Search Results for: rights of nature
the Court Finds the atrato Possesses Rights
to “protection, conservation, maintenance and restoration”
Rights of Nature Movement Gaining Ground as Court Declares Need to Move Away from Legal Systems in which Humans are the “dominator of nature”
Press Statement
Contact:
Stacey Schmader
Administrative Director
Info@celdf.org
717-498-0054
MERCERSBURG, PA, USA: In November, in an extraordinary decision, Colombia’s Constitutional Court declared that the Atrato River basin possesses rights to “protection, conservation, maintenance, and restoration.” The decision is only now being made public.
The Court’s ruling comes in a case brought to address the significant degradation of the Atrato River basin from mining, impacting nature and indigenous peoples.
Declaring that the river has rights comes after thousands of years of history in which nature has been treated as “property” or “right-less” under the law. Much like women, indigenous peoples, and slaves have been treated as property under the law, without legal rights, so today do legal systems treat nature. Under this system, environmental laws regulate human use of nature, resulting in the decline of species and ecosystems worldwide, and the acceleration of climate change.
Transforming nature to be considered as rights-bearing – and thus in possession of legally enforceable rights – is part of the growing “Rights of Nature” movement. The Community Environmental Legal Defense Fund (CELDF) has been at the forefront of this movement, partnering with communities and governments in developing the world’s first Rights of Nature laws.
The first law was passed in Tamaqua Borough, Pennsylvania, in 2006. Today, dozens of communities in 10 states in the U.S. have enacted Rights of Nature laws. CELDF assisted in drafting the first Rights of Nature constitutional provisions, which were promulgated in the Ecuador Constitution in 2008.
The November decision in Colombia comes ahead of a March 2017 decision in India, where a state High Court found that the Ganges River and other ecosystems were “legal persons” with certain rights. In addition – as the Colombia Court refers to in its decision – it comes as a settlement between the Maori people and the government of New Zealand is finalized. In that settlement, the Whanganui River is recognized as having personhood rights.
The Colombia Constitutional Court explained the need to move away from this human dominating system, writing:
“(I)t is the human populations that are interdependent of the natural world – and not the opposite – and that they must assume the consequences of their actions and omissions with the nature. It is a question of understanding this new sociopolitical reality with the aim of achieving a respectful transformation with the natural world and its environment, as has happened before with civil and political rights…Now is the time to begin taking the first steps to effectively protect the planet and its resources before it is too late…”
The Colombia Court further explained, that, “(P)olicies and legislation have emphasized access to economic use and exploitation to the detriment of the protection of the rights of the environment and of the communities.”
The Court ordered a number of steps to be taken, including establishing a joint guardianship for the Atrato River basin. The guardians will be a representative from the national government and a representative of the indigenous people living in the basin.
Further, the Court is requiring the establishment of a restoration plan for the river basin, to be overseen by the guardians, as well as requiring baseline studies and plans for recovery and implementation of protective measures in the basin.
A CELDF representative explained, “The Court’s decision is an important step forward in moving to legal systems which protect the rights of nature, rather than regulate human use of nature. As the Court explained, to protect nature for future generations, it’s time to move away from legal systems in which humans are the ‘dominator of nature.'”
CELDF has been working in Colombia with the indigenous Raizal people to advance the Rights of Nature to protect their ancestral lands on the San Andres Archipelago. “The Court’s decision is a critical step forward to empower the Raizal people to protect the rights of their communities and nature,” a CELDF representative stated.
The Colombia and India court decisions, as well as the Rights of Nature laws that have been passed comes with a growing recognition around the world that environmental laws premised on regulating the use of nature, are unable to protect nature. A CELDF representative explained, “The collapse of ecosystems and species, as well as the acceleration of climate change, are clear indications that a fundamental change in the relationship between humankind and the natural world is necessary.”
About the Community Environmental Legal Defense Fund (CELDF) & the International Center for the Rights of Nature
The Community Environmental Legal Defense Fund’s mission is to build sustainable communities by assisting people to assert their right to local self-government and the rights of nature. CELDF’s International Center for the Rights of Nature is partnering with communities and organizations in countries around the world to advance the rights of nature.
Today, CELDF is partnering with communities and organizations across the United States, as well as in Nepal, India, Australia, Sweden, and other countries to advance rights of nature legal frameworks.
###
In 2015, residents of several rural Ohio counties watched in shock as Ohio Secretary of State Jon Husted unilaterally removed citizen-sponsored initiatives from county ballots. The initiatives, which had already qualified for the ballot, would have banned oil and gas drilling and fracking in those communities.
The Ohio Supreme Court sharply rapped Husted’s knuckles for using authority he didn’t have. However, a year later, the people of those same counties watched in disbelief as Husted again blocked their initiatives. This time, the Ohio Supreme Court affirmed his actions.
It is not surprising that Husted – who as of this writing is running for governor – is the darling of the very oil and gas industry targeted by those local initiatives. Indeed, the industry has long-supported his electoral campaigns.
Democratic Rights Matter
The people of Ohio aren’t the only victims of their own government. Across the country we are seeing government efforts, often at the behest of corporations, to restrict the authority of “we the people” to the initiative. Government officials are taking this action even though the authority for initiative is codified in nearly half the state constitutions in the United States.
In Oregon, a cat-and-mouse game is underway between some of the country’s largest agribusiness corporations and residents of rural counties. People there are proposing local initiatives to ban aerial pesticide spraying and genetically modified crops. In response, corporations affected by those initiatives have lawyered-up, using obscure legal provisions to try to stop the initiatives from ever reaching the ballot.
In Washington State, at the urging of industry, courts have now adopted a rule that allows virtually any proposed citizen-sponsored initiative to be blocked by corporations before ever reaching the ballot and a vote of the people.
In New Hampshire and Maine, some local elected officials have gone even further – refusing to allow duly-qualified citizen initiatives to be voted upon at annual Town Meeting. In at least one New Hampshire town, local elected officials have refused to sign an initiative even after it was legally adopted by the people of the town.
Corporations are working to restrict democratic rights to initiative as communities are advancing structural change – challenging the current system of law we live under, which insulates corporate projects from democratic control. In its place, these communities are moving forward a new system of law based on recognizing the right of communities to decide their own futures, and then elevating that community right above corporate “rights.” This new system is now beginning to forcibly crash into the older, existing one.
The ballot clashes in Ohio, Oregon, and elsewhere are all about the old system not going quietly.
The Old
Here’s how the system works today. Decisions made by the federal government trump the decisions and laws of state governments. Decisions and laws made by both federal and state governments trump the laws of local governments.
So, when the State of Vermont adopts a law requiring the labeling of food products containing genetically modified ingredients, the U.S. Congress can simply override it. It did so in 2016 when our representatives passed a law nullifying state efforts to mandate food labeling.
The more central an issue is to affecting commerce, the more preemptive rules you will find around it. For example, the federal government controls almost all issues dealing with oil and gas pipelines and the rail transportation of fossil fuels. Thus, those issues are lifted out of the hands of local and state governments.
State-level preemption operates in a similar fashion. Almost all states have oil and gas laws. Those laws regulate and control how fossil fuels are extracted. Those state laws have generally been found to abolish not only the authority of localities to determine how oil and gas is extracted, but whether oil and gas is extracted. Thus, state laws – such as those in Texas, Colorado, Pennsylvania, and Ohio – eliminate the authority of local communities to ban oil and gas extraction altogether.
Similarly, state legislatures across the country have adopted a slew of laws prohibiting communities from banning large corporate water withdrawals, dumping of toxic sewage sludge, and GMOs. Some states, including Pennsylvania and New York, have even authorized their state Attorneys General to act as private attorneys for corporations to sue communities who buck those laws.
It all boils down to this: If you have the financial and legal ability to control the uppermost levels of lawmaking and decision making, you don’t have to abide by the rights and wishes of the communities in which you operate.
But it Gets Even Better – Corporate “Rights”
There are rare cases in which people have actually been able to use their state or federal government to adopt laws that benefit the public interest. However, corporations then use the courts to either overturn those laws or severely limit their reach.
Corporations are the dominant economic players in our system. They have pioneered the use of corporate constitutional “rights” to attack any law that infringes upon their ability to engage in commerce or use corporate property. In today’s world, in which almost every meaningful reform affects commerce or property, it’s relatively easy to apply those “rights” to overturn laws that affect certain industries.
Thus, corporate free speech rights have been leveraged to overturn federal laws limiting corporate campaign donations; corporate religious rights have been used to limit healthcare legislation; corporate property rights have been used to overturn environmental regulations; and corporate commerce rights have been used to strike down regulations on coal mining, trucking, pipelines, waste disposal, and landfills.
Thus, when corporations lose at the ballot box, or in legislatures, they can resort to the safe harbor of the judiciary. This branch of government has shown itself more than willing to vindicate corporate “rights” to nullify laws that corporations don’t like. Making matters worse, state legislatures often take those court rulings and write them directly into state law – thus safeguarding those corporate “rights” by providing statutory protection for them.
Each round of this makes it harder to remove those corporate protections, adding more and more layers that must be peeled back in the future.
For “we the people” to get anything to stick, we are forced to successfully navigate every single gauntlet. We not only work to convince legislators to pass our laws, but then hope against hope that we can beat back the corporations as they sue us for violating the rules of preemption and corporate “rights.”
While we have to win at every level to succeed, corporations only need to win at one to put us back on the defensive.
It’s the ultimate rigged game. It works only because the system is so camouflaged to give it the appearance of being open to change, and so few people understand the degree to which it is rigged.
Is it any surprise that we’ve ended up where we are?
The New
Over the past twenty years, people in hundreds of communities across the U.S. have come face-to-face with the machinery of this system and its inevitable results.
Poll after poll and study after study reveal the same thing: People want healthy, safe communities and protections for nature. And yet our system has been engineered to deliver the opposite. Instead of recognizing the power of people to build those communities, it gives power to those interested in exploiting them.
Those trying to stop the spread of GMOs at the community level run up against state and federal laws that override their efforts. Those trying to stop corporate water withdrawals run up against state water resources laws. Those trying to stop the dumping of sewage sludge run up against state nutrient management acts. Those trying to ban fracking run up against state oil and gas acts. Those trying to stop oil and gas pipelines run up against preemptive federal authority lodged in agencies like the Federal Energy Regulatory Commission.
Many of those communities try to use traditional nuisance, land use, or zoning laws to stop those corporate projects. In doing so, they labor to find a loophole in the preemption laws, or they hire lawyers who have convinced the communities that concocting some kind of exception to those laws is possible.
They almost always lose. And even in those rare circumstances when they win, like a self-sealing tire, the system develops new laws that permanently seal the leak – so that other communities are unable to use the same arguments.
Many communities have learned from those losses and have begun to drive a new theory of law – one not focused on trying to find loopholes, crawling through exemptions, or finding the “right” judge who might look favorably on their lawmaking.
These communities have begun to understand that the individual threat or issue facing their community – fracking, GMOs, or otherwise – is just a symptom of this system, not the problem itself. That’s because the system we have doesn’t care what we want or need, no matter what the consequences to our communities and nature.
People in communities under threat are confronted with the reality of this existing system. They are concluding that without true decentralization of decision-making authority down to the community level, they’ll never be able to stop fracking or other threats from invading their communities. Further, they are realizing we’ll never be able to move toward anything close to sustainability. They’re arguing that the people of their communities possess a constitutional right of local, community self-government – the authority to govern themselves on issues that the corporate state has removed from their control.
What will it take for communities to actually have control over whether fossil fuels are shipped through them? To decide if pipelines are laid? To vote if GMOs are planted? To determine whether they are forced to become the unwilling hosts of factory farms, toxic dumps, or pollution factories?
It will take the entire system of law turned upside down.
That means that communities must be able to pass laws and make them stick. It means making those communities immune from corporate “rights” and the authority of “higher” governments to define what communities can and cannot do.
It means giving birth to community democracy – a concept that, itself, is actually older than the system we currently have.
The New – A Constitutional Right of Local Community Self-Government
Recognition by the courts of a constitutional right of local community self-government would have far-reaching consequences. A finding that the right exists would force other legal doctrines to give way to that right. This means, for example, that the use of corporate “rights” to overturn local laws would be precluded as running afoul of the right of self-government. So would the authority of the state and federal government to override certain types of local lawmaking.
Consider a rural community facing fracking. Today, under the old (existing) system, let’s say the community adopts a law, either by their elected officials or through an initiative process, to ban fracking for shale gas. The law perhaps establishes a local “bill of rights” that recognizes rights to clean air, pure water, and sustainable energy, and then bans fracking as a violation of those rights.
The law is inevitably challenged by oil and gas corporations affected by the ban. The constitutional right of the people to local community self-government is thus pitted directly against the corporate claimed constitutional “rights” and against the state government’s authority to prevent the community from adopting the law.
With the recognition of a constitutional right of local self-government, however, those corporate “rights” and the authority of the state government must give way to the people’s constitutional right to govern themselves.
Such a system, while recognizing the authority of the state and federal government to set a minimum “floor” for environmental, labor, and other standards, would prevent the state and federal government from prohibiting communities from setting higher standards, or from expanding civil and environmental rights at the local level. It is precisely that “ceiling” preemption where corporations have run amok – using that power to stop communities from prohibiting harmful corporate projects.
The Clash of the Old and the New
Because this new system is so unlike the old, it would be surprising if the corporate defenders of the old system wouldn’t be investing huge sums of money to stop this new system of law from being adopted by communities.
Over the past decade, as over two hundred communities in ten states have driven this new system into being, affected corporations have challenged a handful of those laws. Today, understanding the scope of change envisioned by the community rights movement, those corporations are now reaching into the elections system itself, to stop those laws even before they are adopted.
We need to understand that these corporate challenges are proof that the new system of law envisioned by communities is striking exactly as intended – directly at the very power currently wielded by corporations against people and nature.
We must respond by challenging not only the ability of corporations to stop these initiatives, but by directly challenging the authority of judges and courts to help them do it. If the actions of the corporations violate the people’s rights of self-government, and the corporations are unable to prevent community votes without the courts, then it’s time for more and more people to understand how the system itself stands in direct contrast to the “we the people” myth of American lore.
From there, rather than trying to reform the existing structure, more and more people will begin the real work of building a new one.
Please make a donation to help us support communities doing on-the-ground work to advance Community Rights in 2017. Your donation makes our work with communities to build the Community Rights Movement possible!
Feature Photo: Flickr Creative Commons: Black Lives Matter by Ella
In 2015, residents of several rural Ohio counties watched in shock as Ohio Secretary of State Jon Husted unilaterally removed citizen-sponsored initiatives from county ballots. The initiatives, which had already qualified for the ballot, would have banned oil and gas drilling and fracking in those communities.
The Ohio Supreme Court sharply rapped Husted’s knuckles for using authority he didn’t have. However, a year later, the people of those same counties watched in disbelief as Husted again blocked their initiatives. This time, the Ohio Supreme Court affirmed his actions.
It is not surprising that Husted – who as of this writing is running for governor – is the darling of the very oil and gas industry targeted by those local initiatives. Indeed, the industry has long-supported his electoral campaigns.
Democratic Rights Matter
The people of Ohio aren’t the only victims of their own government. Across the country we are seeing government efforts, often at the behest of corporations, to restrict the authority of “we the people” to the initiative. Government officials are taking this action even though the authority for initiative is codified in nearly half the state constitutions in the United States.
In Oregon, a cat-and-mouse game is underway between some of the country’s largest agribusiness corporations and residents of rural counties. People there are proposing local initiatives to ban aerial pesticide spraying and genetically modified crops. In response, corporations affected by those initiatives have lawyered-up, using obscure legal provisions to try to stop the initiatives from ever reaching the ballot.
In Washington State, at the urging of industry, courts have now adopted a rule that allows virtually any proposed citizen-sponsored initiative to be blocked by corporations before ever reaching the ballot and a vote of the people.
In New Hampshire and Maine, some local elected officials have gone even further – refusing to allow duly-qualified citizen initiatives to be voted upon at annual Town Meeting. In at least one New Hampshire town, local elected officials have refused to sign an initiative even after it was legally adopted by the people of the town.
Corporations are working to restrict democratic rights to initiative as communities are advancing structural change – challenging the current system of law we live under, which insulates corporate projects from democratic control. In its place, these communities are moving forward a new system of law based on recognizing the right of communities to decide their own futures, and then elevating that community right above corporate “rights.” This new system is now beginning to forcibly crash into the older, existing one.
The ballot clashes in Ohio, Oregon, and elsewhere are all about the old system not going quietly.
The Old
Here’s how the system works today. Decisions made by the federal government trump the decisions and laws of state governments. Decisions and laws made by both federal and state governments trump the laws of local governments.
So, when the State of Vermont adopts a law requiring the labeling of food products containing genetically modified ingredients, the U.S. Congress can simply override it. It did so in 2016 when our representatives passed a law nullifying state efforts to mandate food labeling.
The more central an issue is to affecting commerce, the more preemptive rules you will find around it. For example, the federal government controls almost all issues dealing with oil and gas pipelines and the rail transportation of fossil fuels. Thus, those issues are lifted out of the hands of local and state governments.
State-level preemption operates in a similar fashion. Almost all states have oil and gas laws. Those laws regulate and control how fossil fuels are extracted. Those state laws have generally been found to abolish not only the authority of localities to determine how oil and gas is extracted, but whether oil and gas is extracted. Thus, state laws – such as those in Texas, Colorado, Pennsylvania, and Ohio – eliminate the authority of local communities to ban oil and gas extraction altogether.
Similarly, state legislatures across the country have adopted a slew of laws prohibiting communities from banning large corporate water withdrawals, dumping of toxic sewage sludge, and GMOs. Some states, including Pennsylvania and New York, have even authorized their state Attorneys General to act as private attorneys for corporations to sue communities who buck those laws.
It all boils down to this: If you have the financial and legal ability to control the uppermost levels of lawmaking and decision making, you don’t have to abide by the rights and wishes of the communities in which you operate.
But it Gets Even Better – Corporate “Rights”
There are rare cases in which people have actually been able to use their state or federal government to adopt laws that benefit the public interest. However, corporations then use the courts to either overturn those laws or severely limit their reach.
Corporations are the dominant economic players in our system. They have pioneered the use of corporate constitutional “rights” to attack any law that infringes upon their ability to engage in commerce or use corporate property. In today’s world, in which almost every meaningful reform affects commerce or property, it’s relatively easy to apply those “rights” to overturn laws that affect certain industries.
Thus, corporate free speech rights have been leveraged to overturn federal laws limiting corporate campaign donations; corporate religious rights have been used to limit healthcare legislation; corporate property rights have been used to overturn environmental regulations; and corporate commerce rights have been used to strike down regulations on coal mining, trucking, pipelines, waste disposal, and landfills.
Thus, when corporations lose at the ballot box, or in legislatures, they can resort to the safe harbor of the judiciary. This branch of government has shown itself more than willing to vindicate corporate “rights” to nullify laws that corporations don’t like. Making matters worse, state legislatures often take those court rulings and write them directly into state law – thus safeguarding those corporate “rights” by providing statutory protection for them.
Each round of this makes it harder to remove those corporate protections, adding more and more layers that must be peeled back in the future.
For “we the people” to get anything to stick, we are forced to successfully navigate every single gauntlet. We not only work to convince legislators to pass our laws, but then hope against hope that we can beat back the corporations as they sue us for violating the rules of preemption and corporate “rights.”
While we have to win at every level to succeed, corporations only need to win at one to put us back on the defensive.
It’s the ultimate rigged game. It works only because the system is so camouflaged to give it the appearance of being open to change, and so few people understand the degree to which it is rigged.
Is it any surprise that we’ve ended up where we are?
The New
Over the past twenty years, people in hundreds of communities across the U.S. have come face-to-face with the machinery of this system and its inevitable results.
Poll after poll and study after study reveal the same thing: People want healthy, safe communities and protections for nature. And yet our system has been engineered to deliver the opposite. Instead of recognizing the power of people to build those communities, it gives power to those interested in exploiting them.
Those trying to stop the spread of GMOs at the community level run up against state and federal laws that override their efforts. Those trying to stop corporate water withdrawals run up against state water resources laws. Those trying to stop the dumping of sewage sludge run up against state nutrient management acts. Those trying to ban fracking run up against state oil and gas acts. Those trying to stop oil and gas pipelines run up against preemptive federal authority lodged in agencies like the Federal Energy Regulatory Commission.
Many of those communities try to use traditional nuisance, land use, or zoning laws to stop those corporate projects. In doing so, they labor to find a loophole in the preemption laws, or they hire lawyers who have convinced the communities that concocting some kind of exception to those laws is possible.
They almost always lose. And even in those rare circumstances when they win, like a self-sealing tire, the system develops new laws that permanently seal the leak – so that other communities are unable to use the same arguments.
Many communities have learned from those losses and have begun to drive a new theory of law – one not focused on trying to find loopholes, crawling through exemptions, or finding the “right” judge who might look favorably on their lawmaking.
These communities have begun to understand that the individual threat or issue facing their community – fracking, GMOs, or otherwise – is just a symptom of this system, not the problem itself. That’s because the system we have doesn’t care what we want or need, no matter what the consequences to our communities and nature.
People in communities under threat are confronted with the reality of this existing system. They are concluding that without true decentralization of decision-making authority down to the community level, they’ll never be able to stop fracking or other threats from invading their communities. Further, they are realizing we’ll never be able to move toward anything close to sustainability. They’re arguing that the people of their communities possess a constitutional right of local, community self-government – the authority to govern themselves on issues that the corporate state has removed from their control.
What will it take for communities to actually have control over whether fossil fuels are shipped through them? To decide if pipelines are laid? To vote if GMOs are planted? To determine whether they are forced to become the unwilling hosts of factory farms, toxic dumps, or pollution factories?
It will take the entire system of law turned upside down.
That means that communities must be able to pass laws and make them stick. It means making those communities immune from corporate “rights” and the authority of “higher” governments to define what communities can and cannot do.
It means giving birth to community democracy – a concept that, itself, is actually older than the system we currently have.
The New – A Constitutional Right of Local Community Self-Government
Recognition by the courts of a constitutional right of local community self-government would have far-reaching consequences. A finding that the right exists would force other legal doctrines to give way to that right. This means, for example, that the use of corporate “rights” to overturn local laws would be precluded as running afoul of the right of self-government. So would the authority of the state and federal government to override certain types of local lawmaking.
Consider a rural community facing fracking. Today, under the old (existing) system, let’s say the community adopts a law, either by their elected officials or through an initiative process, to ban fracking for shale gas. The law perhaps establishes a local “bill of rights” that recognizes rights to clean air, pure water, and sustainable energy, and then bans fracking as a violation of those rights.
The law is inevitably challenged by oil and gas corporations affected by the ban. The constitutional right of the people to local community self-government is thus pitted directly against the corporate claimed constitutional “rights” and against the state government’s authority to prevent the community from adopting the law.
With the recognition of a constitutional right of local self-government, however, those corporate “rights” and the authority of the state government must give way to the people’s constitutional right to govern themselves.
Such a system, while recognizing the authority of the state and federal government to set a minimum “floor” for environmental, labor, and other standards, would prevent the state and federal government from prohibiting communities from setting higher standards, or from expanding civil and environmental rights at the local level. It is precisely that “ceiling” preemption where corporations have run amok – using that power to stop communities from prohibiting harmful corporate projects.
The Clash of the Old and the New
Because this new system is so unlike the old, it would be surprising if the corporate defenders of the old system wouldn’t be investing huge sums of money to stop this new system of law from being adopted by communities.
Over the past decade, as over two hundred communities in ten states have driven this new system into being, affected corporations have challenged a handful of those laws. Today, understanding the scope of change envisioned by the community rights movement, those corporations are now reaching into the elections system itself, to stop those laws even before they are adopted.
We need to understand that these corporate challenges are proof that the new system of law envisioned by communities is striking exactly as intended – directly at the very power currently wielded by corporations against people and nature.
We must respond by challenging not only the ability of corporations to stop these initiatives, but by directly challenging the authority of judges and courts to help them do it. If the actions of the corporations violate the people’s rights of self-government, and the corporations are unable to prevent community votes without the courts, then it’s time for more and more people to understand how the system itself stands in direct contrast to the “we the people” myth of American lore.
From there, rather than trying to reform the existing structure, more and more people will begin the real work of building a new one.
Please make a donation to help us support communities doing on-the-ground work to advance Community Rights in 2017. Your donation makes our work with communities to build the Community Rights Movement possible!
Feature Photo: Flickr Creative Commons: Black Lives Matter by Ella
In 2015, residents of several rural Ohio counties watched in shock as Ohio Secretary of State Jon Husted unilaterally removed citizen-sponsored initiatives from county ballots. The initiatives, which had already qualified for the ballot, would have banned oil and gas drilling and fracking in those communities.
The Ohio Supreme Court sharply rapped Husted’s knuckles for using authority he didn’t have. However, a year later, the people of those same counties watched in disbelief as Husted again blocked their initiatives. This time, the Ohio Supreme Court affirmed his actions.
It is not surprising that Husted – who as of this writing is running for governor – is the darling of the very oil and gas industry targeted by those local initiatives. Indeed, the industry has long-supported his electoral campaigns.
Democratic Rights Matter
The people of Ohio aren’t the only victims of their own government. Across the country we are seeing government efforts, often at the behest of corporations, to restrict the authority of “we the people” to the initiative. Government officials are taking this action even though the authority for initiative is codified in nearly half the state constitutions in the United States.
In Oregon, a cat-and-mouse game is underway between some of the country’s largest agribusiness corporations and residents of rural counties. People there are proposing local initiatives to ban aerial pesticide spraying and genetically modified crops. In response, corporations affected by those initiatives have lawyered-up, using obscure legal provisions to try to stop the initiatives from ever reaching the ballot.
In Washington State, at the urging of industry, courts have now adopted a rule that allows virtually any proposed citizen-sponsored initiative to be blocked by corporations before ever reaching the ballot and a vote of the people.
In New Hampshire and Maine, some local elected officials have gone even further – refusing to allow duly-qualified citizen initiatives to be voted upon at annual Town Meeting. In at least one New Hampshire town, local elected officials have refused to sign an initiative even after it was legally adopted by the people of the town.
Corporations are working to restrict democratic rights to initiative as communities are advancing structural change – challenging the current system of law we live under, which insulates corporate projects from democratic control. In its place, these communities are moving forward a new system of law based on recognizing the right of communities to decide their own futures, and then elevating that community right above corporate “rights.” This new system is now beginning to forcibly crash into the older, existing one.
The ballot clashes in Ohio, Oregon, and elsewhere are all about the old system not going quietly.
The Old
Here’s how the system works today. Decisions made by the federal government trump the decisions and laws of state governments. Decisions and laws made by both federal and state governments trump the laws of local governments.
So, when the State of Vermont adopts a law requiring the labeling of food products containing genetically modified ingredients, the U.S. Congress can simply override it. It did so in 2016 when our representatives passed a law nullifying state efforts to mandate food labeling.
The more central an issue is to affecting commerce, the more preemptive rules you will find around it. For example, the federal government controls almost all issues dealing with oil and gas pipelines and the rail transportation of fossil fuels. Thus, those issues are lifted out of the hands of local and state governments.
State-level preemption operates in a similar fashion. Almost all states have oil and gas laws. Those laws regulate and control how fossil fuels are extracted. Those state laws have generally been found to abolish not only the authority of localities to determine how oil and gas is extracted, but whether oil and gas is extracted. Thus, state laws – such as those in Texas, Colorado, Pennsylvania, and Ohio – eliminate the authority of local communities to ban oil and gas extraction altogether.
Similarly, state legislatures across the country have adopted a slew of laws prohibiting communities from banning large corporate water withdrawals, dumping of toxic sewage sludge, and GMOs. Some states, including Pennsylvania and New York, have even authorized their state Attorneys General to act as private attorneys for corporations to sue communities who buck those laws.
It all boils down to this: If you have the financial and legal ability to control the uppermost levels of lawmaking and decision making, you don’t have to abide by the rights and wishes of the communities in which you operate.
But it Gets Even Better – Corporate “Rights”
There are rare cases in which people have actually been able to use their state or federal government to adopt laws that benefit the public interest. However, corporations then use the courts to either overturn those laws or severely limit their reach.
Corporations are the dominant economic players in our system. They have pioneered the use of corporate constitutional “rights” to attack any law that infringes upon their ability to engage in commerce or use corporate property. In today’s world, in which almost every meaningful reform affects commerce or property, it’s relatively easy to apply those “rights” to overturn laws that affect certain industries.
Thus, corporate free speech rights have been leveraged to overturn federal laws limiting corporate campaign donations; corporate religious rights have been used to limit healthcare legislation; corporate property rights have been used to overturn environmental regulations; and corporate commerce rights have been used to strike down regulations on coal mining, trucking, pipelines, waste disposal, and landfills.
Thus, when corporations lose at the ballot box, or in legislatures, they can resort to the safe harbor of the judiciary. This branch of government has shown itself more than willing to vindicate corporate “rights” to nullify laws that corporations don’t like. Making matters worse, state legislatures often take those court rulings and write them directly into state law – thus safeguarding those corporate “rights” by providing statutory protection for them.
Each round of this makes it harder to remove those corporate protections, adding more and more layers that must be peeled back in the future.
For “we the people” to get anything to stick, we are forced to successfully navigate every single gauntlet. We not only work to convince legislators to pass our laws, but then hope against hope that we can beat back the corporations as they sue us for violating the rules of preemption and corporate “rights.”
While we have to win at every level to succeed, corporations only need to win at one to put us back on the defensive.
It’s the ultimate rigged game. It works only because the system is so camouflaged to give it the appearance of being open to change, and so few people understand the degree to which it is rigged.
Is it any surprise that we’ve ended up where we are?
The New
Over the past twenty years, people in hundreds of communities across the U.S. have come face-to-face with the machinery of this system and its inevitable results.
Poll after poll and study after study reveal the same thing: People want healthy, safe communities and protections for nature. And yet our system has been engineered to deliver the opposite. Instead of recognizing the power of people to build those communities, it gives power to those interested in exploiting them.
Those trying to stop the spread of GMOs at the community level run up against state and federal laws that override their efforts. Those trying to stop corporate water withdrawals run up against state water resources laws. Those trying to stop the dumping of sewage sludge run up against state nutrient management acts. Those trying to ban fracking run up against state oil and gas acts. Those trying to stop oil and gas pipelines run up against preemptive federal authority lodged in agencies like the Federal Energy Regulatory Commission.
Many of those communities try to use traditional nuisance, land use, or zoning laws to stop those corporate projects. In doing so, they labor to find a loophole in the preemption laws, or they hire lawyers who have convinced the communities that concocting some kind of exception to those laws is possible.
They almost always lose. And even in those rare circumstances when they win, like a self-sealing tire, the system develops new laws that permanently seal the leak – so that other communities are unable to use the same arguments.
Many communities have learned from those losses and have begun to drive a new theory of law – one not focused on trying to find loopholes, crawling through exemptions, or finding the “right” judge who might look favorably on their lawmaking.
These communities have begun to understand that the individual threat or issue facing their community – fracking, GMOs, or otherwise – is just a symptom of this system, not the problem itself. That’s because the system we have doesn’t care what we want or need, no matter what the consequences to our communities and nature.
People in communities under threat are confronted with the reality of this existing system. They are concluding that without true decentralization of decision-making authority down to the community level, they’ll never be able to stop fracking or other threats from invading their communities. Further, they are realizing we’ll never be able to move toward anything close to sustainability. They’re arguing that the people of their communities possess a constitutional right of local, community self-government – the authority to govern themselves on issues that the corporate state has removed from their control.
What will it take for communities to actually have control over whether fossil fuels are shipped through them? To decide if pipelines are laid? To vote if GMOs are planted? To determine whether they are forced to become the unwilling hosts of factory farms, toxic dumps, or pollution factories?
It will take the entire system of law turned upside down.
That means that communities must be able to pass laws and make them stick. It means making those communities immune from corporate “rights” and the authority of “higher” governments to define what communities can and cannot do.
It means giving birth to community democracy – a concept that, itself, is actually older than the system we currently have.
The New – A Constitutional Right of Local Community Self-Government
Recognition by the courts of a constitutional right of local community self-government would have far-reaching consequences. A finding that the right exists would force other legal doctrines to give way to that right. This means, for example, that the use of corporate “rights” to overturn local laws would be precluded as running afoul of the right of self-government. So would the authority of the state and federal government to override certain types of local lawmaking.
Consider a rural community facing fracking. Today, under the old (existing) system, let’s say the community adopts a law, either by their elected officials or through an initiative process, to ban fracking for shale gas. The law perhaps establishes a local “bill of rights” that recognizes rights to clean air, pure water, and sustainable energy, and then bans fracking as a violation of those rights.
The law is inevitably challenged by oil and gas corporations affected by the ban. The constitutional right of the people to local community self-government is thus pitted directly against the corporate claimed constitutional “rights” and against the state government’s authority to prevent the community from adopting the law.
With the recognition of a constitutional right of local self-government, however, those corporate “rights” and the authority of the state government must give way to the people’s constitutional right to govern themselves.
Such a system, while recognizing the authority of the state and federal government to set a minimum “floor” for environmental, labor, and other standards, would prevent the state and federal government from prohibiting communities from setting higher standards, or from expanding civil and environmental rights at the local level. It is precisely that “ceiling” preemption where corporations have run amok – using that power to stop communities from prohibiting harmful corporate projects.
The Clash of the Old and the New
Because this new system is so unlike the old, it would be surprising if the corporate defenders of the old system wouldn’t be investing huge sums of money to stop this new system of law from being adopted by communities.
Over the past decade, as over two hundred communities in ten states have driven this new system into being, affected corporations have challenged a handful of those laws. Today, understanding the scope of change envisioned by the community rights movement, those corporations are now reaching into the elections system itself, to stop those laws even before they are adopted.
We need to understand that these corporate challenges are proof that the new system of law envisioned by communities is striking exactly as intended – directly at the very power currently wielded by corporations against people and nature.
We must respond by challenging not only the ability of corporations to stop these initiatives, but by directly challenging the authority of judges and courts to help them do it. If the actions of the corporations violate the people’s rights of self-government, and the corporations are unable to prevent community votes without the courts, then it’s time for more and more people to understand how the system itself stands in direct contrast to the “we the people” myth of American lore.
From there, rather than trying to reform the existing structure, more and more people will begin the real work of building a new one.
Please make a donation to help us support communities doing on-the-ground work to advance Community Rights in 2017. Your donation makes our work with communities to build the Community Rights Movement possible!
Feature Photo: Flickr Creative Commons: Black Lives Matter by Ella
In 2015, residents of several rural Ohio counties watched in shock as Ohio Secretary of State Jon Husted unilaterally removed citizen-sponsored initiatives from county ballots. The initiatives, which had already qualified for the ballot, would have banned oil and gas drilling and fracking in those communities.
The Ohio Supreme Court sharply rapped Husted’s knuckles for using authority he didn’t have. However, a year later, the people of those same counties watched in disbelief as Husted again blocked their initiatives. This time, the Ohio Supreme Court affirmed his actions.
It is not surprising that Husted – who as of this writing is running for governor – is the darling of the very oil and gas industry targeted by those local initiatives. Indeed, the industry has long-supported his electoral campaigns.
Democratic Rights Matter
The people of Ohio aren’t the only victims of their own government. Across the country we are seeing government efforts, often at the behest of corporations, to restrict the authority of “we the people” to the initiative. Government officials are taking this action even though the authority for initiative is codified in nearly half the state constitutions in the United States.
In Oregon, a cat-and-mouse game is underway between some of the country’s largest agribusiness corporations and residents of rural counties. People there are proposing local initiatives to ban aerial pesticide spraying and genetically modified crops. In response, corporations affected by those initiatives have lawyered-up, using obscure legal provisions to try to stop the initiatives from ever reaching the ballot.
In Washington State, at the urging of industry, courts have now adopted a rule that allows virtually any proposed citizen-sponsored initiative to be blocked by corporations before ever reaching the ballot and a vote of the people.
In New Hampshire and Maine, some local elected officials have gone even further – refusing to allow duly-qualified citizen initiatives to be voted upon at annual Town Meeting. In at least one New Hampshire town, local elected officials have refused to sign an initiative even after it was legally adopted by the people of the town.
Corporations are working to restrict democratic rights to initiative as communities are advancing structural change – challenging the current system of law we live under, which insulates corporate projects from democratic control. In its place, these communities are moving forward a new system of law based on recognizing the right of communities to decide their own futures, and then elevating that community right above corporate “rights.” This new system is now beginning to forcibly crash into the older, existing one.
The ballot clashes in Ohio, Oregon, and elsewhere are all about the old system not going quietly.
The Old
Here’s how the system works today. Decisions made by the federal government trump the decisions and laws of state governments. Decisions and laws made by both federal and state governments trump the laws of local governments.
So, when the State of Vermont adopts a law requiring the labeling of food products containing genetically modified ingredients, the U.S. Congress can simply override it. It did so in 2016 when our representatives passed a law nullifying state efforts to mandate food labeling.
The more central an issue is to affecting commerce, the more preemptive rules you will find around it. For example, the federal government controls almost all issues dealing with oil and gas pipelines and the rail transportation of fossil fuels. Thus, those issues are lifted out of the hands of local and state governments.
State-level preemption operates in a similar fashion. Almost all states have oil and gas laws. Those laws regulate and control how fossil fuels are extracted. Those state laws have generally been found to abolish not only the authority of localities to determine how oil and gas is extracted, but whether oil and gas is extracted. Thus, state laws – such as those in Texas, Colorado, Pennsylvania, and Ohio – eliminate the authority of local communities to ban oil and gas extraction altogether.
Similarly, state legislatures across the country have adopted a slew of laws prohibiting communities from banning large corporate water withdrawals, dumping of toxic sewage sludge, and GMOs. Some states, including Pennsylvania and New York, have even authorized their state Attorneys General to act as private attorneys for corporations to sue communities who buck those laws.
It all boils down to this: If you have the financial and legal ability to control the uppermost levels of lawmaking and decision making, you don’t have to abide by the rights and wishes of the communities in which you operate.
But it Gets Even Better – Corporate “Rights”
There are rare cases in which people have actually been able to use their state or federal government to adopt laws that benefit the public interest. However, corporations then use the courts to either overturn those laws or severely limit their reach.
Corporations are the dominant economic players in our system. They have pioneered the use of corporate constitutional “rights” to attack any law that infringes upon their ability to engage in commerce or use corporate property. In today’s world, in which almost every meaningful reform affects commerce or property, it’s relatively easy to apply those “rights” to overturn laws that affect certain industries.
Thus, corporate free speech rights have been leveraged to overturn federal laws limiting corporate campaign donations; corporate religious rights have been used to limit healthcare legislation; corporate property rights have been used to overturn environmental regulations; and corporate commerce rights have been used to strike down regulations on coal mining, trucking, pipelines, waste disposal, and landfills.
Thus, when corporations lose at the ballot box, or in legislatures, they can resort to the safe harbor of the judiciary. This branch of government has shown itself more than willing to vindicate corporate “rights” to nullify laws that corporations don’t like. Making matters worse, state legislatures often take those court rulings and write them directly into state law – thus safeguarding those corporate “rights” by providing statutory protection for them.
Each round of this makes it harder to remove those corporate protections, adding more and more layers that must be peeled back in the future.
For “we the people” to get anything to stick, we are forced to successfully navigate every single gauntlet. We not only work to convince legislators to pass our laws, but then hope against hope that we can beat back the corporations as they sue us for violating the rules of preemption and corporate “rights.”
While we have to win at every level to succeed, corporations only need to win at one to put us back on the defensive.
It’s the ultimate rigged game. It works only because the system is so camouflaged to give it the appearance of being open to change, and so few people understand the degree to which it is rigged.
Is it any surprise that we’ve ended up where we are?
The New
Over the past twenty years, people in hundreds of communities across the U.S. have come face-to-face with the machinery of this system and its inevitable results.
Poll after poll and study after study reveal the same thing: People want healthy, safe communities and protections for nature. And yet our system has been engineered to deliver the opposite. Instead of recognizing the power of people to build those communities, it gives power to those interested in exploiting them.
Those trying to stop the spread of GMOs at the community level run up against state and federal laws that override their efforts. Those trying to stop corporate water withdrawals run up against state water resources laws. Those trying to stop the dumping of sewage sludge run up against state nutrient management acts. Those trying to ban fracking run up against state oil and gas acts. Those trying to stop oil and gas pipelines run up against preemptive federal authority lodged in agencies like the Federal Energy Regulatory Commission.
Many of those communities try to use traditional nuisance, land use, or zoning laws to stop those corporate projects. In doing so, they labor to find a loophole in the preemption laws, or they hire lawyers who have convinced the communities that concocting some kind of exception to those laws is possible.
They almost always lose. And even in those rare circumstances when they win, like a self-sealing tire, the system develops new laws that permanently seal the leak – so that other communities are unable to use the same arguments.
Many communities have learned from those losses and have begun to drive a new theory of law – one not focused on trying to find loopholes, crawling through exemptions, or finding the “right” judge who might look favorably on their lawmaking.
These communities have begun to understand that the individual threat or issue facing their community – fracking, GMOs, or otherwise – is just a symptom of this system, not the problem itself. That’s because the system we have doesn’t care what we want or need, no matter what the consequences to our communities and nature.
People in communities under threat are confronted with the reality of this existing system. They are concluding that without true decentralization of decision-making authority down to the community level, they’ll never be able to stop fracking or other threats from invading their communities. Further, they are realizing we’ll never be able to move toward anything close to sustainability. They’re arguing that the people of their communities possess a constitutional right of local, community self-government – the authority to govern themselves on issues that the corporate state has removed from their control.
What will it take for communities to actually have control over whether fossil fuels are shipped through them? To decide if pipelines are laid? To vote if GMOs are planted? To determine whether they are forced to become the unwilling hosts of factory farms, toxic dumps, or pollution factories?
It will take the entire system of law turned upside down.
That means that communities must be able to pass laws and make them stick. It means making those communities immune from corporate “rights” and the authority of “higher” governments to define what communities can and cannot do.
It means giving birth to community democracy – a concept that, itself, is actually older than the system we currently have.
The New – A Constitutional Right of Local Community Self-Government
Recognition by the courts of a constitutional right of local community self-government would have far-reaching consequences. A finding that the right exists would force other legal doctrines to give way to that right. This means, for example, that the use of corporate “rights” to overturn local laws would be precluded as running afoul of the right of self-government. So would the authority of the state and federal government to override certain types of local lawmaking.
Consider a rural community facing fracking. Today, under the old (existing) system, let’s say the community adopts a law, either by their elected officials or through an initiative process, to ban fracking for shale gas. The law perhaps establishes a local “bill of rights” that recognizes rights to clean air, pure water, and sustainable energy, and then bans fracking as a violation of those rights.
The law is inevitably challenged by oil and gas corporations affected by the ban. The constitutional right of the people to local community self-government is thus pitted directly against the corporate claimed constitutional “rights” and against the state government’s authority to prevent the community from adopting the law.
With the recognition of a constitutional right of local self-government, however, those corporate “rights” and the authority of the state government must give way to the people’s constitutional right to govern themselves.
Such a system, while recognizing the authority of the state and federal government to set a minimum “floor” for environmental, labor, and other standards, would prevent the state and federal government from prohibiting communities from setting higher standards, or from expanding civil and environmental rights at the local level. It is precisely that “ceiling” preemption where corporations have run amok – using that power to stop communities from prohibiting harmful corporate projects.
The Clash of the Old and the New
Because this new system is so unlike the old, it would be surprising if the corporate defenders of the old system wouldn’t be investing huge sums of money to stop this new system of law from being adopted by communities.
Over the past decade, as over two hundred communities in ten states have driven this new system into being, affected corporations have challenged a handful of those laws. Today, understanding the scope of change envisioned by the community rights movement, those corporations are now reaching into the elections system itself, to stop those laws even before they are adopted.
We need to understand that these corporate challenges are proof that the new system of law envisioned by communities is striking exactly as intended – directly at the very power currently wielded by corporations against people and nature.
We must respond by challenging not only the ability of corporations to stop these initiatives, but by directly challenging the authority of judges and courts to help them do it. If the actions of the corporations violate the people’s rights of self-government, and the corporations are unable to prevent community votes without the courts, then it’s time for more and more people to understand how the system itself stands in direct contrast to the “we the people” myth of American lore.
From there, rather than trying to reform the existing structure, more and more people will begin the real work of building a new one.
Please make a donation to help us support communities doing on-the-ground work to advance Community Rights in 2017. Your donation makes our work with communities to build the Community Rights Movement possible!
Feature Photo: Flickr Creative Commons: Black Lives Matter by Ella
In 2015, residents of several rural Ohio counties watched in shock as Ohio Secretary of State Jon Husted unilaterally removed citizen-sponsored initiatives from county ballots. The initiatives, which had already qualified for the ballot, would have banned oil and gas drilling and fracking in those communities.
The Ohio Supreme Court sharply rapped Husted’s knuckles for using authority he didn’t have. However, a year later, the people of those same counties watched in disbelief as Husted again blocked their initiatives. This time, the Ohio Supreme Court affirmed his actions.
It is not surprising that Husted – who as of this writing is running for governor – is the darling of the very oil and gas industry targeted by those local initiatives. Indeed, the industry has long-supported his electoral campaigns.
Democratic Rights Matter
The people of Ohio aren’t the only victims of their own government. Across the country we are seeing government efforts, often at the behest of corporations, to restrict the authority of “we the people” to the initiative. Government officials are taking this action even though the authority for initiative is codified in nearly half the state constitutions in the United States.
In Oregon, a cat-and-mouse game is underway between some of the country’s largest agribusiness corporations and residents of rural counties. People there are proposing local initiatives to ban aerial pesticide spraying and genetically modified crops. In response, corporations affected by those initiatives have lawyered-up, using obscure legal provisions to try to stop the initiatives from ever reaching the ballot.
In Washington State, at the urging of industry, courts have now adopted a rule that allows virtually any proposed citizen-sponsored initiative to be blocked by corporations before ever reaching the ballot and a vote of the people.
In New Hampshire and Maine, some local elected officials have gone even further – refusing to allow duly-qualified citizen initiatives to be voted upon at annual Town Meeting. In at least one New Hampshire town, local elected officials have refused to sign an initiative even after it was legally adopted by the people of the town.
Corporations are working to restrict democratic rights to initiative as communities are advancing structural change – challenging the current system of law we live under, which insulates corporate projects from democratic control. In its place, these communities are moving forward a new system of law based on recognizing the right of communities to decide their own futures, and then elevating that community right above corporate “rights.” This new system is now beginning to forcibly crash into the older, existing one.
The ballot clashes in Ohio, Oregon, and elsewhere are all about the old system not going quietly.
The Old
Here’s how the system works today. Decisions made by the federal government trump the decisions and laws of state governments. Decisions and laws made by both federal and state governments trump the laws of local governments.
So, when the State of Vermont adopts a law requiring the labeling of food products containing genetically modified ingredients, the U.S. Congress can simply override it. It did so in 2016 when our representatives passed a law nullifying state efforts to mandate food labeling.
The more central an issue is to affecting commerce, the more preemptive rules you will find around it. For example, the federal government controls almost all issues dealing with oil and gas pipelines and the rail transportation of fossil fuels. Thus, those issues are lifted out of the hands of local and state governments.
State-level preemption operates in a similar fashion. Almost all states have oil and gas laws. Those laws regulate and control how fossil fuels are extracted. Those state laws have generally been found to abolish not only the authority of localities to determine how oil and gas is extracted, but whether oil and gas is extracted. Thus, state laws – such as those in Texas, Colorado, Pennsylvania, and Ohio – eliminate the authority of local communities to ban oil and gas extraction altogether.
Similarly, state legislatures across the country have adopted a slew of laws prohibiting communities from banning large corporate water withdrawals, dumping of toxic sewage sludge, and GMOs. Some states, including Pennsylvania and New York, have even authorized their state Attorneys General to act as private attorneys for corporations to sue communities who buck those laws.
It all boils down to this: If you have the financial and legal ability to control the uppermost levels of lawmaking and decision making, you don’t have to abide by the rights and wishes of the communities in which you operate.
But it Gets Even Better – Corporate “Rights”
There are rare cases in which people have actually been able to use their state or federal government to adopt laws that benefit the public interest. However, corporations then use the courts to either overturn those laws or severely limit their reach.
Corporations are the dominant economic players in our system. They have pioneered the use of corporate constitutional “rights” to attack any law that infringes upon their ability to engage in commerce or use corporate property. In today’s world, in which almost every meaningful reform affects commerce or property, it’s relatively easy to apply those “rights” to overturn laws that affect certain industries.
Thus, corporate free speech rights have been leveraged to overturn federal laws limiting corporate campaign donations; corporate religious rights have been used to limit healthcare legislation; corporate property rights have been used to overturn environmental regulations; and corporate commerce rights have been used to strike down regulations on coal mining, trucking, pipelines, waste disposal, and landfills.
Thus, when corporations lose at the ballot box, or in legislatures, they can resort to the safe harbor of the judiciary. This branch of government has shown itself more than willing to vindicate corporate “rights” to nullify laws that corporations don’t like. Making matters worse, state legislatures often take those court rulings and write them directly into state law – thus safeguarding those corporate “rights” by providing statutory protection for them.
Each round of this makes it harder to remove those corporate protections, adding more and more layers that must be peeled back in the future.
For “we the people” to get anything to stick, we are forced to successfully navigate every single gauntlet. We not only work to convince legislators to pass our laws, but then hope against hope that we can beat back the corporations as they sue us for violating the rules of preemption and corporate “rights.”
While we have to win at every level to succeed, corporations only need to win at one to put us back on the defensive.
It’s the ultimate rigged game. It works only because the system is so camouflaged to give it the appearance of being open to change, and so few people understand the degree to which it is rigged.
Is it any surprise that we’ve ended up where we are?
The New
Over the past twenty years, people in hundreds of communities across the U.S. have come face-to-face with the machinery of this system and its inevitable results.
Poll after poll and study after study reveal the same thing: People want healthy, safe communities and protections for nature. And yet our system has been engineered to deliver the opposite. Instead of recognizing the power of people to build those communities, it gives power to those interested in exploiting them.
Those trying to stop the spread of GMOs at the community level run up against state and federal laws that override their efforts. Those trying to stop corporate water withdrawals run up against state water resources laws. Those trying to stop the dumping of sewage sludge run up against state nutrient management acts. Those trying to ban fracking run up against state oil and gas acts. Those trying to stop oil and gas pipelines run up against preemptive federal authority lodged in agencies like the Federal Energy Regulatory Commission.
Many of those communities try to use traditional nuisance, land use, or zoning laws to stop those corporate projects. In doing so, they labor to find a loophole in the preemption laws, or they hire lawyers who have convinced the communities that concocting some kind of exception to those laws is possible.
They almost always lose. And even in those rare circumstances when they win, like a self-sealing tire, the system develops new laws that permanently seal the leak – so that other communities are unable to use the same arguments.
Many communities have learned from those losses and have begun to drive a new theory of law – one not focused on trying to find loopholes, crawling through exemptions, or finding the “right” judge who might look favorably on their lawmaking.
These communities have begun to understand that the individual threat or issue facing their community – fracking, GMOs, or otherwise – is just a symptom of this system, not the problem itself. That’s because the system we have doesn’t care what we want or need, no matter what the consequences to our communities and nature.
People in communities under threat are confronted with the reality of this existing system. They are concluding that without true decentralization of decision-making authority down to the community level, they’ll never be able to stop fracking or other threats from invading their communities. Further, they are realizing we’ll never be able to move toward anything close to sustainability. They’re arguing that the people of their communities possess a constitutional right of local, community self-government – the authority to govern themselves on issues that the corporate state has removed from their control.
What will it take for communities to actually have control over whether fossil fuels are shipped through them? To decide if pipelines are laid? To vote if GMOs are planted? To determine whether they are forced to become the unwilling hosts of factory farms, toxic dumps, or pollution factories?
It will take the entire system of law turned upside down.
That means that communities must be able to pass laws and make them stick. It means making those communities immune from corporate “rights” and the authority of “higher” governments to define what communities can and cannot do.
It means giving birth to community democracy – a concept that, itself, is actually older than the system we currently have.
The New – A Constitutional Right of Local Community Self-Government
Recognition by the courts of a constitutional right of local community self-government would have far-reaching consequences. A finding that the right exists would force other legal doctrines to give way to that right. This means, for example, that the use of corporate “rights” to overturn local laws would be precluded as running afoul of the right of self-government. So would the authority of the state and federal government to override certain types of local lawmaking.
Consider a rural community facing fracking. Today, under the old (existing) system, let’s say the community adopts a law, either by their elected officials or through an initiative process, to ban fracking for shale gas. The law perhaps establishes a local “bill of rights” that recognizes rights to clean air, pure water, and sustainable energy, and then bans fracking as a violation of those rights.
The law is inevitably challenged by oil and gas corporations affected by the ban. The constitutional right of the people to local community self-government is thus pitted directly against the corporate claimed constitutional “rights” and against the state government’s authority to prevent the community from adopting the law.
With the recognition of a constitutional right of local self-government, however, those corporate “rights” and the authority of the state government must give way to the people’s constitutional right to govern themselves.
Such a system, while recognizing the authority of the state and federal government to set a minimum “floor” for environmental, labor, and other standards, would prevent the state and federal government from prohibiting communities from setting higher standards, or from expanding civil and environmental rights at the local level. It is precisely that “ceiling” preemption where corporations have run amok – using that power to stop communities from prohibiting harmful corporate projects.
The Clash of the Old and the New
Because this new system is so unlike the old, it would be surprising if the corporate defenders of the old system wouldn’t be investing huge sums of money to stop this new system of law from being adopted by communities.
Over the past decade, as over two hundred communities in ten states have driven this new system into being, affected corporations have challenged a handful of those laws. Today, understanding the scope of change envisioned by the community rights movement, those corporations are now reaching into the elections system itself, to stop those laws even before they are adopted.
We need to understand that these corporate challenges are proof that the new system of law envisioned by communities is striking exactly as intended – directly at the very power currently wielded by corporations against people and nature.
We must respond by challenging not only the ability of corporations to stop these initiatives, but by directly challenging the authority of judges and courts to help them do it. If the actions of the corporations violate the people’s rights of self-government, and the corporations are unable to prevent community votes without the courts, then it’s time for more and more people to understand how the system itself stands in direct contrast to the “we the people” myth of American lore.
From there, rather than trying to reform the existing structure, more and more people will begin the real work of building a new one.
Please make a donation to help us support communities doing on-the-ground work to advance Community Rights in 2017. Your donation makes our work with communities to build the Community Rights Movement possible!
Feature Photo: Flickr Creative Commons: Black Lives Matter by Ella
In 2015, residents of several rural Ohio counties watched in shock as Ohio Secretary of State Jon Husted unilaterally removed citizen-sponsored initiatives from county ballots. The initiatives, which had already qualified for the ballot, would have banned oil and gas drilling and fracking in those communities.
The Ohio Supreme Court sharply rapped Husted’s knuckles for using authority he didn’t have. However, a year later, the people of those same counties watched in disbelief as Husted again blocked their initiatives. This time, the Ohio Supreme Court affirmed his actions.
It is not surprising that Husted – who as of this writing is running for governor – is the darling of the very oil and gas industry targeted by those local initiatives. Indeed, the industry has long-supported his electoral campaigns.
Democratic Rights Matter
The people of Ohio aren’t the only victims of their own government. Across the country we are seeing government efforts, often at the behest of corporations, to restrict the authority of “we the people” to the initiative. Government officials are taking this action even though the authority for initiative is codified in nearly half the state constitutions in the United States.
In Oregon, a cat-and-mouse game is underway between some of the country’s largest agribusiness corporations and residents of rural counties. People there are proposing local initiatives to ban aerial pesticide spraying and genetically modified crops. In response, corporations affected by those initiatives have lawyered-up, using obscure legal provisions to try to stop the initiatives from ever reaching the ballot.
In Washington State, at the urging of industry, courts have now adopted a rule that allows virtually any proposed citizen-sponsored initiative to be blocked by corporations before ever reaching the ballot and a vote of the people.
In New Hampshire and Maine, some local elected officials have gone even further – refusing to allow duly-qualified citizen initiatives to be voted upon at annual Town Meeting. In at least one New Hampshire town, local elected officials have refused to sign an initiative even after it was legally adopted by the people of the town.
Corporations are working to restrict democratic rights to initiative as communities are advancing structural change – challenging the current system of law we live under, which insulates corporate projects from democratic control. In its place, these communities are moving forward a new system of law based on recognizing the right of communities to decide their own futures, and then elevating that community right above corporate “rights.” This new system is now beginning to forcibly crash into the older, existing one.
The ballot clashes in Ohio, Oregon, and elsewhere are all about the old system not going quietly.
The Old
Here’s how the system works today. Decisions made by the federal government trump the decisions and laws of state governments. Decisions and laws made by both federal and state governments trump the laws of local governments.
So, when the State of Vermont adopts a law requiring the labeling of food products containing genetically modified ingredients, the U.S. Congress can simply override it. It did so in 2016 when our representatives passed a law nullifying state efforts to mandate food labeling.
The more central an issue is to affecting commerce, the more preemptive rules you will find around it. For example, the federal government controls almost all issues dealing with oil and gas pipelines and the rail transportation of fossil fuels. Thus, those issues are lifted out of the hands of local and state governments.
State-level preemption operates in a similar fashion. Almost all states have oil and gas laws. Those laws regulate and control how fossil fuels are extracted. Those state laws have generally been found to abolish not only the authority of localities to determine how oil and gas is extracted, but whether oil and gas is extracted. Thus, state laws – such as those in Texas, Colorado, Pennsylvania, and Ohio – eliminate the authority of local communities to ban oil and gas extraction altogether.
Similarly, state legislatures across the country have adopted a slew of laws prohibiting communities from banning large corporate water withdrawals, dumping of toxic sewage sludge, and GMOs. Some states, including Pennsylvania and New York, have even authorized their state Attorneys General to act as private attorneys for corporations to sue communities who buck those laws.
It all boils down to this: If you have the financial and legal ability to control the uppermost levels of lawmaking and decision making, you don’t have to abide by the rights and wishes of the communities in which you operate.
But it Gets Even Better – Corporate “Rights”
There are rare cases in which people have actually been able to use their state or federal government to adopt laws that benefit the public interest. However, corporations then use the courts to either overturn those laws or severely limit their reach.
Corporations are the dominant economic players in our system. They have pioneered the use of corporate constitutional “rights” to attack any law that infringes upon their ability to engage in commerce or use corporate property. In today’s world, in which almost every meaningful reform affects commerce or property, it’s relatively easy to apply those “rights” to overturn laws that affect certain industries.
Thus, corporate free speech rights have been leveraged to overturn federal laws limiting corporate campaign donations; corporate religious rights have been used to limit healthcare legislation; corporate property rights have been used to overturn environmental regulations; and corporate commerce rights have been used to strike down regulations on coal mining, trucking, pipelines, waste disposal, and landfills.
Thus, when corporations lose at the ballot box, or in legislatures, they can resort to the safe harbor of the judiciary. This branch of government has shown itself more than willing to vindicate corporate “rights” to nullify laws that corporations don’t like. Making matters worse, state legislatures often take those court rulings and write them directly into state law – thus safeguarding those corporate “rights” by providing statutory protection for them.
Each round of this makes it harder to remove those corporate protections, adding more and more layers that must be peeled back in the future.
For “we the people” to get anything to stick, we are forced to successfully navigate every single gauntlet. We not only work to convince legislators to pass our laws, but then hope against hope that we can beat back the corporations as they sue us for violating the rules of preemption and corporate “rights.”
While we have to win at every level to succeed, corporations only need to win at one to put us back on the defensive.
It’s the ultimate rigged game. It works only because the system is so camouflaged to give it the appearance of being open to change, and so few people understand the degree to which it is rigged.
Is it any surprise that we’ve ended up where we are?
The New
Over the past twenty years, people in hundreds of communities across the U.S. have come face-to-face with the machinery of this system and its inevitable results.
Poll after poll and study after study reveal the same thing: People want healthy, safe communities and protections for nature. And yet our system has been engineered to deliver the opposite. Instead of recognizing the power of people to build those communities, it gives power to those interested in exploiting them.
Those trying to stop the spread of GMOs at the community level run up against state and federal laws that override their efforts. Those trying to stop corporate water withdrawals run up against state water resources laws. Those trying to stop the dumping of sewage sludge run up against state nutrient management acts. Those trying to ban fracking run up against state oil and gas acts. Those trying to stop oil and gas pipelines run up against preemptive federal authority lodged in agencies like the Federal Energy Regulatory Commission.
Many of those communities try to use traditional nuisance, land use, or zoning laws to stop those corporate projects. In doing so, they labor to find a loophole in the preemption laws, or they hire lawyers who have convinced the communities that concocting some kind of exception to those laws is possible.
They almost always lose. And even in those rare circumstances when they win, like a self-sealing tire, the system develops new laws that permanently seal the leak – so that other communities are unable to use the same arguments.
Many communities have learned from those losses and have begun to drive a new theory of law – one not focused on trying to find loopholes, crawling through exemptions, or finding the “right” judge who might look favorably on their lawmaking.
These communities have begun to understand that the individual threat or issue facing their community – fracking, GMOs, or otherwise – is just a symptom of this system, not the problem itself. That’s because the system we have doesn’t care what we want or need, no matter what the consequences to our communities and nature.
People in communities under threat are confronted with the reality of this existing system. They are concluding that without true decentralization of decision-making authority down to the community level, they’ll never be able to stop fracking or other threats from invading their communities. Further, they are realizing we’ll never be able to move toward anything close to sustainability. They’re arguing that the people of their communities possess a constitutional right of local, community self-government – the authority to govern themselves on issues that the corporate state has removed from their control.
What will it take for communities to actually have control over whether fossil fuels are shipped through them? To decide if pipelines are laid? To vote if GMOs are planted? To determine whether they are forced to become the unwilling hosts of factory farms, toxic dumps, or pollution factories?
It will take the entire system of law turned upside down.
That means that communities must be able to pass laws and make them stick. It means making those communities immune from corporate “rights” and the authority of “higher” governments to define what communities can and cannot do.
It means giving birth to community democracy – a concept that, itself, is actually older than the system we currently have.
The New – A Constitutional Right of Local Community Self-Government
Recognition by the courts of a constitutional right of local community self-government would have far-reaching consequences. A finding that the right exists would force other legal doctrines to give way to that right. This means, for example, that the use of corporate “rights” to overturn local laws would be precluded as running afoul of the right of self-government. So would the authority of the state and federal government to override certain types of local lawmaking.
Consider a rural community facing fracking. Today, under the old (existing) system, let’s say the community adopts a law, either by their elected officials or through an initiative process, to ban fracking for shale gas. The law perhaps establishes a local “bill of rights” that recognizes rights to clean air, pure water, and sustainable energy, and then bans fracking as a violation of those rights.
The law is inevitably challenged by oil and gas corporations affected by the ban. The constitutional right of the people to local community self-government is thus pitted directly against the corporate claimed constitutional “rights” and against the state government’s authority to prevent the community from adopting the law.
With the recognition of a constitutional right of local self-government, however, those corporate “rights” and the authority of the state government must give way to the people’s constitutional right to govern themselves.
Such a system, while recognizing the authority of the state and federal government to set a minimum “floor” for environmental, labor, and other standards, would prevent the state and federal government from prohibiting communities from setting higher standards, or from expanding civil and environmental rights at the local level. It is precisely that “ceiling” preemption where corporations have run amok – using that power to stop communities from prohibiting harmful corporate projects.
The Clash of the Old and the New
Because this new system is so unlike the old, it would be surprising if the corporate defenders of the old system wouldn’t be investing huge sums of money to stop this new system of law from being adopted by communities.
Over the past decade, as over two hundred communities in ten states have driven this new system into being, affected corporations have challenged a handful of those laws. Today, understanding the scope of change envisioned by the community rights movement, those corporations are now reaching into the elections system itself, to stop those laws even before they are adopted.
We need to understand that these corporate challenges are proof that the new system of law envisioned by communities is striking exactly as intended – directly at the very power currently wielded by corporations against people and nature.
We must respond by challenging not only the ability of corporations to stop these initiatives, but by directly challenging the authority of judges and courts to help them do it. If the actions of the corporations violate the people’s rights of self-government, and the corporations are unable to prevent community votes without the courts, then it’s time for more and more people to understand how the system itself stands in direct contrast to the “we the people” myth of American lore.
From there, rather than trying to reform the existing structure, more and more people will begin the real work of building a new one.
Please make a donation to help us support communities doing on-the-ground work to advance Community Rights in 2017. Your donation makes our work with communities to build the Community Rights Movement possible!
Feature Photo: Flickr Creative Commons: Black Lives Matter by Ella
In 2015, residents of several rural Ohio counties watched in shock as Ohio Secretary of State Jon Husted unilaterally removed citizen-sponsored initiatives from county ballots. The initiatives, which had already qualified for the ballot, would have banned oil and gas drilling and fracking in those communities.
The Ohio Supreme Court sharply rapped Husted’s knuckles for using authority he didn’t have. However, a year later, the people of those same counties watched in disbelief as Husted again blocked their initiatives. This time, the Ohio Supreme Court affirmed his actions.
It is not surprising that Husted – who as of this writing is running for governor – is the darling of the very oil and gas industry targeted by those local initiatives. Indeed, the industry has long-supported his electoral campaigns.
Democratic Rights Matter
The people of Ohio aren’t the only victims of their own government. Across the country we are seeing government efforts, often at the behest of corporations, to restrict the authority of “we the people” to the initiative. Government officials are taking this action even though the authority for initiative is codified in nearly half the state constitutions in the United States.
In Oregon, a cat-and-mouse game is underway between some of the country’s largest agribusiness corporations and residents of rural counties. People there are proposing local initiatives to ban aerial pesticide spraying and genetically modified crops. In response, corporations affected by those initiatives have lawyered-up, using obscure legal provisions to try to stop the initiatives from ever reaching the ballot.
In Washington State, at the urging of industry, courts have now adopted a rule that allows virtually any proposed citizen-sponsored initiative to be blocked by corporations before ever reaching the ballot and a vote of the people.
In New Hampshire and Maine, some local elected officials have gone even further – refusing to allow duly-qualified citizen initiatives to be voted upon at annual Town Meeting. In at least one New Hampshire town, local elected officials have refused to sign an initiative even after it was legally adopted by the people of the town.
Corporations are working to restrict democratic rights to initiative as communities are advancing structural change – challenging the current system of law we live under, which insulates corporate projects from democratic control. In its place, these communities are moving forward a new system of law based on recognizing the right of communities to decide their own futures, and then elevating that community right above corporate “rights.” This new system is now beginning to forcibly crash into the older, existing one.
The ballot clashes in Ohio, Oregon, and elsewhere are all about the old system not going quietly.
The Old
Here’s how the system works today. Decisions made by the federal government trump the decisions and laws of state governments. Decisions and laws made by both federal and state governments trump the laws of local governments.
So, when the State of Vermont adopts a law requiring the labeling of food products containing genetically modified ingredients, the U.S. Congress can simply override it. It did so in 2016 when our representatives passed a law nullifying state efforts to mandate food labeling.
The more central an issue is to affecting commerce, the more preemptive rules you will find around it. For example, the federal government controls almost all issues dealing with oil and gas pipelines and the rail transportation of fossil fuels. Thus, those issues are lifted out of the hands of local and state governments.
State-level preemption operates in a similar fashion. Almost all states have oil and gas laws. Those laws regulate and control how fossil fuels are extracted. Those state laws have generally been found to abolish not only the authority of localities to determine how oil and gas is extracted, but whether oil and gas is extracted. Thus, state laws – such as those in Texas, Colorado, Pennsylvania, and Ohio – eliminate the authority of local communities to ban oil and gas extraction altogether.
Similarly, state legislatures across the country have adopted a slew of laws prohibiting communities from banning large corporate water withdrawals, dumping of toxic sewage sludge, and GMOs. Some states, including Pennsylvania and New York, have even authorized their state Attorneys General to act as private attorneys for corporations to sue communities who buck those laws.
It all boils down to this: If you have the financial and legal ability to control the uppermost levels of lawmaking and decision making, you don’t have to abide by the rights and wishes of the communities in which you operate.
But it Gets Even Better – Corporate “Rights”
There are rare cases in which people have actually been able to use their state or federal government to adopt laws that benefit the public interest. However, corporations then use the courts to either overturn those laws or severely limit their reach.
Corporations are the dominant economic players in our system. They have pioneered the use of corporate constitutional “rights” to attack any law that infringes upon their ability to engage in commerce or use corporate property. In today’s world, in which almost every meaningful reform affects commerce or property, it’s relatively easy to apply those “rights” to overturn laws that affect certain industries.
Thus, corporate free speech rights have been leveraged to overturn federal laws limiting corporate campaign donations; corporate religious rights have been used to limit healthcare legislation; corporate property rights have been used to overturn environmental regulations; and corporate commerce rights have been used to strike down regulations on coal mining, trucking, pipelines, waste disposal, and landfills.
Thus, when corporations lose at the ballot box, or in legislatures, they can resort to the safe harbor of the judiciary. This branch of government has shown itself more than willing to vindicate corporate “rights” to nullify laws that corporations don’t like. Making matters worse, state legislatures often take those court rulings and write them directly into state law – thus safeguarding those corporate “rights” by providing statutory protection for them.
Each round of this makes it harder to remove those corporate protections, adding more and more layers that must be peeled back in the future.
For “we the people” to get anything to stick, we are forced to successfully navigate every single gauntlet. We not only work to convince legislators to pass our laws, but then hope against hope that we can beat back the corporations as they sue us for violating the rules of preemption and corporate “rights.”
While we have to win at every level to succeed, corporations only need to win at one to put us back on the defensive.
It’s the ultimate rigged game. It works only because the system is so camouflaged to give it the appearance of being open to change, and so few people understand the degree to which it is rigged.
Is it any surprise that we’ve ended up where we are?
The New
Over the past twenty years, people in hundreds of communities across the U.S. have come face-to-face with the machinery of this system and its inevitable results.
Poll after poll and study after study reveal the same thing: People want healthy, safe communities and protections for nature. And yet our system has been engineered to deliver the opposite. Instead of recognizing the power of people to build those communities, it gives power to those interested in exploiting them.
Those trying to stop the spread of GMOs at the community level run up against state and federal laws that override their efforts. Those trying to stop corporate water withdrawals run up against state water resources laws. Those trying to stop the dumping of sewage sludge run up against state nutrient management acts. Those trying to ban fracking run up against state oil and gas acts. Those trying to stop oil and gas pipelines run up against preemptive federal authority lodged in agencies like the Federal Energy Regulatory Commission.
Many of those communities try to use traditional nuisance, land use, or zoning laws to stop those corporate projects. In doing so, they labor to find a loophole in the preemption laws, or they hire lawyers who have convinced the communities that concocting some kind of exception to those laws is possible.
They almost always lose. And even in those rare circumstances when they win, like a self-sealing tire, the system develops new laws that permanently seal the leak – so that other communities are unable to use the same arguments.
Many communities have learned from those losses and have begun to drive a new theory of law – one not focused on trying to find loopholes, crawling through exemptions, or finding the “right” judge who might look favorably on their lawmaking.
These communities have begun to understand that the individual threat or issue facing their community – fracking, GMOs, or otherwise – is just a symptom of this system, not the problem itself. That’s because the system we have doesn’t care what we want or need, no matter what the consequences to our communities and nature.
People in communities under threat are confronted with the reality of this existing system. They are concluding that without true decentralization of decision-making authority down to the community level, they’ll never be able to stop fracking or other threats from invading their communities. Further, they are realizing we’ll never be able to move toward anything close to sustainability. They’re arguing that the people of their communities possess a constitutional right of local, community self-government – the authority to govern themselves on issues that the corporate state has removed from their control.
What will it take for communities to actually have control over whether fossil fuels are shipped through them? To decide if pipelines are laid? To vote if GMOs are planted? To determine whether they are forced to become the unwilling hosts of factory farms, toxic dumps, or pollution factories?
It will take the entire system of law turned upside down.
That means that communities must be able to pass laws and make them stick. It means making those communities immune from corporate “rights” and the authority of “higher” governments to define what communities can and cannot do.
It means giving birth to community democracy – a concept that, itself, is actually older than the system we currently have.
The New – A Constitutional Right of Local Community Self-Government
Recognition by the courts of a constitutional right of local community self-government would have far-reaching consequences. A finding that the right exists would force other legal doctrines to give way to that right. This means, for example, that the use of corporate “rights” to overturn local laws would be precluded as running afoul of the right of self-government. So would the authority of the state and federal government to override certain types of local lawmaking.
Consider a rural community facing fracking. Today, under the old (existing) system, let’s say the community adopts a law, either by their elected officials or through an initiative process, to ban fracking for shale gas. The law perhaps establishes a local “bill of rights” that recognizes rights to clean air, pure water, and sustainable energy, and then bans fracking as a violation of those rights.
The law is inevitably challenged by oil and gas corporations affected by the ban. The constitutional right of the people to local community self-government is thus pitted directly against the corporate claimed constitutional “rights” and against the state government’s authority to prevent the community from adopting the law.
With the recognition of a constitutional right of local self-government, however, those corporate “rights” and the authority of the state government must give way to the people’s constitutional right to govern themselves.
Such a system, while recognizing the authority of the state and federal government to set a minimum “floor” for environmental, labor, and other standards, would prevent the state and federal government from prohibiting communities from setting higher standards, or from expanding civil and environmental rights at the local level. It is precisely that “ceiling” preemption where corporations have run amok – using that power to stop communities from prohibiting harmful corporate projects.
The Clash of the Old and the New
Because this new system is so unlike the old, it would be surprising if the corporate defenders of the old system wouldn’t be investing huge sums of money to stop this new system of law from being adopted by communities.
Over the past decade, as over two hundred communities in ten states have driven this new system into being, affected corporations have challenged a handful of those laws. Today, understanding the scope of change envisioned by the community rights movement, those corporations are now reaching into the elections system itself, to stop those laws even before they are adopted.
We need to understand that these corporate challenges are proof that the new system of law envisioned by communities is striking exactly as intended – directly at the very power currently wielded by corporations against people and nature.
We must respond by challenging not only the ability of corporations to stop these initiatives, but by directly challenging the authority of judges and courts to help them do it. If the actions of the corporations violate the people’s rights of self-government, and the corporations are unable to prevent community votes without the courts, then it’s time for more and more people to understand how the system itself stands in direct contrast to the “we the people” myth of American lore.
From there, rather than trying to reform the existing structure, more and more people will begin the real work of building a new one.
Please make a donation to help us support communities doing on-the-ground work to advance Community Rights in 2017. Your donation makes our work with communities to build the Community Rights Movement possible!
Feature Photo: Flickr Creative Commons: Black Lives Matter by Ella
In 2015, residents of several rural Ohio counties watched in shock as Ohio Secretary of State Jon Husted unilaterally removed citizen-sponsored initiatives from county ballots. The initiatives, which had already qualified for the ballot, would have banned oil and gas drilling and fracking in those communities.
The Ohio Supreme Court sharply rapped Husted’s knuckles for using authority he didn’t have. However, a year later, the people of those same counties watched in disbelief as Husted again blocked their initiatives. This time, the Ohio Supreme Court affirmed his actions.
It is not surprising that Husted – who as of this writing is running for governor – is the darling of the very oil and gas industry targeted by those local initiatives. Indeed, the industry has long-supported his electoral campaigns.
Democratic Rights Matter
The people of Ohio aren’t the only victims of their own government. Across the country we are seeing government efforts, often at the behest of corporations, to restrict the authority of “we the people” to the initiative. Government officials are taking this action even though the authority for initiative is codified in nearly half the state constitutions in the United States.
In Oregon, a cat-and-mouse game is underway between some of the country’s largest agribusiness corporations and residents of rural counties. People there are proposing local initiatives to ban aerial pesticide spraying and genetically modified crops. In response, corporations affected by those initiatives have lawyered-up, using obscure legal provisions to try to stop the initiatives from ever reaching the ballot.
In Washington State, at the urging of industry, courts have now adopted a rule that allows virtually any proposed citizen-sponsored initiative to be blocked by corporations before ever reaching the ballot and a vote of the people.
In New Hampshire and Maine, some local elected officials have gone even further – refusing to allow duly-qualified citizen initiatives to be voted upon at annual Town Meeting. In at least one New Hampshire town, local elected officials have refused to sign an initiative even after it was legally adopted by the people of the town.
Corporations are working to restrict democratic rights to initiative as communities are advancing structural change – challenging the current system of law we live under, which insulates corporate projects from democratic control. In its place, these communities are moving forward a new system of law based on recognizing the right of communities to decide their own futures, and then elevating that community right above corporate “rights.” This new system is now beginning to forcibly crash into the older, existing one.
The ballot clashes in Ohio, Oregon, and elsewhere are all about the old system not going quietly.
The Old
Here’s how the system works today. Decisions made by the federal government trump the decisions and laws of state governments. Decisions and laws made by both federal and state governments trump the laws of local governments.
So, when the State of Vermont adopts a law requiring the labeling of food products containing genetically modified ingredients, the U.S. Congress can simply override it. It did so in 2016 when our representatives passed a law nullifying state efforts to mandate food labeling.
The more central an issue is to affecting commerce, the more preemptive rules you will find around it. For example, the federal government controls almost all issues dealing with oil and gas pipelines and the rail transportation of fossil fuels. Thus, those issues are lifted out of the hands of local and state governments.
State-level preemption operates in a similar fashion. Almost all states have oil and gas laws. Those laws regulate and control how fossil fuels are extracted. Those state laws have generally been found to abolish not only the authority of localities to determine how oil and gas is extracted, but whether oil and gas is extracted. Thus, state laws – such as those in Texas, Colorado, Pennsylvania, and Ohio – eliminate the authority of local communities to ban oil and gas extraction altogether.
Similarly, state legislatures across the country have adopted a slew of laws prohibiting communities from banning large corporate water withdrawals, dumping of toxic sewage sludge, and GMOs. Some states, including Pennsylvania and New York, have even authorized their state Attorneys General to act as private attorneys for corporations to sue communities who buck those laws.
It all boils down to this: If you have the financial and legal ability to control the uppermost levels of lawmaking and decision making, you don’t have to abide by the rights and wishes of the communities in which you operate.
But it Gets Even Better – Corporate “Rights”
There are rare cases in which people have actually been able to use their state or federal government to adopt laws that benefit the public interest. However, corporations then use the courts to either overturn those laws or severely limit their reach.
Corporations are the dominant economic players in our system. They have pioneered the use of corporate constitutional “rights” to attack any law that infringes upon their ability to engage in commerce or use corporate property. In today’s world, in which almost every meaningful reform affects commerce or property, it’s relatively easy to apply those “rights” to overturn laws that affect certain industries.
Thus, corporate free speech rights have been leveraged to overturn federal laws limiting corporate campaign donations; corporate religious rights have been used to limit healthcare legislation; corporate property rights have been used to overturn environmental regulations; and corporate commerce rights have been used to strike down regulations on coal mining, trucking, pipelines, waste disposal, and landfills.
Thus, when corporations lose at the ballot box, or in legislatures, they can resort to the safe harbor of the judiciary. This branch of government has shown itself more than willing to vindicate corporate “rights” to nullify laws that corporations don’t like. Making matters worse, state legislatures often take those court rulings and write them directly into state law – thus safeguarding those corporate “rights” by providing statutory protection for them.
Each round of this makes it harder to remove those corporate protections, adding more and more layers that must be peeled back in the future.
For “we the people” to get anything to stick, we are forced to successfully navigate every single gauntlet. We not only work to convince legislators to pass our laws, but then hope against hope that we can beat back the corporations as they sue us for violating the rules of preemption and corporate “rights.”
While we have to win at every level to succeed, corporations only need to win at one to put us back on the defensive.
It’s the ultimate rigged game. It works only because the system is so camouflaged to give it the appearance of being open to change, and so few people understand the degree to which it is rigged.
Is it any surprise that we’ve ended up where we are?
The New
Over the past twenty years, people in hundreds of communities across the U.S. have come face-to-face with the machinery of this system and its inevitable results.
Poll after poll and study after study reveal the same thing: People want healthy, safe communities and protections for nature. And yet our system has been engineered to deliver the opposite. Instead of recognizing the power of people to build those communities, it gives power to those interested in exploiting them.
Those trying to stop the spread of GMOs at the community level run up against state and federal laws that override their efforts. Those trying to stop corporate water withdrawals run up against state water resources laws. Those trying to stop the dumping of sewage sludge run up against state nutrient management acts. Those trying to ban fracking run up against state oil and gas acts. Those trying to stop oil and gas pipelines run up against preemptive federal authority lodged in agencies like the Federal Energy Regulatory Commission.
Many of those communities try to use traditional nuisance, land use, or zoning laws to stop those corporate projects. In doing so, they labor to find a loophole in the preemption laws, or they hire lawyers who have convinced the communities that concocting some kind of exception to those laws is possible.
They almost always lose. And even in those rare circumstances when they win, like a self-sealing tire, the system develops new laws that permanently seal the leak – so that other communities are unable to use the same arguments.
Many communities have learned from those losses and have begun to drive a new theory of law – one not focused on trying to find loopholes, crawling through exemptions, or finding the “right” judge who might look favorably on their lawmaking.
These communities have begun to understand that the individual threat or issue facing their community – fracking, GMOs, or otherwise – is just a symptom of this system, not the problem itself. That’s because the system we have doesn’t care what we want or need, no matter what the consequences to our communities and nature.
People in communities under threat are confronted with the reality of this existing system. They are concluding that without true decentralization of decision-making authority down to the community level, they’ll never be able to stop fracking or other threats from invading their communities. Further, they are realizing we’ll never be able to move toward anything close to sustainability. They’re arguing that the people of their communities possess a constitutional right of local, community self-government – the authority to govern themselves on issues that the corporate state has removed from their control.
What will it take for communities to actually have control over whether fossil fuels are shipped through them? To decide if pipelines are laid? To vote if GMOs are planted? To determine whether they are forced to become the unwilling hosts of factory farms, toxic dumps, or pollution factories?
It will take the entire system of law turned upside down.
That means that communities must be able to pass laws and make them stick. It means making those communities immune from corporate “rights” and the authority of “higher” governments to define what communities can and cannot do.
It means giving birth to community democracy – a concept that, itself, is actually older than the system we currently have.
The New – A Constitutional Right of Local Community Self-Government
Recognition by the courts of a constitutional right of local community self-government would have far-reaching consequences. A finding that the right exists would force other legal doctrines to give way to that right. This means, for example, that the use of corporate “rights” to overturn local laws would be precluded as running afoul of the right of self-government. So would the authority of the state and federal government to override certain types of local lawmaking.
Consider a rural community facing fracking. Today, under the old (existing) system, let’s say the community adopts a law, either by their elected officials or through an initiative process, to ban fracking for shale gas. The law perhaps establishes a local “bill of rights” that recognizes rights to clean air, pure water, and sustainable energy, and then bans fracking as a violation of those rights.
The law is inevitably challenged by oil and gas corporations affected by the ban. The constitutional right of the people to local community self-government is thus pitted directly against the corporate claimed constitutional “rights” and against the state government’s authority to prevent the community from adopting the law.
With the recognition of a constitutional right of local self-government, however, those corporate “rights” and the authority of the state government must give way to the people’s constitutional right to govern themselves.
Such a system, while recognizing the authority of the state and federal government to set a minimum “floor” for environmental, labor, and other standards, would prevent the state and federal government from prohibiting communities from setting higher standards, or from expanding civil and environmental rights at the local level. It is precisely that “ceiling” preemption where corporations have run amok – using that power to stop communities from prohibiting harmful corporate projects.
The Clash of the Old and the New
Because this new system is so unlike the old, it would be surprising if the corporate defenders of the old system wouldn’t be investing huge sums of money to stop this new system of law from being adopted by communities.
Over the past decade, as over two hundred communities in ten states have driven this new system into being, affected corporations have challenged a handful of those laws. Today, understanding the scope of change envisioned by the community rights movement, those corporations are now reaching into the elections system itself, to stop those laws even before they are adopted.
We need to understand that these corporate challenges are proof that the new system of law envisioned by communities is striking exactly as intended – directly at the very power currently wielded by corporations against people and nature.
We must respond by challenging not only the ability of corporations to stop these initiatives, but by directly challenging the authority of judges and courts to help them do it. If the actions of the corporations violate the people’s rights of self-government, and the corporations are unable to prevent community votes without the courts, then it’s time for more and more people to understand how the system itself stands in direct contrast to the “we the people” myth of American lore.
From there, rather than trying to reform the existing structure, more and more people will begin the real work of building a new one.
Please make a donation to help us support communities doing on-the-ground work to advance Community Rights in 2017. Your donation makes our work with communities to build the Community Rights Movement possible!
Feature Photo: Flickr Creative Commons: Black Lives Matter by Ella
In 2015, residents of several rural Ohio counties watched in shock as Ohio Secretary of State Jon Husted unilaterally removed citizen-sponsored initiatives from county ballots. The initiatives, which had already qualified for the ballot, would have banned oil and gas drilling and fracking in those communities.
The Ohio Supreme Court sharply rapped Husted’s knuckles for using authority he didn’t have. However, a year later, the people of those same counties watched in disbelief as Husted again blocked their initiatives. This time, the Ohio Supreme Court affirmed his actions.
It is not surprising that Husted – who as of this writing is running for governor – is the darling of the very oil and gas industry targeted by those local initiatives. Indeed, the industry has long-supported his electoral campaigns.
Democratic Rights Matter
The people of Ohio aren’t the only victims of their own government. Across the country we are seeing government efforts, often at the behest of corporations, to restrict the authority of “we the people” to the initiative. Government officials are taking this action even though the authority for initiative is codified in nearly half the state constitutions in the United States.
In Oregon, a cat-and-mouse game is underway between some of the country’s largest agribusiness corporations and residents of rural counties. People there are proposing local initiatives to ban aerial pesticide spraying and genetically modified crops. In response, corporations affected by those initiatives have lawyered-up, using obscure legal provisions to try to stop the initiatives from ever reaching the ballot.
In Washington State, at the urging of industry, courts have now adopted a rule that allows virtually any proposed citizen-sponsored initiative to be blocked by corporations before ever reaching the ballot and a vote of the people.
In New Hampshire and Maine, some local elected officials have gone even further – refusing to allow duly-qualified citizen initiatives to be voted upon at annual Town Meeting. In at least one New Hampshire town, local elected officials have refused to sign an initiative even after it was legally adopted by the people of the town.
Corporations are working to restrict democratic rights to initiative as communities are advancing structural change – challenging the current system of law we live under, which insulates corporate projects from democratic control. In its place, these communities are moving forward a new system of law based on recognizing the right of communities to decide their own futures, and then elevating that community right above corporate “rights.” This new system is now beginning to forcibly crash into the older, existing one.
The ballot clashes in Ohio, Oregon, and elsewhere are all about the old system not going quietly.
The Old
Here’s how the system works today. Decisions made by the federal government trump the decisions and laws of state governments. Decisions and laws made by both federal and state governments trump the laws of local governments.
So, when the State of Vermont adopts a law requiring the labeling of food products containing genetically modified ingredients, the U.S. Congress can simply override it. It did so in 2016 when our representatives passed a law nullifying state efforts to mandate food labeling.
The more central an issue is to affecting commerce, the more preemptive rules you will find around it. For example, the federal government controls almost all issues dealing with oil and gas pipelines and the rail transportation of fossil fuels. Thus, those issues are lifted out of the hands of local and state governments.
State-level preemption operates in a similar fashion. Almost all states have oil and gas laws. Those laws regulate and control how fossil fuels are extracted. Those state laws have generally been found to abolish not only the authority of localities to determine how oil and gas is extracted, but whether oil and gas is extracted. Thus, state laws – such as those in Texas, Colorado, Pennsylvania, and Ohio – eliminate the authority of local communities to ban oil and gas extraction altogether.
Similarly, state legislatures across the country have adopted a slew of laws prohibiting communities from banning large corporate water withdrawals, dumping of toxic sewage sludge, and GMOs. Some states, including Pennsylvania and New York, have even authorized their state Attorneys General to act as private attorneys for corporations to sue communities who buck those laws.
It all boils down to this: If you have the financial and legal ability to control the uppermost levels of lawmaking and decision making, you don’t have to abide by the rights and wishes of the communities in which you operate.
But it Gets Even Better – Corporate “Rights”
There are rare cases in which people have actually been able to use their state or federal government to adopt laws that benefit the public interest. However, corporations then use the courts to either overturn those laws or severely limit their reach.
Corporations are the dominant economic players in our system. They have pioneered the use of corporate constitutional “rights” to attack any law that infringes upon their ability to engage in commerce or use corporate property. In today’s world, in which almost every meaningful reform affects commerce or property, it’s relatively easy to apply those “rights” to overturn laws that affect certain industries.
Thus, corporate free speech rights have been leveraged to overturn federal laws limiting corporate campaign donations; corporate religious rights have been used to limit healthcare legislation; corporate property rights have been used to overturn environmental regulations; and corporate commerce rights have been used to strike down regulations on coal mining, trucking, pipelines, waste disposal, and landfills.
Thus, when corporations lose at the ballot box, or in legislatures, they can resort to the safe harbor of the judiciary. This branch of government has shown itself more than willing to vindicate corporate “rights” to nullify laws that corporations don’t like. Making matters worse, state legislatures often take those court rulings and write them directly into state law – thus safeguarding those corporate “rights” by providing statutory protection for them.
Each round of this makes it harder to remove those corporate protections, adding more and more layers that must be peeled back in the future.
For “we the people” to get anything to stick, we are forced to successfully navigate every single gauntlet. We not only work to convince legislators to pass our laws, but then hope against hope that we can beat back the corporations as they sue us for violating the rules of preemption and corporate “rights.”
While we have to win at every level to succeed, corporations only need to win at one to put us back on the defensive.
It’s the ultimate rigged game. It works only because the system is so camouflaged to give it the appearance of being open to change, and so few people understand the degree to which it is rigged.
Is it any surprise that we’ve ended up where we are?
The New
Over the past twenty years, people in hundreds of communities across the U.S. have come face-to-face with the machinery of this system and its inevitable results.
Poll after poll and study after study reveal the same thing: People want healthy, safe communities and protections for nature. And yet our system has been engineered to deliver the opposite. Instead of recognizing the power of people to build those communities, it gives power to those interested in exploiting them.
Those trying to stop the spread of GMOs at the community level run up against state and federal laws that override their efforts. Those trying to stop corporate water withdrawals run up against state water resources laws. Those trying to stop the dumping of sewage sludge run up against state nutrient management acts. Those trying to ban fracking run up against state oil and gas acts. Those trying to stop oil and gas pipelines run up against preemptive federal authority lodged in agencies like the Federal Energy Regulatory Commission.
Many of those communities try to use traditional nuisance, land use, or zoning laws to stop those corporate projects. In doing so, they labor to find a loophole in the preemption laws, or they hire lawyers who have convinced the communities that concocting some kind of exception to those laws is possible.
They almost always lose. And even in those rare circumstances when they win, like a self-sealing tire, the system develops new laws that permanently seal the leak – so that other communities are unable to use the same arguments.
Many communities have learned from those losses and have begun to drive a new theory of law – one not focused on trying to find loopholes, crawling through exemptions, or finding the “right” judge who might look favorably on their lawmaking.
These communities have begun to understand that the individual threat or issue facing their community – fracking, GMOs, or otherwise – is just a symptom of this system, not the problem itself. That’s because the system we have doesn’t care what we want or need, no matter what the consequences to our communities and nature.
People in communities under threat are confronted with the reality of this existing system. They are concluding that without true decentralization of decision-making authority down to the community level, they’ll never be able to stop fracking or other threats from invading their communities. Further, they are realizing we’ll never be able to move toward anything close to sustainability. They’re arguing that the people of their communities possess a constitutional right of local, community self-government – the authority to govern themselves on issues that the corporate state has removed from their control.
What will it take for communities to actually have control over whether fossil fuels are shipped through them? To decide if pipelines are laid? To vote if GMOs are planted? To determine whether they are forced to become the unwilling hosts of factory farms, toxic dumps, or pollution factories?
It will take the entire system of law turned upside down.
That means that communities must be able to pass laws and make them stick. It means making those communities immune from corporate “rights” and the authority of “higher” governments to define what communities can and cannot do.
It means giving birth to community democracy – a concept that, itself, is actually older than the system we currently have.
The New – A Constitutional Right of Local Community Self-Government
Recognition by the courts of a constitutional right of local community self-government would have far-reaching consequences. A finding that the right exists would force other legal doctrines to give way to that right. This means, for example, that the use of corporate “rights” to overturn local laws would be precluded as running afoul of the right of self-government. So would the authority of the state and federal government to override certain types of local lawmaking.
Consider a rural community facing fracking. Today, under the old (existing) system, let’s say the community adopts a law, either by their elected officials or through an initiative process, to ban fracking for shale gas. The law perhaps establishes a local “bill of rights” that recognizes rights to clean air, pure water, and sustainable energy, and then bans fracking as a violation of those rights.
The law is inevitably challenged by oil and gas corporations affected by the ban. The constitutional right of the people to local community self-government is thus pitted directly against the corporate claimed constitutional “rights” and against the state government’s authority to prevent the community from adopting the law.
With the recognition of a constitutional right of local self-government, however, those corporate “rights” and the authority of the state government must give way to the people’s constitutional right to govern themselves.
Such a system, while recognizing the authority of the state and federal government to set a minimum “floor” for environmental, labor, and other standards, would prevent the state and federal government from prohibiting communities from setting higher standards, or from expanding civil and environmental rights at the local level. It is precisely that “ceiling” preemption where corporations have run amok – using that power to stop communities from prohibiting harmful corporate projects.
The Clash of the Old and the New
Because this new system is so unlike the old, it would be surprising if the corporate defenders of the old system wouldn’t be investing huge sums of money to stop this new system of law from being adopted by communities.
Over the past decade, as over two hundred communities in ten states have driven this new system into being, affected corporations have challenged a handful of those laws. Today, understanding the scope of change envisioned by the community rights movement, those corporations are now reaching into the elections system itself, to stop those laws even before they are adopted.
We need to understand that these corporate challenges are proof that the new system of law envisioned by communities is striking exactly as intended – directly at the very power currently wielded by corporations against people and nature.
We must respond by challenging not only the ability of corporations to stop these initiatives, but by directly challenging the authority of judges and courts to help them do it. If the actions of the corporations violate the people’s rights of self-government, and the corporations are unable to prevent community votes without the courts, then it’s time for more and more people to understand how the system itself stands in direct contrast to the “we the people” myth of American lore.
From there, rather than trying to reform the existing structure, more and more people will begin the real work of building a new one.
Please make a donation to help us support communities doing on-the-ground work to advance Community Rights in 2017. Your donation makes our work with communities to build the Community Rights Movement possible!
Feature Photo: Flickr Creative Commons: Black Lives Matter by Ella
In 2015, residents of several rural Ohio counties watched in shock as Ohio Secretary of State Jon Husted unilaterally removed citizen-sponsored initiatives from county ballots. The initiatives, which had already qualified for the ballot, would have banned oil and gas drilling and fracking in those communities.
The Ohio Supreme Court sharply rapped Husted’s knuckles for using authority he didn’t have. However, a year later, the people of those same counties watched in disbelief as Husted again blocked their initiatives. This time, the Ohio Supreme Court affirmed his actions.
It is not surprising that Husted – who as of this writing is running for governor – is the darling of the very oil and gas industry targeted by those local initiatives. Indeed, the industry has long-supported his electoral campaigns.
Democratic Rights Matter
The people of Ohio aren’t the only victims of their own government. Across the country we are seeing government efforts, often at the behest of corporations, to restrict the authority of “we the people” to the initiative. Government officials are taking this action even though the authority for initiative is codified in nearly half the state constitutions in the United States.
In Oregon, a cat-and-mouse game is underway between some of the country’s largest agribusiness corporations and residents of rural counties. People there are proposing local initiatives to ban aerial pesticide spraying and genetically modified crops. In response, corporations affected by those initiatives have lawyered-up, using obscure legal provisions to try to stop the initiatives from ever reaching the ballot.
In Washington State, at the urging of industry, courts have now adopted a rule that allows virtually any proposed citizen-sponsored initiative to be blocked by corporations before ever reaching the ballot and a vote of the people.
In New Hampshire and Maine, some local elected officials have gone even further – refusing to allow duly-qualified citizen initiatives to be voted upon at annual Town Meeting. In at least one New Hampshire town, local elected officials have refused to sign an initiative even after it was legally adopted by the people of the town.
Corporations are working to restrict democratic rights to initiative as communities are advancing structural change – challenging the current system of law we live under, which insulates corporate projects from democratic control. In its place, these communities are moving forward a new system of law based on recognizing the right of communities to decide their own futures, and then elevating that community right above corporate “rights.” This new system is now beginning to forcibly crash into the older, existing one.
The ballot clashes in Ohio, Oregon, and elsewhere are all about the old system not going quietly.
The Old
Here’s how the system works today. Decisions made by the federal government trump the decisions and laws of state governments. Decisions and laws made by both federal and state governments trump the laws of local governments.
So, when the State of Vermont adopts a law requiring the labeling of food products containing genetically modified ingredients, the U.S. Congress can simply override it. It did so in 2016 when our representatives passed a law nullifying state efforts to mandate food labeling.
The more central an issue is to affecting commerce, the more preemptive rules you will find around it. For example, the federal government controls almost all issues dealing with oil and gas pipelines and the rail transportation of fossil fuels. Thus, those issues are lifted out of the hands of local and state governments.
State-level preemption operates in a similar fashion. Almost all states have oil and gas laws. Those laws regulate and control how fossil fuels are extracted. Those state laws have generally been found to abolish not only the authority of localities to determine how oil and gas is extracted, but whether oil and gas is extracted. Thus, state laws – such as those in Texas, Colorado, Pennsylvania, and Ohio – eliminate the authority of local communities to ban oil and gas extraction altogether.
Similarly, state legislatures across the country have adopted a slew of laws prohibiting communities from banning large corporate water withdrawals, dumping of toxic sewage sludge, and GMOs. Some states, including Pennsylvania and New York, have even authorized their state Attorneys General to act as private attorneys for corporations to sue communities who buck those laws.
It all boils down to this: If you have the financial and legal ability to control the uppermost levels of lawmaking and decision making, you don’t have to abide by the rights and wishes of the communities in which you operate.
But it Gets Even Better – Corporate “Rights”
There are rare cases in which people have actually been able to use their state or federal government to adopt laws that benefit the public interest. However, corporations then use the courts to either overturn those laws or severely limit their reach.
Corporations are the dominant economic players in our system. They have pioneered the use of corporate constitutional “rights” to attack any law that infringes upon their ability to engage in commerce or use corporate property. In today’s world, in which almost every meaningful reform affects commerce or property, it’s relatively easy to apply those “rights” to overturn laws that affect certain industries.
Thus, corporate free speech rights have been leveraged to overturn federal laws limiting corporate campaign donations; corporate religious rights have been used to limit healthcare legislation; corporate property rights have been used to overturn environmental regulations; and corporate commerce rights have been used to strike down regulations on coal mining, trucking, pipelines, waste disposal, and landfills.
Thus, when corporations lose at the ballot box, or in legislatures, they can resort to the safe harbor of the judiciary. This branch of government has shown itself more than willing to vindicate corporate “rights” to nullify laws that corporations don’t like. Making matters worse, state legislatures often take those court rulings and write them directly into state law – thus safeguarding those corporate “rights” by providing statutory protection for them.
Each round of this makes it harder to remove those corporate protections, adding more and more layers that must be peeled back in the future.
For “we the people” to get anything to stick, we are forced to successfully navigate every single gauntlet. We not only work to convince legislators to pass our laws, but then hope against hope that we can beat back the corporations as they sue us for violating the rules of preemption and corporate “rights.”
While we have to win at every level to succeed, corporations only need to win at one to put us back on the defensive.
It’s the ultimate rigged game. It works only because the system is so camouflaged to give it the appearance of being open to change, and so few people understand the degree to which it is rigged.
Is it any surprise that we’ve ended up where we are?
The New
Over the past twenty years, people in hundreds of communities across the U.S. have come face-to-face with the machinery of this system and its inevitable results.
Poll after poll and study after study reveal the same thing: People want healthy, safe communities and protections for nature. And yet our system has been engineered to deliver the opposite. Instead of recognizing the power of people to build those communities, it gives power to those interested in exploiting them.
Those trying to stop the spread of GMOs at the community level run up against state and federal laws that override their efforts. Those trying to stop corporate water withdrawals run up against state water resources laws. Those trying to stop the dumping of sewage sludge run up against state nutrient management acts. Those trying to ban fracking run up against state oil and gas acts. Those trying to stop oil and gas pipelines run up against preemptive federal authority lodged in agencies like the Federal Energy Regulatory Commission.
Many of those communities try to use traditional nuisance, land use, or zoning laws to stop those corporate projects. In doing so, they labor to find a loophole in the preemption laws, or they hire lawyers who have convinced the communities that concocting some kind of exception to those laws is possible.
They almost always lose. And even in those rare circumstances when they win, like a self-sealing tire, the system develops new laws that permanently seal the leak – so that other communities are unable to use the same arguments.
Many communities have learned from those losses and have begun to drive a new theory of law – one not focused on trying to find loopholes, crawling through exemptions, or finding the “right” judge who might look favorably on their lawmaking.
These communities have begun to understand that the individual threat or issue facing their community – fracking, GMOs, or otherwise – is just a symptom of this system, not the problem itself. That’s because the system we have doesn’t care what we want or need, no matter what the consequences to our communities and nature.
People in communities under threat are confronted with the reality of this existing system. They are concluding that without true decentralization of decision-making authority down to the community level, they’ll never be able to stop fracking or other threats from invading their communities. Further, they are realizing we’ll never be able to move toward anything close to sustainability. They’re arguing that the people of their communities possess a constitutional right of local, community self-government – the authority to govern themselves on issues that the corporate state has removed from their control.
What will it take for communities to actually have control over whether fossil fuels are shipped through them? To decide if pipelines are laid? To vote if GMOs are planted? To determine whether they are forced to become the unwilling hosts of factory farms, toxic dumps, or pollution factories?
It will take the entire system of law turned upside down.
That means that communities must be able to pass laws and make them stick. It means making those communities immune from corporate “rights” and the authority of “higher” governments to define what communities can and cannot do.
It means giving birth to community democracy – a concept that, itself, is actually older than the system we currently have.
The New – A Constitutional Right of Local Community Self-Government
Recognition by the courts of a constitutional right of local community self-government would have far-reaching consequences. A finding that the right exists would force other legal doctrines to give way to that right. This means, for example, that the use of corporate “rights” to overturn local laws would be precluded as running afoul of the right of self-government. So would the authority of the state and federal government to override certain types of local lawmaking.
Consider a rural community facing fracking. Today, under the old (existing) system, let’s say the community adopts a law, either by their elected officials or through an initiative process, to ban fracking for shale gas. The law perhaps establishes a local “bill of rights” that recognizes rights to clean air, pure water, and sustainable energy, and then bans fracking as a violation of those rights.
The law is inevitably challenged by oil and gas corporations affected by the ban. The constitutional right of the people to local community self-government is thus pitted directly against the corporate claimed constitutional “rights” and against the state government’s authority to prevent the community from adopting the law.
With the recognition of a constitutional right of local self-government, however, those corporate “rights” and the authority of the state government must give way to the people’s constitutional right to govern themselves.
Such a system, while recognizing the authority of the state and federal government to set a minimum “floor” for environmental, labor, and other standards, would prevent the state and federal government from prohibiting communities from setting higher standards, or from expanding civil and environmental rights at the local level. It is precisely that “ceiling” preemption where corporations have run amok – using that power to stop communities from prohibiting harmful corporate projects.
The Clash of the Old and the New
Because this new system is so unlike the old, it would be surprising if the corporate defenders of the old system wouldn’t be investing huge sums of money to stop this new system of law from being adopted by communities.
Over the past decade, as over two hundred communities in ten states have driven this new system into being, affected corporations have challenged a handful of those laws. Today, understanding the scope of change envisioned by the community rights movement, those corporations are now reaching into the elections system itself, to stop those laws even before they are adopted.
We need to understand that these corporate challenges are proof that the new system of law envisioned by communities is striking exactly as intended – directly at the very power currently wielded by corporations against people and nature.
We must respond by challenging not only the ability of corporations to stop these initiatives, but by directly challenging the authority of judges and courts to help them do it. If the actions of the corporations violate the people’s rights of self-government, and the corporations are unable to prevent community votes without the courts, then it’s time for more and more people to understand how the system itself stands in direct contrast to the “we the people” myth of American lore.
From there, rather than trying to reform the existing structure, more and more people will begin the real work of building a new one.
Please make a donation to help us support communities doing on-the-ground work to advance Community Rights in 2017. Your donation makes our work with communities to build the Community Rights Movement possible!
Feature Photo: Flickr Creative Commons: Black Lives Matter by Ella
In 2015, residents of several rural Ohio counties watched in shock as Ohio Secretary of State Jon Husted unilaterally removed citizen-sponsored initiatives from county ballots. The initiatives, which had already qualified for the ballot, would have banned oil and gas drilling and fracking in those communities.
The Ohio Supreme Court sharply rapped Husted’s knuckles for using authority he didn’t have. However, a year later, the people of those same counties watched in disbelief as Husted again blocked their initiatives. This time, the Ohio Supreme Court affirmed his actions.
It is not surprising that Husted – who as of this writing is running for governor – is the darling of the very oil and gas industry targeted by those local initiatives. Indeed, the industry has long-supported his electoral campaigns.
Democratic Rights Matter
The people of Ohio aren’t the only victims of their own government. Across the country we are seeing government efforts, often at the behest of corporations, to restrict the authority of “we the people” to the initiative. Government officials are taking this action even though the authority for initiative is codified in nearly half the state constitutions in the United States.
In Oregon, a cat-and-mouse game is underway between some of the country’s largest agribusiness corporations and residents of rural counties. People there are proposing local initiatives to ban aerial pesticide spraying and genetically modified crops. In response, corporations affected by those initiatives have lawyered-up, using obscure legal provisions to try to stop the initiatives from ever reaching the ballot.
In Washington State, at the urging of industry, courts have now adopted a rule that allows virtually any proposed citizen-sponsored initiative to be blocked by corporations before ever reaching the ballot and a vote of the people.
In New Hampshire and Maine, some local elected officials have gone even further – refusing to allow duly-qualified citizen initiatives to be voted upon at annual Town Meeting. In at least one New Hampshire town, local elected officials have refused to sign an initiative even after it was legally adopted by the people of the town.
Corporations are working to restrict democratic rights to initiative as communities are advancing structural change – challenging the current system of law we live under, which insulates corporate projects from democratic control. In its place, these communities are moving forward a new system of law based on recognizing the right of communities to decide their own futures, and then elevating that community right above corporate “rights.” This new system is now beginning to forcibly crash into the older, existing one.
The ballot clashes in Ohio, Oregon, and elsewhere are all about the old system not going quietly.
The Old
Here’s how the system works today. Decisions made by the federal government trump the decisions and laws of state governments. Decisions and laws made by both federal and state governments trump the laws of local governments.
So, when the State of Vermont adopts a law requiring the labeling of food products containing genetically modified ingredients, the U.S. Congress can simply override it. It did so in 2016 when our representatives passed a law nullifying state efforts to mandate food labeling.
The more central an issue is to affecting commerce, the more preemptive rules you will find around it. For example, the federal government controls almost all issues dealing with oil and gas pipelines and the rail transportation of fossil fuels. Thus, those issues are lifted out of the hands of local and state governments.
State-level preemption operates in a similar fashion. Almost all states have oil and gas laws. Those laws regulate and control how fossil fuels are extracted. Those state laws have generally been found to abolish not only the authority of localities to determine how oil and gas is extracted, but whether oil and gas is extracted. Thus, state laws – such as those in Texas, Colorado, Pennsylvania, and Ohio – eliminate the authority of local communities to ban oil and gas extraction altogether.
Similarly, state legislatures across the country have adopted a slew of laws prohibiting communities from banning large corporate water withdrawals, dumping of toxic sewage sludge, and GMOs. Some states, including Pennsylvania and New York, have even authorized their state Attorneys General to act as private attorneys for corporations to sue communities who buck those laws.
It all boils down to this: If you have the financial and legal ability to control the uppermost levels of lawmaking and decision making, you don’t have to abide by the rights and wishes of the communities in which you operate.
But it Gets Even Better – Corporate “Rights”
There are rare cases in which people have actually been able to use their state or federal government to adopt laws that benefit the public interest. However, corporations then use the courts to either overturn those laws or severely limit their reach.
Corporations are the dominant economic players in our system. They have pioneered the use of corporate constitutional “rights” to attack any law that infringes upon their ability to engage in commerce or use corporate property. In today’s world, in which almost every meaningful reform affects commerce or property, it’s relatively easy to apply those “rights” to overturn laws that affect certain industries.
Thus, corporate free speech rights have been leveraged to overturn federal laws limiting corporate campaign donations; corporate religious rights have been used to limit healthcare legislation; corporate property rights have been used to overturn environmental regulations; and corporate commerce rights have been used to strike down regulations on coal mining, trucking, pipelines, waste disposal, and landfills.
Thus, when corporations lose at the ballot box, or in legislatures, they can resort to the safe harbor of the judiciary. This branch of government has shown itself more than willing to vindicate corporate “rights” to nullify laws that corporations don’t like. Making matters worse, state legislatures often take those court rulings and write them directly into state law – thus safeguarding those corporate “rights” by providing statutory protection for them.
Each round of this makes it harder to remove those corporate protections, adding more and more layers that must be peeled back in the future.
For “we the people” to get anything to stick, we are forced to successfully navigate every single gauntlet. We not only work to convince legislators to pass our laws, but then hope against hope that we can beat back the corporations as they sue us for violating the rules of preemption and corporate “rights.”
While we have to win at every level to succeed, corporations only need to win at one to put us back on the defensive.
It’s the ultimate rigged game. It works only because the system is so camouflaged to give it the appearance of being open to change, and so few people understand the degree to which it is rigged.
Is it any surprise that we’ve ended up where we are?
The New
Over the past twenty years, people in hundreds of communities across the U.S. have come face-to-face with the machinery of this system and its inevitable results.
Poll after poll and study after study reveal the same thing: People want healthy, safe communities and protections for nature. And yet our system has been engineered to deliver the opposite. Instead of recognizing the power of people to build those communities, it gives power to those interested in exploiting them.
Those trying to stop the spread of GMOs at the community level run up against state and federal laws that override their efforts. Those trying to stop corporate water withdrawals run up against state water resources laws. Those trying to stop the dumping of sewage sludge run up against state nutrient management acts. Those trying to ban fracking run up against state oil and gas acts. Those trying to stop oil and gas pipelines run up against preemptive federal authority lodged in agencies like the Federal Energy Regulatory Commission.
Many of those communities try to use traditional nuisance, land use, or zoning laws to stop those corporate projects. In doing so, they labor to find a loophole in the preemption laws, or they hire lawyers who have convinced the communities that concocting some kind of exception to those laws is possible.
They almost always lose. And even in those rare circumstances when they win, like a self-sealing tire, the system develops new laws that permanently seal the leak – so that other communities are unable to use the same arguments.
Many communities have learned from those losses and have begun to drive a new theory of law – one not focused on trying to find loopholes, crawling through exemptions, or finding the “right” judge who might look favorably on their lawmaking.
These communities have begun to understand that the individual threat or issue facing their community – fracking, GMOs, or otherwise – is just a symptom of this system, not the problem itself. That’s because the system we have doesn’t care what we want or need, no matter what the consequences to our communities and nature.
People in communities under threat are confronted with the reality of this existing system. They are concluding that without true decentralization of decision-making authority down to the community level, they’ll never be able to stop fracking or other threats from invading their communities. Further, they are realizing we’ll never be able to move toward anything close to sustainability. They’re arguing that the people of their communities possess a constitutional right of local, community self-government – the authority to govern themselves on issues that the corporate state has removed from their control.
What will it take for communities to actually have control over whether fossil fuels are shipped through them? To decide if pipelines are laid? To vote if GMOs are planted? To determine whether they are forced to become the unwilling hosts of factory farms, toxic dumps, or pollution factories?
It will take the entire system of law turned upside down.
That means that communities must be able to pass laws and make them stick. It means making those communities immune from corporate “rights” and the authority of “higher” governments to define what communities can and cannot do.
It means giving birth to community democracy – a concept that, itself, is actually older than the system we currently have.
The New – A Constitutional Right of Local Community Self-Government
Recognition by the courts of a constitutional right of local community self-government would have far-reaching consequences. A finding that the right exists would force other legal doctrines to give way to that right. This means, for example, that the use of corporate “rights” to overturn local laws would be precluded as running afoul of the right of self-government. So would the authority of the state and federal government to override certain types of local lawmaking.
Consider a rural community facing fracking. Today, under the old (existing) system, let’s say the community adopts a law, either by their elected officials or through an initiative process, to ban fracking for shale gas. The law perhaps establishes a local “bill of rights” that recognizes rights to clean air, pure water, and sustainable energy, and then bans fracking as a violation of those rights.
The law is inevitably challenged by oil and gas corporations affected by the ban. The constitutional right of the people to local community self-government is thus pitted directly against the corporate claimed constitutional “rights” and against the state government’s authority to prevent the community from adopting the law.
With the recognition of a constitutional right of local self-government, however, those corporate “rights” and the authority of the state government must give way to the people’s constitutional right to govern themselves.
Such a system, while recognizing the authority of the state and federal government to set a minimum “floor” for environmental, labor, and other standards, would prevent the state and federal government from prohibiting communities from setting higher standards, or from expanding civil and environmental rights at the local level. It is precisely that “ceiling” preemption where corporations have run amok – using that power to stop communities from prohibiting harmful corporate projects.
The Clash of the Old and the New
Because this new system is so unlike the old, it would be surprising if the corporate defenders of the old system wouldn’t be investing huge sums of money to stop this new system of law from being adopted by communities.
Over the past decade, as over two hundred communities in ten states have driven this new system into being, affected corporations have challenged a handful of those laws. Today, understanding the scope of change envisioned by the community rights movement, those corporations are now reaching into the elections system itself, to stop those laws even before they are adopted.
We need to understand that these corporate challenges are proof that the new system of law envisioned by communities is striking exactly as intended – directly at the very power currently wielded by corporations against people and nature.
We must respond by challenging not only the ability of corporations to stop these initiatives, but by directly challenging the authority of judges and courts to help them do it. If the actions of the corporations violate the people’s rights of self-government, and the corporations are unable to prevent community votes without the courts, then it’s time for more and more people to understand how the system itself stands in direct contrast to the “we the people” myth of American lore.
From there, rather than trying to reform the existing structure, more and more people will begin the real work of building a new one.
Please make a donation to help us support communities doing on-the-ground work to advance Community Rights in 2017. Your donation makes our work with communities to build the Community Rights Movement possible!
Feature Photo: Flickr Creative Commons: Black Lives Matter by Ella
In 2015, residents of several rural Ohio counties watched in shock as Ohio Secretary of State Jon Husted unilaterally removed citizen-sponsored initiatives from county ballots. The initiatives, which had already qualified for the ballot, would have banned oil and gas drilling and fracking in those communities.
The Ohio Supreme Court sharply rapped Husted’s knuckles for using authority he didn’t have. However, a year later, the people of those same counties watched in disbelief as Husted again blocked their initiatives. This time, the Ohio Supreme Court affirmed his actions.
It is not surprising that Husted – who as of this writing is running for governor – is the darling of the very oil and gas industry targeted by those local initiatives. Indeed, the industry has long-supported his electoral campaigns.
Democratic Rights Matter
The people of Ohio aren’t the only victims of their own government. Across the country we are seeing government efforts, often at the behest of corporations, to restrict the authority of “we the people” to the initiative. Government officials are taking this action even though the authority for initiative is codified in nearly half the state constitutions in the United States.
In Oregon, a cat-and-mouse game is underway between some of the country’s largest agribusiness corporations and residents of rural counties. People there are proposing local initiatives to ban aerial pesticide spraying and genetically modified crops. In response, corporations affected by those initiatives have lawyered-up, using obscure legal provisions to try to stop the initiatives from ever reaching the ballot.
In Washington State, at the urging of industry, courts have now adopted a rule that allows virtually any proposed citizen-sponsored initiative to be blocked by corporations before ever reaching the ballot and a vote of the people.
In New Hampshire and Maine, some local elected officials have gone even further – refusing to allow duly-qualified citizen initiatives to be voted upon at annual Town Meeting. In at least one New Hampshire town, local elected officials have refused to sign an initiative even after it was legally adopted by the people of the town.
Corporations are working to restrict democratic rights to initiative as communities are advancing structural change – challenging the current system of law we live under, which insulates corporate projects from democratic control. In its place, these communities are moving forward a new system of law based on recognizing the right of communities to decide their own futures, and then elevating that community right above corporate “rights.” This new system is now beginning to forcibly crash into the older, existing one.
The ballot clashes in Ohio, Oregon, and elsewhere are all about the old system not going quietly.
The Old
Here’s how the system works today. Decisions made by the federal government trump the decisions and laws of state governments. Decisions and laws made by both federal and state governments trump the laws of local governments.
So, when the State of Vermont adopts a law requiring the labeling of food products containing genetically modified ingredients, the U.S. Congress can simply override it. It did so in 2016 when our representatives passed a law nullifying state efforts to mandate food labeling.
The more central an issue is to affecting commerce, the more preemptive rules you will find around it. For example, the federal government controls almost all issues dealing with oil and gas pipelines and the rail transportation of fossil fuels. Thus, those issues are lifted out of the hands of local and state governments.
State-level preemption operates in a similar fashion. Almost all states have oil and gas laws. Those laws regulate and control how fossil fuels are extracted. Those state laws have generally been found to abolish not only the authority of localities to determine how oil and gas is extracted, but whether oil and gas is extracted. Thus, state laws – such as those in Texas, Colorado, Pennsylvania, and Ohio – eliminate the authority of local communities to ban oil and gas extraction altogether.
Similarly, state legislatures across the country have adopted a slew of laws prohibiting communities from banning large corporate water withdrawals, dumping of toxic sewage sludge, and GMOs. Some states, including Pennsylvania and New York, have even authorized their state Attorneys General to act as private attorneys for corporations to sue communities who buck those laws.
It all boils down to this: If you have the financial and legal ability to control the uppermost levels of lawmaking and decision making, you don’t have to abide by the rights and wishes of the communities in which you operate.
But it Gets Even Better – Corporate “Rights”
There are rare cases in which people have actually been able to use their state or federal government to adopt laws that benefit the public interest. However, corporations then use the courts to either overturn those laws or severely limit their reach.
Corporations are the dominant economic players in our system. They have pioneered the use of corporate constitutional “rights” to attack any law that infringes upon their ability to engage in commerce or use corporate property. In today’s world, in which almost every meaningful reform affects commerce or property, it’s relatively easy to apply those “rights” to overturn laws that affect certain industries.
Thus, corporate free speech rights have been leveraged to overturn federal laws limiting corporate campaign donations; corporate religious rights have been used to limit healthcare legislation; corporate property rights have been used to overturn environmental regulations; and corporate commerce rights have been used to strike down regulations on coal mining, trucking, pipelines, waste disposal, and landfills.
Thus, when corporations lose at the ballot box, or in legislatures, they can resort to the safe harbor of the judiciary. This branch of government has shown itself more than willing to vindicate corporate “rights” to nullify laws that corporations don’t like. Making matters worse, state legislatures often take those court rulings and write them directly into state law – thus safeguarding those corporate “rights” by providing statutory protection for them.
Each round of this makes it harder to remove those corporate protections, adding more and more layers that must be peeled back in the future.
For “we the people” to get anything to stick, we are forced to successfully navigate every single gauntlet. We not only work to convince legislators to pass our laws, but then hope against hope that we can beat back the corporations as they sue us for violating the rules of preemption and corporate “rights.”
While we have to win at every level to succeed, corporations only need to win at one to put us back on the defensive.
It’s the ultimate rigged game. It works only because the system is so camouflaged to give it the appearance of being open to change, and so few people understand the degree to which it is rigged.
Is it any surprise that we’ve ended up where we are?
The New
Over the past twenty years, people in hundreds of communities across the U.S. have come face-to-face with the machinery of this system and its inevitable results.
Poll after poll and study after study reveal the same thing: People want healthy, safe communities and protections for nature. And yet our system has been engineered to deliver the opposite. Instead of recognizing the power of people to build those communities, it gives power to those interested in exploiting them.
Those trying to stop the spread of GMOs at the community level run up against state and federal laws that override their efforts. Those trying to stop corporate water withdrawals run up against state water resources laws. Those trying to stop the dumping of sewage sludge run up against state nutrient management acts. Those trying to ban fracking run up against state oil and gas acts. Those trying to stop oil and gas pipelines run up against preemptive federal authority lodged in agencies like the Federal Energy Regulatory Commission.
Many of those communities try to use traditional nuisance, land use, or zoning laws to stop those corporate projects. In doing so, they labor to find a loophole in the preemption laws, or they hire lawyers who have convinced the communities that concocting some kind of exception to those laws is possible.
They almost always lose. And even in those rare circumstances when they win, like a self-sealing tire, the system develops new laws that permanently seal the leak – so that other communities are unable to use the same arguments.
Many communities have learned from those losses and have begun to drive a new theory of law – one not focused on trying to find loopholes, crawling through exemptions, or finding the “right” judge who might look favorably on their lawmaking.
These communities have begun to understand that the individual threat or issue facing their community – fracking, GMOs, or otherwise – is just a symptom of this system, not the problem itself. That’s because the system we have doesn’t care what we want or need, no matter what the consequences to our communities and nature.
People in communities under threat are confronted with the reality of this existing system. They are concluding that without true decentralization of decision-making authority down to the community level, they’ll never be able to stop fracking or other threats from invading their communities. Further, they are realizing we’ll never be able to move toward anything close to sustainability. They’re arguing that the people of their communities possess a constitutional right of local, community self-government – the authority to govern themselves on issues that the corporate state has removed from their control.
What will it take for communities to actually have control over whether fossil fuels are shipped through them? To decide if pipelines are laid? To vote if GMOs are planted? To determine whether they are forced to become the unwilling hosts of factory farms, toxic dumps, or pollution factories?
It will take the entire system of law turned upside down.
That means that communities must be able to pass laws and make them stick. It means making those communities immune from corporate “rights” and the authority of “higher” governments to define what communities can and cannot do.
It means giving birth to community democracy – a concept that, itself, is actually older than the system we currently have.
The New – A Constitutional Right of Local Community Self-Government
Recognition by the courts of a constitutional right of local community self-government would have far-reaching consequences. A finding that the right exists would force other legal doctrines to give way to that right. This means, for example, that the use of corporate “rights” to overturn local laws would be precluded as running afoul of the right of self-government. So would the authority of the state and federal government to override certain types of local lawmaking.
Consider a rural community facing fracking. Today, under the old (existing) system, let’s say the community adopts a law, either by their elected officials or through an initiative process, to ban fracking for shale gas. The law perhaps establishes a local “bill of rights” that recognizes rights to clean air, pure water, and sustainable energy, and then bans fracking as a violation of those rights.
The law is inevitably challenged by oil and gas corporations affected by the ban. The constitutional right of the people to local community self-government is thus pitted directly against the corporate claimed constitutional “rights” and against the state government’s authority to prevent the community from adopting the law.
With the recognition of a constitutional right of local self-government, however, those corporate “rights” and the authority of the state government must give way to the people’s constitutional right to govern themselves.
Such a system, while recognizing the authority of the state and federal government to set a minimum “floor” for environmental, labor, and other standards, would prevent the state and federal government from prohibiting communities from setting higher standards, or from expanding civil and environmental rights at the local level. It is precisely that “ceiling” preemption where corporations have run amok – using that power to stop communities from prohibiting harmful corporate projects.
The Clash of the Old and the New
Because this new system is so unlike the old, it would be surprising if the corporate defenders of the old system wouldn’t be investing huge sums of money to stop this new system of law from being adopted by communities.
Over the past decade, as over two hundred communities in ten states have driven this new system into being, affected corporations have challenged a handful of those laws. Today, understanding the scope of change envisioned by the community rights movement, those corporations are now reaching into the elections system itself, to stop those laws even before they are adopted.
We need to understand that these corporate challenges are proof that the new system of law envisioned by communities is striking exactly as intended – directly at the very power currently wielded by corporations against people and nature.
We must respond by challenging not only the ability of corporations to stop these initiatives, but by directly challenging the authority of judges and courts to help them do it. If the actions of the corporations violate the people’s rights of self-government, and the corporations are unable to prevent community votes without the courts, then it’s time for more and more people to understand how the system itself stands in direct contrast to the “we the people” myth of American lore.
From there, rather than trying to reform the existing structure, more and more people will begin the real work of building a new one.
Please make a donation to help us support communities doing on-the-ground work to advance Community Rights in 2017. Your donation makes our work with communities to build the Community Rights Movement possible!
Feature Photo: Flickr Creative Commons: Black Lives Matter by Ella
In 2015, residents of several rural Ohio counties watched in shock as Ohio Secretary of State Jon Husted unilaterally removed citizen-sponsored initiatives from county ballots. The initiatives, which had already qualified for the ballot, would have banned oil and gas drilling and fracking in those communities.
The Ohio Supreme Court sharply rapped Husted’s knuckles for using authority he didn’t have. However, a year later, the people of those same counties watched in disbelief as Husted again blocked their initiatives. This time, the Ohio Supreme Court affirmed his actions.
It is not surprising that Husted – who as of this writing is running for governor – is the darling of the very oil and gas industry targeted by those local initiatives. Indeed, the industry has long-supported his electoral campaigns.
Democratic Rights Matter
The people of Ohio aren’t the only victims of their own government. Across the country we are seeing government efforts, often at the behest of corporations, to restrict the authority of “we the people” to the initiative. Government officials are taking this action even though the authority for initiative is codified in nearly half the state constitutions in the United States.
In Oregon, a cat-and-mouse game is underway between some of the country’s largest agribusiness corporations and residents of rural counties. People there are proposing local initiatives to ban aerial pesticide spraying and genetically modified crops. In response, corporations affected by those initiatives have lawyered-up, using obscure legal provisions to try to stop the initiatives from ever reaching the ballot.
In Washington State, at the urging of industry, courts have now adopted a rule that allows virtually any proposed citizen-sponsored initiative to be blocked by corporations before ever reaching the ballot and a vote of the people.
In New Hampshire and Maine, some local elected officials have gone even further – refusing to allow duly-qualified citizen initiatives to be voted upon at annual Town Meeting. In at least one New Hampshire town, local elected officials have refused to sign an initiative even after it was legally adopted by the people of the town.
Corporations are working to restrict democratic rights to initiative as communities are advancing structural change – challenging the current system of law we live under, which insulates corporate projects from democratic control. In its place, these communities are moving forward a new system of law based on recognizing the right of communities to decide their own futures, and then elevating that community right above corporate “rights.” This new system is now beginning to forcibly crash into the older, existing one.
The ballot clashes in Ohio, Oregon, and elsewhere are all about the old system not going quietly.
The Old
Here’s how the system works today. Decisions made by the federal government trump the decisions and laws of state governments. Decisions and laws made by both federal and state governments trump the laws of local governments.
So, when the State of Vermont adopts a law requiring the labeling of food products containing genetically modified ingredients, the U.S. Congress can simply override it. It did so in 2016 when our representatives passed a law nullifying state efforts to mandate food labeling.
The more central an issue is to affecting commerce, the more preemptive rules you will find around it. For example, the federal government controls almost all issues dealing with oil and gas pipelines and the rail transportation of fossil fuels. Thus, those issues are lifted out of the hands of local and state governments.
State-level preemption operates in a similar fashion. Almost all states have oil and gas laws. Those laws regulate and control how fossil fuels are extracted. Those state laws have generally been found to abolish not only the authority of localities to determine how oil and gas is extracted, but whether oil and gas is extracted. Thus, state laws – such as those in Texas, Colorado, Pennsylvania, and Ohio – eliminate the authority of local communities to ban oil and gas extraction altogether.
Similarly, state legislatures across the country have adopted a slew of laws prohibiting communities from banning large corporate water withdrawals, dumping of toxic sewage sludge, and GMOs. Some states, including Pennsylvania and New York, have even authorized their state Attorneys General to act as private attorneys for corporations to sue communities who buck those laws.
It all boils down to this: If you have the financial and legal ability to control the uppermost levels of lawmaking and decision making, you don’t have to abide by the rights and wishes of the communities in which you operate.
But it Gets Even Better – Corporate “Rights”
There are rare cases in which people have actually been able to use their state or federal government to adopt laws that benefit the public interest. However, corporations then use the courts to either overturn those laws or severely limit their reach.
Corporations are the dominant economic players in our system. They have pioneered the use of corporate constitutional “rights” to attack any law that infringes upon their ability to engage in commerce or use corporate property. In today’s world, in which almost every meaningful reform affects commerce or property, it’s relatively easy to apply those “rights” to overturn laws that affect certain industries.
Thus, corporate free speech rights have been leveraged to overturn federal laws limiting corporate campaign donations; corporate religious rights have been used to limit healthcare legislation; corporate property rights have been used to overturn environmental regulations; and corporate commerce rights have been used to strike down regulations on coal mining, trucking, pipelines, waste disposal, and landfills.
Thus, when corporations lose at the ballot box, or in legislatures, they can resort to the safe harbor of the judiciary. This branch of government has shown itself more than willing to vindicate corporate “rights” to nullify laws that corporations don’t like. Making matters worse, state legislatures often take those court rulings and write them directly into state law – thus safeguarding those corporate “rights” by providing statutory protection for them.
Each round of this makes it harder to remove those corporate protections, adding more and more layers that must be peeled back in the future.
For “we the people” to get anything to stick, we are forced to successfully navigate every single gauntlet. We not only work to convince legislators to pass our laws, but then hope against hope that we can beat back the corporations as they sue us for violating the rules of preemption and corporate “rights.”
While we have to win at every level to succeed, corporations only need to win at one to put us back on the defensive.
It’s the ultimate rigged game. It works only because the system is so camouflaged to give it the appearance of being open to change, and so few people understand the degree to which it is rigged.
Is it any surprise that we’ve ended up where we are?
The New
Over the past twenty years, people in hundreds of communities across the U.S. have come face-to-face with the machinery of this system and its inevitable results.
Poll after poll and study after study reveal the same thing: People want healthy, safe communities and protections for nature. And yet our system has been engineered to deliver the opposite. Instead of recognizing the power of people to build those communities, it gives power to those interested in exploiting them.
Those trying to stop the spread of GMOs at the community level run up against state and federal laws that override their efforts. Those trying to stop corporate water withdrawals run up against state water resources laws. Those trying to stop the dumping of sewage sludge run up against state nutrient management acts. Those trying to ban fracking run up against state oil and gas acts. Those trying to stop oil and gas pipelines run up against preemptive federal authority lodged in agencies like the Federal Energy Regulatory Commission.
Many of those communities try to use traditional nuisance, land use, or zoning laws to stop those corporate projects. In doing so, they labor to find a loophole in the preemption laws, or they hire lawyers who have convinced the communities that concocting some kind of exception to those laws is possible.
They almost always lose. And even in those rare circumstances when they win, like a self-sealing tire, the system develops new laws that permanently seal the leak – so that other communities are unable to use the same arguments.
Many communities have learned from those losses and have begun to drive a new theory of law – one not focused on trying to find loopholes, crawling through exemptions, or finding the “right” judge who might look favorably on their lawmaking.
These communities have begun to understand that the individual threat or issue facing their community – fracking, GMOs, or otherwise – is just a symptom of this system, not the problem itself. That’s because the system we have doesn’t care what we want or need, no matter what the consequences to our communities and nature.
People in communities under threat are confronted with the reality of this existing system. They are concluding that without true decentralization of decision-making authority down to the community level, they’ll never be able to stop fracking or other threats from invading their communities. Further, they are realizing we’ll never be able to move toward anything close to sustainability. They’re arguing that the people of their communities possess a constitutional right of local, community self-government – the authority to govern themselves on issues that the corporate state has removed from their control.
What will it take for communities to actually have control over whether fossil fuels are shipped through them? To decide if pipelines are laid? To vote if GMOs are planted? To determine whether they are forced to become the unwilling hosts of factory farms, toxic dumps, or pollution factories?
It will take the entire system of law turned upside down.
That means that communities must be able to pass laws and make them stick. It means making those communities immune from corporate “rights” and the authority of “higher” governments to define what communities can and cannot do.
It means giving birth to community democracy – a concept that, itself, is actually older than the system we currently have.
The New – A Constitutional Right of Local Community Self-Government
Recognition by the courts of a constitutional right of local community self-government would have far-reaching consequences. A finding that the right exists would force other legal doctrines to give way to that right. This means, for example, that the use of corporate “rights” to overturn local laws would be precluded as running afoul of the right of self-government. So would the authority of the state and federal government to override certain types of local lawmaking.
Consider a rural community facing fracking. Today, under the old (existing) system, let’s say the community adopts a law, either by their elected officials or through an initiative process, to ban fracking for shale gas. The law perhaps establishes a local “bill of rights” that recognizes rights to clean air, pure water, and sustainable energy, and then bans fracking as a violation of those rights.
The law is inevitably challenged by oil and gas corporations affected by the ban. The constitutional right of the people to local community self-government is thus pitted directly against the corporate claimed constitutional “rights” and against the state government’s authority to prevent the community from adopting the law.
With the recognition of a constitutional right of local self-government, however, those corporate “rights” and the authority of the state government must give way to the people’s constitutional right to govern themselves.
Such a system, while recognizing the authority of the state and federal government to set a minimum “floor” for environmental, labor, and other standards, would prevent the state and federal government from prohibiting communities from setting higher standards, or from expanding civil and environmental rights at the local level. It is precisely that “ceiling” preemption where corporations have run amok – using that power to stop communities from prohibiting harmful corporate projects.
The Clash of the Old and the New
Because this new system is so unlike the old, it would be surprising if the corporate defenders of the old system wouldn’t be investing huge sums of money to stop this new system of law from being adopted by communities.
Over the past decade, as over two hundred communities in ten states have driven this new system into being, affected corporations have challenged a handful of those laws. Today, understanding the scope of change envisioned by the community rights movement, those corporations are now reaching into the elections system itself, to stop those laws even before they are adopted.
We need to understand that these corporate challenges are proof that the new system of law envisioned by communities is striking exactly as intended – directly at the very power currently wielded by corporations against people and nature.
We must respond by challenging not only the ability of corporations to stop these initiatives, but by directly challenging the authority of judges and courts to help them do it. If the actions of the corporations violate the people’s rights of self-government, and the corporations are unable to prevent community votes without the courts, then it’s time for more and more people to understand how the system itself stands in direct contrast to the “we the people” myth of American lore.
From there, rather than trying to reform the existing structure, more and more people will begin the real work of building a new one.
Please make a donation to help us support communities doing on-the-ground work to advance Community Rights in 2017. Your donation makes our work with communities to build the Community Rights Movement possible!
Feature Photo: Flickr Creative Commons: Black Lives Matter by Ella
In 2015, residents of several rural Ohio counties watched in shock as Ohio Secretary of State Jon Husted unilaterally removed citizen-sponsored initiatives from county ballots. The initiatives, which had already qualified for the ballot, would have banned oil and gas drilling and fracking in those communities.
The Ohio Supreme Court sharply rapped Husted’s knuckles for using authority he didn’t have. However, a year later, the people of those same counties watched in disbelief as Husted again blocked their initiatives. This time, the Ohio Supreme Court affirmed his actions.
It is not surprising that Husted – who as of this writing is running for governor – is the darling of the very oil and gas industry targeted by those local initiatives. Indeed, the industry has long-supported his electoral campaigns.
Democratic Rights Matter
The people of Ohio aren’t the only victims of their own government. Across the country we are seeing government efforts, often at the behest of corporations, to restrict the authority of “we the people” to the initiative. Government officials are taking this action even though the authority for initiative is codified in nearly half the state constitutions in the United States.
In Oregon, a cat-and-mouse game is underway between some of the country’s largest agribusiness corporations and residents of rural counties. People there are proposing local initiatives to ban aerial pesticide spraying and genetically modified crops. In response, corporations affected by those initiatives have lawyered-up, using obscure legal provisions to try to stop the initiatives from ever reaching the ballot.
In Washington State, at the urging of industry, courts have now adopted a rule that allows virtually any proposed citizen-sponsored initiative to be blocked by corporations before ever reaching the ballot and a vote of the people.
In New Hampshire and Maine, some local elected officials have gone even further – refusing to allow duly-qualified citizen initiatives to be voted upon at annual Town Meeting. In at least one New Hampshire town, local elected officials have refused to sign an initiative even after it was legally adopted by the people of the town.
Corporations are working to restrict democratic rights to initiative as communities are advancing structural change – challenging the current system of law we live under, which insulates corporate projects from democratic control. In its place, these communities are moving forward a new system of law based on recognizing the right of communities to decide their own futures, and then elevating that community right above corporate “rights.” This new system is now beginning to forcibly crash into the older, existing one.
The ballot clashes in Ohio, Oregon, and elsewhere are all about the old system not going quietly.
The Old
Here’s how the system works today. Decisions made by the federal government trump the decisions and laws of state governments. Decisions and laws made by both federal and state governments trump the laws of local governments.
So, when the State of Vermont adopts a law requiring the labeling of food products containing genetically modified ingredients, the U.S. Congress can simply override it. It did so in 2016 when our representatives passed a law nullifying state efforts to mandate food labeling.
The more central an issue is to affecting commerce, the more preemptive rules you will find around it. For example, the federal government controls almost all issues dealing with oil and gas pipelines and the rail transportation of fossil fuels. Thus, those issues are lifted out of the hands of local and state governments.
State-level preemption operates in a similar fashion. Almost all states have oil and gas laws. Those laws regulate and control how fossil fuels are extracted. Those state laws have generally been found to abolish not only the authority of localities to determine how oil and gas is extracted, but whether oil and gas is extracted. Thus, state laws – such as those in Texas, Colorado, Pennsylvania, and Ohio – eliminate the authority of local communities to ban oil and gas extraction altogether.
Similarly, state legislatures across the country have adopted a slew of laws prohibiting communities from banning large corporate water withdrawals, dumping of toxic sewage sludge, and GMOs. Some states, including Pennsylvania and New York, have even authorized their state Attorneys General to act as private attorneys for corporations to sue communities who buck those laws.
It all boils down to this: If you have the financial and legal ability to control the uppermost levels of lawmaking and decision making, you don’t have to abide by the rights and wishes of the communities in which you operate.
But it Gets Even Better – Corporate “Rights”
There are rare cases in which people have actually been able to use their state or federal government to adopt laws that benefit the public interest. However, corporations then use the courts to either overturn those laws or severely limit their reach.
Corporations are the dominant economic players in our system. They have pioneered the use of corporate constitutional “rights” to attack any law that infringes upon their ability to engage in commerce or use corporate property. In today’s world, in which almost every meaningful reform affects commerce or property, it’s relatively easy to apply those “rights” to overturn laws that affect certain industries.
Thus, corporate free speech rights have been leveraged to overturn federal laws limiting corporate campaign donations; corporate religious rights have been used to limit healthcare legislation; corporate property rights have been used to overturn environmental regulations; and corporate commerce rights have been used to strike down regulations on coal mining, trucking, pipelines, waste disposal, and landfills.
Thus, when corporations lose at the ballot box, or in legislatures, they can resort to the safe harbor of the judiciary. This branch of government has shown itself more than willing to vindicate corporate “rights” to nullify laws that corporations don’t like. Making matters worse, state legislatures often take those court rulings and write them directly into state law – thus safeguarding those corporate “rights” by providing statutory protection for them.
Each round of this makes it harder to remove those corporate protections, adding more and more layers that must be peeled back in the future.
For “we the people” to get anything to stick, we are forced to successfully navigate every single gauntlet. We not only work to convince legislators to pass our laws, but then hope against hope that we can beat back the corporations as they sue us for violating the rules of preemption and corporate “rights.”
While we have to win at every level to succeed, corporations only need to win at one to put us back on the defensive.
It’s the ultimate rigged game. It works only because the system is so camouflaged to give it the appearance of being open to change, and so few people understand the degree to which it is rigged.
Is it any surprise that we’ve ended up where we are?
The New
Over the past twenty years, people in hundreds of communities across the U.S. have come face-to-face with the machinery of this system and its inevitable results.
Poll after poll and study after study reveal the same thing: People want healthy, safe communities and protections for nature. And yet our system has been engineered to deliver the opposite. Instead of recognizing the power of people to build those communities, it gives power to those interested in exploiting them.
Those trying to stop the spread of GMOs at the community level run up against state and federal laws that override their efforts. Those trying to stop corporate water withdrawals run up against state water resources laws. Those trying to stop the dumping of sewage sludge run up against state nutrient management acts. Those trying to ban fracking run up against state oil and gas acts. Those trying to stop oil and gas pipelines run up against preemptive federal authority lodged in agencies like the Federal Energy Regulatory Commission.
Many of those communities try to use traditional nuisance, land use, or zoning laws to stop those corporate projects. In doing so, they labor to find a loophole in the preemption laws, or they hire lawyers who have convinced the communities that concocting some kind of exception to those laws is possible.
They almost always lose. And even in those rare circumstances when they win, like a self-sealing tire, the system develops new laws that permanently seal the leak – so that other communities are unable to use the same arguments.
Many communities have learned from those losses and have begun to drive a new theory of law – one not focused on trying to find loopholes, crawling through exemptions, or finding the “right” judge who might look favorably on their lawmaking.
These communities have begun to understand that the individual threat or issue facing their community – fracking, GMOs, or otherwise – is just a symptom of this system, not the problem itself. That’s because the system we have doesn’t care what we want or need, no matter what the consequences to our communities and nature.
People in communities under threat are confronted with the reality of this existing system. They are concluding that without true decentralization of decision-making authority down to the community level, they’ll never be able to stop fracking or other threats from invading their communities. Further, they are realizing we’ll never be able to move toward anything close to sustainability. They’re arguing that the people of their communities possess a constitutional right of local, community self-government – the authority to govern themselves on issues that the corporate state has removed from their control.
What will it take for communities to actually have control over whether fossil fuels are shipped through them? To decide if pipelines are laid? To vote if GMOs are planted? To determine whether they are forced to become the unwilling hosts of factory farms, toxic dumps, or pollution factories?
It will take the entire system of law turned upside down.
That means that communities must be able to pass laws and make them stick. It means making those communities immune from corporate “rights” and the authority of “higher” governments to define what communities can and cannot do.
It means giving birth to community democracy – a concept that, itself, is actually older than the system we currently have.
The New – A Constitutional Right of Local Community Self-Government
Recognition by the courts of a constitutional right of local community self-government would have far-reaching consequences. A finding that the right exists would force other legal doctrines to give way to that right. This means, for example, that the use of corporate “rights” to overturn local laws would be precluded as running afoul of the right of self-government. So would the authority of the state and federal government to override certain types of local lawmaking.
Consider a rural community facing fracking. Today, under the old (existing) system, let’s say the community adopts a law, either by their elected officials or through an initiative process, to ban fracking for shale gas. The law perhaps establishes a local “bill of rights” that recognizes rights to clean air, pure water, and sustainable energy, and then bans fracking as a violation of those rights.
The law is inevitably challenged by oil and gas corporations affected by the ban. The constitutional right of the people to local community self-government is thus pitted directly against the corporate claimed constitutional “rights” and against the state government’s authority to prevent the community from adopting the law.
With the recognition of a constitutional right of local self-government, however, those corporate “rights” and the authority of the state government must give way to the people’s constitutional right to govern themselves.
Such a system, while recognizing the authority of the state and federal government to set a minimum “floor” for environmental, labor, and other standards, would prevent the state and federal government from prohibiting communities from setting higher standards, or from expanding civil and environmental rights at the local level. It is precisely that “ceiling” preemption where corporations have run amok – using that power to stop communities from prohibiting harmful corporate projects.
The Clash of the Old and the New
Because this new system is so unlike the old, it would be surprising if the corporate defenders of the old system wouldn’t be investing huge sums of money to stop this new system of law from being adopted by communities.
Over the past decade, as over two hundred communities in ten states have driven this new system into being, affected corporations have challenged a handful of those laws. Today, understanding the scope of change envisioned by the community rights movement, those corporations are now reaching into the elections system itself, to stop those laws even before they are adopted.
We need to understand that these corporate challenges are proof that the new system of law envisioned by communities is striking exactly as intended – directly at the very power currently wielded by corporations against people and nature.
We must respond by challenging not only the ability of corporations to stop these initiatives, but by directly challenging the authority of judges and courts to help them do it. If the actions of the corporations violate the people’s rights of self-government, and the corporations are unable to prevent community votes without the courts, then it’s time for more and more people to understand how the system itself stands in direct contrast to the “we the people” myth of American lore.
From there, rather than trying to reform the existing structure, more and more people will begin the real work of building a new one.
Please make a donation to help us support communities doing on-the-ground work to advance Community Rights in 2017. Your donation makes our work with communities to build the Community Rights Movement possible!
Feature Photo: Flickr Creative Commons: Black Lives Matter by Ella
In 2015, residents of several rural Ohio counties watched in shock as Ohio Secretary of State Jon Husted unilaterally removed citizen-sponsored initiatives from county ballots. The initiatives, which had already qualified for the ballot, would have banned oil and gas drilling and fracking in those communities.
The Ohio Supreme Court sharply rapped Husted’s knuckles for using authority he didn’t have. However, a year later, the people of those same counties watched in disbelief as Husted again blocked their initiatives. This time, the Ohio Supreme Court affirmed his actions.
It is not surprising that Husted – who as of this writing is running for governor – is the darling of the very oil and gas industry targeted by those local initiatives. Indeed, the industry has long-supported his electoral campaigns.
Democratic Rights Matter
The people of Ohio aren’t the only victims of their own government. Across the country we are seeing government efforts, often at the behest of corporations, to restrict the authority of “we the people” to the initiative. Government officials are taking this action even though the authority for initiative is codified in nearly half the state constitutions in the United States.
In Oregon, a cat-and-mouse game is underway between some of the country’s largest agribusiness corporations and residents of rural counties. People there are proposing local initiatives to ban aerial pesticide spraying and genetically modified crops. In response, corporations affected by those initiatives have lawyered-up, using obscure legal provisions to try to stop the initiatives from ever reaching the ballot.
In Washington State, at the urging of industry, courts have now adopted a rule that allows virtually any proposed citizen-sponsored initiative to be blocked by corporations before ever reaching the ballot and a vote of the people.
In New Hampshire and Maine, some local elected officials have gone even further – refusing to allow duly-qualified citizen initiatives to be voted upon at annual Town Meeting. In at least one New Hampshire town, local elected officials have refused to sign an initiative even after it was legally adopted by the people of the town.
Corporations are working to restrict democratic rights to initiative as communities are advancing structural change – challenging the current system of law we live under, which insulates corporate projects from democratic control. In its place, these communities are moving forward a new system of law based on recognizing the right of communities to decide their own futures, and then elevating that community right above corporate “rights.” This new system is now beginning to forcibly crash into the older, existing one.
The ballot clashes in Ohio, Oregon, and elsewhere are all about the old system not going quietly.
The Old
Here’s how the system works today. Decisions made by the federal government trump the decisions and laws of state governments. Decisions and laws made by both federal and state governments trump the laws of local governments.
So, when the State of Vermont adopts a law requiring the labeling of food products containing genetically modified ingredients, the U.S. Congress can simply override it. It did so in 2016 when our representatives passed a law nullifying state efforts to mandate food labeling.
The more central an issue is to affecting commerce, the more preemptive rules you will find around it. For example, the federal government controls almost all issues dealing with oil and gas pipelines and the rail transportation of fossil fuels. Thus, those issues are lifted out of the hands of local and state governments.
State-level preemption operates in a similar fashion. Almost all states have oil and gas laws. Those laws regulate and control how fossil fuels are extracted. Those state laws have generally been found to abolish not only the authority of localities to determine how oil and gas is extracted, but whether oil and gas is extracted. Thus, state laws – such as those in Texas, Colorado, Pennsylvania, and Ohio – eliminate the authority of local communities to ban oil and gas extraction altogether.
Similarly, state legislatures across the country have adopted a slew of laws prohibiting communities from banning large corporate water withdrawals, dumping of toxic sewage sludge, and GMOs. Some states, including Pennsylvania and New York, have even authorized their state Attorneys General to act as private attorneys for corporations to sue communities who buck those laws.
It all boils down to this: If you have the financial and legal ability to control the uppermost levels of lawmaking and decision making, you don’t have to abide by the rights and wishes of the communities in which you operate.
But it Gets Even Better – Corporate “Rights”
There are rare cases in which people have actually been able to use their state or federal government to adopt laws that benefit the public interest. However, corporations then use the courts to either overturn those laws or severely limit their reach.
Corporations are the dominant economic players in our system. They have pioneered the use of corporate constitutional “rights” to attack any law that infringes upon their ability to engage in commerce or use corporate property. In today’s world, in which almost every meaningful reform affects commerce or property, it’s relatively easy to apply those “rights” to overturn laws that affect certain industries.
Thus, corporate free speech rights have been leveraged to overturn federal laws limiting corporate campaign donations; corporate religious rights have been used to limit healthcare legislation; corporate property rights have been used to overturn environmental regulations; and corporate commerce rights have been used to strike down regulations on coal mining, trucking, pipelines, waste disposal, and landfills.
Thus, when corporations lose at the ballot box, or in legislatures, they can resort to the safe harbor of the judiciary. This branch of government has shown itself more than willing to vindicate corporate “rights” to nullify laws that corporations don’t like. Making matters worse, state legislatures often take those court rulings and write them directly into state law – thus safeguarding those corporate “rights” by providing statutory protection for them.
Each round of this makes it harder to remove those corporate protections, adding more and more layers that must be peeled back in the future.
For “we the people” to get anything to stick, we are forced to successfully navigate every single gauntlet. We not only work to convince legislators to pass our laws, but then hope against hope that we can beat back the corporations as they sue us for violating the rules of preemption and corporate “rights.”
While we have to win at every level to succeed, corporations only need to win at one to put us back on the defensive.
It’s the ultimate rigged game. It works only because the system is so camouflaged to give it the appearance of being open to change, and so few people understand the degree to which it is rigged.
Is it any surprise that we’ve ended up where we are?
The New
Over the past twenty years, people in hundreds of communities across the U.S. have come face-to-face with the machinery of this system and its inevitable results.
Poll after poll and study after study reveal the same thing: People want healthy, safe communities and protections for nature. And yet our system has been engineered to deliver the opposite. Instead of recognizing the power of people to build those communities, it gives power to those interested in exploiting them.
Those trying to stop the spread of GMOs at the community level run up against state and federal laws that override their efforts. Those trying to stop corporate water withdrawals run up against state water resources laws. Those trying to stop the dumping of sewage sludge run up against state nutrient management acts. Those trying to ban fracking run up against state oil and gas acts. Those trying to stop oil and gas pipelines run up against preemptive federal authority lodged in agencies like the Federal Energy Regulatory Commission.
Many of those communities try to use traditional nuisance, land use, or zoning laws to stop those corporate projects. In doing so, they labor to find a loophole in the preemption laws, or they hire lawyers who have convinced the communities that concocting some kind of exception to those laws is possible.
They almost always lose. And even in those rare circumstances when they win, like a self-sealing tire, the system develops new laws that permanently seal the leak – so that other communities are unable to use the same arguments.
Many communities have learned from those losses and have begun to drive a new theory of law – one not focused on trying to find loopholes, crawling through exemptions, or finding the “right” judge who might look favorably on their lawmaking.
These communities have begun to understand that the individual threat or issue facing their community – fracking, GMOs, or otherwise – is just a symptom of this system, not the problem itself. That’s because the system we have doesn’t care what we want or need, no matter what the consequences to our communities and nature.
People in communities under threat are confronted with the reality of this existing system. They are concluding that without true decentralization of decision-making authority down to the community level, they’ll never be able to stop fracking or other threats from invading their communities. Further, they are realizing we’ll never be able to move toward anything close to sustainability. They’re arguing that the people of their communities possess a constitutional right of local, community self-government – the authority to govern themselves on issues that the corporate state has removed from their control.
What will it take for communities to actually have control over whether fossil fuels are shipped through them? To decide if pipelines are laid? To vote if GMOs are planted? To determine whether they are forced to become the unwilling hosts of factory farms, toxic dumps, or pollution factories?
It will take the entire system of law turned upside down.
That means that communities must be able to pass laws and make them stick. It means making those communities immune from corporate “rights” and the authority of “higher” governments to define what communities can and cannot do.
It means giving birth to community democracy – a concept that, itself, is actually older than the system we currently have.
The New – A Constitutional Right of Local Community Self-Government
Recognition by the courts of a constitutional right of local community self-government would have far-reaching consequences. A finding that the right exists would force other legal doctrines to give way to that right. This means, for example, that the use of corporate “rights” to overturn local laws would be precluded as running afoul of the right of self-government. So would the authority of the state and federal government to override certain types of local lawmaking.
Consider a rural community facing fracking. Today, under the old (existing) system, let’s say the community adopts a law, either by their elected officials or through an initiative process, to ban fracking for shale gas. The law perhaps establishes a local “bill of rights” that recognizes rights to clean air, pure water, and sustainable energy, and then bans fracking as a violation of those rights.
The law is inevitably challenged by oil and gas corporations affected by the ban. The constitutional right of the people to local community self-government is thus pitted directly against the corporate claimed constitutional “rights” and against the state government’s authority to prevent the community from adopting the law.
With the recognition of a constitutional right of local self-government, however, those corporate “rights” and the authority of the state government must give way to the people’s constitutional right to govern themselves.
Such a system, while recognizing the authority of the state and federal government to set a minimum “floor” for environmental, labor, and other standards, would prevent the state and federal government from prohibiting communities from setting higher standards, or from expanding civil and environmental rights at the local level. It is precisely that “ceiling” preemption where corporations have run amok – using that power to stop communities from prohibiting harmful corporate projects.
The Clash of the Old and the New
Because this new system is so unlike the old, it would be surprising if the corporate defenders of the old system wouldn’t be investing huge sums of money to stop this new system of law from being adopted by communities.
Over the past decade, as over two hundred communities in ten states have driven this new system into being, affected corporations have challenged a handful of those laws. Today, understanding the scope of change envisioned by the community rights movement, those corporations are now reaching into the elections system itself, to stop those laws even before they are adopted.
We need to understand that these corporate challenges are proof that the new system of law envisioned by communities is striking exactly as intended – directly at the very power currently wielded by corporations against people and nature.
We must respond by challenging not only the ability of corporations to stop these initiatives, but by directly challenging the authority of judges and courts to help them do it. If the actions of the corporations violate the people’s rights of self-government, and the corporations are unable to prevent community votes without the courts, then it’s time for more and more people to understand how the system itself stands in direct contrast to the “we the people” myth of American lore.
From there, rather than trying to reform the existing structure, more and more people will begin the real work of building a new one.
Please make a donation to help us support communities doing on-the-ground work to advance Community Rights in 2017. Your donation makes our work with communities to build the Community Rights Movement possible!
Feature Photo: Flickr Creative Commons: Black Lives Matter by Ella
In 2015, residents of several rural Ohio counties watched in shock as Ohio Secretary of State Jon Husted unilaterally removed citizen-sponsored initiatives from county ballots. The initiatives, which had already qualified for the ballot, would have banned oil and gas drilling and fracking in those communities.
The Ohio Supreme Court sharply rapped Husted’s knuckles for using authority he didn’t have. However, a year later, the people of those same counties watched in disbelief as Husted again blocked their initiatives. This time, the Ohio Supreme Court affirmed his actions.
It is not surprising that Husted – who as of this writing is running for governor – is the darling of the very oil and gas industry targeted by those local initiatives. Indeed, the industry has long-supported his electoral campaigns.
Democratic Rights Matter
The people of Ohio aren’t the only victims of their own government. Across the country we are seeing government efforts, often at the behest of corporations, to restrict the authority of “we the people” to the initiative. Government officials are taking this action even though the authority for initiative is codified in nearly half the state constitutions in the United States.
In Oregon, a cat-and-mouse game is underway between some of the country’s largest agribusiness corporations and residents of rural counties. People there are proposing local initiatives to ban aerial pesticide spraying and genetically modified crops. In response, corporations affected by those initiatives have lawyered-up, using obscure legal provisions to try to stop the initiatives from ever reaching the ballot.
In Washington State, at the urging of industry, courts have now adopted a rule that allows virtually any proposed citizen-sponsored initiative to be blocked by corporations before ever reaching the ballot and a vote of the people.
In New Hampshire and Maine, some local elected officials have gone even further – refusing to allow duly-qualified citizen initiatives to be voted upon at annual Town Meeting. In at least one New Hampshire town, local elected officials have refused to sign an initiative even after it was legally adopted by the people of the town.
Corporations are working to restrict democratic rights to initiative as communities are advancing structural change – challenging the current system of law we live under, which insulates corporate projects from democratic control. In its place, these communities are moving forward a new system of law based on recognizing the right of communities to decide their own futures, and then elevating that community right above corporate “rights.” This new system is now beginning to forcibly crash into the older, existing one.
The ballot clashes in Ohio, Oregon, and elsewhere are all about the old system not going quietly.
The Old
Here’s how the system works today. Decisions made by the federal government trump the decisions and laws of state governments. Decisions and laws made by both federal and state governments trump the laws of local governments.
So, when the State of Vermont adopts a law requiring the labeling of food products containing genetically modified ingredients, the U.S. Congress can simply override it. It did so in 2016 when our representatives passed a law nullifying state efforts to mandate food labeling.
The more central an issue is to affecting commerce, the more preemptive rules you will find around it. For example, the federal government controls almost all issues dealing with oil and gas pipelines and the rail transportation of fossil fuels. Thus, those issues are lifted out of the hands of local and state governments.
State-level preemption operates in a similar fashion. Almost all states have oil and gas laws. Those laws regulate and control how fossil fuels are extracted. Those state laws have generally been found to abolish not only the authority of localities to determine how oil and gas is extracted, but whether oil and gas is extracted. Thus, state laws – such as those in Texas, Colorado, Pennsylvania, and Ohio – eliminate the authority of local communities to ban oil and gas extraction altogether.
Similarly, state legislatures across the country have adopted a slew of laws prohibiting communities from banning large corporate water withdrawals, dumping of toxic sewage sludge, and GMOs. Some states, including Pennsylvania and New York, have even authorized their state Attorneys General to act as private attorneys for corporations to sue communities who buck those laws.
It all boils down to this: If you have the financial and legal ability to control the uppermost levels of lawmaking and decision making, you don’t have to abide by the rights and wishes of the communities in which you operate.
But it Gets Even Better – Corporate “Rights”
There are rare cases in which people have actually been able to use their state or federal government to adopt laws that benefit the public interest. However, corporations then use the courts to either overturn those laws or severely limit their reach.
Corporations are the dominant economic players in our system. They have pioneered the use of corporate constitutional “rights” to attack any law that infringes upon their ability to engage in commerce or use corporate property. In today’s world, in which almost every meaningful reform affects commerce or property, it’s relatively easy to apply those “rights” to overturn laws that affect certain industries.
Thus, corporate free speech rights have been leveraged to overturn federal laws limiting corporate campaign donations; corporate religious rights have been used to limit healthcare legislation; corporate property rights have been used to overturn environmental regulations; and corporate commerce rights have been used to strike down regulations on coal mining, trucking, pipelines, waste disposal, and landfills.
Thus, when corporations lose at the ballot box, or in legislatures, they can resort to the safe harbor of the judiciary. This branch of government has shown itself more than willing to vindicate corporate “rights” to nullify laws that corporations don’t like. Making matters worse, state legislatures often take those court rulings and write them directly into state law – thus safeguarding those corporate “rights” by providing statutory protection for them.
Each round of this makes it harder to remove those corporate protections, adding more and more layers that must be peeled back in the future.
For “we the people” to get anything to stick, we are forced to successfully navigate every single gauntlet. We not only work to convince legislators to pass our laws, but then hope against hope that we can beat back the corporations as they sue us for violating the rules of preemption and corporate “rights.”
While we have to win at every level to succeed, corporations only need to win at one to put us back on the defensive.
It’s the ultimate rigged game. It works only because the system is so camouflaged to give it the appearance of being open to change, and so few people understand the degree to which it is rigged.
Is it any surprise that we’ve ended up where we are?
The New
Over the past twenty years, people in hundreds of communities across the U.S. have come face-to-face with the machinery of this system and its inevitable results.
Poll after poll and study after study reveal the same thing: People want healthy, safe communities and protections for nature. And yet our system has been engineered to deliver the opposite. Instead of recognizing the power of people to build those communities, it gives power to those interested in exploiting them.
Those trying to stop the spread of GMOs at the community level run up against state and federal laws that override their efforts. Those trying to stop corporate water withdrawals run up against state water resources laws. Those trying to stop the dumping of sewage sludge run up against state nutrient management acts. Those trying to ban fracking run up against state oil and gas acts. Those trying to stop oil and gas pipelines run up against preemptive federal authority lodged in agencies like the Federal Energy Regulatory Commission.
Many of those communities try to use traditional nuisance, land use, or zoning laws to stop those corporate projects. In doing so, they labor to find a loophole in the preemption laws, or they hire lawyers who have convinced the communities that concocting some kind of exception to those laws is possible.
They almost always lose. And even in those rare circumstances when they win, like a self-sealing tire, the system develops new laws that permanently seal the leak – so that other communities are unable to use the same arguments.
Many communities have learned from those losses and have begun to drive a new theory of law – one not focused on trying to find loopholes, crawling through exemptions, or finding the “right” judge who might look favorably on their lawmaking.
These communities have begun to understand that the individual threat or issue facing their community – fracking, GMOs, or otherwise – is just a symptom of this system, not the problem itself. That’s because the system we have doesn’t care what we want or need, no matter what the consequences to our communities and nature.
People in communities under threat are confronted with the reality of this existing system. They are concluding that without true decentralization of decision-making authority down to the community level, they’ll never be able to stop fracking or other threats from invading their communities. Further, they are realizing we’ll never be able to move toward anything close to sustainability. They’re arguing that the people of their communities possess a constitutional right of local, community self-government – the authority to govern themselves on issues that the corporate state has removed from their control.
What will it take for communities to actually have control over whether fossil fuels are shipped through them? To decide if pipelines are laid? To vote if GMOs are planted? To determine whether they are forced to become the unwilling hosts of factory farms, toxic dumps, or pollution factories?
It will take the entire system of law turned upside down.
That means that communities must be able to pass laws and make them stick. It means making those communities immune from corporate “rights” and the authority of “higher” governments to define what communities can and cannot do.
It means giving birth to community democracy – a concept that, itself, is actually older than the system we currently have.
The New – A Constitutional Right of Local Community Self-Government
Recognition by the courts of a constitutional right of local community self-government would have far-reaching consequences. A finding that the right exists would force other legal doctrines to give way to that right. This means, for example, that the use of corporate “rights” to overturn local laws would be precluded as running afoul of the right of self-government. So would the authority of the state and federal government to override certain types of local lawmaking.
Consider a rural community facing fracking. Today, under the old (existing) system, let’s say the community adopts a law, either by their elected officials or through an initiative process, to ban fracking for shale gas. The law perhaps establishes a local “bill of rights” that recognizes rights to clean air, pure water, and sustainable energy, and then bans fracking as a violation of those rights.
The law is inevitably challenged by oil and gas corporations affected by the ban. The constitutional right of the people to local community self-government is thus pitted directly against the corporate claimed constitutional “rights” and against the state government’s authority to prevent the community from adopting the law.
With the recognition of a constitutional right of local self-government, however, those corporate “rights” and the authority of the state government must give way to the people’s constitutional right to govern themselves.
Such a system, while recognizing the authority of the state and federal government to set a minimum “floor” for environmental, labor, and other standards, would prevent the state and federal government from prohibiting communities from setting higher standards, or from expanding civil and environmental rights at the local level. It is precisely that “ceiling” preemption where corporations have run amok – using that power to stop communities from prohibiting harmful corporate projects.
The Clash of the Old and the New
Because this new system is so unlike the old, it would be surprising if the corporate defenders of the old system wouldn’t be investing huge sums of money to stop this new system of law from being adopted by communities.
Over the past decade, as over two hundred communities in ten states have driven this new system into being, affected corporations have challenged a handful of those laws. Today, understanding the scope of change envisioned by the community rights movement, those corporations are now reaching into the elections system itself, to stop those laws even before they are adopted.
We need to understand that these corporate challenges are proof that the new system of law envisioned by communities is striking exactly as intended – directly at the very power currently wielded by corporations against people and nature.
We must respond by challenging not only the ability of corporations to stop these initiatives, but by directly challenging the authority of judges and courts to help them do it. If the actions of the corporations violate the people’s rights of self-government, and the corporations are unable to prevent community votes without the courts, then it’s time for more and more people to understand how the system itself stands in direct contrast to the “we the people” myth of American lore.
From there, rather than trying to reform the existing structure, more and more people will begin the real work of building a new one.
Please make a donation to help us support communities doing on-the-ground work to advance Community Rights in 2017. Your donation makes our work with communities to build the Community Rights Movement possible!
Feature Photo: Flickr Creative Commons: Black Lives Matter by Ella
In 2015, residents of several rural Ohio counties watched in shock as Ohio Secretary of State Jon Husted unilaterally removed citizen-sponsored initiatives from county ballots. The initiatives, which had already qualified for the ballot, would have banned oil and gas drilling and fracking in those communities.
The Ohio Supreme Court sharply rapped Husted’s knuckles for using authority he didn’t have. However, a year later, the people of those same counties watched in disbelief as Husted again blocked their initiatives. This time, the Ohio Supreme Court affirmed his actions.
It is not surprising that Husted – who as of this writing is running for governor – is the darling of the very oil and gas industry targeted by those local initiatives. Indeed, the industry has long-supported his electoral campaigns.
Democratic Rights Matter
The people of Ohio aren’t the only victims of their own government. Across the country we are seeing government efforts, often at the behest of corporations, to restrict the authority of “we the people” to the initiative. Government officials are taking this action even though the authority for initiative is codified in nearly half the state constitutions in the United States.
In Oregon, a cat-and-mouse game is underway between some of the country’s largest agribusiness corporations and residents of rural counties. People there are proposing local initiatives to ban aerial pesticide spraying and genetically modified crops. In response, corporations affected by those initiatives have lawyered-up, using obscure legal provisions to try to stop the initiatives from ever reaching the ballot.
In Washington State, at the urging of industry, courts have now adopted a rule that allows virtually any proposed citizen-sponsored initiative to be blocked by corporations before ever reaching the ballot and a vote of the people.
In New Hampshire and Maine, some local elected officials have gone even further – refusing to allow duly-qualified citizen initiatives to be voted upon at annual Town Meeting. In at least one New Hampshire town, local elected officials have refused to sign an initiative even after it was legally adopted by the people of the town.
Corporations are working to restrict democratic rights to initiative as communities are advancing structural change – challenging the current system of law we live under, which insulates corporate projects from democratic control. In its place, these communities are moving forward a new system of law based on recognizing the right of communities to decide their own futures, and then elevating that community right above corporate “rights.” This new system is now beginning to forcibly crash into the older, existing one.
The ballot clashes in Ohio, Oregon, and elsewhere are all about the old system not going quietly.
The Old
Here’s how the system works today. Decisions made by the federal government trump the decisions and laws of state governments. Decisions and laws made by both federal and state governments trump the laws of local governments.
So, when the State of Vermont adopts a law requiring the labeling of food products containing genetically modified ingredients, the U.S. Congress can simply override it. It did so in 2016 when our representatives passed a law nullifying state efforts to mandate food labeling.
The more central an issue is to affecting commerce, the more preemptive rules you will find around it. For example, the federal government controls almost all issues dealing with oil and gas pipelines and the rail transportation of fossil fuels. Thus, those issues are lifted out of the hands of local and state governments.
State-level preemption operates in a similar fashion. Almost all states have oil and gas laws. Those laws regulate and control how fossil fuels are extracted. Those state laws have generally been found to abolish not only the authority of localities to determine how oil and gas is extracted, but whether oil and gas is extracted. Thus, state laws – such as those in Texas, Colorado, Pennsylvania, and Ohio – eliminate the authority of local communities to ban oil and gas extraction altogether.
Similarly, state legislatures across the country have adopted a slew of laws prohibiting communities from banning large corporate water withdrawals, dumping of toxic sewage sludge, and GMOs. Some states, including Pennsylvania and New York, have even authorized their state Attorneys General to act as private attorneys for corporations to sue communities who buck those laws.
It all boils down to this: If you have the financial and legal ability to control the uppermost levels of lawmaking and decision making, you don’t have to abide by the rights and wishes of the communities in which you operate.
But it Gets Even Better – Corporate “Rights”
There are rare cases in which people have actually been able to use their state or federal government to adopt laws that benefit the public interest. However, corporations then use the courts to either overturn those laws or severely limit their reach.
Corporations are the dominant economic players in our system. They have pioneered the use of corporate constitutional “rights” to attack any law that infringes upon their ability to engage in commerce or use corporate property. In today’s world, in which almost every meaningful reform affects commerce or property, it’s relatively easy to apply those “rights” to overturn laws that affect certain industries.
Thus, corporate free speech rights have been leveraged to overturn federal laws limiting corporate campaign donations; corporate religious rights have been used to limit healthcare legislation; corporate property rights have been used to overturn environmental regulations; and corporate commerce rights have been used to strike down regulations on coal mining, trucking, pipelines, waste disposal, and landfills.
Thus, when corporations lose at the ballot box, or in legislatures, they can resort to the safe harbor of the judiciary. This branch of government has shown itself more than willing to vindicate corporate “rights” to nullify laws that corporations don’t like. Making matters worse, state legislatures often take those court rulings and write them directly into state law – thus safeguarding those corporate “rights” by providing statutory protection for them.
Each round of this makes it harder to remove those corporate protections, adding more and more layers that must be peeled back in the future.
For “we the people” to get anything to stick, we are forced to successfully navigate every single gauntlet. We not only work to convince legislators to pass our laws, but then hope against hope that we can beat back the corporations as they sue us for violating the rules of preemption and corporate “rights.”
While we have to win at every level to succeed, corporations only need to win at one to put us back on the defensive.
It’s the ultimate rigged game. It works only because the system is so camouflaged to give it the appearance of being open to change, and so few people understand the degree to which it is rigged.
Is it any surprise that we’ve ended up where we are?
The New
Over the past twenty years, people in hundreds of communities across the U.S. have come face-to-face with the machinery of this system and its inevitable results.
Poll after poll and study after study reveal the same thing: People want healthy, safe communities and protections for nature. And yet our system has been engineered to deliver the opposite. Instead of recognizing the power of people to build those communities, it gives power to those interested in exploiting them.
Those trying to stop the spread of GMOs at the community level run up against state and federal laws that override their efforts. Those trying to stop corporate water withdrawals run up against state water resources laws. Those trying to stop the dumping of sewage sludge run up against state nutrient management acts. Those trying to ban fracking run up against state oil and gas acts. Those trying to stop oil and gas pipelines run up against preemptive federal authority lodged in agencies like the Federal Energy Regulatory Commission.
Many of those communities try to use traditional nuisance, land use, or zoning laws to stop those corporate projects. In doing so, they labor to find a loophole in the preemption laws, or they hire lawyers who have convinced the communities that concocting some kind of exception to those laws is possible.
They almost always lose. And even in those rare circumstances when they win, like a self-sealing tire, the system develops new laws that permanently seal the leak – so that other communities are unable to use the same arguments.
Many communities have learned from those losses and have begun to drive a new theory of law – one not focused on trying to find loopholes, crawling through exemptions, or finding the “right” judge who might look favorably on their lawmaking.
These communities have begun to understand that the individual threat or issue facing their community – fracking, GMOs, or otherwise – is just a symptom of this system, not the problem itself. That’s because the system we have doesn’t care what we want or need, no matter what the consequences to our communities and nature.
People in communities under threat are confronted with the reality of this existing system. They are concluding that without true decentralization of decision-making authority down to the community level, they’ll never be able to stop fracking or other threats from invading their communities. Further, they are realizing we’ll never be able to move toward anything close to sustainability. They’re arguing that the people of their communities possess a constitutional right of local, community self-government – the authority to govern themselves on issues that the corporate state has removed from their control.
What will it take for communities to actually have control over whether fossil fuels are shipped through them? To decide if pipelines are laid? To vote if GMOs are planted? To determine whether they are forced to become the unwilling hosts of factory farms, toxic dumps, or pollution factories?
It will take the entire system of law turned upside down.
That means that communities must be able to pass laws and make them stick. It means making those communities immune from corporate “rights” and the authority of “higher” governments to define what communities can and cannot do.
It means giving birth to community democracy – a concept that, itself, is actually older than the system we currently have.
The New – A Constitutional Right of Local Community Self-Government
Recognition by the courts of a constitutional right of local community self-government would have far-reaching consequences. A finding that the right exists would force other legal doctrines to give way to that right. This means, for example, that the use of corporate “rights” to overturn local laws would be precluded as running afoul of the right of self-government. So would the authority of the state and federal government to override certain types of local lawmaking.
Consider a rural community facing fracking. Today, under the old (existing) system, let’s say the community adopts a law, either by their elected officials or through an initiative process, to ban fracking for shale gas. The law perhaps establishes a local “bill of rights” that recognizes rights to clean air, pure water, and sustainable energy, and then bans fracking as a violation of those rights.
The law is inevitably challenged by oil and gas corporations affected by the ban. The constitutional right of the people to local community self-government is thus pitted directly against the corporate claimed constitutional “rights” and against the state government’s authority to prevent the community from adopting the law.
With the recognition of a constitutional right of local self-government, however, those corporate “rights” and the authority of the state government must give way to the people’s constitutional right to govern themselves.
Such a system, while recognizing the authority of the state and federal government to set a minimum “floor” for environmental, labor, and other standards, would prevent the state and federal government from prohibiting communities from setting higher standards, or from expanding civil and environmental rights at the local level. It is precisely that “ceiling” preemption where corporations have run amok – using that power to stop communities from prohibiting harmful corporate projects.
The Clash of the Old and the New
Because this new system is so unlike the old, it would be surprising if the corporate defenders of the old system wouldn’t be investing huge sums of money to stop this new system of law from being adopted by communities.
Over the past decade, as over two hundred communities in ten states have driven this new system into being, affected corporations have challenged a handful of those laws. Today, understanding the scope of change envisioned by the community rights movement, those corporations are now reaching into the elections system itself, to stop those laws even before they are adopted.
We need to understand that these corporate challenges are proof that the new system of law envisioned by communities is striking exactly as intended – directly at the very power currently wielded by corporations against people and nature.
We must respond by challenging not only the ability of corporations to stop these initiatives, but by directly challenging the authority of judges and courts to help them do it. If the actions of the corporations violate the people’s rights of self-government, and the corporations are unable to prevent community votes without the courts, then it’s time for more and more people to understand how the system itself stands in direct contrast to the “we the people” myth of American lore.
From there, rather than trying to reform the existing structure, more and more people will begin the real work of building a new one.
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Feature Photo: Flickr Creative Commons: Black Lives Matter by Ella
In August 2015, thirteen states sued the U.S. Environmental Protection Agency (EPA) for violating the federal Clean Water Act. Rather than claiming that the EPA wasn’t doing enough to protect the nation’s waterways, the states were instead arguing that the agency was trying to do too much by seeking to protect more of the nation’s rivers and streams.
The Attorneys General for the states argued that the U.S. Constitution gives limited authority to the federal government to protect the nation’s waterways, and that the EPA’s actions – in seeking to bring more rivers and streams under the protection of the Act – overstepped that federal authority.
Doesn’t the federal government have the authority to protect all of the country’s natural environment, including all rivers and streams?
Which raises the obvious question – doesn’t the federal government have the authority to protect all of the country’s natural environment, including all rivers and streams? The Attorneys General who filed suit – driven by corporations who want to pollute waterways without federal interference – are arguing that it doesn’t, and that the Constitution itself limits the reach of the Clean Water Act and other environmental laws.
Unfortunately, they might be correct. At least one court has already agreed with them; and if the lawsuit ultimately succeeds, then the EPA’s latest attempt to protect the health of the nation’s waterways would be ruled to be unconstitutional.
Why the Constitution Isn’t What We Think it Is, & How the Environment and Civil Rights Were Left Out in the Cold
To understand how it might be unconstitutional to provide for the cleanup of rivers and streams, we must consider the background of the Clean Water Act itself.

In 1972, Congress adopted the Act, setting certain standards for water quality in the U.S. During the drafting of the law, congressional sponsors ran up against a problem they’ve encountered many times before – that while the U.S. Constitution provides specific congressional lawmaking authority in certain areas (such as taxes and national defense), it doesn’t recognize the authority of Congress to protect the environment.
This is because when the Constitution was drafted in the late 1700s, protecting the natural environment (as opposed to finding multiple ways to exploit it), wasn’t on the minds of the founding fathers – or almost anyone else for that matter.
Not only does the Constitution fail to provide for congressional authority in the area of environmental protection, it similarly fails to recognize congressional authority to legislate in the areas of civil rights, violence against women, or voting and worker rights.
While the founders were heavy on federal taxing and spending powers, armies and navies, and relations with other countries, Congress – as a guarantor of people’s rights – was an idea whose time had not yet come.
Of course, Congress has adopted civil rights, labor, and other rights-based laws. But in order to do so, it has engaged in a sort of legal flim-flam – by adopting those laws under a power the Constitution does provide Congress – the power to regulate interstate commerce.
Thus, to support its passage of the Clean Water Act (and other environmental laws), Congress was forced to use authority granted to it by the Interstate Commerce Clause, found in Article I of the Constitution.
Under the Interstate Commerce Clause, Congress has the authority to regulate commerce that occurs between the states. This means that Congress’s authority to pass the Clean Water Act – and other environmental laws – necessarily required treating the natural environment as commerce under the law. Otherwise, Congress was left without a platform to adopt and enforce laws to protect nature.
With the Clean Water Act, therefore, we find that it only applies to protect what are known as “navigable waters” – a phrase referring to waterways that are used for shipping and commerce which flow between states.
If it isn’t navigable, it ain’t commerce; and if it ain’t commerce, the federal government lacks the authority to regulate it.
Reasonable Birds
Congress has been forced to legislatively contort itself to fit under the Constitution’s commerce authority to protect the natural environment. Yet, its actions are nothing compared to the gyrations of the federal courts when asked to apply the limitations of interstate commerce to the nation’s environmental laws.
For example, the U.S. Supreme Court concocted a “reasonable bird” test for evaluating whether a waterway is “navigable” and therefore falls under the Clean Water Act’s protections. The Court has declared that if a “reasonable” bird flying between states would land on a waterway, then the waterway could be considered to fall under Congress’s interstate commerce authority, and therefore, could be regulated under the Clean Water Act.

If that all sounds farfetched, consider that Congress has been engaged in these legal games for over a century.
Civil rights and desegregation laws have been defended on the basis that they are an assertion of Congress’s authority to protect African-Americans as travelers in interstate commerce. One particularly distasteful (but clarifying) moment occurred during a 1960s oral argument in a U.S. Supreme Court civil rights case – African-Americans were discussed as “articles” of interstate commerce, thus falling under Congress’s authority to desegregate interstate travel corridors.
Fitting a round peg into a square hole has meant that civil rights, labor, and environmental laws all must explain, usually in the “authority” section of each law, how those laws are necessary to protect interstate commerce.
The National Labor Relations Act, for example, begins by declaring that the intent of the law is to eliminate “strikes and other forms of industrial strife or unrest which have the intent or the necessary effect of burdening or obstructing commerce.” The law then goes on to explain that the purpose of the law is not primarily to protect the rights of workers, but to prevent the “disruption of the market for goods flowing from or into the channels of commerce.”
The Affordable Care Act & the Commerce Clause
When courts interpret the reach of environmental, labor, civil rights, and other laws, they routinely examine the scope of congressional authority under the Commerce Clause that allows Congress to adopt them in the first place.
That’s exactly what happened in the main challenge to the Affordable Care Act. Lawsuits challenging the constitutionality of the Act focused on whether Congress had the authority under the Commerce Clause to require people to buy health insurance, as required by the Act. The Obama Administration’s defense of the law consisted of arguing that unhealthy people would create a burden to interstate commerce due to their inability to participate in economic activity. Thus, the Administration argued, Congress acted within its constitutional authority in adopting the law.

In hearing the case, the Supreme Court rejected that argument, declaring that Congress lacked authority under the Commerce Clause to adopt the Affordable Care Act. However, the Court saved the legislation by finding that Congress had acted within its lawful taxing authority, and thus, that the Act’s requirement to purchase health insurance was constitutional.
While the decision was held out to be a great win for the healthcare law – which it was – the Court’s ruling sent a signal of more ominous developments. That is, if the Court intended to restrict the reach of Congress under the Commerce Clause with regard to healthcare, that would, in turn, pull the rug out from under those civil rights, environmental, and labor laws that have been historically pinned to it. Thus, the Court’s decision on the Affordable Care Act could be considered one step forward, but two steps back – a doorway to a new jurisprudence that severely limits congressional power to adopt rights-protecting laws.
Transforming Nature from “Commerce” to “Rights-Bearing”
While most liberals are glued to the up or down nature of opinions from the courts, they don’t much care how judges arrive at them. That is, until the long-term erosion of gains makes it too late to understand how the ground has permanently shifted beneath them.
It’s time to come to grips with what the Constitution is, and more importantly, what it isn’t.
The critical question is whether we can protect the environment under a constitutional framework that requires Congress to treat nature as interstate commerce. If we cannot, then we need to change the Constitution that we have.
On the environmental front, that means a Constitution that finally recognizes ecosystems and natural communities as worthy of protection on their own, without screening them for their value to commerce and the economy.
Without waiting for others to arrive at that conclusion, a national movement is now bubbling up on its own. More than three dozen towns, villages, cities, and counties across the country have now adopted local laws which recognize that true environmental protection is only possible if nature possesses enforceable rights of its own to exist and flourish.
What began as a grassroots movement is now beginning to drive upward, with proposed state constitutional amendments, and a federal constitutional amendment, which would guarantee a constitutional right for communities to protect the rights of nature.
At one time in this country, of course, slaves were in the same position – considered “right-less” under the law. It took the Abolitionist Movement and the Civil War to amend the Constitution to transform slaves from being recognized as property under the law to being rights-bearing people.
Until we recognize the rights of nature in our federal and state constitutions, we will forever be dependent on the growth of commerce as an excuse to protect our natural environment.
Until we recognize the rights of nature in our federal and state constitutions, we will forever be dependent on the growth of commerce as an excuse to protect our natural environment. It’s time to sever that link and unplug the natural environment from the wheel of the commercial economy.
If we don’t, we will forever be constrained by a 1780s system of law that didn’t recognize the natural environment as being worthy of any protection at all.
Community Rights Paper #9: Drowning the Clean Water Act in the Constitution’s Bathtub
Visit here for more Community Rights Papers!
Sunday, May 19, 2013 nearly thirty residents from communities all around the state met to sign the Barnstead Declaration and to initiate a statewide call for legislative and constitutional changes that recognize the right to local self-government and the Rights of Nature.
The filing of incorporation papers with the state of New Hampshire and the seating of the New Hampshire Community Rights Network (NHCRN) Board of Directors marked the official beginning of an educational effort to drive changes to law that reflect guaranteed protections for the right to local self-government and the rights of nature. There are currently seven municipalities in New Hampshire with community rights-based laws on the books, all of which were petitioned to annual town meetings and acted on by residents concerned about projects they saw as threatening to the health, safety and wellbeing of their neighborhoods. These local laws elevate the rights of people and nature above the claimed rights of corporations.
The May 19th meeting reflected on the historic work done by Barnstead residents in 2006, when they voted to ban corporate water extraction within the Town by enacting the Barnstead Water Rights and Local Self-Government Ordinance.
NHCRN members who gathered at the Barnstead Town Hall voiced concerns about the lack of local control over diverse issues such as energy – large scale hydroelectric project the Northern Pass, industrial wind, and smart meters; corporate water extraction; clean elections; unsustainable development; the patenting of life forms by corporations through GMO engineering; and other state-permitted projects. Each community will be represented on the NHCRN Board by a democratically – elected member, who will participate directly with other board members and volunteers to further educate New Hampshire people on the right to local self-government.
Washington Community Rights Network
A special project of the Community Environmental Legal Defense Fund
Washington Communities Launch Statewide Network
To Advocate for Community Rights
“The corporate state is not science fiction. It’s barreling through my community in the form of coal trains. Government isn’t going to stop this kind of destructive behavior. It’s going to take people, in the places where we live, to break the chokehold of law favoring corporate rule to one of community rights.” – Rick Dubrow of Bellingham, Washington.
MEDIA RELEASE
August 7, 2012
CONTACT: Kai Huschke
509.607.5034
info@celdf.org
SPOKANE: In late July, citizens from Washington communities gathered in Spokane to launch the Washington Community Rights Network (WCRN).
Network members released The Spokane Declaration, calling upon communities across the state to join together in a movement to elevate the rights of people, their communities, and nature above the claimed rights of corporations. This comes with an understanding, as stated in the Declaration, that:
(O)ur communities are under siege from corporations exploiting our communities for resource extraction and a variety of other uses harmful to us and the natural environment…from a structure of law that has bestowed greater rights on those corporations than the communities in which they operate…
The creation of the Washington Community Rights Network comes out of active community campaigns on both sides of the Cascades. Bellingham has qualified a Community Bill of Rights initiative for the November 2012 ballot. The measure would secure residents rights to clean air and water, along with prohibiting coal trains from passing through Bellingham.
In Spokane, an effort is underway to qualify a third Community Bill of Rights for the November 2013 ballot. In 2011 voters nearly passed a similar measure that would’ve given neighborhood residents decision-making power over major development, greater protections for the river and aquifer, and worker rights over that of corporate rights. Seattle, Vancouver, Skagit County, Whatcom County, and other Washington communities are at various stages of community rights efforts.
The Network will expand its grassroots organizing to communities across Washington. Kai Huschke, Legal Defense Fund Organizer and WCRN Coordinator, explained, “As a growing number of communities face threats including massive coal shipments, they are reaching the shared conclusion that corporations, along with our state and federal government, have more power to decide what happens in our communities than the people who live there. They are now coming together through the Washington Community Rights Network to organize for local self-governance to elevate community rights over corporate rights.”
The Washington Community Rights Network is a special project of the Community Environmental Legal Defense Fund. The Legal Defense Fund, headquartered in Mercersburg, PA, with offices in Spokane, has been working with people and communities in Pennsylvania, across the United States, and internationally since 1995 to assert fundamental rights to democratic local self-governance, recognize nature’s rights, and end destructive corporate actions aided and abetted by state and federal governments.
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Feature image by Andrea Bowers – “Honor Earth”
Feb 2-May 26, 2024 in Cleveland, Ohio.
The “Exist, Flourish, Evolve” art show will be held at The Cleveland Museum of Contemporary Art and will focus on Rights of Nature and the Great Lakes in particular.



Andrea Bowers, Los Angeles based activist artist, learned of CELDF when she heard about the Lake Erie Bill of Rights (LEBOR). She grew up in Ohio just a few steps from Lake Erie. After hearing about LEBOR Andrea reached out to CELDF to learn more about our work with Rights of Nature and asked how she could help the movement. Art has always been a way to inspire people’s thinking and challenge their beliefs, along with activism. We are thrilled with the collaboration between Andrea and CELDF and we can’t wait for the show to open!
As Chilean voters are poised to go to the polls this coming Sunday, September 4, to hopefully become the second country in the world to include recognition of the Rights of Nature (RON) in their national constitution, it is obvious just by reading a few headlines in any given week that more countries need to embrace and follow Chile’s lead. “Forever Chemicals Increase Risk of Liver Cancer”, “Violent storms kill three across Midwest and southern US and leave thousands without water”, “Pakistan floods: One third of country is under water”, and these are just a few.
Make no mistake; this new, very rights expansive constitution is not on the ballot because some politicians had a vision while they slept of making a paradigm shift to protect nature and give the people more of a say in local decision making. NO. Rather, the people of Chile pushed for this plebiscite.
For a very simplified history lesson, on September 11, 1973, with the backing of the U.S., Augusto Pinochet seized power of Chile in a coup d’état. Pinochet persecuted political critics, banned labor unions and privatized social security and other state enterprises, setting off decades of oppression of the people of Chile and ever-growing wealth disparity between the rich and the rest of the population along with devastating environmental effects from massive mining and mineral extraction by global corporate interests. Henry Kissinger introduced national elites to the market-based model for controlling government and instituting laws and policies that benefited capitalist investors at the expense of the nation and its ecology.

The people had enough of the neoliberal oppression and the straw that broke the camel’s back, as they say, was an official increase in the cost of using public transportation in 2019, when the people said “enough” and took to the streets en masse. Nearly 2 million people gathered on the streets of Santiago on October 25, 2019 (the equivalent of 36 million Americans taking to the streets) to protest the system of elite rule at the expense of everybody else.
It is appropriate that this vote takes place in September. It is the month in which the very first Western law recognizing legal rights for ecosystems was enacted on September 19, 2006, in the small town of Tamaqua Borough, Pennsylvania, a conservative community located in the east-central part of the state. As poisonous waste was about to be trucked in from New Jersey to be dumped into open pit mines in Tamaqua – remnants of prior environmental devastation – and as more people were diagnosed with rare cancers and other debilitating diseases—they said ENOUGH. Just like the people of Chile, they reached a limit.
Tamaqua’s people persuaded a majority of their elected local officials to take seriously the connections between what was happening to their environment and water, and what was happening to their own bodies. Some residents reached out to the Community Environmental Legal Defense Fund (CELDF) and asked for help. With CELDF’s assistance, an ordinance was drafted, they organized educational community meetings and mounted protests against the state environmental protection agency whose issuance of permits to the Lehigh Coal and Navigation Company made it complicit in poisoning the community. It wasn’t easy and the vote of the Borough Council was close, but the local government officials passed the ordinance that turned local ecosystems into rights-bearing entities.
There were no big media headlines back in 2006 and the law went unnoticed by most, including environmental activists and organizations. But, two years later, it caught the attention of some people in the country of Ecuador. The Pachamama Alliance, an NGO rooted in Amazonia, facilitated the connection between CELDF and the Constitutional Assembly to develop legal language recognizing the Rights of Nature. On September 28, 2008 (September again, hopefully, a good omen for Chile), the people voted overwhelmingly to accept the new constitution. With that vote, Ecuador became the first country in the world to constitutionally recognize legal rights for Mother Earth, while also giving the people legal standing to act on behalf of Nature in legal proceedings.
Fast forward to November, 2021, the Constitutional Court of Ecuador upheld the rights of the Los Cedros Cloud Forest and stopped a mining project. This was a historic decision that is an inspirational read. The court’s ruling clarifies what it looks like when Rights of Nature are enforced.

Since 2006, CELDF has continued to be an active and long-term contributor to the community rights and Rights of Nature Movement. We have battled side-by-side with people in Oregon to protect nature from toxic pesticide spraying of forests; in Washington to secure worker rights and people power in opposition to rampant development; in Ohio, we helped organize a successful campaign to enact the Lake Erie Bill of Rights; in Pennsylvania, we’ve been involved in protracted struggles to protect nature from fracking; in New Hampshire, we’ve partnered with communities to protect their individual rights to religious freedom and water from privatization. As more communities have stood up for the Rights of Nature, the opposition has become more fierce and attempts to shut down and co-opt the movement ever more slick and deceptive. With these competing agendas converging upon the community rights and Rights of Nature community, both here in the US and around the world, it has become clear that the time is right to reflect on where the movement has been, where it is now and where it could go in the future.
As we witness more and more the violent effects of extraction, consumption and destruction of Nature and the permanent effects that pathological materialism has on all life, not just humans, we must listen more closely to, and learn from, traditional Indigenous people around the world. They have lived in harmony with nature, demonstrating what true sustainability looks like, since time immemorial.
We must come to understand that changing laws is not enough. We must change our thinking and our relationship to the natural world. What’s required is a cultural shift as well as a legal shift that spawns alternative ways of living and governance. CELDF has partnered with communities for over two decades to blueprint a better existence. Chile is looking to move in that same direction with their proposed constitution.
Because both the legal and cultural shifts have to happen simultaneously, CELDF will be introducing our Nature Leads Series – model law templates, principles, articles and conversations to keep the Rights of Nature Movement moving forward. We wish the people and the ecosystems of Chile good luck on Sunday. The “final score” affects us all!
This year’s Peatfest is focusing on the rights of peatlands. Inspired by the overall rights of nature movement and the CELDF assisted Declaration of Rights of Wetlands the youth-led Re-Peat organization says this about what they are looking to gain from the 4-day festival, “we see a huge amount of value in connecting the Rights of Nature movement to peatlands, and want to collaboratively kickstart the process of acknowledging these rights. As a powerful tool, Rights of Nature has the potential to transform our relationship with the natural world when done in collaboration with other vital decolonial work.”
CELDF will be leading a workshop on dismantling corporate privilege and elevating local-self determination in the context of evolving legal rights of nature. CELDF will also be part of a panel titled “Universal Declaration of the Rights of Wetlands: How Do We Operationalize These Rights?” with international colleagues from the Rights of Wetlands working group. The Rights of Wetlands working group, of which CELDF is a part, will be presenting a draft on the intrinsic rights of wetlands at the Ramsar COP14 to be held in Switzerland this November.