Agraria Journal Winter 2021

TOM ARCHER Farm runoff is a major contributor to the nutrient pollution that causes toxic algae blooms like the one that killed this fish and other aquatic life in Lake Erie. system, was found in the water, making it potentially dangerous to drink. Though the water crisis occurred in 2014, in 2019 the Toledoans for Safe Water argued that legislators had done little to improve the quality of the lake or protect it from pollution since the crisis. The opening declaration of the LEBOR states: We the people of the City of Toledo declare that Lake Erie and the Lake Erie watershed comprise an ecosystem upon which millions of people and countless species depend for health, drinking water and survival. We further declare that this ecosystem, which has suffered for more than a century under continuous assault and ruin due to industrialization, is in imminent danger of irreversible devastation due to continued abuse by people and corporations enabled by reckless government policies, permitting and licensing of activities that unremittingly create cumulative harm, and lack of protective intervention. Continued abuse consisting of direct dumping of industrial wastes, runoff of noxious substances from large scale agricultural practices, including factory hog and chicken farms, combined with the effects of global climate change, constitute an immediate emergency. The LEBOR was considered by some to be harmful to farmers in Ohio because it might open them up to lawsuits due to agricultural runoff. Farm runoff is a main contributor to what the state calls “nutrient pollution” in rural areas. This pollution, mostly excessive amounts of nitrogen and phosphorus in water, is what leads to the development of harmful algal blooms. Nutrient pollution flowing through waterways has also created dead zones—where no aquatic life can survive— the largest of which covers 6,000 miles of the Gulf of Mexico. In 2019 the Toledoans for Safe Water were successful in gaining citizen support and the LEBOR was passed at the municipal level. In response, a lawsuit from a local farmer was filed immediately after its passage. Legislative maneuvering by the Ohio Chamber of Commerce also led to a rider attached to the state budget bill for the year; the amended language invalidated the LEBOR by stating, “Nature or any ecosystem does not have standing to participate in or bring an action in any court of common pleas.” So, though citizens of the municipality voted to give Lake Erie a kind of legal standing, the state budget bill made the municipal legislation unenforceable as the case worked its way through the court system. LEBOR was declared unconstitutional in 2020, mainly on 14th Amendment due process grounds that the law was too vague. The court also noted that the Lake Erie watershed affects more than just citizens of the municipality that passed the legislation, and thus overstepped its bounds by affecting those living outside of the city. In other words, laws made for Toledo cannot be enforced outside of the boundary of Toledo. So even though the actions of farms and farmers outside the city affect the water quality of those in the city, those in the city cannot legally protect their water from these kinds of harms. Those behind the LEBOR were attempting to illustrate the ways in which contemporary legal structures limit thinking about things like farms. The Community Environmental Legal Defense Fund (CELDF), which helped draft that legislation, is now advocating for legal systems to begin accounting for the Rights of Nature. According to the CELDF, Rights of Nature “means recognizing that ecosystems and natural communities are not merely property that can be owned. Rather, they are entities that have an independent and inalienable right to exist and flourish.” Within the United States, the idea that the courts might be used to create legal pathways for the protection of things like ecosystems is not a new concept—in 1972 Christopher Stone wrote an article for the Southern California Law Review called “Should Trees Have Standing: Toward Legal 10 AGRARIA JOURNAL 2021 “Farm runoff is a main contributor to what the state calls “nutrient pollution” in rural areas.”