The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last year, voters in Toledo, Ohio passed a ballot initiative purporting to enact a "bill of rights" for Lake Erie as a part of the city's charter. The so-called "Lake Erie Bill of Rights" or LEBOR declared that "Lake Erie, and the Lake Erie watershed, possess the right to exist, flourish and naturally evolve." Accordingly, LEBOR sought to prohibit environmental contamination and prohibit activities that harmed the ecological integrity of the lake and purported to authorize citizen suits to effectuate its prohibitions.
The idea behind LEBOR was always a bit fanciful, particularly insofar as the initiative's sponsors thought that voters in a single municipality could assert rights on behalf of broader ecosystems and waive away the trade-offs inherent in declaring that particular resources must be used in particular ways. Now LEBOR is no more.
Last week, a federal district court judge in Ohio declared the LEBOR to be "unconstitutionally vague" and beyond "the power of municipal government in Ohio." In Drewes Farms Partnership v. Toledo, Judge Jack Zouhary explained:
Federal courts have invalidated municipal legislation on vagueness grounds. For example, a Cincinnati ordinance criminalized gathering on sidewalks "in a manner annoying to persons passing by." Coates v. City of Cincinnati, 402 U.S. 611, 611 (1971). The Supreme Court struck it down because "[c]onduct that annoys some people does not annoy others." Id. at 614. A Detroit-area township regulated the use of machines that keep water near boats and docks free from winter ice. Belle Maer Harbor v. Charter Twp. of Harrison, 170 F.3d 553, 555 (6th Cir. 1999). These ice-free areas could not exceed a "reasonable radius." Id. The Sixth Circuit found the ordinance void for vagueness, in part due to the "failure to include a definition of 'reasonable.'" Id. at 558–59. A Columbus gun-safety ordinance met the same fate. The ordinance banned forty-six specific guns, as well as "other models by the same manufacturer . . . that have slight modifications or enhancements." Springfield Armory, Inc. v. City of Columbus, 29 F.3d 250, 251 (6th Cir. 1994) (emphasis added) (brackets omitted). The Sixth Circuit saw "no reasoned basis" for determining what changes qualify as "slight," so it invalidated the ordinance. Id. at 253–54.
LEBOR's environmental rights are even less clear than the provisions struck down in those cases. What conduct infringes the right of Lake Erie and its watershed to "exist, flourish, and naturally evolve"? TOLEDO MUN. CODE ch. XVII, § 254(a). How would a prosecutor, judge, or jury decide? LEBOR offers no guidance. Similar uncertainty shrouds the right of Toledoans to a "clean and healthy environment." Id. § 254(b). The line between clean and unclean, and between healthy and unhealthy, depends on who you ask. Because of this vagueness, Drewes Farms reasonably fears that spreading even small amounts of fertilizer violates LEBOR. Countless other activities might run afoul of LEBOR's amorphous environmental rights: catching fish, dredging a riverbed, removing invasive species, driving a gas-fueled vehicle, pulling up weeds, planting corn, irrigating a field -- and the list goes on. LEBOR's authors failed to make hard choices regarding the appropriate balance between environmental protection and economic activity. Instead, they employed language that sounds powerful but has no practical meaning. Under even the most forgiving standard, the environmental rights identified in LEBOR are void for vagueness.
The right of Toledoans to "self-government in their local community" is impermissibly vague as well. Id. § 254(c). At first blush, this provision seems to reiterate Article XVIII, Section 3 of the Ohio Constitution, which grants municipalities "authority to exercise all powers of local self government." Unlike the Ohio Constitution, however, LEBOR imposes a fine on any business or government that violates the right. The amount of the fine is "the maximum . . . allowable under State law for that violation." Id. § 256(a). But Ohio law does not identify any fine for violating a right to self-government. Additionally, this right includes "the right to a system of government that protects and secures . . . human, civil, and collective rights," but the nature of those human, civil, and collective rights is anybody's guess. Id. § 254(c). Like LEBOR's environmental rights, this self government right is an aspirational statement, not a rule of law. . . .
Frustrated by the status quo, LEBOR supporters knocked on doors, engaged their fellow citizens, and used the democratic process to pursue a well-intentioned goal: the protection of Lake Erie. As written, however, LEBOR fails to achieve that goal. This is not a close call. LEBOR is unconstitutionally vague and exceeds the power of municipal government in Ohio. It is therefore
invalid in its entirety.