Lake Erie, the southernmost and fourth-largest of North America's Great Lakes and the 11th largest lake in the world, just can't seem to catch a break.
Efforts in the 1970s to curtail the obscene amount of industrial pollutants and sewage being pumped into Lake Erie — written off as a biologically "dead" dumping ground — ushered in a period of markedly improved water quality. The dire condition of the lake (not to mention its sometimes flammable tributaries) and the impassioned crusade to save it even helped to inspire the formation of the U.S. Environmental Protection Agency in 1970.
Brought back from the brink, Lake Eerie was deemed a success story, a triumph of grassroots environmentalism spurred by concerned citizens. And with a little nudging from the Ohio Sea Grant Program, Dr. Seuss even removed a line from "The Lorax" ("I hear things are just as bad up in Lake Erie") nearly 20 years after the book's original 1971 publication to reflect the lake's newly cleaned-up status.
The last couple of decades, however, have not been so kind to the shallowest, warmest, most biologically diverse, most heavily urbanized — and, in turn, most ecologically vulnerable — of the Great Lakes. That lamentable line from "The Lorax" could be easily inserted back in.
Today, the 9,910-square-mile body of water is plagued by ecosystem-disrupting invasive species, fouled by agricultural runoff and suffocated by oxygen-depleted "dead zones" caused by toxic seasonal algae blooms that are so large they can be seen from outer space. Lake Erie hasn't been declared dead again, but it is clinging on to life support. (Technically, the lake's western basin has been classified as "impaired.")
Toledo residents are embracing a new approach to cleaning up woefully polluted Lake Erie, especially after the algae scare. (Photo: Don Johnson 396/Flickr)
One of several industrial hubs perched on the shores of Lake Erie, Toledo has been particularly impacted by the deteriorating condition of the lake. In the summer of 2014, Ohio's fourth most populous city was effectively shut down for three days when its drinking water supply was deemed off-limits as off-the-charts levels of algal bloom-boosting phosphorous drained into the lake from upstream farms. (A nutrient found in manure and fertilizer, phosphorous is the main culprit in algae blooms.) This marked the first time in U.S. history that an algal bloom rendered a city's water supply unsafe to consume. Even showering in Toledo's microcystin-laced tap water was strongly discouraged.
"Stores closed. Hospitals accepted only the most seriously ill patients. Restaurants were empty. And some 500,000 people depended on bottled water in the middle of a brutally hot August," writes The New York Times of the water contamination crisis.
It was that crisis — and the inefficient response to it on the state and federal levels — that led Toledo to put forth what the Times called one of the "most unusual" questions to ever appear on an American voting ballot: Should Lake Erie be given the very same legal rights as a person or business?
And Toledo voters said yes.
Called the Lake Erie Bill of Rights, the ballot initiative grants Lake Erie with personhood and, in turn, enables private citizens to sue polluters on behalf of the lake as its legal guardians. To read the initiative, scroll down to page 4 of this PDF about the various initiatives on the ballot.
Passed by voters during a special election held on Feb. 26, the bill established "irrevocable rights for the Lake Erie Ecosystem to exist, flourish and naturally evolve." It could potentially lead to large-scale clean-up efforts or pollution-prevention measures if any lawsuits brought to trial against polluters — namely farms and other agricultural operations — are successful.
"Basically, Lake Erie is dying, and no one is helping," Thomas Linzey, co-founder of the Community Environmental Legal Defense Fund (CELDF), tells CNN. "And this is the first time this type of law has been applied to this type of ecosystem."
The potential to drain city coffers and tangle up courts
Proponents of the Lake Erie Bill of Rights acknowledge that even after the vote, the controversial measure could ultimately flounder for years in the court system due to questions over its constitutionality.
"There will be all sort of litigation if this passes, to sort things out," Terry Lodge, an Ohio attorney who helped craft the bill, explains to The Guardian. "The authority will be questioned, and all sort of business leaders and political groups will be fighting this to protect their own interests and not be responsible stewards of the environment."
Vocal opponents of the bill included Toledo City Council President Matt Cherry, who told CNN it will "immediately go into litigation if passed" and potentially "deter industries from coming to Toledo." He noted that taxpayers would be forced to foot the bill for any ensuing court battles, leaving Toledo in a precarious financial position.
An algal bloom turns the Maumee River, which drains into Lake Erie, an alarming shade of green in September 2017. (Photo: NOAA Great Lakes Environmental Research Laboratory/Flickr)
The Ohio Farm Bureau was also staunchly against the bill given that the state's commercial agricultural operations are the prime targets of the lawsuits.
Yvonne Lesicko, vice president of public policy for the Bureau, admits to the Times that farms are indeed largely responsible for the polluted runoff that has rendered large swaths of western Lake Erie un-swimmable during the summer months. She does, however, note that runoff-producing golf courses, lawns and septic systems also share the blame. Lesicko argues that any sort of effective solutions such as further reducing fertilizer use could take years to implement and produce results.
"We care very much about the lake," Lesicko explains. "But this is not a solution. In fact, it is counterproductive. This is going to lead to lots of lawsuits and stress."
Many Ohio farmers have already implemented runoff reduction measures encouraged by the state but on a voluntary basis with no enforcement component. Per the Ohio EPA, voluntary participation won't cut it for much longer as slime-creating phosphorus levels show no signs of abating. "We don't see the trend line moving big enough or fast enough. It's time for us to consider the next step," said former Ohio EPA director Craig Butler in the spring of 2018 after then Gov. John Kasich, following years of resistance, finally declared Lake Erie impaired.
Glancing back to 1972
The vote — and even the presence of the initiative on the ballot — marks a radical shift in thinking that could potentially be replicated elsewhere. Can other bodies of water — or any sort of natural feature for that matter, be it a desert or a river or a forest — be granted the same legal rights as human beings?
Conceived by grassroots group Toledoans for Safe Water and drafted by the CELDF, the Lake Erie Bills of Rights is an entirely unique creature — the first rights-based law in the U.S. that zeros in on a distinct ecosystem — that could impact not just Toledo and the greater Maumee River watershed area but four states, two countries and numerous other major cities (Cleveland, Buffalo and Erie, Pennsylvania, among them).
There is, however, some precedent.
As Brian McGraw details for The Guardian, threatened ecosystems in other countries been granted legal personhood. They are, however, usually smaller than Lake Erie and involve legal settlements with indigenous people, not anti-pollution initiatives approved by the voters of a single city. In 2014, New Zealand granted personhood to the Te Urewera forest and, more recently, similar legal rights were bestowed to the Ganges and Yamuna rivers by an Indian court. And in a landmark 2008 move, Ecuador drafted "rights of nature" provisions directly into its constitution.
An algal bloom in the western part of Lake Erie near Toledo, Sandusky and Cleveland as captured by NASA's MODIS satellite in October 2013. (Photo: NOAA Great Lakes Environmental Research Laboratory/Flickr)
Closer to home, the nature-protecting thrust behind the ballot initiative can be traced back to the 1972 Supreme Court case Sierra Club vs. Morton, in which environmentalists attempted to block the Walt Disney Company from erecting a massive a ski resort in a remote patch of wilderness in California's Sierra Nevada Mountains. The court ultimately rejected the Sierra Club's lawsuit, but it did prompt a famous dissent from Justice William O. Douglas, who argued that trees should be granted the same legal rights as human beings.
"Contemporary public concern for protecting nature's ecological equilibrium," Douglas wrote, "should lead to the conferral of standing upon environmental objects to sue for their own preservation."
Rights of nature movement picks up steam
Established in 1995 with the mission of "building sustainable communities by assisting people to assert their right to local self-government and the rights of nature," the CELDF has framed much of its work around the concept of bestowing nature with the legal rights to thrive and flourish while empowering communities to uphold these rights.
As the Minneapolis Star Tribune reports, usually this involves calls to prohibit specific activities such as oil drilling and the dumping of toxic waste.
In 2017, Oklahoma's Ponca Nation became the first Native American tribe to adopt a law that upholds the rights of nature — just not one specific element of nature but all of it — to halt environmental degradation (In this case, fracking.)
"What they are doing in Toledo gives us all a tremendous boost of energy, one that will help enlighten humans around the world and show how people in Ohio really do care for the relationship between water and life, and the natural rebalance we are all trying to achieve," Ponca councilwoman Casey Camp-Horinek tells The Guardian.
Members of the Leech Lake Band of the Ojibwe Tribe harvest natural wild rice, the first plant to be granted legal human rights, in Mud Lake, located on the Leech River in Minnesota. (Photo: U.S. Army Corps of Engineers/Flickr)
What's more, the Star Tribune details the recent adoption (with assistance from the CELDF) of a tribal law by Minnesota's largest Native American tribe, the White Earth Band of Ojibwe, that grants wild rice legal personhood.
Believed to be the first time in the U.S. that a specific species of plant — in this case, a type of grass — has been bestowed with enforceable legal rights, the move comes as part of a larger effort to block the construction of an oil pipeline through north-central Minnesota. The pipeline itself wouldn't pass through tribal land but would cut through non-tribal waters where the state's tribal populations have treaty rights to hunt, fish and cultivate wild rice, a hand-harvested culinary staple in Minnesota.
Per the Star Tribune:
[White Earth tribal lawyer Frank] Bibeau said he hopes that codifying the rights will help state regulators understand the tribe's spiritual connection to wild rice. It's not just an important food, but a "major part of our cultural, spiritual connection with the Creator who guided our ancestors to where the food grows on water."
Back in Toledo, supporters of the Lake Erie Bill of Rights are hopeful that the vote sends a forceful message to policymakers that something — and something drastic — needs to be done to halt the flow of pollutants into a long-suffering lake that's health is in fast decline.
"These folks kept calling the cavalry, and the cavalry never came," Linzey tells CNN of the concerned Toledo residents who have been pushing for stricter regulations since 2014 … and long before then. "If (the initiative) wins, it begins a conversation on who speaks for the lake."
The people of Toledo may prove the Lorax wrong once again.
Editor's note: This story has been updated since it originally published in February 2019.