S1, Ep5 | The Backlash

So far this season, we've heard about minomen wild rice suing the department of natural resources in Minnesota, the Disney ski resort that got us judges and lawyers thinking about rights of nature, a cloud for. Beating back a mining company in Ecuador and the Tuhoe Homeland Te Urewera being granted legal personhood in New Zealand. Today, we're headed back to the Midwest where a surprising fight has been brewing in an unlikely place: The rust belt. It began way back in 2014 with a crisis for the second straight day, 400,000 people in and near Toledo, Ohio are being told not to drink the tap. I got involved in this work after the water crisis of 2014 in Toledo, where we lost access to drinkable touchable water for three days, due to a toxic algal bloom in the Western basin of lake Erie.

This is Markie Miller who had just left her environmental studies master's program feeling totally disillusioned when her city's water supply was deemed too toxic to drink. I was coming out of a, uh, environmental studies graduate program that I had walked away from because I felt really disconnected from the environmental movement where I felt like we were being told, look at all these problems.

And there were pretty clear connections to the regulatory system that we have. And here's five decades of environmental work that's been done and things are getting worse. And at the end of the day being told, okay, you just went out and protested this agency for some, you know, injection, well permit. Now you're going to intern with that same agency.

And that's your future? The Toledo water crisis motivated Miller to look for a different way to tackle environmental problems. I was walking out of this grad program, thinking I had failed the environmental movement and feeling really disillusioned by it and went home. And then this water crisis happened and it was like, this is my second chance to get involved, do things differently.

And, you know, the more you get involved, it was a lot of censorship. It was, we're not going to talk about what caused the water crisis. We're not going to entertain questions pertaining to why this happened, how this happened. We're only going to look forward and we're only going to talk about how to have awareness around it, how to have early detection.

And that just really made me so angry that I stopped going to public meetings and started going to citizen led meeting. Some of those fellow citizens of Toledo happened to attend a lecture about rights of nature around this time. And for Miller, when she heard about it, she felt like this was the exact kind of approach she'd been looking for.

People from Toledo, people from seldom went to a little bar down the street. Cell death is the community environmental legal defense fund. The lake Erie bill of rights was born on a cocktail now. You know, it was born out of frustration of people seeing a year or two of total inaction of blaming the weather, blaming nature, saying this was inevitable.

This was nothing we could've done to prevent this. Um, and we're going to make sure we give you a heads up next time. This happens. And that wasn't a good enough response for people. So realizing that this could happen again and we were vulnerable, we weren't ready. Uh, people in Toledo. This chance of saying, well, we, if we do nothing, we're in the same position.

If we put pressure, we're in the same position, so let's write our own law and let's come up with our own strategy, how we want this to be fixed, what we think needs to be set. Um, so that was sort of the, the origin of rights of nature in Toledo.

That effort to create the link theory, bill of rights in Toledo was wildly successful, which is why it kicked off a swift and severe backlash from various industries that felt really threatened by the sea change. That rights of nature represents. That's the story we're going to get into today. Welcome back to damages.

I'm Amy Westerbelt after the break rights of nature in the rust belt, the backlash and how organizers are getting around it. Stay with us.

it's not really a surprise that a lot of folks in the business world see rates of nature as an existential threat, a question, something that has become fundamental to business and particularly American business, the possession and use of land and other natural resources for. And the U S this actually goes all the way back to an ideological debate.

In the 18 hundreds. We heard earlier this season about the countries moved to give property owners the rights to shared resources like water and minerals, but it didn't end there. Essentially, if we want to look at the beginning of a 20th century national awareness about the need to protect the natural environment, you have to look at the naturalist, John.

And before Mr. Gifford Pincho Melissa Aronchick is a media studies scholar at Rutgers university and coauthor of the book, a strategic nature, all about how Americans came to talk about the environment in the way that we do John Muir of course, was an early conservationist and Gifford. Pincho really saw nature as an economic resource.

And we especially have to look at how they interacted because each of them came to stand for very different idea of what nature and forests in the environment meant. In the United States. You might be familiar with the name, John mirror, maybe you even own something with his famous quote. The mountains are calling and I must.

But Gifford Pincho is less of a household name. He was the country's first Forester in the sense of somebody who is professionally trained to manage for us to manage nature in the United States. And that's really important because it introduces the idea. That nature is something that should be managed.

What Muir stood for was really about protecting the natural environment that meant creating Parkland, creating forests or protecting forests and having boundaries drawn around around them so that they were owned by the federal government and could not be used for any private purpose. Whereas for Pincho for Gifford Pincho.

Uh, natural resources were just that resources. It was lumber that Americans needed for development. Um, it was water that may be needed for serving cities that didn't have enough, uh, natural water resources. And there was an economic damage. To protecting forests, but you had to protect them for the service of American enterprise and the American economy.

Of course, a lot of this land that both mere and Pincho wanted the us government to own for their respective reasons already belonged to someone else now. John Muir's note or different Pintos visions included the indigenous people who were living on this land long before either of them came along. Um, and that's that entire story of what the indigenous peoples on the land did with nature, how they viewed nature, their relationship with nature that was completely ignored in this American.

Mir, maybe the name we still know today, but it's, Pinto's ideas that underpin American approaches to nature, especially when it comes to policy.

[00:08:40] Amy Westervelt: A lot of states' departments of natural resources, for example, spend quite a bit of time protecting the economic use of resources. Just think back to attorney Tara Houska's comment on the Minnesota department of natural resources stance when she and various other activists were fighting against the line three pipeline in Minnesota

[00:09:00] Tara Houska: Minnesota's DNR was side by side with the police officers that were protecting Enbridge's pipeline throughout the course of the ground struggle. I think there's certain moments that really stand out when you see, like there's a sign behind that says protected wetland that has an Embridge symbol. Yeah.

That's DNR officer standing in front of it. And then there's just this like gaping scar that's been placed into the earth right next to it. Clearly destroying that wetland, you know, and there's the DNR right there and telling you to step back.

So yeah. Rights of nature represents a pretty big departure from business as usual.

Which is why so many industries, especially heavily polluting ones like the fossil fuel industry chemicals, industrial ag. They're not taking this whole rights of nature push lying down.

Oh, my God. It's this rust belt city in the Midwest that is doing this. What everyone would think it would either be like in New York or California, right? That's Tish Odell with the community environmental legal defense fund. Seldom. And the city she's talking about is Toledo. Ohio. Odell was at that fateful meeting in the bar where the folks from cell death and the activist from Toledo drafted that lake Erie bill of rights on a cocktail napkin.

The fact that people there in the rust belt and not on the coast, started agitating for rights of nature, really flipped a switch and activated major industry backlash. Odell had gotten involved with the rights of nature movement a few years before the Toledo water crisis hit. When she found out that her small suburban town was being invaded by oil and gas drilling in my community, this little suburban, you know, sleepy town and another resident was screaming at city county.

About poisoning her children and that they needed to stop. So I talked to her after the meeting and it evolved into me just, you know, going down the rabbit hole of learning, what was oil and gas drilling, what was so bad about it? What was, you know, fracking that was the first time I'd heard that term and became very concerned about the issue.

Oh, Dell, isn't the type to hear about something concerning and not try to do something about it. So she jumped right in and we basically got the runner. From everyone that either we can't do anything about it or it's good for the economy, all different things. After going to all the existing powers that be and getting nowhere, Odell made a bold move.

So at that point, when I realized we couldn't. Stop it. I ran for mayor and I thought, well, I'm going to try and solve the problem myself. She didn't win, but it was during my campaign and a local event, someone stood up and asked me if I had ever heard of cell death, she hadn't heard of them, but quickly looked them up and it wasn't long before she was working for them on another environmental crisis near her home.

The leak Erie water crisis. The lake is just about 10 miles from O'Dell's house. You know that this is an ongoing problem with lake Erie. You know, we've been using her for water, for fishing, for dumping of waste and lake Erie, being the shallowest of the five great lakes. She was actually declared dead once already.

And that was in the 1960s. The Cuyahoga river in Ohio is so loaded with the waste products of petroleum distillation that it is actually in danger of catching. Ohio's Cuyahoga river, literally catching on fire during those decades. Thanks to the high levels of chemicals and oil in it actually helped to inspire the clean water act, but we thought the lake was getting better for a while.

After all that happened in the sixties and seventies. But the pollution has just become more invisible over the years. So we don't have like, you know, oil scum floating on the surface and it's not catching on fire. And that seems to be the problem with the environmental activism in that. Right. We, we seem to think at some point, oh, we won and then we kind of like think, oh, the system is going to handle it from here on out.

And that's not true. It doesn't, it just continue.

Um, in the case of lake Erie, when the more obvious pollution went away, it was replaced by a more invisible pollution in the form of runoff from various industrial agriculture operations around the area, the chemicals in that runoff caused more algae to bloom in the lake and the LG emits various toxins.

Poisonous to people for a long time, the LG blooms were mostly spun as a natural phenomenon because of course, LG blooms are technically natural, but in an abundance of them is not. And then August, 2014, good afternoon. I'm Cecilia Vega at ABC news headquarters in New York with a digital special report on a major health threat in Toledo, Ohio, where there is no tap water to drink today.

And they have. Warnings everywhere on the TV radio saying, do not touch the water. Don't drink the water. Don't do dishes, don't shower, nothing. It will make you sick. And that went on for three days at the hottest, you know, time of the year. That's when local residents like Marquis Miller and Odell got involved like Miller Odell was really frustrated with how various existing systems were set up to handle a situation like the Toledo water crisis.

You know, you go to your electives first to go to your local electeds, and then they tell you to go to the environmental protection agencies and on and on, and you do that and you figure out no one's really helping you or correcting the problem. Oh, we'll do more testing. Oh, we'll post signs earlier. Oh, we'll put more chemicals in the drinking water, so it doesn't happen, but it's not really solving the problem.

You know, the overall problem what's going on? Why do we have these LG blooms happening? And they knew that it was from industrial agriculture. There'd been so much money poured into studies. Northwest Ohio is that's a huge industry there and it's corporate agriculture. It's not, you know, farms that put food to table kind of thing.

They're growing. Come on. In that area. So, you know, a couple of years people did try to work through the system there and nothing happened

in 2015 Miller and a handful of other Toledo residents connected up with Odell and other folks from cell death and drafted what would become the lake Erie below. On a cocktail napkin in a bar, those cocktail napkin notes were typed into a proper document that made some really bold declarations. Like 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.

And that the very air, land, and water on which our lives and happiness depend are threatened. Thus, it has become necessary that we read. Reaffirm and assert our inherent and inalienable rights and to extend legal rights to our natural environment in order to ensure that the natural world, along with our values, our interests and our rights are no longer subordinated to the accumulation of surplus wealth and unaccountable political power.

Dang. It went on to layout the rights, the people of the city of Toledo wished to grant, to lake Erie, including the right to exist flourish and naturally evolve. The lake Erie, bill of rights included rates for the lakes, human neighbors, to specifically the rate to local self-governance and the right to a healthy environment with their bill of rights drafted Miller and her fellow activists set about securing local support.

Here's Odelia. Of course the first step, always when you're talking about rights of nature, because that's, it's such a new concept for a lot of people is there's a lot of education that has to happen at the front end, doing rights of nature workshops, um, trying to put together flyers and things that to educate the people in the community, what this means.

And so they did that. They were willing to put the work in. They drafted a proposed amendment, the city of Toledo's charter that would enshrine the lake Erie bill of rights into the city's operating documents and give Toledo residents the right to protect the lake in court in Ohio. Citizens can get any proposed initiative on the ballot.

If they get enough signatures from rev. And by August of 2018 lake Erie, bill of rights folks had collected enough signatures, but it was blocked then from going on the ballot by the county board of elections. And so the people we had to help them Sue this, you know, and it had to go to the Supreme court of the state to get the board of elections to put it on the ballot.

Well, we, at that time had, you know, there was lots of lobbyists and industry groups that filed an Amicus. In support of not putting it on the ballot. So when we think about democracy and that we think we live in a democracy, here are the people follow the rules, what they were supposed to. And yet industry lobby groups are influencing whether or not this can go on the ballot.

And the Supreme court actually ruled in favor of the county board of elections to keep it off the ballot.

Um, Miller was gutted to find that after all the careful work they'd put in to getting the lake Erie bill of rights on the November, 2018 ballot, everything they'd done to just make sure they were on the right side of the law, cross their T's and dot their I's. That those in power could just refuse to put it on the.

The scrutiny that communities have to go through with petitioning. I mean, it's like, oh, this, this sentence must be in red ink on every page and everything has to be notarized and every signature must match this. Ultimately they caught a break, not because of the court case, but because the city wanted to avoid bad PR.

Citizens had proposed another ballot initiative in Toledo. One, the city did want people to vote on and they just couldn't find a way to justify letting people vote on one and not the other. They couldn't figure out a way to keep it off the ballot. So that's how the lake Erie bill of rights got on that special election, February ballot in February, 2019, the lake Erie bill of rights passed with 60% of the vote.

Victory, but it was short-lived a lawsuit has been filed against the lake Erie bill of rights, not even a day after it passed the farm in wood county filed in federal court this morning until, and almost exactly a year after the bill passed in February, 2020 a judge declared the league Erie beloved.

Unconstitutional and valid. That's the ruling on the lake Erie bill of rights. So us district court judge ruling that the bill is unconstitutionally vague and an overstretch of power for municipal government. The argument was twofold first that because the Lake's right to exist flourish and naturally evolve.

It doesn't really cover specifics. Like for example, how much agricultural runoff is acceptable? Is it none or is there some acceptable amount? Because it lacked specifics like that. The judge said this is just too vague to be considered an enforceable law. And second that because league Erie spans more than one state and actually crosses the border into Canada to the people of Toledo.

Can't just pass a law that extends so far beyond their jurisdictional balance. Um, it was a brutal defeat, but now the story was on the media's radar, not just nationally, but internationally, the daily show even did a whole thing on it that both Marquis Miller and Tisha Dell appeared in making a lake into a person is clearly a weird sex thing.

But Marcie and her fellow conservationists have even been. Selfish motivations, the toxic water situation in Ohio that prompted the governor to declare a state of emergency Erie. A major source of drinking water serves 400,000 people. We lost access to our drinking water for three days. It impacted 500,000 people.

And that attention made industry nervous, not just the local industrial farmers, but the global chemical and fossil fuel industries. Here's Marcie Miller in that daily show segment. I found out that BP was basically the sole funder of the campaign against the Lickeri bill of rights.

The local PBS station in the region got hold of campaign finance reports and found that supporters of the leak Erie bill of rights had spent about $7,000 getting it on the ballot and rallying support for it. While opponents of the bill organized into a group. The Toledo coalition for jobs and growth spent over $300,000 trying to defeat it.

Funding for that coalition came almost exclusively from BP north America, which is based, not in Ohio, but in Houston, Texas. Why would a multinational company headquartered nowhere near Ohio care about a municipal bill until. Well, the idea of rights of nature laws all over the world is a pretty big existential threat to oil companies.

Kind of the way climate change is to humans. Could they really survive if communities, rather than politicians or agencies that can be swayed by money and power made decisions that emphasized protecting biodiversity versus profits? It's hard to imagine how.

I mean, I think people had heard of some of the stuff happening in Ecuador and in New Zealand, but this was the middle of, you know, Ohio, not like a bunch of hippies in San Francisco. You know, we just need to laugh about that. We would laugh about that. Like, oh my God, it's this rust belt city in the Midwest that is doing what everyone would think it would either be like in New York or California.

Right. The fact that this fringe idea took hold in Ohio, not some super liberal blue state. It was a shock to the system, which might be why around the time that lake Erie fight was going on articles about how radical and fringe and terrible this idea. It was started to crop up in conservative media all over the country.

Here's one from conservative magazine, the national review.

Lake Erie now has rights. National review score another victory for the nature rights movement. As I warned could happen. Voters in Toledo just passed a law granting lake Erie, human type rights. Indeed, a bill of rights. All its own. The nature rights movement is profoundly subversive, both to human exceptionalism, our Liberty, and the important concept of rights itself.

Think about it. If major has rights, that means everything. Which devalues rights, just as a wild inflation deflates, the worth of currency,

the radicals who are leading this agenda wish to thwart capitalism and human thriving.

Major rights laws accomplish this by transforming courts, into enforcers of green ideology.

It's an ideological threat and the closest environmentalist have gotten to actually changing the system that brought us the climate crisis and a whole lot of other ills in the first place, because it provides an entirely new framework, a new value system through which to make decisions about the world we live in.

People who felt threatened by such a shift. Couldn't just leave it at defeating the lake Erie, bill of rights. They started to pass preemptive laws, state laws that would ban any kind of a case being brought around rights of nature in general. And that effort again, started in Ohio. We have a biannual budget that happens in Ohio.

And so they were working on the budget. The end of April and it gets signed in may. And at the last minute, like right before it was signed, someone noticed that there was language in the budget bill that was preempting rights of nature. And we were like, That's Tisha Dell again, she says when they looked into it, they discovered that this addendum to the budgets, it was slipped in the night before the bill, which is hundreds of pages long was sent to lawmakers.

Here's Marcie Miller through several information. Eventually one of the members of the Ohio community rights network found the emails between the Ohio chamber of commerce and one state rep saying, Hey, we, because of the lake Erie, bill of rights, even though it's past the deadline, we'd really like if you could slip this language into the budget bill, and it's like just the audacity of.

The U S chamber of commerce is one of the primary blockers of environmental regulation in the country, and a long time leader in the fight against climate action state chambers of commerce often work in lockstep with the national organization and rights of natures seems to have made it onto their radar.

Shortly after the Ohio preemptive law passed a remarkable. Similarly worded, build past in Florida, also sponsored by that state's chamber. Another copycat bill was proposed in Missouri and re-introduced in 2021. I think we'll see much more preemption from states, you know, similar to Ohio, for instance.

Which made it illegal to grant nature, any rights. This is Melissa. Trautman a journalist and co-founder of the investigative journalism organization. Public Harold Troutman has been covering rates of nature for years, and co-directed a 2020 documentary on the subject invisible hand as this. Paradigm shift of a strategy to recognize the rights of nature grows more and more the backlash from the establishment, which is the state and these huge corporate industries.

The backlash will get stronger and stronger, and that will come in the form of more state and corporate preemption,

but she doesn't think preemption will stop the rights of nature movement. Miller and Odell agree. Honestly, when you start seeing the preemption, it's really validating in a weird way. You, you realize that, well, we must be pissing off the right people. In fact, it hasn't stopped organizers in Ohio, really at all, Odelia says there are still various rates of nature efforts underway.

There. We all have two choices, right? When they pass a law, we either accept it and go, well, it's the law. I guess there's nothing we can do. Or you keep challenged. And you fight still and you go now, I'm not going to give credibility to that law. That law is unjust. And so that's what we're seeing here in Ohio and in other places across the country.

They're not giving any credibility to these. I call them illegitimate laws. Troutman points to an example in her state, Pennsylvania grant township, which invoked a Pennsylvania option called home rule to kick the state out of its. And then drafted a town charter that included rights of nature. They use that charter to kick a fracking waste project out of town.

And like the folks in Toledo they've met with swift and fierce opposition. Here's Joshua per Banick trout Troutman co-director on invisible hand and co-founder of public health. Grant township has another huge wall to climb. And that is that the lawsuits that came from the state and from the industry are ongoing still.

And they are now facing the court battle with the state agency. Uh, and the court has allowed the state agency to partner with the oil and gas company. In the case, nothing says regulatory capture like a state and a fossil fuel company teaming up to Sue a small rural town for the right to dump toxic waste there, but per bannock and Troutman find optimism in the grant township story.

You know, grant township is being targeted by the state and the industry as a single community. And there they are holding their, uh, they are holding out. And what happens in grant township affects. What other communities in Pennsylvania end up being able to do, but also in other parts of the country as well, it is precedent setting.

Right. Um, but what if there were 50 communities all doing what grant township is doing across the state? Do you think DUP would be suing all 50 of them at the same time? Heck no, they have, they don't even have the resources to spend on grant township, let alone 50 other commuters.

for Odell like Miller. The fact that more preemptive laws attempting to ban people from proposing rights of nature bills are being considered in states across the country. It's just proof that the concept is gaining traction. And I tell all the time when you're going along the right path, you can tell by the opposition's response to you, how close you're getting to hitting them with something, right.

Because they're not going to pass it. Preemptive bill that says, you know, you can't call your legislators anymore, or you can't go to the EPA with your company. It certainly hasn't slowed down the momentum of the rights of nature movement. Since we started reporting this series just last year, multiple new cases have been filed and new laws have been passed Uganda past rights of nature for parts of the country.

Panama moved to incorporate rights of nature into its constitution in February, 2022. Chili is considering a similar move in Washington, the socks we all tribe filed the first rights of salmon case in January, 2022 in New York state assemblyman, Patrick Burke proposed a great lakes bill of rights in March, 2022, things are happening and for Troutman, there's a sense of the inevitable about it.

As for the backlash that's really troubling to think about, but it's not going to stop the movement. It's not going to stop change.

that's it for this episode and this first season. Thank you so much for joining us. We'll be continuing to put out weekly episodes for most of the year. Coming up in our next season and look at some other big legal ideas, shaking up climate action from the new international crime of eco side to the secret tribunals that corporations use to try to block environmental laws.

We'll also be bringing you bonus episodes on other rights of nature cases and updates on the cases that we've touched on this season throughout the year, and many, many more series, including a look at fraud and liability cases. And a deep dive into a fascinating case in Guyana where Exxon mobile is drilling off shore.

Keep coming back for all of that. Thanks again. And we'll see you next time.

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