Almost 50 years ago, Christopher Stone published “Should Trees Have Standing,” suggesting that the natural world should be given legal rights to ensure its protection for future generations. It is not, I say with my usual gift for understatement, an idea that has taken widespread hold in legal systems in the United States. It has had broad philosophical influence, however, and attempts are made periodically to implement Stone’s idea. And so we come to Drewes Farms Partnership v. City of Toledo.
After toxic algae blooms in Lake Erie poisoned Toledo water in 2014, the City residents voted to enact the “Lake Erie Bill of Rights” to the Toledo charter. It’s difficult to overstate what a piece of work the “LEBOR” really is. Here are some highlights.
Lake Erie, and the Lake Erie watershed, possess the right to exist, flourish, and naturally evolve.
All rights secured by this law are inherent, fundamental, and unalienable, and shall be self-executing and enforceable against both private and public actors.
It shall be unlawful for any corporation or government to violate the rights recognized and secured by this law,
The Lake Erie Ecosystem may enforce its rights, and this law’s prohibitions, through an action prosecuted either by the City of Toledo or a resident or residents of the City.
(And perhaps my favorite section): All laws adopted by the legislature of the State of Ohio, and rules adopted by any State agency, shall be the law of the City of Toledo only to the extent that they do not violate the rights or prohibitions of this law.
Judge Jack Zouhary was not amused. In a concise opinion, he found LEBOR void for vagueness:
What conduct infringes the right of Lake Erie and its watershed to “exist, flourish, and naturally evolve”? How would a prosecutor, judge, or jury decide? LEBOR offers no guidance.
LEBOR’s authors failed to make hard choices regarding the appropriate balance between environmental protection and economic activity. Instead, they employed language that sounds powerful but has no practical meaning. Under even the most forgiving standard, the environmental rights identified in LEBOR are void for vagueness.
There are several other gems in this Judge’s short opinion, but I’ll just note that he agrees with me that the City’s effort to override state law was problematic:
LEBOR’s attempt to invalidate Ohio law in the name of environmental protection is a textbook example of what municipal government cannot do.
For my own part, I understand where LEBOR’s backers are coming from, but I can never support giving trees standing. My objection is pretty simple – who gets to speak for the trees? It just seems to me the height of self-righteousness for the backers to arrogate that right to themselves. And however much they deny it, that’s what these efforts always come down to.
To extend your point, what is “natural” for Lake Erie is very hard to identify and reconcile. Exotic salmonids were introduced to dominate the ecosystem and the fishery – based economy when the “natural” fisheries of whitefish, walleye and perch collapsed. Although some reversion is occurring , I doubt there would be broad consensus on preferred outcomes.