired other grassroots movements. A conversation among friends in a pub led to the creation of Toledoans for Safe Water. The group dedicated the next few years to contacting their local and state officials and imploring them to protect their drinking water. No progress. Frustrated by the inaction, they explored other avenues.
Rights of Nature
In 1972, the Supreme Court heard Sierra Club v. Morton. The Sierra Club sought to block the development of a ski resort at Mineral King Valley in the Sierra Nevada on National Forest land. Construction would require a new 25-mile highway and high-voltage power line through Sequoia National Forest. The Sierra Club did not allege personal injury, but instead claimed that the project would cause “irreparable harm to the public interest.”
The Supreme Court ruled against the Sierra Club, finding they did not have legal standing to sue. To have standing, you must suffer direct injury or harm.
Justice Douglas, in his dissenting opinion, argued that we should confer standing directly onto “environmental objects” to sue for their own preservation. “This suit would therefore be more properly labeled as Mineral King v. Morton,” he wrote. We have given legal standing to inanimate objects (maritime ships) and fictitious creations (corporations). “So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life.” Just as personhood is given to corporations for legal expediency, giving “natural objects” rights provides a necessary counterbalance to industries’ “enormous pressures on [regulatory] agencies for favorable action [against protection].”
In his dissent, Justice Douglas referenced an article written earlier that year by law professor Christopher Stone, titled “Should Trees Have Standing?—Toward Legal Rights for Natural Objects.” Stone argued for granting ecosystems personhood on practical and philosophical grounds.
He wrote, “Every well-working legal-economic system should be so structured as to confront each of us with the full costs that our activities are imposing on society.” For a market system to function, businesses must be held accountable for the costs they impose on people downstream. But the effects of pollution on humans are often too diffuse to give the law a proper toehold. Stone directly referenced the pollution of Lake Erie in the 1970s as an example. Giving the lake itself standing would be the best practical way to concentrate the full costs to confront the polluter with a “larger and more representative measure of the damages its pollution causes.”
Stone’s full contribution, though, was going beyond the consideration of “homocentric interests” to include the death and suffering of non-human life that “are not, at present, economically measurable losses.” It could be more simple than it sounds. The legal system creates economic value through what it protects. Private property and copyrights have value only because of the law’s recognition. In the same way, a lake is given value when the law enforces penalties against those who violate the lake’s rights.
In effect, Stone dismissed the notion of nature not having defensible values and rights as a circular argument with no basis: “The law says harm to non-human life is not an economically measurable loss because the law does not protect non-human life.”
It may feel beyond our collective imagination to give rights to more-than-human beings. But, as Stone writes,
throughout legal history, each successive extension of rights to some new entity has been… a bit unthinkable… Until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of ‘us’—those who are holding rights at the time.
Just as we have progressed past the Supreme Court’s ruling in the Dred Scott case, when “Blacks were denied the rights of citizenship ‘as a subordinate and inferior class of beings, who had been subjugated by the dominant race,’” so can we decide to extend rights to nature.
Rights of Nature In Practice
More than thirty years later, frustrated by the untrammeled degradation of their surroundings, people are turning to assign legal rights directly to more-than-human beings. In 2006, Tamaqua Borough in Pennsylvania became the first U.S. municipality to recognize legal rights for nature.
At the time, the owners of abandoned mining pits made the pits available to out-of-state industries for dumping toxic sludge (human waste, hospital waste, and chemical waste). Runoff slipped into the community’s rivers, drinking water was contaminated, and a few children died of staph infections after exposure to the sludge. Scared and frustrated by their powerlessness, the borough passed a town ordinance with extraordinary language, attempting to strip corporations of legal personhood and grant those powers instead to natural communities. The ordinance states, “Borough residents, natural communities, and ecosystems shall be considered ‘persons’ for the purposes of the enforcement of the civil rights of those residents, natural communities, and ecosystems,” and to “protect the health, safety, and general welfare of the citizens and environment of Tamaqua borough… by removing constitutional powers from corporations within the borough.”
Two years later, in 2008, when rewriting its constitution, Ecuador included a Rights of Nature provision. The constitutional article begins, “Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycle, structure, functions, and evolutionary processes. All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature.”
In other words, anybody can go to court to protect life, regardless of their relation to them. Going beyond protection against further harm, the article states “Nature has the right to be restored.”
Bolivia followed with a law in 2010 named “Law of the Rights of Mother Earth,” in which it defines Mother Earth as “the dynamic living system formed by the indivisible community of all life systems and living beings who are interrelated, interdependent, and complementary, which share a common destiny.”
In 2017, New Zealand granted legal personhood to the Whanganui River, making it the first river in the world to be recognized as an indivisible and living being. A court in India carried the example forward by declaring the Ganges River and its Yamuna tributary “legal and living entities.”
The recognition has persisted beyond symbolism into the courtroom. In 2011, haphazard road construction along the Vilcabamba River in Ecuador threatened downstream ecosystems. Excavated material and debris were discarded into the river. The scarring of hillsides increased erosion, and the ensuing blockages altered her path and increased her flow. Large floods barreled through, destroying ecosystems, risking landslides, and affecting access to clean water.
Rather than argue for personal damages, people downstream filed a constitutional lawsuit on behalf of the river. And the provincial court ruled in favor of the Vilcabamba River.
Still, “happily ever after” has eluded Rights of Nature advocates. People defending the river have struggled to get the Ecuadorian government to enforce the ruling. Meanwhile, oil drilling operations continue to expand into the Ecuadorian rainforest. The Bolivian government incentivizes the slash-and-burn agriculture that Bolivians blame for sparking unprecedented fires in the Chiquitano dry forest. The Supreme Court of India overturned the earlier ruling, stating that giving legal rights to rivers was “legally unsustainable.”
Toledo Votes for the Lake Erie Bill of Rights
Inspired by the global movement and undeterred by its challenges, the Toledoans for Safe Water collected enough signatures to present the Lake Erie Bill of Rights (LEBOR) as a ballot measure in 2019. The group spent $6k in support. British Petroleum, which has fracking interests in the state, spent over $300k in an opposition campaign. Nevertheless, the citizens of Toledo granted legal rights to Lake Erie with 61% of the vote.
The bill states,
We the people of the City of Toledo find that laws ostensibly enacted to protect us, and to foster our health, prosperity, and fundamental rights do neither; and that the very air, land, and water – on which our lives and happiness depend – are threatened. Thus it has become necessary… to extend legal rights to our natural environment in order to ensure that the natural world, along with our values, our interests, and our rights, are no longer subordinated to the accumulation of surplus wealth and unaccountable political power.
Excerpts from the bill:
“This Lake Erie Bill of Rights… establishes irrevocable rights for the Lake Erie Ecosystem to exist, flourish and naturally evolve, a right to a healthy environment for the residents of Toledo, and which elevates the rights of the community and its natural environment over powers claimed by corporations.”
“Court action shall be brought in the name of the Lake Erie Ecosystem as the real party in interest.”
Less than 11 hours after LEBOR passed, Drewes Farms Partnership brought a suit against the City of Toledo, challenging LEBOR as unconstitutional and unlawful.
Excerpts from the suit:
“The ability to properly fertilize its fields is crucial to the success of Drewes Farms’ farming operations. Drewes Farms’ fields are fertilized pursuant to Ohio law, best practices, scientific recommendations.”
“Corn, soybean, wheat, and/or alfalfa farming [sic], such as that conducted by Drewes Farms, requires the use of some form of fertilizer, such as manure and/or commercial fertilizers.”
Drewes Farms’ lawsuit is remarkable in that it goes to such lengths to explain how LEBOR would prevent it from running their business as it currently operates. This is precisely LEBOR’s motivation. Because Drewes Farms is correct. No real mitigation to excess runoff can be made without fundamentally changing our approach to agriculture: vast monocropping, excessive artificial fertilizers, million-dollar, 65-ton tractors with 1,000-gallon diesel tanks, and cramped complexes of suffering animals.
In the past, when business operations have been deemed to violate rights, and laws have been passed to protect rightsholders from those violations, the businesses have always protested to the greatest extent that their wealth and power has allowed. And in the rare cases where they have lost, the businesses have adapted as required.
Monocropping and CAFOs are not the only way to grow lots of food. Some studies have suggested that small, biodiverse, no-till farming produces more food per acre than large-scale agribusinesses. Other studies are inconclusive. And that’s after decades and billions of research dollars have been devoted to increasing yields using industrial-scale methods.
This is not to belittle the plight of Drewes Farms. From its perspective, it has responded to the constraints of the market and the legal system for decades to eke out a profit in a commoditized business. To survive, it probably loaded itself with debt in order to subdue more land with bigger machines. It has been told its whole life that the pursuit of profit was the only right or wrong it needed to worry about. But now it is told to concern itself with polluting beyond its borders? To comply with the full intention of LEBOR would require extraordinary help. Million-dollar machines with million-dollar debts attached might be rendered unusable. LEBOR does nothing to help it.
The State of Ohio has been similarly antagonistic toward LEBOR. A few months after its passage, the Ohio Chamber of Commerce helped craft language against LEBOR into a last-minute amendment that was slipped into the state budget. The amendment included language taken directly from the Chamber of Commerce’s ask: “Nature or any ecosystem does not have standing to participate in or bring an action in any court of common pleas” in an attempt to invalidate LEBOR with state law.
Additionally, Ohio joined Drewes Farms in its lawsuit against Toledo, stating that LEBOR infringed on the state’s rights and that it contradicts the state’s “multi-faceted statutory, regulatory, and civil and criminal enforcement programs that control water pollution”—programs that are, curiously, currently in court for their non-response to Lake Erie’s pollution.
Whose Rights Prevail?
The heart of the case: whose rights prevail? The rights of the citizens of Toledo to clean water? The rights of the Lake Erie ecosystem to “exist, flourish, and naturally evolve”? Or the rights of Drewes Farms and their colleagues to operate as they always have?
The expansion of the term “rights” is troublesome. When rights include too broad an umbrella of “wants”, they lose their original purpose. Rights, basic human rights included, are a human invention, shorthand for ‘priorities’. When the Universal Declaration of Rights declares that “everyone has the right to life, liberty, and the security of person,” we mean to say that my desire for life, liberty, and security should be prioritized over another’s desire to enslave me on their behalf.
The broader the umbrella of rights, the more readily they come into conflict. When the authority-demanding label of rights is granted to each side, it is no longer obvious which right should be given priority. When we assign legal personhood to corporations, Drewes Farms argues we then assign all the rights of personhood to a corporation.
The Rights of Nature movement, LEBOR included, is no less than an attempt to recenter our priorities. It claims that protecting access to the essentials of life—clean air and clean water—is a higher priority than a corporation’s access to private property and profit, that a living ecosystem’s right to exist, flourish, and naturally evolve is a higher priority than humanity’s right to exploit life without recourse.
The lawsuit went to court at the end of January 2020. In oral arguments, the plaintiff said the language of the bill is too vague and allows for too-broad enforcement. The defendants respond that the different interpretations of what it may mean for a lake ecosystem to “exist, flourish, and naturally evolve” are precisely why the lawsuit should be thrown out. That Drewes Farms sued before any action was taken against them (indeed, the business states in its complaint that it doesn’t believe it has violated the bill’s provisions) is unique. Defendants argue that the judiciary needs to wait to understand how the bill will be enforced before it can be struck.
The Civil Rights Act and the Voting Rights Act are analogous examples of when legislators proclaimed “This sentiment should be Law” and left it up to the executive and judicial branches to determine the shape of the law’s reach. Far from invalidating legislation, multiple interpretations are a hallmark of the constitutional Bill of Rights (see the 2nd Amendment, et al.).
In court, Drewes Farms and Ohio have been forced to engage in the juggling act of saying Toledo has no right to reach beyond its jurisdiction to protect its drinking water, while claiming that the state and businesses have the right to pollute beyond their jurisdiction.
What we’re left with is a Catch-22. Business and regulatory bodies claim that private property rights reign supreme and that broad oversight infringes on those rights. The federal government relinquishes its regulation over the Waters of the United States, saying it is an inappropriate federal overreach and should be left to the localities. But when the city of Toledo tries to assert its right to clean water, those same bodies counter by asserting that only broader regulatory bodies can determine how much pollution is allowable into Toledo’s drinking water.
LEBOR is up against centuries of precedent involving interstate commerce and the subordination of localities to state law. But LEBOR’s power lies in its colloquial simplicity. “The people of the City of Toledo possess the right to a clean and healthy environment” and that “It shall be unlawful for any corporation or government to violate the rights recognized and secured by this law.” To overturn LEBOR, the plaintiff must argue, and the judge must rule that, in fact, no, the people of Toledo do not possess the right to a clean and healthy environment and that it is lawful for corporations and governments to deprive the people of Toledo of a clean and healthy environment.
I think what’s criminal is what the state is trying to get away with, including saying that we have trampled the constitutional rights of a company seeking the right to pollute us.
Markie Miller, organizer for Toledoans for Safe Water
Few believe Toledo can win. But by passing the Lake Erie Bill of Rights, Toledoans have confronted our system’s preference for private profit over healthy ecosystems; they have found the system to be deficient. Regardless of the outcome, the early stages of the hearing have validated their effort. LEBOR will force the system to explicitly acknowledge its priorities.
Toward the end of his “Should Trees Have Standing?” essay, Christopher Stone moves from the practical to the philosophical. Stone recalls the role of the Supreme Court in Brown v. Board of Education, writing that the cultural importance of the ruling swelled beyond integrating schools. The ruling “awakened us to moral needs which, when made visible, could not be denied.”
Law’s purpose, as with any cultural institution, is to seek justice, yes, but also to provide the contextual support necessary for each of us to reach for our full potential. Stone saw modern-day law’s exaltation of a narrow conception of wealth creation to be detrimental to all. “If we only stop for a moment and look at the underlying human qualities that our present attitudes toward property and nature draw upon and reinforce, we have to be struck by how stultifying of our own personal growth and satisfaction they can become when they take rein of us.”
What is it within us that gives us this need not just to satisfy basic biological wants, but to extend our wills over things, to objectify them, to make them ours, to manipulate them, to keep them at a psychic distance?
As for our duck pond, we could walk door-to-door and ask our neighbors to cut their fertilizer use. But given societal norms—fertilizing your lawn is acceptable, but asking someone to restrain themselves on their private property is not—we have no expectations for success. In the meantime, we’ll continue bailing out our pond and pray they are going light on the herbicides. At least we don’t have to drink out of it.
Originally published as an abridged version: https://rebellion.global/blog/2020/05/05/nature-rights/
Berries and Figs 