Sustainable Development Law & Policy

Volume 20 Issue 1 Fall 2019: Comparative International Article 3 Approaches to Environmental Challenges

Lake Erie Bill of Rights Gets the Ax: Is Legal Personhood for Nature Dead in the Water?

Devon Alexandra Berman American University Washington College of Law

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Recommended Citation Berman, Devon Alexandra (2019) "Lake Erie Bill of Rights Gets the Ax: Is Legal Personhood for Nature Dead in the Water?," Sustainable Development Law & Policy: Vol. 20 : Iss. 1 , Article 3. Available at: https://digitalcommons.wcl.american.edu/sdlp/vol20/iss1/3

This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Sustainable Development Law & Policy by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. LAKE ERIE BILL OF RIGHTS GETS THE Ax: Is LEGAL PERSONHOOD FOR NATURE DEAD IN THE WATER?

By Devon Alexandra Berman*

nature and sued on behalf of the river, and the government was must no longer view the natural world as a ordered to "restore the riparian ecosystems." 12 In 2015, the ''w emere warehouse of commodities for humans to Constitutional Court of Columbia upheld standing for plaintiffs exploit, but rather a remarkable community to opposing mining operations in their communities on the grounds which we belong to and to whom we owe responsibilities." 1 that "standing existed in terms of legitimate representation," On February 26, 2019, the citizens of Toledo voted to and that the right to a healthy environment permeated all other amend the city's charter to grant the Lake Erie ecosystem constitutional rights. 13 the legally enforceable "right to exist, flourish and naturally evolve," establishing the Lake Erie Bill of Ri ghts (LEBOR).2 LEGAL STANDING FOR NATURE IN THE Seeking to protect the watershed from further degradation, the U.S. IS FRUSTRATED BY CONSTITUTIONAL LEBOR gave citizens standing to sue polluters on its behalf.3 STANDING REQUIREMENTS The LEBOR deemed invalid any existing or future permit issued Article CII , § 2 of the Constitution provides that "[t]he to a corporation by any federal or state entity that would violate judicial Power" of the federal courts of the United States only Lake Erie's rights. 4 The LEBOR is just one example of the extends to specified "cases" and "controversies." 14 The Article developing trend of communities taking a rights-based approach llI standing doctrine limits the category of litigants empowered to protect local resources. 5 to sue in federal court to seek redress for a legal wrong. The Less than twenty-four hours after the citizens of Toledo Supreme Court has held the "irreducible constitutional voted to adopt LEBOR, a local farm partnership filed a complaint minimum of standing" requires the plaintiff to "allege personal in the North District Court of Ohio claiming that LEBOR's injury fairly traceable to defendant's allegedly unlawful enactment exceeded the city's authority and was preempted by conduct and likely to be redressed by the requested relief." 15 In state and federal law.6 The case was ultimately rendered moot environmental enforcement actions, general grievances based in July 2019, when Governor Mike DeWine delivered a fatal on harm to the environment do not meet standing requirements blow to LEBOR by signing into law a provision stating that an unless the plaintiff can establish a concrete, personal injury ecosystem does not have standing in Ohio court.7 that will likely be redressed by a court remedy. 16 For example, The legislature's swift preemption ofLEBOR illustrates the environmental groups in Lujan v. Defenders of Wildlife claimed inherent shortcomings of a municipal approach.8 This Article that the government's funding of overseas projects threatened surveys the legal barriers to extending person hood to nature in the the plaintiffs' ability to observe endangered species. The United States and concludes that they are likely insurmountable. court rejected the "ecosystem nexus" argument, precluding The Supreme Court's narrow interpretation of constitutional generalized adverse environmental effects as a basis for standing standing requirements precludes citizens from bringing an to challenge the activity. 17 As a result, citizen suit provisions action alleging direct injury to an ecosystem itself, irrespective of environmental statutes empower people to seek enforcement of citizen suit language like that contained in LEBOR and of environmental laws, but they cannot be used to circumvent other environmental legislation.9 These institutional barriers Article Ill requirements. Based on the narrow interpretation of support arguments for a state-level approach to environmental standing requirements, it is unlikely that the Supreme Court will protection. recognize standing for injuries alleged on nature's behalf. 18

BACKGROUND: GRANTING RIGHTS TO SECURING A CoNSTITUTJONAL RIGHT TO A NATURE HAS INTERNATIONAL PRECEDENT HEALTHY ENVIRONMENT AT THE STATE LEVEL There is a growing trend of countries adopting rights of Several states are taking a ri ghts-based approach to nature legislation. 10 In 2008, Ecuador became the first country preventing environmental degradation by amending their to pass a constitutional amendment enabling any "natural or constitutions to include a right to a healthy environment. 19 By legal person" to bring an action seeking for the government to framing environmental degradation as a violation of citizens' comply with its duty to "respect and actualize" nature's right to rights, these amendments require governments to prioritize " legal restoration." 11 When the provincial government widened environmental protection when regulating industrial activity. ln a road without conducting an impact study, resulting in flooding, two landowners successfully invoked constitutional rights of *Joint .l .D./J.D. Candidate, American University Washington Coll ege of Law and Uni versity of Ottawa, Common Law Section 2020

Fall 2019 15 l 972, Pennsylvanians voted to amend the state constitution and the ERA commits the government to two duties: (1) to prohibit became the first state to enshrine environmental rights to clean state or private action that results in the depletion of public air and water through the Environmental Rights Amendment natural resources; and (2) to take affirmative legislati ve action (ERA).20 The amendment states that the Commonwealth is the towards environmental concems.26 trustee of the state's natural resources, "common property of all Drawing on Pennsylvania's experience, a constitutional people, including generations yet to come."21 In 2013, the ERA amendment to the Ohio Constitution that secures its citizens' was successfully invoked to defeat key provisions of a bill that right to clean water is a more practical approach for protecting would have afforded the fracking industry broad powers and Lake E ri e than attempting to confer legal standing through exemptions.22 The Court held that the provisions violated the municipal legislation that has limited enforceability.27 ERA by preempting local regulation of oil and gas activities CoNcLusJON and precluding local governments from fulfilling their trustee obi igations. 23 Ex treme environmental degradation presents an This landmark Pennsylvania Supreme Court ruling unprecedented threat to human existence.28 Environmental demonstrated the legal potency of enshrining citizens' right to a policy rollbacks under the Trump Administration have decreased healthy environment in state constitutions. In 2017, a landmark environmental regulation and stripped clean water protections.29 case was brought under the ERA against the legislature for The Supreme Court of Pennsylvania's interpretation of th e alleged I y mi sa ppropriati ng environmental protection funds ERA compels the state government to take positive legislative for other uses.24 In ruling against the legislature, the Court to prioritize environmental protection. In the meantime, it is expanded its interpretation of the ERA and held that laws are becoming increasingly clear that society needs to undergo a unconstitutional if they "unreasonably impair" a citizen's ability radical shift in values in order to effectively mitigate the human to exercise their constitutional rights to "clean air, pure water impact on the environment. ~' and environmental preservation."25 The Court reaffirmed that

ENDNOTES

Anna V. Smith, The Klamalh River Now Has 1he legal Righls ofa Local ordinances are vulnerable to court challenges and changes in Person, HI GH COUNTRY EWS (Sept. 24, 2019) (David R. Boyd, United Nations political will. See Pa. Gen. Energy Co. v. Grant Twp., 139 F. Supp. 3d 706 Special Rapporteur on human rights and the e nvironment, commenting on (W.D. Pa. 201S) (holding th at ordinance did not provide a right to intervene in a resolution passed by the Yurok Tribe in Cali fornia to allow cases to be federa l li tigation directly); Seneca Resources Corp. v. Hig hland Twp, (W.D. brought in the name of the Klamath Ri ver in tribal court). Pa. 2017) (regarding a challenge to local ordinance banning fracking rendered 2 Runoff pollution from direct dumping of farm waste a nd ferti li zers has moot by repeal of the environmental bill of rights). caused toxic algae blooms that threaten local species as wel l as the city's 9 See Friends of the Ea rth, Inc. v. Laidlaw Envtl Servs. Inc., S28 U.S. 167, drinking water. See Lake Erie Bill of Rights, Beyond Pesticides, https:// 183 (2000) (holding that environmental plaintiffs adequately all eged injury beyond pesticides .org/assets/med ia/docu ments/ LakeErie Bi 1l ofR ighls. pdf; see in fact because they are persons who use the affected a rea and "for whom also Timothy Williams, Legal Rights/or lake Erie? Vo /ers in Ohio Ci1y Will the aesthetic and recreational va lues of the area will be lessened" by the Decide, N.Y. TI MES ( Feb. 17, 20 19), https://www.nytimes.com/2019/02/17/us/ cha ll enged activity). lake-erie-lega 1-rights.htm I. 10 ln 2017, New Zealand granted legal person hood to the Whanganui Ri ver. 3 See Lake Erie Bill, § 3(b). The legislation created human representatives entrusted with manag ing the Id. at § S. relationships with various stakeholders while " promot[ing] and protect[ing]" In 2006, Tamaqua Borough in rural Pennsylvania became the first city in the River's well -bei ng." Te Awa Tupua (Whanganui River Claims Settlement) the United States to declare an ecosystem a "person" to enforce an ordinance. Act 2017, cl 3, § 18 (N.Z.); see e.g. . the Ganges a nd Yamuna Rivers were A slew of municipalities fo ll owed si milar legislation conferring legal status granted legal person hood. to th e e nvironment. See David R, Boyd, Recognizing !he Rights o/Nalure: II CONST ITUCl6N DE 2008 Oct. 20, 2008, Ch. 7, art. 71 - 74 (Ecuador); see lofty Rhetoric or legal Revol1.11ion? 32 NAT. RESOURCES & ENv'T 13, I (20 18). also Cristy Clark el al., Can You Hear the Rivers Sing: l egal Personhood, Furthermore, the Community Environme ntal Legal Defense Fund has been On!ology, and the Nilly -Crilly of Governance, 4S ECOLOGY L.Q. 787, 79S instrumental in assisting communities to draft rights of nature legislation (2016). both nationally and g loball y. See Champions ofth e Rights o/Nalure Timeline, 12 i d. at 797. Community Environmental Legal Defense Fund (A ug. 4, 201 S), hltps://celdf. 13 Id. at 806-07. org/adva nci ng-com mun i ty-r ight s/r ights-of-nat u re/. 14 U.S. Const. art ll l, § 2, cl. I. 6 The complaint a ll eged that LEBOR exceeded th e city of Toledo's limited 15 See Al len v. Wright, 468 U.S. 737, 738 (1984) (establi shing the three legislative authority and unlawfully intruded on federa l and state power by elements required to meet constitutional standing requirements). invalidating permits, altering the rights of corporations, a nd creatin g new 16 See Friend s of the Earth, Inc. v. Laidlaw Envtl Servs. In c., S28 U.S. 167, causes of actio n in state courts." The plaintiff also claimed LEBOR violated 18 1 (2000) (holding that Article Ill standing requires injury to the plaintiff, its constitutional rig hts and would result in irreparable injury lo the plaintiff's not injury to the e nvironment). business. See Drewes Fa rms v. Toledo, No. 31: 19 CV 434, 2019 WCL I 2S 40 1 17 Lujan v. Defenders of Wildlife, 504 U.S. SSS, S66 (1992) (hold in g that ( .D. Ohio. Mar. 18, 2019); see also Drewes Farms v. Toledo, o. 31: 19 CV conservation organizations Jacked standing under the End a ngered Species 434, 2019 WCL I (N.D. Ohio, Feb. 27, 2018) (granting preliminary injunction Act to challenge a federa l regulation because the groups fai led to assert a to halt LEBOR from taking effect until case is decided on th e merits). sufficiently imminent, direct injury that would li ke ly be redressable by a 7 T he 2020-2021 Fiscal Year State Budget provides: "Nature or any judicial remedy). ecosystem does not have standin g to pa rticipate in or bring a n action in any 18 See, e.g., Colorado River v. Colorado, (holding that al leged inj uries to court of common pleas." H. B. 166, 133rd Gen. Assemb., Reg. Sess. (Ohio the Colorado River ecosystem could not be fairly traced sufficiently concrete 2019). continued on page 38

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