Let’s abolish Earth Day. Here’s why:
The protection offered by the environmental regulatory system is an illusion.
Frustrated with what appeared to be government inaction and not having an understanding of how the current system works, in 2017 Toledoans sued the U.S. EPA to force the Ohio EPA to “to do their job” and declare Lake Erie “impaired” under the Clean Water Act.
In 2014, our Toledo, Ohio municipal water supply was poisoned by a massive algal bloom in Lake Erie. Tap water was made toxic to the touch. Even though 11 million people and untold ecological life forms depend on the lake’s waters for life, no government authority has stepped forward to stop the continued pollution of the lake at the source. Not the city. Not the state. And sure as hell not the U.S. EPA.
Frustrated with what appeared to be government inaction and not having an understanding of how the current system works, in 2017 Toledoans sued the U.S. EPA to force the Ohio EPA to “to do their job” and declare Lake Erie “impaired” under the Clean Water Act. The EPA prevailed, successfully arguing against its own responsibility to enforce protections. The system won and the people and the Lake lost. Seeing that no one was coming to save us or Lake Erie, residents of Toledo banded together, and chose to take power into their own hands to defend themselves and the lake.
We stepped outside EPA-proscribed forms of civic engagement and sat down to write our own law with the assistance of the Community Environmental Legal Defense Fund (CELDF). We petitioned for this new law, fought hard to get it on the ballot, and passed it with 61 percent of the vote. In February 2019, the Lake Erie Bill of Rights (LEBOR) was official law and added to Toledo’s city charter.
Our law recognizes the rights of the Lake Erie Ecosystem to exist, flourish and naturally evolve, and the human right to a healthy environment for the residents of Toledo. It also boldly states that those ecosystem and human rights supersede other laws such as corporate “rights” and illegitimate permits issued by state and federal governments that would cause harm to Lake Erie. It immediately made headlines around the world.
LEBOR built upon dozens of other community rights laws and indigenous organizing and knowledge. It was the first law in U.S. history to recognize the rights of a specific ecosystem. (Since the Lake Erie Bill of Rights’ passed, the Yurok tribe recognized legal rights of the Klamath River.)
Twelve hours after LEBOR was passed, a corporate agriculture entity, joined by the State of Ohio, sued to overturn the democratically-passed law that protected humans’ and the lake’s mutual health and safety. The state is siding with the polluters in the lawsuit. Meanwhile, it continues to drag its feet and refuses to do anything to substantively safeguard the future of the ecosystem. (Even it’s bandaid approach of throwing taxpayer money at the problem has recently been slashed by Covid-19 budget cuts.)
Not only are the “authorities” doing nothing to help, current legal frameworks work against us when we try to protect the lake ourselves.
Letting Go of the Regulatory Fallacy
The current suspension of the U.S. EPA has left many fearing unfettered pollution. Such fear is valid, but, the system upheld by the EPA has failed. The jig is up and that is precisely why Toledo voters passed LEBOR.
We said human and ecosystem rights come before corporate “rights,” and that Lake Erie is not “property” to be exploited by the state or anyone.
In response to LEBOR, corporate and state opposition claimed our efforts to fill the void of protections violated corporate “rights” and the state’s “ownership” of Lake Erie.
We were directly challenging the status quo that says corporate “rights” come before our governing power. We said human and ecosystem rights come before corporate “rights,” and that Lake Erie is not “property” to be exploited by the state or anyone.
It’s the job of the U.S. EPA and the Ohio EPA to permit corporate activities known to cause harm. Once regulators determine that a project meets all environmental “standards,” they issue permits, which legalize the harm and pollution — effectively granting a property “right” to legally pollute.
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Erie is the shallowest of the Great Lakes, making it the most vulnerable to rising global temperatures—a harbinger of what is in store for Lake Ontario, Lake Huron, Lake Michigan, and Lake Superior. Together, these siblings contain 84 percent of the continent’s surface freshwater.
The courts overturned the Lake Erie Bill of Rights, but the City of Toledo is appealing the federal corporate lawsuit. These courts are also part of the system that has failed us. Their job is to uphold the legal status quo.
Earth Day Has Failed: Another System is Possible
Imbedded within Earth Day is the pursuit of comfort: the feeling that a benevolent authority exists to protect human and ecological life. People want to believe that laws — federal environmental regulations — protect them, and that all we need is to enforce those laws. As one prominent environmental non-profit likes to boast: “The most powerful tool for change is the law.”
But the writing is on the wall. Earth Day’s laws have systematically failed to guard against mass species die-offs, the climate crisis, deadly air pollution, the corporatization of freshwater, and the largest loss of biodiversity in human history.
Conventional environmental legal challenges have enjoyed some wins at stopping specific projects. But they are losing the war.
It is time to rethink our approach — we cannot afford to waste another 50 years.
Making History: Rights of Nature Filling the Void
Right now, millions feel abandoned by the U.S. EPA and their states. In Ohio alone, communities are battling the injection of oil/gas waste into their communities, fighting pipeline projects, fracking, industrial wind, expansion of 5G technology, privatization of aquifers/public water systems and a highly destructive petrochemical hub. They have all witnessed a system that continues to permit the very harms that the communities want to prevent.
Many have already taken their destiny into their own hands and stepped outside the modern paradigm of environmental law. We can follow their lead.
For example, in March 2020, for the first time in U.S. history, a community successfully pressured a state to enforce a local Rights of Nature law.
After seven years of community activism, the Pennsylvania Department of Environmental Protection (DEP) revoked a permit for a frack waste injection well in Grant Township, Indiana County, Pennsylvania. DEP officials cited Grant Township’s Home Rule Charter, which banned injection wells as a violation of the community’s rights and the Rights of Nature, as grounds for their reversal. Such efforts can proliferate.
Our colleague Chad Nicholson worked with Grant residents on the measure. “This decision,” he said in a statement, “does not validate the actions of the DEP, but rather vindicates the resistance that communities like Grant have engaged in to force governmental agencies into doing the right thing.”
Expand the Possible
It’s time environmentalists finally let go of the blind faith they have in the current environmental laws and regulatory system. Doing so will allow them to work in more meaningful solidarity with other movements who have also been abandoned by the law. We must expand on what we think is possible — then write that into new law, and organize to practice real self-governance to defend life. Abolishing Earth Day would be a great start.