HOW OHIO’S CHAMBER OF COMMERCE KILLED AN ANTI-POLLUTION BILL OF RIGHTS

H. Claire Brown

August 29 2019, 7:00 a.m.

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

EARLIER THIS SUMMER, environmental activists in Ohio were alarmed by the passage of a mysterious state budget amendment that would close a new avenue for residents to sue polluters. The provision invalidated a landmark anti-pollution initiative passed by Toledo voters just a few months before. Now, emails obtained in a public records request reveal that the Ohio Chamber of Commerce secured the cooperation of a key Republican lawmaker in a successful effort to slip the amendment into an appropriations bill at the eleventh hour.

The emails depict the chamber’s environmental policy director requesting a last-minute meeting with state Rep. Jim Hoops to discuss the Lake Erie Bill of Rights, the newly minted ballot initiative allowing citizens to sue polluters on behalf of Lake Erie. A legislative aide responded quickly, scheduling a same-day meeting. Despite the chamber director’s admission that his proposal would need to be submitted after the legislature’s deadline, the aide produced draft amendment language to share with him three weeks later. The chamber’s subsequent revisions made their way into the final bill, effectively nullifying the Lake Erie Bill of Rights.

“This shows the influence of the Chamber of Commerce writing our laws and undermining the democracy of the people of Toledo,” said Bill Lyons, a board member of the Ohio Community Rights Network, an environmental advocacy organization. After the May vote, Lyons filed a series of public records requests to try to figure out which lawmaker introduced the amendment. The emails were provided to The Intercept and The New Food Economy by the Community Environmental Legal Defense Fund, an affiliate of the Ohio Community Rights Network.

IN FEBRUARY, MORE than 60 percent of participants in a special election in Toledo voted to establish a Bill of Rights for Lake Erie. It was a unique ballot question that would grant Lake Erie the right to “exist, flourish, and naturally evolve.” The intent was to give Lake Erie and its human allies legal standing to file lawsuits against polluters.

Organizers in Ohio launched their efforts to pass the initiative after a toxic algal bloom — caused by fertilizer and manure runoff from upstream farms — rendered Toledo’s water undrinkable and largely unusable (some residents were advised not to shower) for a few days in 2014. Tish O’Dell, a state organizer for the Community Environmental Legal Defense Fund, said residents spent two years trying to persuade the state government to take action to prevent future issues.

In Ohio, however, the farm runoff largely responsible for polluting Lake Erie is minimally regulated. Farmers in the state also benefit from key legal protections that limit their vulnerability to pollution-related lawsuits. Ohio has a so-called right-to-farm law, which dramatically limits neighbors’ ability to win lawsuits alleging that farm pollution unfairly impacts their quality of life. (Hoops appears to have introduced another amendment that expands the definition of farmland protected under the state’s right-to-farm law; that amendment passed this summer as well, further narrowing the legal pathways advocates might use to limit agricultural runoff.) And at the federal level, the Clean Water Act has long exempted most agricultural operations from robust regulation.

For all these reasons, advocates came to believe that existing legal frameworks would never sufficiently protect the lake and those who live near it. By 2016, they were ready to try something new. After O’Dell and her colleague Thomas Linzey gave a presentation on so-called rights-of-nature laws at Bowling Green University, Toledo activists approached them about devising a plan for Lake Erie. The group headed to a nearby pub.

“That’s actually how the Lake Erie Bill of Rights hatched,” O’Dell said. “It was on a cocktail napkin at the bar.”

After its passage, the Lake Erie Bill of Rights was immediately challenged in federal court. The next day, the Drewes Farm Partnership had filed a 24-page lawsuit arguing that protections for the lake could mean financial ruin for the farm’s business. That lawsuit is ongoing. Then, in May, the eleventh-hour amendment invalidating the lake’s rights found its way into the House version of the state’s budget.

It all started with an email from the Ohio Chamber of Commerce. The chamber’s director of energy and environmental policy, Zack Frymier, wrote to request a meeting with Hoops, the state House representative, on April 11, a few weeks before the vote. (Hoops is chair of the Ohio House Finance Subcommittee on Agriculture, Development, and Natural Resources.)

“I’m hoping to find some time (like everyone else) to run something by Chairman Hoops regarding the Lake Erie Bill of Rights that passed in Toledo in February,” Frymier wrote. “We have some language that we’d request to be considered for the budget. Though obviously it would have to be submitted after tomorrow’s deadline we’d still like to have a conversation.”

A legislative aide replied promptly, arranging a meeting with Hoops for 4:00 p.m. that day. Despite the short notice — it was already nearly 3:00 p.m. — Frymier quickly and enthusiastically responded that he’d be there.

A few weeks later, the aide got back to Frymier with draft text of the amendment, asking if the wording made sense to him. Frymier then asked for the addition of text that would more directly refute the Lake Erie Bill of Rights.

“Language in this amendment stating that [nature and ecosystems] do not have standing is essential to what we’re trying to accomplish,” Frymier wrote on May 2.

The amendment’s final text includes the additional statement Frymier asked for: “Nature or any ecosystem does not have standing to participate in or bring an action in any court of common pleas.”

The amendment was reported by local media on May 8. The next day, the state House passed its version of the bill. Lyons, the Community Rights Network board member, later testified in front of the state Senate, asking legislators to strike the amendment from the final budget. His efforts were unsuccessful and, after a few weeks of negotiation, Republican Gov. Mike DeWine signed the measure into law.

Lyons said he was surprised by the degree of collaboration between the Chamber of Commerce and Hoops’s subcommittee. “The fact that they would run that language specifically by them — I mean, who else gets that opportunity?” he said. (Neither the Ohio Chamber of Commerce nor Hoops’s office responded to requests for comment.)

Business advocates — primarily the fossil fuel giant BP, which has fracking interests in the state — spent more than $300,000 to campaign against the Lake Erie Bill of Rights prior to its passage in Toledo. The coalition advocating in its favor, Toledoans for Safe Water, spent less than $6,000, according to Great Lakes Now.

Municipalities around the nation have been slowly adopting rights-of-nature ordinances for more than a decade. Pittsburgh banned fracking using this legal framework in 2010. More recently, a county in Oregon voted to ban aerial pesticide spraying the same way.

Rights-of-nature laws likely face a long road ahead. If the Lake Erie Bill of Rights is any indication, many may be tied up in lawsuits for years to come.

For O’Dell, the Ohio organizer, the Lake Erie Bill of Rights is already a win regardless of its fate. “The people kept fighting to get it on the ballot. They defeated big corporate money. They won, and they’re still fighting,” she said. “So I don’t care what happens — they have ignited interest all around the world.”

Update: August 29, 2019, 4:55 p.m. ET
This piece has been updated to clarify the level of spending in favor of the Lake Erie Bill of Rights and to include Thomas Linzey as a co-presenter of O’Dell’s presentation promoting rights of nature.