Can Cities Grant Nature the Right to Exist, and Thrive?
From preventing toxic algae blooms to banning aerial pesticide spraying, the fight for local control over environmental decisions elevates the rights of nature as a key step in the larger community rights movement.
The five Great Lakes and their watershed make up the largest source of surface fresh water on Earth. Tens of millions of people rely on them as a source for drinking water — a natural resource living beings can’t survive without.
And yet, in the wake of devastating toxic algae blooms (among other crises), the risk is growing that the Great Lakes will become so polluted, so toxic, that plant, animal, and marine life might no longer be able to rely on the lakes as a freshwater source. Algae blooms, attributed to nutrient runoff in agriculture, already affect half a million people in the greater Toledo area, who, in 2014, spent days without fresh water to cook, drink or wash clothes.
In 2019, the algae bloomed early, is growing rapidly and includes an area potentially affecting 11 million people. And as toxic algae blooms are fueled by the warming temperatures of climate change, this crisis has residents worrying they will be without clean water more frequently and for longer periods of time.
Imagine, then, granting the Great Lakes the right to exist free from pollutants that could contaminate and harm the lives that rely upon them. Now imagine that we, as humans and as Americans, have the right to lawfully stop anything that violated the rights of the Great Lakes to exist and evolve naturally, toxic-waste free — environmental permissions be damned.
If that sounds like a stretch, it shouldn’t. Residents of Toledo, Ohio have already agreed that Lake Erie does in fact have the right to exist, toxic nutrient-free, and that the people have the right to protect the lake from harmful chemicals, fertilizers and more. Toledoans voted earlier this year to pass the Lake Erie Bill of Rights (LEBOR), which, when implemented, grant the people the right to use the law to stop anything that would cause harm to the Lake Erie ecosystem — and the life that relies upon it.
This approach, called rights of nature, represents not just a legal shift, but a fundamental cultural shift as well. It’s grounded in the community rights movement, which states that people in the community have the right to decide on the issues that directly affect them, from setting the minimum wage to deciding on acceptable levels of aerial pesticide spraying. The rights of nature, similarly, intend to enshrine environmental protections in law — a potentially safer place for them to reside than within the often toothless systems of environmental regulation.
Together, these policy channels work to restore democracy to the people, overriding both the lax corporate-controlled regulations that permit such pollution, and the far-away regulators who make the decisions that are disconnected from the communities most affected.
These concepts aren’t new. Native cultures throughout the Americas have, for thousands of years, viewed nature and humanity as part of the same integral web. Nature wasn’t property to be owned, tamed or otherwise controlled. It was an essential aspect of life to respect and live in harmony with. But capitalism — and colonial mercantilism before it — have long commodified and exploited nature for personal gain. And given the principles of corporate personhood, that individual gain typically benefits corporations and their far-off shareholders.
Other nations have recognized this, and have looked to contemporary legal systems to restore balance. Ecuador has enshrined rights of nature in its constitution. Bolivia and New Zealand have also recognized the rights of nature.
In Toledo, LEBOR has been spearheaded by a group of residents tired of the business as usual that has forced them to go without water. Now, from Ohio to Oregon, more city residents are leveraging community rights and the rights of nature to guarantee clean water and a living minimum wage, and to protect against pesticide spraying, fracking, and more. At the same time, big industry’s grip on regulatory control isn’t going to cede its power to actual humans without a fight.
TOLEDO TAKES A STAND FOR CLEAN WATER
Within the current regulatory framework, the agriculture industry is allowed to use the nutrients that fuel the toxic algae blooms in Lake Erie. But Markie Miller, an organizer with Toledoans for Safe Water, one of the civic groups behind LEBOR, says that regulatory process “is not working.”
Miller says that when she studied environmental studies and environmental science in college, the emphasis was on getting a job where you either worked on regulations, or helped a company comply with regulations. In her mind, that seemed to sidestep the real issues of environmental justice. So she turned to the community rights movement.
Miller says she is tired of the messaging around environmental disasters, a reactive approach which often revolves around preparation for the catastrophe of a toxic algae bloom. “We don’t want to put up with allowable harm,” she explains. “We want something proactive.”
She and fellow local activists connected with the Community Environmental Legal Defense Fund (CELDF), a public-interest law firm working with communities around the world to support community rights and the rights of nature. Together, they drafted the Lake Erie Bill of Rights and brought it to the citizens of Toledo.
In August 2018, Toledoans for Safe Water turned in petitions to put LEBOR on the local ballot; the initiative garnered more than 10,000 signatures. Shortly thereafter, the local Board of Elections attempted to block the initiative from moving forward.
“It was devastating to be without water for 3 days in 2014. [But] this is worse,” said Crystal Jankowski, an organizer for the Lake Erie Bill of Rights, in a press release. “To know that the Lake and my children are at risk because it is legal for the polluters to pollute us, while our own government makes it illegal for us to propose a law to protect the Lake and our children, is beyond devastating. It is the realization that we not only have a water crisis, but we also have a democracy crisis.”
After a prolonged battled to get LEBOR on the ballot, the initiative passed by more than 60 percent of the vote in February 2019. LEBOR is the first rights-based law on behalf of an ecosystem in the United States. The bill recognizes the right of Lake Erie “to be healthy and free from pollution that today is killing the Lake and depriving surrounding communities of safe water.”
The legal challenges persist; these include lawsuits against the city of Toledo, backed by the state, and efforts to prevent the two groups responsible for the initiative — Toledoans for Safe Water and CELDF — from assisting the city in defending it.
“We can’t rely on the legal system,” says Miller. “Here’s this new law that changes everything, but [the government is] still conforming it to outdated legal standards. [Officials] are justified by standards we don’t approve of.”
Slipped into this year’s 2,500-page Ohio state budget bill, approved by the state legislature and signed by Governor Mike DeWine, was language against the rights of nature, and measures that protect the agriculture industry from lawsuits.
Joe Cornely, spokesman for the Ohio Farm Bureau, says his industry group is against LEBOR “mostly because we thought there were several parts that were just unconstitutional. Municipalities are not allowed to write laws that supersede state or federal regulations,” Cornely says. While Ohio’s agriculture industry might be against LEBOR, it’s worth noting that the group responsible for funding the effort to keep LEBOR off the ballot was, in fact, BP.
“We know that Lake Erie has a lot of problems,” says Cornely. “We know agriculture plays a significant role in solving those problems. But we have a difference of opinion with LEBOR [about how] to fix those problems. This is a hugely complex undertaking and many times the solutions that people seem to embrace are — I don’t want to call them simplistic — but they don’t recognize the complexity.”
THE LARGER CONTEXT OF COMMUNITY RIGHTS
“What’s the real problem? The election process,” says Tish O’Dell, Ohio Community Organizer for CELDF. “Why can’t a community pass a law that [protects its water],” she asks. “Why can’t a community pass a law that limits campaign contributions? Why can’t a community say ‘we want paper ballots used in our local elections’? Community rights [issues] are more than environmental.”
It’s not just protecting from the environmental threat or instituting a living minimum wage — something Cleveland sought to implement but was thwarted in doing — that community rights is hoping to address.
Community rights issues include communities that say, “We don’t want people who live here [being] hauled off by ICE.” But, says O’Dell, there are other legal preemptions saying you can’t locally pass this law.
“People can’t, in their communities, make the decisions they want. And if we can’t make them there, where can we make them?” she asks.
“Community rights is about expanding rights,” she continues. “You can’t use this to take away rights [that are] already protected.”
O’Dell sees the community rights issue as necessary to restore power to the people in a democracy — and that it’s corporate capitalism that has rigged the democratic system in their favor. “Why can’t a community expand and say we want to go above [state and federal] regulations? Because the corporation “person” comes in and says that it violates [their] rights,” says O’Dell. “Corporate personhood is a huge problem. [And] we just accept it.”
“We the people are following laws [and regulations] written by corporations for their benefit. It’s greed,” says O’Dell. “They’re using our communities as resource colonies.” The community rights movement is one-way communities can take back control.
CELDF points out that community rights are, in fact, the bedrock of the U.S. Declaration of Independence. Colonists dealt with issues of preemption, nature as property, and corporate privilege by declaring their independence. And these issues carried over into new state constitutions.
“While not perfect, these new state constitutions took local community self-government seriously,” says CELDF’s website. “Corporations were brought under the control of the communities that they served, and it was understood that the community was the sole and legitimate source of all governing authority.” CELDF has, for nearly 20 years, worked to return this power to the people, getting local bills of rights passed by voters in nearly 200 communities.
Community rights is a growing issue, and the people of Ohio aren’t about to give up. Seven Ohio communities had community rights initiative they were trying to get on the ballot, but their local boards of election worked to keep them off of the ballot, so the people of Athens, Columbus, Medina, Meigs, Portage, Toledo, and Youngstown have filed a federal civil rights lawsuit against the state. The first oral arguments are scheduled for late August 2019.
This year marks the five-year anniversary of the first algae bloom that caused the people of Toledo to lose water for days. Despite the victories and ongoing battles, Miller says they continue the work to expose injustice.
“You have to keep pushing the culture forward,” Miller says.
“In America, we do not tell corporations no, because they are people with rights,” says Nancy Ward, Secretary of the Board of the Oregon Community Rights Network. “It’s just so much deeper than the issue itself,” says Ward. “[The question is] do we have a democracy? And if we don’t, how do we [get] one?”
“In general, our members oppose the idea of community rights,” says Cornely. “It’s rights of nature. The idea that a tree or a lake might have the same standing as people, I think most Ohioans don’t necessarily agree with that line of thinking. Do we all agree we need to protect nature? Yes. But is this the right way? I don’t think you’ll find a lot of folks that think it is.”
IN LINCOLN COUNTY, OREGON, A BAN ON AERIAL PESTICIDE SPRAYING
In coastal Oregon, communities have been affected, as they have been in much of the state, by the loss of the timber industry. Lincoln County, with a population of 49,000, is no exception. Timber that once cut through sawmills here is now stripped and shipped to China, where it’s turned into a product and shipped back to Oregon.
Ward says the state is hurting, with many places becoming “sacrifice zones:” They’re economically so depressed that people will do anything for a job, which leads to predatory oil, gas, and other corporate industries coming in to take further advantage of the people, and the land.
Ward says the need for community rights was clear because communities in Oregon do not get to make their own decisions. “The [decisions] are made by corporations, state, and federal agencies. The last people consulted are the ones most affected by what they are doing,” she says.
Ward explains the typical process: “After we go and play the regular regulatory game, we go to the meetings, we give our testimony, we beg and plead, and all of them tell us there’s nothing you can do because we need the corporations and they have the rights. We don’t have the right to tell a crude oil company they can’t ship through our county.”
The no’s, says Ward, stack up until people give up and remove themselves, or they become even more heavily invested. “We got tired of beating our head against the wall. We were lucky to find community rights.”
A company might have a permit that allows them to emit, dump, or otherwise pollute, but with community rights and the rights of nature, the community has the right to protect themselves from otherwise legalized harm — and to act on behalf of the natural world, which cannot speak for itself in court.
Here in Lincoln County the Oregon Community Rights movement has had its biggest success to date. In 2017, the community passed a ban on aerial spraying of pesticides. The movement for the ban was centered in Lincoln County’s largest town, Newport, population 10,000.
Almost immediately, says Ward, a suit was filed against the ban. Though the suit continues, because a vote was involved, the ban is still in effect.
“So there has been no spraying of aerial pesticides in Lincoln County. The timber company hasn’t folded up and gone away. They’ve survived without spraying,” Ward says. “Why is it taking so long for a decision to be made by the judge? She will set precedent if she finds in our favor.”
FRACKING AND INDUSTRIAL-FARMING BANS: HOW PENNSYLVANIA COMMUNITIES GOT IT DONE
Pittsburgh passed a fracking ban in 2010. It’s never been challenged in court, so it still quietly stands.
Elsewhere in Pennsylvania, community rights issues are wrapped up in lawsuits—mostly with state agencies, including the Department of Environmental Protection (DEP) suing a small municipality. What’s happening in Pennsylvania might even shed light on BP’s anti-LEBOR position in Ohio.
About 90 minutes northeast of Pittsburgh sits Grant Township, with a population of just over 700. In March of 2014, the Grant Township Board of Supervisors voted to adopt a community bill of rights “prohibiting the disposal of oil and gas extraction waste material into injection wells.” The ordinance affirmed the community’s right to self-governance, clean water and clean air. The ordinance was meant to stop local energy company PGE from dumping fracking waste in the community.
Chad Nicholson, Pennsylvania community organizer for CELDF, says Grant is on the frontlines of community rights. It’s “a good snapshot for several reasons: they are small rural poor. And yet they are fighting tooth and nail” against both the state and an energy company.
So far, Grant Township still has no operational injection well. However, PGE sued the town over the ordinance in 2014. Since that time, in the federal case, Grant Township has been fined more than $103,000 in attorney’s fees.
Since the judge in this initial case said that Grant Township lacked the authority to stop an injection well, in 2015, Grant adopted a home-rule charter, which includes a ban on injection wells. The charter was adopted by popular vote.
Now, the state Department of Environmental Protection is suing the township over its charter, asserting that Grant is inhibiting DEP’s ability to carry out gas policy. “It’s ironic in so many ways,” sighs Nicholson, “that the DEP is suing a community for protecting its environment.”
Despite the various lawsuits, Grant Township did not stop passing ordinances to protect themselves and their community. Nicholson speaks from the perspective of the people of Grant Township when he says, “If the courts aren’t going to support our rights, we will allow people to come into our communities to stop the injection wells. We won’t charge people who block roads or [take] other actions to prevent the injection wells.” This ordinance was passed under the authority of the home-rule charter.
“We [the people of Grant Township] think people should know they won’t be punished for upholding and protecting the rights of the community,” Nicholson adds. For now, the charter is keeping the injection well out. The charter also allows an emergency town hall meeting, to pass a law banning new threats, in real time, should any emerge.
A bit southeast from Grant Township is Todd Township, Pennsylvania, where the community passed a ban on industrial factory farms. The large factory hog farm in the community wasn’t happy it was banned, but instead of the company suing Todd Township, the state AG threatened to sue the community. “So it’s the AG doing the work of the industrial farm,” says Nicholson. “It’s not even the farm doing it. It’s an agency paid for with taxpayer dollars.”
Community rights doesn’t just anger corporations, says Nicholson. “It’s pissing off the government.”
“This isn’t a legal issue,” says Nicholson. “This is about a corporate state, and the state and federal governments are aligned with corporations, so the people aren’t just threatened by corporations. They’re threatened by the government.”
Stacy Long, supervisor and vice-chair of Grant Township, Pennsylvania, points out that, despite the potential legal setbacks, she recognizes the fight might take some time — but that a win is inevitable. “There are 200 years of case law that says we were bad,” she says, referring to the precedent of supporting private property and corporate rights. “I think we’re on the side of good.”
Long says the township has no money, with or without the lawsuits. “Grant Township is 700 people, [and] no businesses. People are either elderly or they are on welfare or relief of some sort. They are disabled and dependent on SSI.”
THE FIGHT WAGES ON
“We care about keeping our quality of life and our water safe,” Long says. “Who wants to live in a polluted area? Nobody wants that. We dared to say we don’t.”
The battle for local control of environmental decisions won’t end in Toledo. Or Newport. Or Pennsylvania. Or Bolivia. The health of future generations — the water they drink, their ability to shape and improve the environmental health of their own communities — depends on what they can do today to protect themselves and those to come in the future. The ideological debate over whether nature is merely property, or something more, will also be waged as time goes on.
Toxic algae blooms, says Cornely, are “an incredible problem. Probably no one more so than farmers is frustrated. There is no silver bullet. When we find something that works, we want to implement it. We know the people of Toledo want it fixed. The tourism industry wants it fixed. We’re doing as much as we can as fast as we can.”
“We have battles of rights in court, and it’s person or nature versus corporation, and [right now] the corporation has more rights,” says O’Dell.
O’Dell finds solace in the words of Gandhi: First they ignore you. Then they laugh at you. Then they fight you. Then you win. She says the state is now at the fighting stage in the community rights movement. They’re done laughing. To her, that means they are closer than ever to achieving their goals. “The final step is, we win.”
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