Introduction
In February 2019, the world’s 11th largest lake, Lake Erie, was granted its own environmental bill of rights by the City of Toledo.[1]Even though the residents of urban Toledo only represent a small part of the lake, the city happens to be situated on the most ecologically fragile, biologically dynamic part of the lake due to its waterfront’s shallow depth and resulting warm temperatures.[2]While it is currently unclear what this bill of rights will do for the lake, supporters of the bill are hoping it will provide a new avenue to hold more polluters accountable. The bill of rights will be incorporated in Toledo’s city charter, and states that Lake Erie will have “a right to carry a smaller environmental burden”.
The bill was modeled after the Community Environmental Legal Defense Fund’s proposal for a rights to nature law.[3]It establishes that Lake Erie has the right to “exist, flourish, and naturally evolve”.[4]Supporters are hoping the bill will allow them to bring lawsuits against polluters on the lake’s behalf. Under most applicable environmental statutes and the common law, the U.S. and Canadian courts generally require those residents and environmental groups filing law suits to prove they have “standing” in order to bring suit. In order to be granted standing, the plaintiff usually must prove they have suffered a direct injury that can be remedied by courts. Therefore, representatives will be able to bring suit on behalf of Lake Erie, without having to prove there have been injuries to humans.[5]
The concept of giving rights to nature is relatively new, and originated in its current form in the United States (U.S.) in the late 1960s. In 1965, the United States-based Sierra Club sued to stop a ski development in the Sequoia National Forest, California, arguing that the proposed resort would constitute an injury to Mineral King Valley.[6]In 1972, the U.S. Supreme Court (USSC) rejected the Sierra Club’s argument because the majority was unwilling to accept that natural objects had standing to sue in court. Instead, the USSC urged the Sierra Club to amend its complaint to show how the club’s members, rather than the valley, would be injured. The club did so, and the ski resort was stopped.
The case inspired a vigorous debate amongst some lawyers and judges, particularly those in North America. One Supreme Court justice, William Douglas, was persuaded by the Sierra Club’s original reasoning. His passionate dissent in Sierra Club v. Morton marked a turning point in environmental legal battles, one that still shapes advocacy today and suggests we need to embrace different way of thinking about nature.[7] By the time, the case reached the USSC Douglas already had dedicated years of life to thinking about environmental problems, and published five environmental books between 1960 and 1967. One of his 1965 books, A Wilderness Bill of Rights[8], argued for a “Bill of Rights to protect those whose spiritual values extend to the rivers and lakes, the valleys and the ridges, and who find life in a mechanized society worth living only because those splendid resources are not despoiled.”
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