Activists say: LEBOR struck down but efforts will continue

Activists vow to continue pressing for a reduction in pollution reaching Lake Erie in spite of recent court decisions that went against them.
“As our options within the system are shut down, Toledoans must decide whether or not Lake Erie is worth fighting for,” said Markie Miller, of Toledoans for Safe Water. “As long as there is a lake to protect we won’t be going anywhere.”
TSW is the driving force behind the passage of the Lake Erie Bill of Rights in 2019 that amended the Toledo City Charter to give Lake Erie recognition as an ecosystem with the right to “exist, flourish and naturally evolve.”
Last month, U.S. District Judge Jack Zouhary approved motions filed by Drewes Farms Partnership and the State of Ohio to invalidate the LEBOR amendment.
“Frustrated by the status quo, LEBOR supporters knocked on doors, engaged their fellow citizens, and used the democratic process to pursue a well-intentioned goal: the protection of Lake Erie. As written, however, LEBOR fails to achieve that goal. This is not a close call. LEBOR is unconstitutionally vague and exceeds the power of municipal government in Ohio,” Judge Zouhary wrote in his opinion. “LEBOR’s attempt to invalidate Ohio law in the name of environmental protection is a textbook example for what municipal government cannot do. Lake Erie is not a pond in Toledo. It is one of five Great Lakes and one of the largest lakes on Earth, bordering dozens of cities, four states and two countries. That means the lake’s health falls well outside the city’s constitutional right to local self-government, which encompasses only the government and administration of the internal affairs of the municipality.”
After the decision, the Community Environmental Defense Fund, which helped draft the LEBOR ballot initiative, issued a statement calling the court’s ruling “part of an aggressive effort by judges, lawyers, corporate interests and state government to undermine this Rights of Nature movement…”
A statement by TSW said the decision “comes at a time when the pollution of Lake Erie is intensifying, resulting in dangerous toxic algal blooms that threaten the drinking water for 11 million people and the health of Lake Erie.”
But Judge Zouhary also opined that the city isn’t completely defenseless in fighting water pollution.
“With careful drafting, Toledo probably could enact valid legislation to reduce water pollution,” he wrote, citing an ordinance in Madison, Wisc. that restricts the use of phosphorus-containing fertilizers within the city limits. “The ordinance survived a lawsuit like this one. In contrast, LEBOR was not so carefully drafted. Its authors ignored basic legal principles and constitutional limitations, and its invalidation should come as no surprise.”
Despite the setback in court, members of TSW see the LEBOR as the beginning of a movement.
“LEBOR has sparked a global conversation and inspired similar initiatives in Hawaii, Florida and the State of Washington,” Miller said.

Related cases pending
In January, the Lucas County Common Pleas Court ruled against three residents of Toledo who had filed a lawsuit seeking a declaration that the LEBOR was entirely enforceable under the Ohio Constitution.
The three, Mike Ferner, John Durback and Bryan Twitchell, had filed after the state intervened in the LEBOR case in federal court.
“The state wants us to believe first, that citizens can be pacified by what it considers just pretty words in Ohio’s constitution and second, that it has sole authority to protect Lake Erie and has done so,” Ferner said when the three filed the suit.
He recently filed an appeal with the Ohio Sixth District Court of Appeals.
And another lawsuit is pending in U.S. Court for the Northern District of Ohio filed by the Environmental Law & Policy Center.
The suit challenges the U.S. Environmental Protection Agency’s approval of an Ohio EPA July 2018 report, calling it inadequate and not providing an effective plan for reducing phosphorus into western Lake Erie.
“The Clean Water Act provides a specific legal pathway to reduce phosphorus pollution causing harmful algae blooms in western Lake Erie, but U.S. EPA and Ohio EPA refuse to follow the law,” said Howard Learner, ELPC executive director, when the suit was filed last year. “The court should require EPA to do its job well by promptly adopting and implementing an effective Clean Water Act plan to limit manure and fertilizer run-off that causes harmful algal blooms.”
The CWA requires a plan to implement what is called a Total Maximum Daily Load cap to limit discharges into the Maumee River system, he said.
“For years, Ohio EPA failed to recognize the full impacts of harmful algal blooms in western Lake Erie under the CWA,” the lawsuit says. “Ohio EPA finally designated western Lake Erie in full as having ‘impaired’ water quality under the CWA in May 2018. This impairment designation was a direct result of a prior lawsuit….and this court’s opinion and order requiring the U.S. EPA to address the state’s ‘substantial noncompliance’ with the CWA.”
Last month, the Ohio EPA issued a draft 2020 Water Quality Report that includes a commitment to prepare a TMDL for reducing manure and fertilizer into western Lake Erie.
Leaner said the draft plan is “an important step in the right direction” but “the devil will be in the details in how Ohio EPA sets up the plan and how soon it can make a difference.”
The case is before Judge James Carr.