Next Tuesday, voters in Lane County will decide the fate of Measure 20-373, also known as the “Watersheds Bill of Rights,” in the May primary election.
Organizers of the measure say it is in response to years of aerial spraying of pesticides in the county, which they claim has polluted drinking water and sickened residents.
The measure also appears to be inspired by a global rights of nature movement, by claiming that watersheds – including rivers, creeks and the lands they flow through – possess “inalienable rights” that any resident in Lane County can sue on behalf of to protect those watersheds and their ecosystems from pollution by corporate, business or government activities.
Opposition to the measure is being led by Protect Our County, a coalition that includes current and former elected officials and Lane County business groups such as the Eugene Area Chamber of Commerce.
Brittany Quick-Warner, the chamber’s president and CEO, joins us for a debate with Rob Dickinson, a grassroots organizer of the Yes on Measure 20-373 campaign who helped draft the ballot measure.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Next Tuesday, voters in Lane County will decide the fate of what’s known as the “Watersheds Bill of Rights.” It asserts that watersheds, including rivers, creeks and the lands they flow through, possess “inalienable rights” that any resident in Lane County can sue to protect.
Opponents say that the measure is well-intentioned but poorly written and could lead to unintended consequences. I’m joined by both sides right now. Rob Dickinson helped draft the measure and is one of the grassroots organizers of the Yes on Measure 20-373 campaign. Brittany Quick-Warner is against the measure. She is the president and CEO of the Eugene Area Chamber of Commerce. It’s good to have both of you on the show.
Rob Dickinson: Thank you, Dave. It’s good to be here.
Brittany Quick-Warner: Yeah, thanks for having us.
Miller: Rob Dickinson, I want to start with you. Why did you bring this measure?
Dickinson: Well, because the watersheds in Lane County and elsewhere in Oregon are not adequately protected. There are large-scale industrial harms that go on in the watersheds that are both harming the environment and our community, and we need stronger protection. And people working on this campaign have been trying to address these issues for over 40 years through all other means, unsuccessfully. So the initiative process was almost a last resort to protect our health and safety.
Miller: What specifically are you trying to prevent?
Dickinson: Well, there’s a number of different harms. We’ve actually learned about more of them as we’ve done this work. But we originally got into this work because of, basically, industrial forestry practices, including things like clearcut logging and aerial pesticide spraying, which, basically is when they clearcut logs, a large stand, they then come through for years afterwards with a helicopter spraying herbicides, which are extremely dangerous, and toxic chemicals that not only flow into the water, but they drift in the air and people breathe them, and they’re known to have very serious health consequences.
Miller: Brittany Quick-Warner, before we get to the specifics of this measure and how both of you think it would work in practice, I’m curious what you think of as the purpose of this law – everything that Rob has said so far?
Quick-Warner: Yeah, absolutely. I mean, we’ve held steady since the beginning that we agree that water quality and water protection is really important for our state, for our region, for our local communities. We also know that there’s been some monumental policies and practices put in place in the last few years at the state level that have really tried to address a lot of the issues that Rob has mentioned.
And we have, based on testing, some of the best water quality in the country. So we want to make sure that that is the case, and we want to make sure that any efforts to address those issues are done so in a way that can make sure it doesn’t have unintended consequences across other parts of our state and our region.
Miller: OK, let’s dig deeper into how this would work. Rob, can you walk us through how you’re assuming this would work in practice? Let’s say, for example, somewhere in Lane County, there is aerial pesticide spraying. What would happen next? What could happen next if Lane County voters were to say “Yes” to this measure?
Dickinson: Sure, Dave. I’d like to answer that, but if we could, I’d like to have some time to talk about… Brittany talked about us having monumental legislation that protected our environment and that’s just simply not true. The laws that currently protect our water are woefully inadequate, and the change she’s referring to, the Private Forest Accord, did almost nothing to provide meaningful protection. So we should talk about that if we want to say that we have protection now.
Miller: Well, let’s talk more before we say goodbye about what the Private Forest Accord did or didn’t do. I’d like to get both of your thoughts on that, as well as the mechanism of that. So yes, let’s as they say, put a pin in that and we’ll come back to that. But I want to focus right now on how this would work, how Measure 20-373 would work in practice.
Dickinson: Great. Well, the way the law is written is, the county, the local government, is responsible for enforcing the measure. It also gives residents a right of enforcement if the county doesn’t do that. But essentially, if someone were concerned about aerial spraying, they would actually have to – for any kind of claim against the rights that are established by this law – they would have to have significant evidence to prove that the watershed was harmed.
That would involve things like water testing and accumulating evidence of, not only that they were spraying, but that the spraying ended up in the water. We know it does end up in the water, but that would be required for any action to be taken against the company that was violating those rights.
Miller: And then what kind of action would be taken? Because we’re talking here about judicial action, right?
Dickinson: Civil rights.
Miller: Civil rights. So what kind of penalties could a judge order.
Dickinson: Right. Well, let’s not focus on penalties. The way the law is written is what’s called damages, which is that if a violation has occurred, in other words, harm has happened in the watershed and has polluted the watershed, then the court could order damages in proportion to restoring the watershed to its pre-harm state.
And that would be basically science-based on whatever would be the right remediation for the harm.
So it would really depend a lot on what the harm was and what is the best science-based way to address it. The law basically does have a provision for penalties, but that’s if you continue to pollute after you’ve essentially been called on it.
Miller: Brittany, what’s wrong with the system that Rob just outlined?
Quick-Warner: Well, I think that to clarify, the actual measure itself basically says the right to prosecute and remedy violations when there’s evidence of a violation set forth essentially require the government to adopt protective and effective measures to prevent or remedy actual or potential violations, even when there is not scientific certainty or full evidence of risk.
So the challenge that we have with this is that this measure is written so vaguely that a business, a government, an entity, actually doesn’t know what is going to be considered a violation or not. It is not clear enough to understand what my actual liability is. And so there are serious actions and activities that folks are really concerned this doesn’t clarify whether it’s going to impact it – building housing, wildfire protection, suppression, remediation, all of those types of activities.
Someone could, based on the way that this is written, easily say that this is impacting the watershed and therefore they have a right to sue against it, and that uncertainty is what is most concerning to us. The lawsuits that could be brought by folks who are not those who wrote this measure, they can’t control what anyone in the community is able to do once this passes.
Those are the lawsuits that we’re worried about, that there are going to be frivolous lawsuits that are brought by individuals who disagree with the way someone is doing something, and that it doesn’t require scientific certainty or evidence of risk, and now they’re in the middle of a costly lawsuit.
Miller: I want to give Rob a chance to respond to that. I know this has been one of the main points of contention, one of the main ones between these two sides, but Brittany, just to stick with you so I can understand exactly what you’re saying, because proponents have pointed out that judges can always throw out what they consider to be frivolous lawsuits. So what makes you think that they wouldn’t do so, if this measure were to pass?
Quick-Warner: Well, I think that there’s a lot of examples when litigation, civil litigation, is the mechanism for holding someone accountable. There’s a lot of examples of those lawsuits being introduced, and whether they’re thrown out or not, there is a cost to even engaging in that lawsuit in the first place.
I mean, there was an example, I think we saw down in California recently where you have attorneys who are filing lawsuits against small businesses for claims that feel frivolous, and now these small businesses are kind of standing there trying to figure out, how do I fight this? What’s the cost of fighting it for my business? And maybe it’s a settlement that’s reached, but ultimately, whether that’s a government or a business, all of that costs something, whether it makes it all the way through the process or not.
And so, our school districts, our county governments, all of those would be open and at risk of these lawsuits. And so they have to be prepared, whether, like I said, it gets dismissed eventually or not, there is a cost to entering into that lawsuit in the first place.
Miller: Rob Dickinson, your response?
Dickinson: Yeah, there’s so much to unpack in all the things that Brittany has said. First off, the provision she mentioned about scientific certainty, we’ll have to come back to that because that’s about the precautionary principle, and it’s not about suing an entity for harm, that’s very different.
But in terms of just this risk of lawsuits, that’s a very speculative claim, and that is pretty much, as is the claim that it’s vague and poorly written, that is standard practice to argue those things about any environmental law that’s proposed. In terms of this notion that there’s going to be a large amount of lawsuits, a number of the key environmental laws that we depend on today, like the Clean Air Act, the Clean Water Act, the Endangered Species Act, they all also have citizen suit provisions, which historically have been shown to not be abused.
There is a law in Pittsburgh that is very similar to ours. It also gives the ecosystems and natural communities and rivers and streams in Pittsburgh similar rights to exist and to flourish. It also gives residents the right to take legal action. That got passed in 2010, so over 16 years ago, and there has not been a single lawsuit related to those ecosystem protections. So somehow Brittany is claiming that in Lane County, it’s going to be a crazy different thing, where everybody’s wanting to sue.
Miller: Just so I understand, I mean, for that one in particular, my understanding is that one was much more specific. There is a similarity, I guess, that it also relies on the rights of nature philosophy, but it’s an anti-fracking ordinance in particular. I mean, you do grant that the measure you’re pushing for seems like it would have much broader applications or potential civil actions that could arise from it than Pittsburgh’s law.
Dickinson: Not necessarily. Actually, Pittsburgh had a theme to it, and it was aimed at preventing fracking in their community, but it also granted those very same rights to the ecosystems in Pittsburgh. So someone, if they were of the mind that Brittany says everybody here is, they would have had the same ability to go after anybody for doing anything that they believe polluted their ecosystems, and it just hasn’t happened.
Quick-Warner: Well, to be fair, Rob, though, those are not apples to apples, the comparisons that you guys are using. There’s one that has nearly identical language, and it’s the Lake Erie Bill of Rights, and that one was overturned in the courts because it was written too broadly and too vaguely, and that is the one that the language of the Lane County Watershed Bill of Rights mirrors most closely, of those examples that you’re giving.
Dickinson: No, I would disagree with you, unfortunately. But in addition, there’s a law very close to Lane County, in Lincoln County, they passed a law to ban aerial spraying, and it was overturned two and a half years afterwards on state preemption grounds, but it was in effect for two and a half years. And in that county, prior to the election, the opponents raised all these same claims that there would be a wave of lawsuits and that it would be disastrous for small business. And that didn’t turn out to be true, either.
You know, I could give more and more examples of different kinds of laws that both give residents protection and the ability to sue, that didn’t have the consequences that Brittany is speculating about. There’s really no basis for her to say that that’s actually going to happen here.
Quick-Warner: Well, I want to be clear…
Dickinson: …Well, let me finish, let me finish if I could…
Miller: Brittany, then, I do want to give you a chance to respond.
Dickinson: The main reason is that it is very expensive and time consuming to bring lawsuits. You actually have to have significant evidence of an actual violation. You must show causation, meaning that the party that you’re claiming caused the harm is the one that actually did that.
And the whole court system is designed on requiring scientific evidence and typically expert witnesses. It’s very expensive, and there are laws that, if you can’t back that up, you could be liable – not just for your own legal fees, but for the fees of the person you’re suing, if it’s been shown to be frivolous. I mean, Oregon Rules of Civil Procedure have lots of things to design against that kind of frivolous lawsuit.
Miller: Brittany Quick-Warner, your quick response to that, and then I want to move on to some other issues.
Quick-Warner: I just think the Lincoln County example, I think also is being misrepresented because when that was put into place, there was a file, the lawsuit filed almost immediately, and a judge put an injunction on that; so there were no other lawsuits filed because it was granted by that judge and it halted the measure from becoming law until it was eventually invalidated. So that is why there were no other lawsuits against that, because it was immediately halted after the first lawsuit was filed.
So again, I just think that if you get into the weeds of some of these examples, the challenge that we’re having is that this very well will be challenged in court as well, and I think that there’s folks out there that will argue that will set the environmental movement back even more because this is an ordinance, a law that will go into effect in Lane County, that puts a lot of people at risk without them understanding how they mitigate that risk, because it is written so vaguely and so broadly. That is our concern with it.
We’re not challenging the need to make sure we have water protections, but we are challenging the fact that we have some laws put in place in this state, and there are opportunities, if there are issues that people are having, they absolutely have a mechanism to file those complaints.
Miller: Well, I mean, I want to give you a chance to respond to what Rob started with, because he’s saying that we tried for decades to do exactly that, and we were stymied. What’s your response?
Quick-Warner: I just think that information is outdated. I think that we see evidence of environmental groups and industry coming together at the state level for this Private Forest Accord, to address many of these things that Rob is talking about. It’s aimed at protecting water quality.
And it was, frankly, created and developed collaboratively, which I think as far as a mechanism and a process for developing laws like this, that is how we believe it should be done, in collaboration with industry and with these groups.
Miller: OK, this is what we talked about earlier. I said we’d come back to it, so let’s now squarely address this. And Rob, my understanding here, we’re talking now about the Private Forest Accord. It went into effect four years ago, after years of threats of litigation and negotiation. It was eventually negotiated between environmental advocacy groups and private timberland owners, and it addressed things like mandatory stream buffers, aerial spray restrictions, notification rules. It also meant that those advocacy groups would not push for new pesticide regulations through next year. And it’s been mentioned that that’s at least one of the reasons that some of those groups now cannot go on the record supporting your measure.
Dickinson: That’s correct.
Miller: So, what do you think is wrong with the model that Brittany has brought up, and this Private Forest Accord?
Dickinson: Sure, let me tell you. So, many of the people who are working on this campaign have suffered the consequences of aerial pesticide spraying. One of our chief petitioners had 10 miscarriages. Her husband now has Parkinson’s because they were sprayed repeatedly. Another of my colleagues, all four members of her family tested positive for atrazine.
I could go on about the harm, but she’s saying it’s not a problem anymore because of the Private Forest Accord.
Well, when they spray these herbicides from helicopters, they can drift for miles. Literally, it’s been shown to be four miles or more in certain cases. The rules for these buffers, which existed prior to the Private Forest Accord, say so for fish bearing streams, the prior buffer was 60 feet and it was increased to 75 feet. So that 15 feet, when something drifts for miles, is going to be completely meaningless.
In terms of schools or residences, prior to the Private Forest Accord, it was 60 feet, and it was increased to 300 feet. And again, I would not want my child in a school where they’re spraying 300 feet away. That’s just ridiculous. I mean, the school at Triangle Lake, after a forest reaction there, they found that imazapyr was in the school wells, and they could test that in the drinking water at the school right next to Triangle Lake, and that is the kind of thing that will continue to happen if we take Brittany’s view that everything is just fine.
Miller: But if those are your specific concerns, why not push for a statewide law that would very clearly mandate “X” number of feet from a school or from a residence, because I don’t remember reading any specific stream buffer or location-specific distances in the text of your measure. Why not go for a statewide law that explicitly says these practices should be banned?
Dickinson: Well first, statewide measures cost millions of dollars, which we don’t have. But in reality, when we did that work, when we worked on the aerial spray initiative, we actually learned about lots of other harms that are also going on, which also cause both threats to our health and safety and to our local economy. The way that logging is currently done, industrial forestry, is increasing our wildfire risk. There’s also other kinds of pollution and polluting activities that are done at large scale that we also need to be concerned about.
And your program, I believe OPB has done some really good work on talking about data centers, which is another thing that’s going to be coming to Lane County, that uses huge quantities of both water and power, but also ends up polluting the water when it recycles it back. And we don’t have tools to protect our water in Lane County from that kind of industrial activity right now. And this law, the one that we’re proposing and is on the ballot, would give us a tool.
Miller: I want to go back to the Lincoln County measure that you both talked about earlier. You talked about how it was eventually struck down by a Lincoln County judge, and the reason for it, it seems like we have to talk about this, because… I should say first of all, that in your measure now, Rob, it says that Lane County residents have the right to be free from state or federal laws preempting local laws.
The Lincoln County measure had similar language, but it was those pieces that led the judge to strike it down. She said those arguments were “misplaced and without legal precedent.” She wrote this: “There is simply no authority for the proposition that the people of Lincoln County are granted an inalienable right of local self-government which preempts any authority of the state.”
Why do you think your measure would survive a similar legal challenge?
Dickinson: Well, the first thing, the reason that the Lincoln County measure was struck down was they were directly trying to prohibit certain practices, which was aerial spraying. We aren’t. Our measure does not actually say that you can’t aerial spray. It basically says that you can’t harm the watershed. So in some ways, it’s not directly going against the state preemption in that case.
Miller: Not against a specific law, but in its own way, it seems to be making at least as profound a claim, which is that if state or federal laws don’t go as far as we’re going, then don’t pay attention to those, pay attention to ours. I’m paraphrasing, but that was my read of it.
Dickinson: Sure, let me respond to that. There’s a couple of things to mention. One is that there are a lot of different provisions and protections in our law besides that, and our law is written in a way that legally would be called severable. So if one part of our law is not kept, the other parts, if it were passed, would stay in effect.
But the reason why we have that language there, about overriding state preemption, is we want to have standing to be able to challenge long-standing, a state law in particular, the Forest Practices Act, which was a law written in the ‘70s by the timber industry that basically gives industry the ability to poison people through aerial spraying. And that law has been on the books for 50 years and has continued to cause harm.
We want that provision, the provision you mentioned that is in our laws, to give us at least an opportunity to try to challenge something like the Forest Practices Act. You know, we’re not saying that it’s going to necessarily override every other law in the state or federal law, but we want that ability to try on something like the Forest Practices Act because it is so egregious in terms of harming our community.
Miller: Brittany, last word to you.
Quick-Warner: I feel like the point that Rob just made is one of our biggest concerns, is that there are so many motivations behind this measure that are not clearly written into the measure. And so what you have is a county of people who are deciding whether they want to move forward with this, without understanding all of these things that they’re actually wanting to go after because they’re not clearly written into the ordinance.
I think it’s not truthful. I think it’s misleading to the public, and frankly, there are environmental organizations, the Oregon Chapter of the Sierra Club just came out and said that they could not support this because of the way that it’s written and the impact it’s going to have on our community.
And the vagueness creates an uncertainty that I think actually harms this effort more than it helps it. I really feel like when you include nonprofits and government partners in this, you’re creating an environment where all of the taxpayers are bearing the burden of these potential lawsuits, where you are hurting our ability to move forward housing production and wildfire suppression….
Dickinson: Dave, I have to jump in here…
Quick-Warner: …these pieces, Rob, I give you your piece there… These pieces are dangerously unclear to our community and to our county, and I don’t think that this measure and the residents of Lane County should be used to launch a different effort at the state level. We need to be addressing those issues at the state level and in collaboration with environmental and industry partners.
Miller: Rob Dickinson, you have 45 seconds.
Dickinson: Well, first, Brittany said there was something untruthful about our campaign, but basically they have been spending hundreds of thousands of dollars to spread false information about our measure, saying that you don’t have to have any scientific evidence. There’s just the amount of misinformation, misrepresentation has been outrageous.
But just in closing for the whole issue, what they’re asking us to do is to vote “No” on this measure because of all these speculative risks, when in fact we know that there are real documented and ongoing harms to real people that are going on now, have been going on, and they’re asking us to weigh that against these very speculative claims that there’s going to be this wave of lawsuits or other things, that there is really no basis in fact for. But people are going to continue to be harmed if people vote “No” and that’s really important.
Miller: Rob Dickinson and Brittany Quick-Warner, thanks very much. Rob Dickinson is grassroots organizer for the Yes on Measure 20-373 campaign. Brittany Quick-Warner is the president and CEO of the Eugene Area Chamber of Commerce.
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