Lake Erie’s Bill of Rights

January 3, 2020  Robert Gmeiner

  • Property, Markets & Trade
  • Blog

Lake Erie is no stranger to pollution.  It has long been the most polluted of the five Great Lakes because of its shallow depth and the location of many industrial cities along its shoreline.  Residents of one of these cities, Toledo, Ohio, decided to take matters into their own hands, feeling that rampant pollution was threatening their way of life.

The concerns of the residents were not unfounded; in 2014, a toxic algae bloom threatened the safety of the city’s water supply.  However, a number of laws ruled out many legal remedies because affected individuals either lacked standing to sue or polluters were largely immune.

In economics, the Coase Theorem is known for providing understanding of these sorts of problems that involve externalities such as pollution.  The Coase Theorem states that, when transaction costs are low, bargaining will produce the efficient outcome regardless of the initial allocation of property rights.  Coase’s point was that transaction costs are usually too high for this to work out. 

The law enacted by the citizens of Toledo, named the “Lake Erie Bill of Rights” grants certain legal rights to the lake and permits residents to sue on its behalf.  This was an attempt to reduce transaction costs by making litigation possible, which it wasn’t before.  As for property, the law only uses that word once and it is only a reaffirmation of the Ohio state constitution’s right of the people to acquire, possess, and protect property.

By creating a right to sue in behalf of a lake, but not establishing any property right, this law creates an odd precedent and raises ambiguities.  For one thing, it is not clear that a local jurisdiction should be overseeing litigation for a lake that borders numerous counties in four states and two countries.  It is well-intentioned and clearly needed, but ill-conceived.  The solution is not to create new rights to sue, but to repeal or amend the state and federal laws that permit such pollution with little recourse.  This would be politically unpopular with powerful agricultural lobbies and hence more difficult than Toledo’s approach.  As for property rights, they should be granted in this case to cities or utilities that draw water from Lake Erie and these entities should be permitted to sue polluters in their own right.

Recently, the whole situation just landed back where it was before; the Ohio state legislature passed a budget with a provision that overruled Toledo’s law.

https://theintercept.com/2019/08/29/lake-erie-bill-of-rights-ohio/

https://www.vox.com/future-perfect/2019/2/26/18241904/lake-erie-legal-rights-personhood-nature-environment-toledo-ohio