A provision in the recently passed Ohio budget could negate the Lake Erie Bill of Rights (LEBOR) and end the ability of citizens to file lawsuits on behalf of ecosystems.
In February, voters in Toledo passed a citizen-led initiative to grant the Lake Erie Ecosystem, Lake Erie, and the Lake Erie watershed “the right to exist, flourish, and naturally evolve.”
Under the terms of the measure, it is “unlawful for any corporation or government to violate the rights recognized and secured by this law.” The term “corporation” includes any business entity.
It also says that “no permit, license, privilege, charter, or other authorization issued to a corporation, by any state or federal entity, that would violate the prohibitions of this law or any rights secured by this law, shall be deemed valid within the City of Toledo.”
This means, for example, that all water discharge permits granted under the 1972 federal Clean Water Act are no longer valid within the city limits.
The LEBOR also says that the City of Toledo and any Toledoan may file a lawsuit to “enforce the rights and prohibitions of this law.”
It is this last provision that the state budget bill addresses. It amends Ohio Revised Code Sec. 2305.011 to say:
- Nature or any ecosystem does not have standing to participate in or bring an action in any court of common pleas.
- No person, on behalf of or representing nature or an ecosystem, shall bring an action in any court of common pleas.
- No person shall bring an action in any court of common pleas against a person who is acting on behalf of or representing nature or an ecosystem.
- No person, on behalf of or representing nature or an ecosystem, shall intervene in any manner, such as by filing a counterclaim, cross-claim, or third-party complaint, in any action brought in any court of common pleas.
As The Ohio Star previously reported, immediately after Toledo voters passed the Lake Erie Bill of Rights, Wood County farmer Mark Drewes filed suit in U.S. District Court saying it was unconstitutional and unenforceable for its vagueness. The State of Ohio joined the lawsuit in May. They are asking the court to issue a decision and determine whether LEBOR is unlawful and, therefore, unenforceable, Dominic Binkley, a public information officer in Attorney General Dave Yost’s office, said. The City of Toledo has until August 9 to respond.
U.S. District Judge Jack Zouhary issued a preliminary injunction blocking the law from going into effect while the lawsuit is pending.
Separately, three Toledoans involved in passing LEBOR filed suit in June against the state in Lucas County Common Pleas Court.
Mike Ferner, Bryan Twitchell and John Michael Durback claim that Ohio is violating its constitution by joining the District Court case. As a result, they say they are entitled to a court order that enjoins Ohio “from seeking or realizing the invalidation of LEBOR through federal court or other court process.”
They ask that LEBOR be declared valid under the constitution and laws of Ohio. They also seek a permanent injunction against the state and anyone else who would prevent them from enforcing the provisions in LEBOR. That case was assigned to Judge Michael Goulding.
Binkley said this second lawsuit is “improper on multiple procedural and substantive grounds. It underscores why it is important that we get a decision from the case already pending in federal court, so the state and other parties are not pulled into court needlessly.”
Kenneth Kilbert, law professor at the University of Toledo and Director of UT’s Legal Institute of the Great Lakes, says LEBOR poses a number of unique legal questions.
“It’s an unusual law, unusual proceedings and an unusual state law in response,” he said. “The general rule is that cities can’t override states laws. But that’s a general rule and there are always exceptions.”
Kilbert said certain provisions of LEBOR have “questionable legality” which is what the courts will have to decide.
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Maggie Leigh Thurber is a writer for The Ohio Star. Email tips to [email protected].