How giving legal rights to nature could help reduce toxic algae blooms in Lake Erie — The Conversation

Lake Erie algae bloom July 30, 2019. Photo credit: NASA Earth Observatory image by Joshua Stevens, using Landsat data from the U.S. Geological Survey.

From The Conversation (Dana Zartner):

August and September are peak months for harmful blooms of algae in western Lake Erie. This year’s outbreak covered more than 620 square miles by mid-August. These blooms, which can kill fish and pets and threaten public health, are driven mainly by agricultural pollution and increasingly warm waters due to climate change.

Advocates are looking for new ways to combat this problem. On February 26, 2019, Toledo citizens passed the Lake Erie Bill of Rights, which gives the lake the right to “exist, flourish, and naturally evolve” and awards citizens the right to a “clean and healthy environment.” They join a growing movement – referred to as “Rights of Nature” – providing legal personhood to natural entities.

Lake Erie harmful algal bloom forecasts since 2002. NOAA

In theory, this action could make it possible to hold corporations and governments liable for polluting the lake. But while the concept is finding support abroad, it faces hurdles in the U.S. The Lake Erie law was immediately challenged in court by an Ohio farm and has yet to take effect.

My work focuses on international and comparative law related to environmental justice and human rights. I recently spent time in New Zealand researching the impacts of a 2017 law giving the Whanganui River its own legal identity. What I saw there convinced me that providing legal standing to a natural entity is a viable method of environmental protection. In my view, however, the processes that advocates use to enact Rights of Nature law critically influence whether these efforts will succeed.

A new conservation strategy

Rights of Nature laws generally are designed to improve environmental protection and encourage people to rethink their relationship to the environment. Instead of viewing nature as a commodity that exists for humans to use, and abuse, these statutes consider nature as important for its own sake.

Measures awarding legal status to nature have been adopted in Ecuador, Bolivia, Colombia, New Zealand and Bangladesh, and by several Native American nations, including the Ho Chunk and White Earth. Other efforts are underway across the country, including in Oklahoma and Oregon.

Maumee Bay Brewing Co. in Toledo, Ohio is making green, murky beer to draw attention to Lake Erie’s algae problems. AP Photo/John Seewer via The Conversation

The Lake Erie Bill of Rights is the latest phase of citizen-led efforts to address chronic nutrient pollution and the resulting dangerous algae blooms. In 2018 Toledoans for Safe Water collected enough signatures for the Lake Erie Bill of Rights to appear on the ballot.

Local politicians and farmers opposed the measure, but it passed with 61% of the vote, although only 8.9% of eligible voters participated. A day later, Drewes Farm Partnership of Ohio filed a lawsuit arguing that it was unconstitutional. While the city of Toledo has taken up defense of the Lake Erie Bill of Rights, the state of Ohio is siding with Drewes Farm.

Learning from Te Awa Tupua

How effective are Rights of Nature laws elsewhere? One of the most detailed examples is the 2017 Whanganui River Settlement Agreement, which resulted from years of negotiations between the Maori and New Zealand’s government. Known by its Maori name, Te Awa Tupua, it recognizes legal personhood for the Whanganui, the country’s third-longest river.

The Whanganui is a major river on the North Island of New Zealand. Dana Zartner, CC BY-ND via The Conversation

The Whanganui has been an important source of food and transportation for centuries, and has great spiritual importance for the Maori, who view it as a living being. Te Awa Tupua recognizes that the river possesses all the “rights, powers, duties, and liabilities of a legal person.” The Whanganui is represented by two Guardians, known as Te Pou Tupua, who are jointly appointed by the national government and local Maori.

Under the law, any activity that might affect the river must go through a consultation process and receive approval from Te Pou Tupua. One early test occurred in March 2019, when construction of a new bike bridge over the river was halted so that the required consultations could take place. Bigger issues will arise in the future, particularly in regards to renewal of concessions for energy companies diverting portions of the river for power generation.

(The local Maori tribe of Whanganui fought for recognition of their river as an ancestor for 140 years.)

Lake Erie and the law

Unlike Te Awa Tupua, the Lake Erie law does not include much detail regarding its requirements or specific mechanisms to guide implementation. Ultimately courts may strike the measure down based on these omissions and potential conflicts with state and federal regulations.

Lake Erie is governed by treaty law between the U.S. and Canada, so the Drewes Farm lawsuit asserts that the Bill of Rights infringes upon U.S. government authority. Similarly, because the lake touches four U.S. states, the lawsuit argues that any new law related to Lake Erie should be adopted by states, not individual cities.

Drewes Farm also claims that the Bill of Rights violates its 14th Amendment rights to equal protection, since the law mentions only corporations and governments, and conflicts with Fifth Amendment prohibitions on law that is too vague.

On July 22, 2019, Ohio Gov. Mike DeWine signed a budget bill which includes a provision stating that “Nature or any ecosystem does not have standing to participate in or bring an action in any court.” The bill creates a new fund called H2Ohio, purportedly to provide US$172 million to address pollution in Lake Erie, but critics want more proactive measures.

But I believe that it is still worth trying, and that passage of the Lake Erie Bill of Rights is significant, even if it is ultimately struck down. Widespread coverage of the issue has already increased awareness of the idea of legal personhood for nature in the U.S.

I see learning from the negotiation and implementation of more developed Rights of Nature laws like Te Awa Tupua as the next step. As measures like this become more common, a new view of our relationship to nature may develop. I expect that recognizing the legal standing of natural entities will become a significant legal tool in the fight for better environmental protections, including addressing toxic algae blooms in Lake Erie.

From NASA Earth:

In July 2019, a severe bloom of blue-green algae began spreading across the western half of Lake Erie. The dominant organism—a Microcystis cyanobacteria—produces the toxin microcystin, which can cause liver damage, numbness, dizziness, and vomiting. On July 29, the National Oceanic Atmospheric Administration (NOAA) reported unsafe toxin concentrations in Lake Erie and have since advised people (and their pets) to stay away from areas where scum is forming on the water surface.

This image shows the bloom on July 30, 2019, as observed by the Operational Land Imager on the Landsat 8 satellite. Green patches show where the bloom was most dense and where toxicity levels were unsafe for recreational activities. Around the time of this image, the bloom covered about 300 square miles of Lake Erie’s surface, according to news reports; by August 13, the algae had spread across 620 square miles.

While blooms in Lake Erie are a regular occurrence in the summer, NOAA researchers forecasted that 2019 could bring some of the most abundant blooms in recent years.

Bloom conditions this year were influenced by calm winds and rainfall. Calm winds in July allowed algal toxins to accumulate at the surface (instead of being dispersed). Strong winds in August have since mixed some surface algae to deeper depths. Heavy rains carry excess nutrients (often fertilizer) from farms into the lake. However, such nutrient runoff may have been less than anticipated this year because heavy spring rains and flooding prevented many farmers from planting crops.

NOAA researchers will continue to monitor the bloom, producing weekly bulletins of the location and concentration of algae growth and predictions about where it is headed. The team integrates several data sets, including NASA’s MODIS-derived cyanobacteria index, NOAA water temperature measurements, and wind conditions. NOAA will also collect and process water samples with an unmanned underwater vehicle.

The public can stay informed about harmful algal blooms using a new mobile app that sends alerts when harmful algal bloom may be forming. The app relies on satellite observations of changes in the color of the water.

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