Legislating Harmony

Small groups of dedicated people are the only thing that has ever changed the world

This is a summary and expansion of a small section of my paper Radical Legal Change: Moving Toward Earth Law, available here in the UC Law Library Repository for free. 

Prompted by three days of contaminated drinking water, the residents of Toledo, Ohio banded together in a true democratic effort to create positive change. They drafted the Lake Erie Bill of Rights (LEBOR), which acknowledged their dependence on the Lake Erie ecosystem and sought to protect it in its entirety. The drafters of LEBOR had good intentions. Their draft mimicked Earth Law legislation around the world, declaring that,

“Lake Erie, and the Lake Erie watershed, possess the right to exist, flourish, and naturally evolve,” and granted Toledo residents “the right to a clean and healthy environment.”

It was off to an excellent start. However, LEBOR did not include any definitions or provisions to clarify these rights or how to protect them, nor did they provide guidance for appropriate conduct. 

Sadly, this resulted in LEBOR being struck down in court. Judge Zouhary fell into the trap of pitting the economy against the environment when he wrote that “LEBOR’s authors failed to make hard choices regarding the appropriate balance between environmental protection and economic activity,” and that countless activities could run afoul of LEBOR, such as “catching fish, dredging a riverbed, removing invasive species, driving a gas-fueled vehicle, pulling up weeds, planting corn, irrigating a field. . .” 

In what appears to be an encouraging and perhaps empathetic moment, Judge Zouhary, also wrote that with careful drafting, Toledo could pass successful legislation that reduces water pollution. Zouhary pointed to CropLife America Inc. v. City of Madison as an example. In that case, the City of Madison and Dane County enacted ordinances to ban the sale and use of fertilizers that contain more than trace amounts of phosphorous, because the phosphorous runoff was damaging the water quality. While phosphorous is an excellent fertilizer, it is also a pollutant that contributes to excess amounts of algae and other undesirable aquatic vegetation. On appeal, the court upheld the bans, finding that the ordinances were not preempted by state or federal law, including the arguments from plaintiffs regarding the Commerce Clause and federal pesticide regulation.

It was easy to uphold the phosphorous bans because the language was clear and the scope was narrow. The Wisconsin statutes defined “fertilizer” and “pesticides” to include “a fertilizer pesticide combination,” and specifically stated that “weed and feed” products (which the plaintiffs sold) were “fertilizer-pesticide combinations.” The court found that while the state regulates pesticides and local governments regulate fertilizers, each has a hand in regulating combination products. Furthermore, the court found that it makes practical sense to allow local governments to regulate phosphorous because effects will differ from county to county depending on a variety of factors, including geese migration. That’s a lot of bird poo—Nature’s fertilizer!

While this strategy works, the residents of Toledo were looking for something more. Their goal was not water quality alone, but the recognition of a deeper understanding of Lake Erie’s ecosystem and their dependence on it. Ben Price, the national director of the Community Environmental Legal Defense Fund, stated (before LEBOR was struck down) that, 

We’re seeing the results of our narrow-mindedness, of our belief that nature is property and property ownership is the highest right. The hope is that by beginning somewhere, like Toledo, the conversation enlarges.

Judge Zouhary’s concerns about LEBOR are valid, to a point. Driving gas-fueled vehicles is inherently harmful to life, but he failed to see that LEBOR's purpose was to ensure human activities are conducted in ways that honour the lake and create mutually beneficial relationships between the residents and the habitat in which they live. Earth Law movements and Rights of Nature laws recognize that humans are a species living in an ecosystem with certain roles and responsibilities, just like other species. Rivers have a responsibility to flow and salmon to swim upstream. Humans have a responsibility to support life-sustaining cycles. To provide guidance on this new philosophy, LEBOR could have included such principles in a Preamble or definitions section. For example, mentioning agroecology and sustainable fishing practices was not included in LEBOR but would have benefited their case.

There is a bigger legal battle ahead. In response to LEBOR and similar initiatives, Ohio’s state legislature passed preemptive laws to restrict municipalities from passing Rights of Nature laws in the future. Ohio’s House Bill 166, signed into law later in 2019, explicitly prohibited local governments from granting legal rights to Nature or ecosystems. This preemptive legislation was heavily influenced by concerns from agricultural and industrial stakeholders who feared potential liability and regulatory challenges under local Rights of Nature laws.

Ohio’s preemptive legislation reflects a broader national trend, as other states have introduced or passed similar laws to prevent Rights of Nature legislation at the local level, thereby maintaining state control over environmental regulations and limiting local autonomy in this area. Texas and Florida soon followed Ohio’s restrictions. State legislatures are under the influence of industry groups, arguing that local RoN laws infringe on state governance and private property rights, potentially undermining statewide regulatory frameworks. Frankly, that is the point. We must undermine the systems of planetary destruction. We need to replace those systems with something better for people and planet, which the Earth Law movement is doing in many parts of the world. The fact that State legislators are trying to stop Rights of Nature shows how powerful it is, otherwise, they’d ignore it. We’ve got them scared.

There are plenty of legal arguments to challenge these preemptive laws. Given how new eco-centric legislation is in the United States (and Western society), legal arguments against preemptive laws in the US are still being developed, but here’s a few:

Many US states have “home rule” provisions, which allow municipalities a degree of legislative independence, particularly in addressing local issues. Under this doctrine, local governments argue that they have the right to enact RoN laws to protect their natural resources, which are critical to the well-being and health of their residents. In a similar vein, Community Rights & Democracy proponents argue that local communities have a democratic right to protect their environment and prevent pollution that directly affects them. They claim that preemptive state laws undermine local democracy by restricting the ability of communities to address threats to their health, safety, and welfare through local legislation.

The Public Trust Doctrine, a worldwide legal principle, holds that certain natural resources, like navigable waters, are held in trust by the government for public use and enjoyment. Advocates argue that states, as public trustees, have a fiduciary duty to protect natural resources and prevent their exploitation, which preemptive laws prohibiting eco-centric laws contradict. A notable case of success is Urgenda v Netherlands, where the court determined that the government must reduce greenhouse gas emissions, setting a precedent for an Atmospheric Trust. An analogous case in the US, Juliana v United States, is struggling but last time I checked, they have not given up. I wrote a law review article on how the Public Trust Doctrine’s logical outgrowth is Earth Law because people rely on the entire ecosystem for survival, not just waterways (available here).

Civil Rights & Environmental Justice advocates in the US point out that environmental harms disproportionately impact marginalised communities. State preemption violates civil rights and environmental justice obligations, particularly under state or federal statutes that address discrimination or health inequities because preemptive laws will disproportionately harm communities that have historically faced environmental and health inequities. These laws also violate the Equal Protection Clause (in the US Constitution) if they are enforced selectively or if they disproportionately impact certain communities, such as lower-income or Indigenous populations, who are more vulnerable to environmental degradation.

The First Amendment right to free speech infringes upon citizens’ rights to petition their local government and participate in direct democracy through initiatives and referenda. By preempting RoN laws, the state effectively stifles political speech and denies citizens the right to self-governance and advocacy on environmental issues. Further, preemptive laws violate procedural and/or substantive due process by arbitrarily denying communities the ability to legislate in favour of their own health and environmental interests.

The Rights of Future Generations is argued more often outside the US than within it. This also overlaps with the Public Trust Doctrine, as States are supposed to hold resources for their people in perpetuity, so naturally, future generations would be able to enjoy them. RoN laws are seen as a tool to fulfill this duty, and state preemptions may be challenged as infringing on this moral and legal responsibility.

So far, US courts rarely rule in favor of RoN cases due to the lack of precedent and constitutional conflicts with private property rights. However, as RoN legislation gains global traction, the legal landscape may shift, especially if future rulings emphasize environmental protection as a fundamental right or recognize certain environmental rights at the constitutional level.

Several US state constitutions create the right to a clean and healthy environment, which presents an amazing opportunity for environmental litigation and an argument against preemptive laws against eco-centric legislation. In the ground-breaking case, Held v Montana, the court determined that the state’s failure to consider climate change when approving fossil fuel projects was unconstitutional. The case centred around the language in the Montana Constitution which guarantees residents “the right to a clean and healthful environment,” and stipulates that the state and individuals are responsible for maintaining and improving the environment “for present and future generations.”

Personally, I would like to see an international law case between Indigenous Legalities and the US Constitution. Tribes across the US have never ceded their claims to any territories and have resisted colonial rule since 1492, maintaining their sovereignty. I doubt it will happen in my lifetime, but this is what I mean: when laws conflict, often a grundnorm is used to determine appropriate action. A grundnorm is like the golden principle, the highest aspiration to which these laws are striving. For an international case to be brought, it would require the recognition that Indigenous Legalities are just as valid as US legislation, thus making it an international case instead of a purely domestic case. Then, these two laws would stand side-by-side and be evaluated against a grundnorm focused on the environmental issue at hand (it doesn’t need to be super specific). The laws would have to be similar: an Indigenous law regarding conservation or living in harmony with Nature and a US law about environmental protections. Whichever is closer to the grundnorm “wins,” and decisions are made based on that law. I also see this as a path for Indigenous People to regain complete self-governance, have lands returned, and for us all to engage in the decolonisation of North America. It’s my little legal fantasy.

Golden Kelp - acrylic on canvas 2023 /// California has been designating areas of the coastline to be co-managed by Indigenous Peoples—a huge win for all living things. Indigenous tribes along the coast have important cultural ceremonies and stewardship practices regarding kelp. Co-management will improve the state of these critical ecosystems while moving toward social and environmental justice.

We shouldn’t give up on such legislative efforts. They have had amazing success around the world (see linked post below). Bioregional, nature-based governance is critical to re-imagining how we create systems that unite human activity with habitat. Lake Erie residents can revive LEBOR by being more explicit about activities that create mutually beneficial relationships between species (including homo sapiens) and cycles. They can promote regenerative farming practices, set up a lake stewardship council, a coalition of city majors within the watershed of Lake Erie, or any number of other approaches. I sincerely hope they do not lose faith because one judge could not see their vision. 

In addition to the Montana case, there are legislative success stories in the United States. For example, Santa Monica, California, created a Sustainability Ordinance. It began when the city declared that the health and well-being of the town depends on a healthy environment. The ordinance united the city’s environmental policies, creating a cohesive document explaining how to meet the declaration’s ideals. There is enough detail for all parties to understand their duties and what is legally binding. Residents of Lake Erie and other bioregions can learn from Santa Monica’s example and create meaningful legislative change for the benefit of all life. 

And just to poke a hole in arguments of pessimism: Yes, Santa Monica is a small town, especially when compared to the expansive nation in which it is located. However, given the speed at which smaller governmental bodies can write and implement new laws and policies, these acts should not be discounted. Even the Climate Action Tracker points out that local government action is critical for the United States to get its act together on climate. Imagine if every major city had something like the Santa Monica Sustainability Ordinance or a Bill of Rights for a Lake or Watershed or Forest—the impact on local and regional land and water use planning would have dramatic, positive effects. We would mainstream polyculture farms, revive cultural heritages, and fight climate change all at once.

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