The Lake Erie Bill of Wrongs: An Exercise in Unconstitutional Ordinance Drafting
Residents of Toledo, Ohio, were given a stark warning in August of 2014: “Do not drink the water, do not brush your teeth or prepare food with it, and do not give it to your pets.” This warning came after a particularly dangerous harmful algal bloom (HAB) in the western basin of Lake Erie; just offshore from Toledo. Lake Erie has a history of HABs dating back to the 1960s. HABs died down in the decade before and after the turn of the 21st century, but steadily increased since then. Sensing an abdication of their government’s environmental responsibility—that directly endangered their health and well-being—the people of Toledo worked to enact a Rights of Nature (RoN) ordinance.
Rights of Nature movements are popular ways for citizen- and community-based groups to protect their natural environment and preserve the resources near and dear to them. These movements—whether codified in an ordinance, statute, or state constitutional amendment—face numerous challenges in court. For example, and appearing throughout this Note, a farming partnership in Northeast Ohio challenged the Lake Erie Bill of Rights—Toledo’s RoN law—the day after its adoption. This Note seeks to provide grassroot groups with careful, effective, and specific drafting practices to avoid four common constitutional challenges. The field of RoN law is broad and ever-expanding, so this Note specifically focuses on crafting municipal ordinances to protect natural bodies, grant them rights, and prevent further degradation to our collective environment.
This Note begins with a survey of the relevant factual and legal background. Part I discusses Lake Erie, HABs, the first RoN article, and examples of RoN movements around the nation. This Part also proposes a very simplified constitutional test that will be used to analyze all the examples of RoN movements for their constitutional rigor. Part II provides a deep-dive case study of the Lake Erie Bill of Rights (LEBOR), from the text of the ordinance to the court’s opinion in the suit challenging LEBOR. Part III examines the particularly relevant RoN examples in more detail, using critique and comparison to build a foundation for more successful and effective RoN laws in the future.
Part IV focuses on and analyzes four of the many constitutional challenges that RoN ordinances are likely to face. A single Note of this scope could not hope to discuss all potential constitutional issues that could be raised, so this Note focuses on four: (1) due process and the void-for-vagueness doctrine, (2) judicially enforceable standards, (3) standing, and (4) preemption and municipal overreach. Part V proposes drafting guidelines and tips for municipal ordinances that can be applied to almost any law—RoN-related or not. Finally, applying these drafting and constitutional guidelines, Part VI proposes a model RoN ordinance modeled after LEBOR. The constitutional test from Part I is then applied to the model ordinance to analyze its structure and content under a quasi-constitutional review. This Note concludes with a summary of important take-aways, tips, and suggestions that municipalities can incorporate into their RoN ordinance-drafting process.
 Emma G. Fitzsimmions, Tap Water Ban for Toledo Residents, N.Y. Times (Aug. 3, 2014), https://www.nytimes.com/2014/08/04/us/toledo-faces-second-day-of-water-ban.html.
 See Toledo, Ohio, Mun. Code ch. XVII (2019) (“We the people of the City of Toledo find that laws ostensibly enacted to protect us, and to foster our health, prosperity, and fundamental rights do neither . . . .”).