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'Lake Erie' can't participate in lawsuit over Toledo's clean-water law, federal judge says

By Eric Heisig • Updated May 10, 2019 at 9:20 AM

CLEVELAND — A federal judge in Ohio this week said that he would not allow Lake Erie – yes, the body of water – participate in a lawsuit filed to challenge a law Toledo residents passed to protect the lake’s ecosystem.

U.S. District Judge Jack Zouhary wrote that the request to let the lake’s ecosystem into a federal lawsuit was “unusual” and “meritless.”

The lawsuit filed by farmers in neighboring Wood County involves the Lake Erie Bill of Rights, which Toledoans passed in a special election in February. The amendment to the city’s municipal charter allows city residents to sue on the lake’s behalf.

Environmental advocates Toledoans for Safe Water asked for it and the lake to become parties to the lawsuit, and gave the judge several examples of courts and lawmakers granting ecosystems legal standing in Ecuador, Bolivia and New Zealand.

Zouhary wrote that the nonprofit cited no additional U.S. case law and said the amendment only allows the lake’s ecosystem to enforce its rights in state court in Lucas County.

“Some may believe the law should confer legal standing upon natural objects and features,” Zouhary wrote. “… But a district court – bound by Congress and higher courts – is not the appropriate body to take that leap.”

The judge also declined to allow Toledoans for Safe Water into the lawsuit, saying the group’s interests were not sufficient to meet standards of a federal civil lawsuit. He later wrote that the nonprofit’s intervention in the suit would “unduly delay this lawsuit” and said the organization can file a friend-of-the-court brief.

The nonprofit tried to intervene because it did not think city lawyers will do a good job of defending the Lake Erie Bill of Rights. The Toledo City Council president and others campaigned against it, according to a motion filed in March.

The lawsuit, filed one day after Toledo voters approve the law, said the Lake Erie Bill of Rights violates residents’ equal protection and freedom of speech, and is unenforceable because it is so vague.

Zouhary issued a preliminary injunction blocking the law from going into effect while the case is litigated, after both sides agreed to one.

The judge also allowed the state of Ohio to intervene in the lawsuit last week.

Toledoans have been pushing toward for a Lake Erie Bill of Rights since 2014 when they could not tap into its water supply for three days because of a harmful algal bloom. People couldn’t use city water to brush their teeth or take a shower or drink.

The algal bloom is often caused by manure and fertilizer runoff into the water. Both contain phosphorus. They are necessary to grow crops, but also cause the green scum atop water in Lake Erie’s western basin and have tainted the area’s water in the past.

 

Language nullifying Lake Erie Bill of Rights added to Ohio's state budget plan

Meanwhile, in a final flurry of amendments Wednesday to the state’s budget bill, Ohio lawmakers added language that effectively nullifies Toledo’s Lake Erie Bill of Rights, an across-the-board state income-tax cut and new health-care consumer protections.

The roughly $69 billion two-year budget plan, House Bill 166, passed in the Ohio House by a 85-9 vote vote on Thursday, after the House Finance Committee voted unanimously to wave forward the legislation.

A newly added provision states that no one can file a lawsuit in a state court on behalf of “nature or any ecosystem.” If passed, that would nullify the Lake Erie Bill of Rights, which allows city residents to sue on behalf of the lake to, among other things, curb farmers’ agricultural runoff that helps promote toxic algal blooms.

Proponents of the Lake Erie Bill of Rights say more than a dozen rights-based measures that included recognizing rights for ecosystems have been systematically stymied from being voted on by illegitimate actions taken by the Ohio supreme court, secretary of state, appointed board of elections officials, and the state legislature. Those tactics — ongoing for five years — are the subject of a federal Civil Rights lawsuit that communities jointly filed in February 2019.

“It’s not surprising that the Ohio legislature has the shameful distinction of being the first in the country to specifically name ecosystem rights – trying to quash them rather than taking the lead in recognizing them. This is the same state government that passed HB463 in 2016 in an attempt to stop communities from even advancing rights-based citizen initiatives,” said Tish O’Dell, community organizer for the Community Environmental Legal Defense Fund (CELDF). CELDF assisted these Ohio communities through organizing and legal support as they drafted, advanced, and defended their measures.

Crystal Jankowski, organizer with Toledoans for Safe Water — the local group behind the Lake Erie Bill of Rights — added, “The state legislature’s continued efforts to quash this growing movement tells us that we are on the right track. Whenever people advance rights — for people of color, women, LGBTQ+ communities, or others – we see the 1% try to stop it, but we are not going away. Rights of Nature is a paradigm shift that is wholly necessary. We are facing catastrophic global warming and species extinction. The people of the planet, including Toledo, will act locally to address the crisis. We do not need permission.”

In other budget matters, the committee kept language stating that Ohioans with taxable incomes of $22,250 or less would no longer have to pay state income taxes. But it added $108 million worth of income-tax cuts for everyone else. If passed, the income-tax reduction would be 6.6 percent per taxpayer, on average, according to House Republicans.

“Any economist will tell you that the key to economic activity in the state is disposable income,” said House Speaker Larry Householder, a Perry County Republican, following the committee’s vote. “And so the more you can create across-the-board cuts in income tax, the more disposable income there will be, and the more our communities will benefit from it.”

The finance committee added proposed new health-care price transparency rules, including that patients can’t be charged higher prices from doctors outside their health-insurance network if they’re being treated at an in-network facility. In addition, every health-care provider in the state would have to provide a cost estimate to patients within 24 hours of an appointment being made.

Lawmakers also inserted items designed to prevent pharmacy benefit managers (middlemen who negotiate drug prices) from bilking the state. Attorney General Dave Yost had called for the measures, which include consolidating all the various PBM contracts that different state agencies and pension plans have into a single, overarching contract.

The budget bill now moves to the Ohio Senate for further consideration.

Parts of HB 166 could face tough scrutiny in the Ohio Senate. While the House’s income-tax cut would be paid for in part by scrapping Ohio’s $40 million motion-picture tax credit, the Senate on Thursday passed a measure that not only would preserve the credit, but expand it to include Broadway shows.

“We may have a disagreement on this one,” Householder said of the film tax credit.

A new two-year state budget must be signed into law by June 30.

EDITOR’S NOTE: Jeremy Pelzer of Advance Ohio Media (TNS) contributed to this story.

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©2019 Advance Ohio Media, Cleveland

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