Makes more sense than a corporation being a people. Kudos to you, Toledo (not something I expected myself to say when I got up this morning)!
posted by brand-gnu at 7:20 AM on February 27, 2019 [5 favorites]

Makes more sense than a corporation being a people.

I was going to say the same thing. I guess we'll see how well the people of Toledo wield this new right to sue on behalf of the lake, but this definitely sounds like a good thing.
posted by tobascodagama at 7:36 AM on February 27, 2019 [1 favorite]

The only other instance of this I'm aware of is a tree that was recognized as having rights. We probably covered it here, though I can't easily find it.
posted by scalefree at 7:37 AM on February 27, 2019

Are you talking about the tree that owns itself in Athens, GA?
posted by LizBoBiz at 7:38 AM on February 27, 2019 [6 favorites]

I don¡¯t think it¡¯s the same legal rights as people. I don¡¯t think citizens can sue ¡®on my behalf¡¯ without my knowledge or consent. It¡¯s more like taking risks by cloaking much-needed legal protections in novel and fanciful language.
posted by Segundus at 7:43 AM on February 27, 2019 [1 favorite]

Are you talking about the tree that owns itself in Athens, GA?

Yes! There you go. Although apparently there's two trees that own themselves, one in Georgia & one in Alabama. Still can't find a post about it though.
posted by scalefree at 7:46 AM on February 27, 2019

OK found it. It was the Bonus Tree in the list of 10 Most Magnificent Trees in the World (MeFi post I think that I shall never see a post lovely as a tree).
posted by scalefree at 7:55 AM on February 27, 2019 [1 favorite]

An FPP thread from earlier this month: Why the White Earth Band of Ojibwe Legally Recognized Wild Rice¡¯s Rights: Under the Rights of Nature, the plant¡ªas well as the freshwater resources it needs to survive¡ªnow have an inalienable right to exist.
posted by XMLicious at 7:58 AM on February 27, 2019 [7 favorites]

This is a good thing. Hopefully this sets a precedent that's followed with the other Great Lakes. Lake Erie's health is reliant on other Great Lakes upstream, and the health of lakes downstream are impacted by its health (the state of Lake Erie previously and previously).
posted by mandolin conspiracy at 8:32 AM on February 27, 2019 [2 favorites]

Ooh now do animals
posted by nicwolff at 9:29 AM on February 27, 2019 [2 favorites]

I went to look up if Ohio had some weird system where a municipal gov't could do this, and it turns out no, the City of Toledo cannot do this. Just clownish.
posted by save alive nothing that breatheth at 9:46 AM on February 27, 2019

Cannot do what? Amend their own city charter? Of course they can, and that's what happened.

Cannot declare that the citizens of Toledo or Lucas County or the governments thereof have standing to sue? If you RTFLinks, you'll see that the language of the ballot quotes the Ohio Constitution as part of its justification for the amendment, and whatever it was you looked up missed the basic fact that Ohio is a "home rule" state, whereby enshrined in the Ohio Constitution is the right of municipalities to govern themselves absent specific state regulations.

Where that home rule right ends is not clearly defined, and is therefore subject to court rulings, and has been subject to attack from the Republican-dominated state legislature in recent years. So whether the Lake Erie Bill of Rights will hold up in court remains to be seen, but since Toledo is actually on Lake Erie they at least theoretically have the home rule right to create locally-applicable laws regarding the lake use and abuse.

Look things up better.
posted by soundguy99 at 10:51 AM on February 27, 2019 [3 favorites]

I would prefer for people to be the ones considered to be people. If we need to extend it, perhaps to other animals and lifeforms. The last thing that should ever be a people are businesses, followed by landscape.
posted by GoblinHoney at 11:38 AM on February 27, 2019 [1 favorite]

I found it hard to believe that Ohio's home rule powers would extend to creating causes of action in the state court system, and it looks like my incredulity was correct - State ex rel. Flak v. Betras involves in part a similar proposal, and the opinion states (para. 15):

Just as a municipality may not create a felony, a municipality is not authorized to create new causes of action.

posted by save alive nothing that breatheth at 11:58 AM on February 27, 2019

1. Some analysis of this law:

A. It does not grant the lake legal personhood. At least, not outright.

It says a bunch of things, and gives the lake certain rights (to "exist, flourish, and naturally evolve").

It asserts a kind of property right of the city and its residents in a "clean and healthy environment".

The closest part is an implication, ¡ì 4(d): "The Lake Erie Ecosystem may enforce its rights, and this law¡¯s prohibitions, through an action prosecuted either by the City of Toledo or a resident or residents of the City in the Lucas County Court of Common Pleas, General Division. Such court action shall be brought in the name of the Lake Erie Ecosystem as the real party in interest."

There's an obscenely technical difference between a "real party in interest" (i.e. the entity harmed) and an actual party to the litigation (i.e. the entity that has standing to sue). Here, the right granted to sue is to the city and its residents, not to the lake itself.

If it were to the lake itself, the lake would be the plaintiff in such cases, not just an RPI. (See below for actual examples of the former.)


B. Parts of it are very obviously unconstitutional.

E.g. the entirety of ¡ì 4:

(a) Corporations that violate this law, or that seek to violate this law, shall not be deemed to be ¡°persons¡± to the extent that such treatment would interfere with the rights or prohibitions enumerated by this law, nor shall they possess any other legal rights, powers, privileges, immunities, or duties that would interfere with the rights or prohibitions enumerated by this law, including the power to assert state or federal preemptive laws in an attempt to overturn this law, or the power to assert that the people of the City of Toledo lack the authority to adopt this law.

(b) All laws adopted by the legislature of the State of Ohio, and rules adopted by any State agency, shall be the law of the City of Toledo only to the extent that they do not violate the rights or prohibitions of this law.

Also ¡ì 2(b): No permit, license, privilege, charter, or other authorization issued to a corporation, by any state or federal entity, that would violate the prohibitions of this law or any rights secured by this law, shall be deemed valid within the City of Toledo.

No. Supremacy clause: a lesser government (e.g. a city) has no authority to abrogate the laws, or rights granted, by a superior government (e.g. a state). Among other reasons (e.g. full faith & credit clause).

The city simply does not have the legal authority to do this.

Also, if anything in this law violates Ohio state law (which I don't know at all), or Ohio claimed exclusivity on the granting of legal personhood to nonhumans in its jurisdiction, then it's a nonstarter.


C. Strict liability?

¡ì 3(c): Governments and corporations engaged in activities that violate the rights of the Lake Erie Ecosystem, in or from any jurisdiction, shall be strictly liable for all harms and rights violations resulting from those activities.

Strict liability means that the defendant cannot defend themselves by having taken every possible measure to do the right thing. It's generally not a good way to do law.


D. Jurisdiction is defective.

¡ì 3(b): The City of Toledo, or any resident of the City, may enforce the rights and prohibitions of this law through an action brought in the Lucas County Court of Common Pleas, General Division.

Neither Toledo, nor Ohio, nor even the United States, is the only neighbor of Lake Erie. It's also bordered by Michigan, Pennsylvania, & New York - and Ontario, Canada.

You can't sue someone from any of those in Toledo unless they have enough legal presence in Toledo, no matter what Toledo says. If someone pollutes the lake from New York, and a Toledo resident wants to sue, they'll have to sue in a federal court, and probably under "diversity jurisdiction", which gets Complicated.

If the polluter is in Canada, then too bad, no lawsuit for you, that's what diplomats are for.


E. The core seems sound

The basic premise - giving the lake certain rights, and giving citizens the authority to sue to protect those rights - seems essentially sound to me.

There's no reason why a lake can't have the same rights as a corporation; the only fundamental issue is determining who gets to act on the lake's behalf, since that's harder to figure out than figuring out who represents a corporation.

E.g. suppose that multiple Toledo citizens step forward to assert the lake's interests, but don't agree, or want to split the legal fees differently; courts will have to figure out who wins.


2. @Segundus: I don¡¯t think citizens can sue ¡®on my behalf¡¯ without my knowledge or consent

Actually, yes they can, and you want that.

Under the "next friend" doctrine in common law countries (including the US), if you (or your legal guardian) are for any reason incapable to sue on your own behalf - e.g. because the government disappeared you to a secret prison and nobody can contact you, you're in a coma and have no living will to cover the situation, etc. - then someone else can sue on your behalf, without your knowledge or consent.

Basically, if your knowledge & consent is not possible to get, this is the escape valve.


This is mainly for e.g. habeas corpus, though sometimes for other things.

Notably as a parallel to Lake Erie, one of the cases allowing this is Cetacean Community v. Bush, 386 F. 3d 1169 (9th Cir. 2004), in which the world's cetaceans (dolphins etc) sued to prohibit the use of a certain type of harmful sonar. They did so through their self-appointed counsel and "next friend".

(The cetaceans lost that case because the court found that the cetaceans didn't have standing to sue - not because it found any fault in the authority of their "next friend" to act on their behalf.)

This happened previously with a bird species. Palila v. Hawaii Dept. of Land & Natural Resources, 471 F. Supp. 985 (D. Hawaii 1979), represented by the Sierra Club and Audobon Society.

This is similar to what happens in civil forfeiture (in rem) actions, where e.g. the United States sues a specific car. (Not kidding, the car is the defendant.) In those cases, the car is not a legal person and does not have the ability to sue (or defend against a lawsuit), but whoever who has an interest in the car (generally whoever used to own it, or whoever insures it) does have the ability to intervene to defend the car against seizure.

Hell, you can even sue a warrant, and the US cane come defend the warrant, despite the lack of any knowledge or consent (let alone legal personhood) on behalf of the warrant itself. Marcus v. Search Warrant, 367 U.S. 717 (1961).


To get next friend status, there are requirements to show that one is the best available representative of the entity whose rights are in question - e.g. having the closest personal interest, being best at litigation, etc. It can only be someone totally random if there's nobody with a closer interest who's willing to step up.

And of course this all requires that the entity in question not be capable of asserting its own rights. They have to be contacted if possible (though the impossibility of contacting them is usually the problem that caused the lawsuit). And if they do come in and say 'hi I have my own lawyers', or 'I don't support this case' or whatever, then next friends go poof.


P.S. IANAL... but I have won in federal litigation against the US government, won administrative proceedings before the FEC, and have worked for a federal appellate judge. So there's that.
posted by saizai at 1:31 PM on February 27, 2019 [5 favorites]

@save alive nothing that breatheth noted State ex rel. Flak v. Betras, 152 Ohio St. 3d 244, 248 (2017).

That case is about whether cities can reject initiatives that are unconstitutional (no) vs that exceed the powers of a city (yes). It says in part:

{? 15} Sensible Norwood is directly on point here. Here, the BOE rejected the petitions, in part because the proposed amendments purport to create a private cause of action. Just as a municipality may not create a felony, a municipality is not authorized to create new causes of action. See Ohio Constitution, Article XVIII, Section 3; see also Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ? 150 ("state law * * * determines what injuries are recognized and what remedies are available").

This is dicta, not holding, so it's not binding.

It's not obvious to me that it's correct. State ex rel. Sensible Norwood v. Hamilton Cty. Bd. of Elections, 148 Ohio St. 3d 176, 178-79 (2016) says that "While a city may define misdemeanor offenses and impose penalties by ordinance, a city does not have authority to define felony offenses."

Presumably (I haven't looked) Ohio's state legislature said "we have exclusive rights to make felonies", but didn't say something like that about non-felonies.

The constitutional provision cited is just a 'no conflicts' home rule clause: Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.

It would seem to follow that cities would in principle have the authority to create new causes of action, unless something in Ohio's constitution or state law says otherwise.

I don't know whether or not that's true. It seems to me hard for a city to not create new causes of action somehow or other (e.g. landlord/tenant rights are pretty common city laws that get privately litigated), but that's not really an area I know.

But FWIW, my analysis above was Ohio-agnostic. Maybe Ohio has prohibited its cities from making new causes of action; if so, that would obviously preclude pretty much all of this law. That's definitely relevant if you want to actually use it, but not so much if you're just thinking about it in principle, like here. :-)

And it wouldn't stop Ohio passing a state law equivalent, in which case almost all of my analysis would still apply.
posted by saizai at 2:34 PM on February 27, 2019 [1 favorite]

What's been hilarious has been the run-up to this. The opponents were just so blatantly the usual greedhead suspects and vocal that numerous people (myself included) were saying that they decided to vote for the amendment BECAUSE of the opposition's advertising.

Heck, I got one of the only political polling questions in my whole life about this and it was clearly just the opposition trying to convince people of their side. But it had the opposite effect (not that I wasn't already on the bill's side already.)

"If we told you that corporations would lose millions of dollars, would you still support this bill?"

"Hell Yes!"
posted by charred husk at 7:20 AM on February 28, 2019 [1 favorite]

@charred husk Could you elaborate re the advertising etc.? Is there a collection of it we could look at?
posted by saizai at 10:15 AM on February 28, 2019

In my daydream, Mitt Romney is intoning the words, "Bodies of water are people too, my friend."
posted by Lyme Drop at 11:06 AM on February 28, 2019 [1 favorite]

saizai: "@charred husk Could you elaborate re the advertising etc.? Is there a collection of it we could look at?"

There isn't any collection that I'm aware of, I can only recount my personal experience.

That phone call I received was my first exposure to the subject. It began innocuously enough, asking questions like, "Are you likely to vote for or against the amendment?" After saying I'd likely vote yes, it was a series of questions that were increasingly more obvious that this was an attempt to convince me to vote no. "What if you were told that this would harm farmers? What if you were told that this would cost Ohio X number of jobs?"

The ads I saw running, especially the day or two before the vote (and ALL the advertising I saw was for against the amendment), were all focused on how this would cost Ohio jobs. No mention of farmers, no mention if this was constitutional or not. The latter wasn't even mentioned in that phone call.

Talking with a few people about the subject, they seemed to have similar observations. A few mentioned that the ads running against the amendment were so blatantly corporate sponsored that it made them feel like getting out and voting in a special election.
posted by charred husk at 6:57 AM on March 1, 2019 [2 favorites]

charred husk: Thanks!

I've found Toledo's Lake Erie initiative on Ballotpedia, which has additional info.

Notably, it shows that a lawsuit's already been filed against this initiative: Drewes Farm Partnership v Toledo, No. 3:19-cv-434 (N.D. Ohio, filed Jan. 27, 2019).

I've pulled the filed documents, such that they are now available on RECAP / Court Listener above and are current, and set an alert for myself. PACER fees to do so (~$7) paid for by my nonprofit, Fiat Fiendum. If you appreciate that, FF has a Patreon. They're also available in my google drive https://s.ai/archive > issues > wtf > Brewes, which might contain more (sometimes RECAP fails to upload).

The main documents to look at so far:
2019-02-27 1 Drewes Complaint
2019-02-28 6 Drewes Motion for preliminary injunction
2019-02-28 6-1 Memorandum re preliminary injunction

FWIW, on my review of the Drewes complaint, it seems to me they have a major problem with standing. It's totally speculative. I don't think it rises to the level of 'imminent harm' that is required. It's also just plain wrong about some things (e.g. the law isn't criminal, so that part is just total BS; their alleged 1st Am. harms are pretty BS), questionable on some (is it unconstitutionally overbroad? I doubt it, and certainly not as a ¡ì 1983 issue), obviously right about others (e.g. state preemption, limited authority of city), and I don't know on some (do corporations have an equal protection right?).

Anyway, enjoy the additional reading and inevitable-litigation phase of this. :)
posted by saizai at 3:33 PM on March 5, 2019