In February, 2020, a federal court concluded that a law which granted rights to a waterbody, violated the United States Constitution. The law, known as the Lake Erie Bill of Rights (“LEBOR”) granted Lake Erie the same rights as humans and allowed residents of Toledo, Ohio to file lawsuits on the lake’s behalf. It was created in response to a harmful algal bloom on Lake Erie in 2014 that left residents of Toledo without drinking water for three days. Citizens of Toledo voted last year to enact the LEBOR as an amendment to the Toledo City Charter. The law would allow citizens of Toledo to initiate lawsuits against polluters on behalf of Lake Erie, require anyone found guilty of violating the LEBOR to pay a fine, and invalidate any federal or state permits that conflicted with the LEBOR. Despite being voted into law by the citizens of Toledo, the LEBOR never took legal effect due to a court order granted in a lawsuit filed immediately after the law was enacted that prevented the LEBOR from taking effect. The court in that lawsuit recently released a final opinion concluding that the LEBOR was an invalid violation of the United States Constitution.

The plaintiffs in Drewes Farms P’Ship v. City of Toledo, No. 3:19 CV 434, 2020 WL 966628 (N.D. Ohio Feb. 27, 2020) filed suit the day after the LEBOR was voted into law. Drewes Farms Partnership (“Drewes Farms”), the plaintiff in the case, is a farming operation that grows crops in four counties near Toledo. According to the complaint it filed with the court, Drewes Farms could never guarantee that all fertilizer runoff from its fields would be fully prevented from reaching Lake Erie, despite implementation of methods to reduce the amount of fertilizer applied to its fields and the amount of runoff that occurred. According to the plaintiff, the LEBOR put it and similarly situated agricultural operations at risk by exposing them to liability if they continued to fertilize their fields because it opened up the possibility that the plaintiff could be sued for violating the rights of Lake Erie by allowing runoff from any of the plaintiff’s fields to reach the lake. In bringing suit against the City of Toledo, the plaintiff argued that the LEBOR violated the United States Constitution by infringing on the plaintiff’s First Amendment freedom of speech and to petition the courts, by violating the plaintiff’s right to equal protection under the law, by violating the Fifth Amendment protection against vague laws, and by depriving the plaintiff of its rights without due process.

In its final opinion, the court agreed with the plaintiff that the LEBOR violated the Fourteenth Amendment of the United States Constitution which protects the right to due process. The court noted that an essential component of due process is clarity of the law. The court went on to explain that vague laws violate the Constitution because they do not provide the public with fair warning of what the law is, and because they are likely to result in arbitrary enforcement from prosecutors, judges, and juries.

In reaching its decision, the court identified three provisions of the LEBOR that were so vague as to violate the Constitution. First, the court considered the provision of the LEBOR which grants “irrevocable rights for the Lake Erie Ecosystem to exist, flourish, and naturally evolve.” The court determined that this provision was unconstitutionally vague because no where in the LEBOR did it indicate what type of conduct would infringe the right of Lake Erie to “exist, flourish, and naturally evolve.”

Next, the court reviewed the provision of the LEBOR which guarantees the citizens of Toledo a “clean and healthy environment.” This provision, the court concluded, was also unconstitutionally vague. The LEBOR offers no guidance on what is considered “clean” or “healthy.” According to the court, this vagueness makes it reasonable that Drewes Farms is concerned that spreading fertilizer on a field could be a violation of the LEBOR. According to the court, multiple other activities could violate the right to a clean and healthy environment, including fishing, pulling weeds, or irrigating a field. The court determined that the provision violated the Constitution because it had “no practical meaning.”

Finally, the court considered the provision of the LEBOR which states that the citizens of Toledo have “a collective and individual right to self-government in their local community.” Much like the right to a clean and healthy environment, the court concludes that the right to self-government is unconstitutionally vague because it does not give any guidance as to what that right looks like or what conduct would infringe upon the right.

Although the court concluded that the LEBOR violated the Constitution based on the vagueness of those three provisions alone, it also noted that several other provisions of the LEBOR could also have rendered the bill unlawful. Specifically, the court pointed to the portion of the LEBOR that would have invalidated any Ohio state law that came into conflict with the bill. Because the health of Lake Erie affects more of Ohio than the City of Toledo, the court reasoned that any municipal law enacted to protect the lake would typically be void if it conflicted with Ohio law.

The court’s decision to invalidate the LEBOR for Constitutional violates could have a wider influence than just within the state of Ohio. Because the LEBOR was the first law that sought to grant enforceable rights to a waterbody, how the court ruled on its constitutionality is likely to affect future attempts to pursue similar laws elsewhere.

 

To read the court’s decision in Drewes Farms P’Ship v. City of Toledo, click here.

To read the complaint filed by Drewes Farms Partnership, click here.

To read the Lake Erie Bill of Rights, click here.

For more National Agricultural Law Center resources on water law, click here.