Thomas Linzey, Executive Director of the Community Environmental Legal Defense Fund, asks why, when the United States is supposed to have the best environmental laws in the world, our environment is worse off by every measure than when those laws were enacted 40 years ago.
He has an answer. He says it’s because the laws aren’t about protecting the environment. They allow corporations to hydrofrack, mine, burn, and whatever else they want. The permitting laws set a limit on the harm to be done and they always contain a role for locals to speak out. The authorities solicit our comments, and they respond to them in their ruling. There will be some sort of mitigation of the harm that the locals fear—for example, the new mine might be required to widen one road and put in another one. But the permit will be issued.
The permit might be for something that harms locals by its very nature. Mitigations will be of little relevance in that case. Here are a couple of examples:
Walmart displaces local retail stores, no matter how many roads they put in; in the years after Walmart comes into a county, county income level goes down, and county poverty level goes up—always.
The Keystone Pipeline will create climate-changing CO2 emissions. It seems the State Department will take aquifer pollution into account and not allow the pipeline to cross especially vulnerable areas. But the pipeline, by its nature, facilitates the burning of so much oil that it will be “game over for the planet,” and there is no mitigation that can make that all right. It should not be built. But all signs point to the fact that it will be.
Communities are noticing the harms. For a while the degradation was slow and gradual—forests disappearing acre by acre, wetlands vanishing, smog overtaking scenic views. But when children die from breathing air from the polluted fields, and whole mountainsides are buried in an afternoon’s work, people notice.
About 150 US communities have been shocked enough at the degradation to declare it’s not okay; they have a right to a sustainable future, including sustainable energy, food, air, and water. This seems like a statement in the American spirit. It sounds a little like the Declaration of Independence—“Life, liberty, and the pursuit of happiness” might very well translate into the right to sustainable energy, food, air, and water. But our environmental laws have made that goal impossible.
One reason is that state and federal laws pre-empt local laws. Federal pre-empts state, and state pre-empts local. Fore example, Pennsylvania townships had ordinances banning factory farms, which were valid until the state created its own ordinance. That ordinance defined corporate agriculture and its practice of spreading pig manure on fields as a “legal use.” This made local regulations irrelevant. It pre-empted them.
Where community rights ordinances are enacted, there has been a struggle between a local community that has rejected a certain business practice, and a state that is determined to allow it. The community believes the business practice in question harms people. To a person observing these cases, it might seem that the State doesn’t care about the well-being of its citizens.
That would be hard to argue, given that some important protections come at the state and federal level. Drug safety laws, workplace safety laws, and building standards all exist. There are laws against fraud (even if banks have been able to circumvent them). These State and Federal regulations would be hard for individual communities to create and it would be inefficient for each community to do so.
But state governments do have blind spots. In particular, they have the built-in prejudice that tells them corporations are the engines that drive the economy here in the US and corporate interests should be furthered, not limited. So there is a tendency for state governments to assume that corporate procedures and products should be given a green light. Even laws that intend to protect consumers by thoroughly and pre-emptively testing such products and procedures have been undermined over the years—the pervasive “fast tracking” process is an example.
Add to that, the fact that corporations have been able to seize certain rights that were never intended for their use, but only for the use of flesh-and-blood persons. The Supreme Court gave them these rights all the way back in 1886, by defining corporations as persons under the Bill of Rights—giving them “corporate personhood.” The implications have been spooling out ever since. For example, the Fourteenth Amendment calls for equal protection of the law for all persons, meaning that no one can be excluded from a public area on the whim of a shop owner (or rental agent, or whatever). Every person has dignity and a right to whatever is public. But in 1933 chain stores came under the protection of that amendment. WalMart is now a person and has the right to come into a community if it can find property to buy. It is protected.
The trouble is WalMart is not actually a person, but a business entity, representing a particular business practice. The owners are persons and presumably have the power to obey laws, but the business practice represented by WalMart has been judged by communities to be harmful in all circumstances, as has the business practice of factory farming.
We’re living in a corporate state. Thomas Linzey says, “If you live in a corporate state, there’s only one option left to you; and that’s to dismantle it, and build something new.”
A community rights ordinance (CRO) is a way for communities to build something new, by constructing a stronger case for their claims against state governments. CROs have been passed in Pennsylvania, New York, Ohio, Colorado, New Mexico, Maryland and New Hampshire. Many CROs claim for the community the right to a healthy environment, to clean water, and to local self-governance to ensure those rights. Most also claim the community’s right to defend itself against some specific practice that is damaging local life. In Pennsylvania, it was the dumping of toxic pig manure on local fields. In New York, it was hydrofracking. The CRO says that the people of the community claim the right to a sustainable life, and they forbid the practice.
CROs re-define the corporation’s rights. They allow corporations only the rights the state has specifically granted to them, not those the Constitution has given to flesh-and-blood people. Where the state has granted permits for things the community forbids, the CRO invalidates them, as Packer Township, Pennsylvania did when it banned the dumping of toxic waste on their fields, and revoked the Attorney General’s authority to enforce the rights of the dumpers.
Passing such an ordinance sounds (and is) radical. The practice a community wants to outlaw is probably something state law permits, or the community wouldn’t be going to such lengths to rid itself of it. So the CRO will actually overturn the current legal system and put in place a new system, one that prioritizes community decisions.
Often CROs make that most subversive claim of all, that nature is not merely property but has rights of its own. Its purpose is not merely to be used by us humans; it has its own purpose.
The CRO is a flag of defiance against state regulations that harm community interests. It says a community can’t wait to amend or change state laws, or pass a constitutional amendment to take away corporate personhood.
When a community puts a CRO in place, the next move is up to the corporation whose perks have been challenged. If it sues, a corporation will reveal itself as a bully hoping to override the wishes of an entire American community. Whether true or not, we do have an image of ourselves as being free to create laws to protect the things we cherish, and in general corporations have not wanted to take on the coloration of the bully that thwarts that freedom. It could be the bad corporate PR, or it could be—as in the case of many successful civil disobedience actions—the shame felt by the human beings who do, after all, control the corporations.
If the corporation sues, they won’t necessarily win. Dryden, NY created a CRO banning hydrofracking that was challenged by the energy company. The Supreme Court of New York has recently ruled that Dryden has the right to issue ordinances governing land use, including the use of land for hydrofracking. Hydrofracking is a technological industry, governed by the state, but in this case the land-use issue was judged paramount.
More and more communities are creating community rights ordinances. The latest was created in Mora County, New Mexico. It imposed an outright ban (not a moratorium) on hydrofracking in the county, and included a bill of rights for the community.
If a confrontation comes, it will only create an awareness of the real power structure of this country and motivate efforts to change it. In Washington state, the Washington Community Rights Network was created in June, 2012, to force the state Constitution to recognize local self-governance. There are similar organizations working to change the Federal Constitution.
We, The People, thought we gained the right to self-governance through our revolution in the 1770›s. Now we have learned we do not have that right. The CRO is a new revolution—on a small scale—to make sure we get it.
From 9 AM to noon on June 15 there will be a community gathering in the Labor Council Building, to determine what a community rights ordinance for Olympia, Tumwater, and Lacey would contain. People working in every aspect of community or environmental protection are invited. We hope to come to a consensus that would include the priorities of social justice workers, peace activists, environmentalists, tribal representatives, and many other kinds of workers. This consensus might turn out to be a long laundry list of demands, or a set of underlying principles. It might include a rights of nature clause. That’s up to the participants. All we can say is, the gathering is coming. Go to the TC ProNet Calendar for details of the meeting.
Also, in September or October, we will bring the CELDF’s Democracy School to our community, for those who want to delve deeper into the legal and philosophical aspects of a Community Rights Ordinance. (About 25 people can attend a Democracy School—go to www.CELDF.org to learn more.) Under this expert legal and historical guidance, we may just be able to create our own CRO for the South Sound area.
Janet Jordan is a resident of Thurston County with ties to the Green Party.