Photo: the algae bloom fed by excess nutrients from agricultural runoff returns to western Lake Erie each summer.
By Dave Dempsey
But this is really not news at all.
For almost 10 years, the scientific consensus has pinpointed agriculture — both the commercial fertilizer it uses and the vast quantities of animal waste it discharges — as the leading contributor to the problem. Unable to wish the problem away, but unwilling to take serious action, government officials entered into much-heralded pacts like the Western Basin of Lake Erie Collaborative Agreement to combat the algae. The June 2015 agreement called for a 20% reduction in phosphorus loading by 2020 and 40% by 2025. Yet here we are, nearing the end of 2019 with western Lake Erie resembling pea soup. There is no reason to believe next year’s 20% target will be achieved.
It’s been five years since the August 2014 bloom that contaminated Toledo’s water supply for a weekend, leaving half a million people without drinking water — an event that many compared to the 1969 fire on the Cuyahoga River at Cleveland. The fire is said to have outraged America and played a major role in the enactment of the Clean Water Act in 1972.
Where’s the outrage and action now on Lake Erie?
All we have to show for the last five years of “cleanup” for Lake Erie is hundreds of millions, if not billions, of taxpayer dollars spent on agricultural incentives, partnerships, and research. But there is no plan to do anything serious regarding agriculture, in which a transformation is needed if the lake is to be restored. Unconventional ideas may have to be employed, such as reverting parts of Ohio’s Great Black Swamp back to its natural state.
An equally unconventional idea is to treat factory farm pollutants as we treat other industrial sources of pollution — with tough, but fair, regulation and enforcement. But holding agricultural accountable is one of the great taboos in current U.S. politics. The lobby groups that represent agribusiness interests won’t let it happen. Only a strong wave of public opinion can erode that wall, because governments can’t or won’t do so.
In effect, without saying so, our governments are telling us that the price of food and biofuels production is a deeply compromised and impaired Lake Erie. If we want the food grown in its basin, they say, we’ll have to tolerate large algae blooms and the public health, environmental, and economic impacts they cause.
There is a better way.
After years of dragging its feet, the State of Ohio listed the waters of Lake Erie as “impaired” under the definition of the Clean Water Act. That means it goes on a list of water bodies for which a pollution limit is established and reductions in pollution are allocated among various categories of sources. But given the unflinching opposition of the agricultural lobby to change, that process will take many years. The Toledo “bill of rights” for Lake Erie ordinance is a bold attempt to create a legal foothold for citizens and Toledo to force real change, but it remains uncertain whether this will be more than a forceful political statement with the teeth to enforce the necessary phosphorus reductions to restore the lake.
Importantly, the words “impaired” and “impairment” are associated with the public trust doctrine, a centuries-old common law principle that is also the central organizing purpose of FLOW. Among other things, the doctrine holds that governments are trustees of waters like Lake Erie and must protect them from impairment of public uses that include swimming, fishing, and boating. But the state governments whose waters directly feed into Lake Erie are failing this duty. What needs to be understood is that once public trust waters are “impaired,” as with the destruction of Lake Erie from algal blooms, citizens are the legally recognized beneficiaries of this trust, and they have the common law right as to enforce it in the courts.
Five years ago, in a report recommending steep reductions in phosphorus pollution, the International Joint Commission also recommended (at FLOW’s request) that the Lake Erie states use the public trust doctrine as a backstop when statutory laws aren’t doing the job. But it appears the states won’t fulfill their trustee obligations unless the public forces them to.
The only way to compel a cleanup of Lake Erie in our time is for citizens to bring a public trust action in the courts. Lacking such action, we can look forward only to further lost summers in the western basin — a sacrifice zone to unsustainable agriculture.
Dave Dempsey is FLOW’s Senior Policy Adviser.