Though we’ve been doing it for decades now, it’s been in the last two years through CELDF’s Wouldn’t You Say? series that we’ve been looking at different ways to venture into history, the present, and the future when it comes to community health and welfare. We’ve taken readers into the depths of rights of nature, through the lens of ecosystems and humans, out onto the frontiers of free speech, and through the long hallways that have empowered corporations with greater rights than people. This provocative collection comes out of nearly 30 years of on-the-ground experience and the insight and guidance of CELDF’s Education Director, Ben Price.
The essays in Wouldn’t You Say? ask challenging questions about modern society, our relationship to each other, and to the natural world. The book suggests that another world is possible, but that it will require a different narrative than the one playing power games in our heads. Besides facing the facts of the system we currently live in, readers of Wouldn’t You Say? will also see that there are many of us out there busy outlining a new story for how we live. That collective story emerges from our innate and nature-born generativity, which is to say, our longing to rekindle our kinship with the living world and share that rich way of life with future generations.
Excerpt from the conclusion of Wouldn’t You Say? –
We can’t claim there is no choice but to continue business as usual. We can’t pretend the impending disasters are someone else’s fault and none of our doing when the solution is right in front of us. All the playground excuses in the world won’t cover up the fact that we’re turning the place our grandkids must live in into a steaming cesspool. It’s way past time we grow up. Wouldn’t you say?
Opposing harmful industrial projects – like mines, aerial pesticide spraying, factory farms, or toxic waste disposal facilities – is scary and difficult work. Feeling this fear and confronting the difficulty of the work, it is tempting to cling to false, but comforting beliefs that the communities we belong to possess more rights to protect us than they actually do.
I am a grassroots community organizer and lawyer. I am not Native but I have worked in both Native and non-Native American communities opposing industrial harms that threaten them. For the past three and a half years, I’ve been involved in a campaign to stop a massive open pit lithium mine from destroying sites sacred to Paiute and Shoshone people at Thacker Pass in Northern Nevada. On January 15, 2021, the same day the federal government issued the last major permit for Lithium Nevada Corporation’s Thacker Pass Lithium Mine Project, along with my colleague Max Wilbert, I co-founded Protect Thacker Pass and set up a protest camp where the project’s proposed open pit mine would be constructed. I spent most of 2021 living in a tent and protesting the mine. When it became clear that no one was representing Native American interests in legal actions against the mine, I began representing two tribes against the federal government for permitting the mine. In late 2021, Max and I were fined nearly $50,000 for constructing temporary composting outhouses – at the request of local tribal elders who needed a place to use the bathroom while engaging in ceremony at the site – on the same land that would be destroyed for the mine’s 1,100 acre open pit. In June 2023, I was sued along with Native and other water and land protectors, for peacefully protesting at the Thacker Pass mine site after legal challenges to the project failed.
I also work with the Community Environmental Legal Defense Fund (CELDF) and have been involved in campaigns in non-Native communities to help those communities assert their right to local self-government and the rights of nature. With CELDF, I assisted the citizens of Toledo, OH to enact the Lake Erie Bill of Rights, which gave Lake Erie the rights to exist, flourish, and naturally evolve; gave the people of the City of Toledo the right to self-government in their local community; and which stripped corporations of any rights that interfered with Lake Erie’s rights or Toledo citizens’ right to local self-government. I helped Toledo residents attempt to intervene in a federal lawsuit to defend the Lake Erie Bill of Rights from corporate attack where it was ultimately struck down for exceeding municipal authority and infringing upon corporate rights.
A comforting but false belief I often encounter that diverts communities from effectively protecting themselves from social and environmental harm is the belief that American law gives communities a say over whether the government will allow destructive industrial projects to be constructed in their communities. Many Americans envision processes like public hearings and comment periods as fundamentally democratic. They believe that if enough residents tell the government they do not want an industrial project in their community the government will listen and refuse to issue permits for the project. After all, we are taught “we live in a democracy, of, by and for the people.”
This belief of community input making a difference in outcomes is widespread in both Native and non-Native American communities. With the government parroting terms like “tribal sovereignty” and “government-to-government consultation,” many people assume that Native Americans really do have sovereignty over their lands. Similarly, with many state constitutions declaring that communities have a right to local self-government, many Americans believe that their communities really do possess a right to local self-government.
Unfortunately, federally-recognized tribes in the United States are not actually sovereign nations and American communities do not actually possess a meaningful right to local self-government.
Many Native Americans understand that the United States has colonized them, while many non-Native Americans do not recognize that they have also been colonized. This is not to say that all forms of colonization are the same. Non-Native American settlers benefit from a colonial system that is built on land and labor stolen from Native Americans. Many municipalities have been involved in stealing this land and pushing Native Americans away from municipalities. However, social and environmental justice movements in the United States would benefit from recognizing the similar ways in which American law disempowers both Native and non-Native American communities. When Native and non-Native Americans recognize the similar way in which they’ve been disempowered, they can realize the common cause they both share, combine their strengths, and work more effectively to claim true sovereignty.
Photo by Samuel Regan-Asante on Unsplash
White Man’s Reservation
More non-Native Americans need to recognize the way they’ve been colonized. My colleague at CELDF, Ben Price, offers a story that illustrates this in a blog post he wrote in 2020 to honor the passing of Lakota activist Debra White Plume (Wioweya Najin Win). Debra was a brave advocate for her people and memorialized by the New York Times as a “prominent Native American activist who faced down police bullets, uranium mining companies and oil pipeline projects in trying to protect the traditional Oglala Lakota way of life.”
Ben was invited by the Chadron Native American Center just south of the Pine Ridge Reservation to teach a class about the evolution of corporate power in the United States. After Ben explained how municipalities under American law are not given the power to ban corporate projects within city limits, Debra stood up and said something Ben will never forget. “‘Hmmm,’ she said, ‘so municipalities are the white man’s reservations. The only difference is, we know we’re on reservations.’”
Ben explained why Debra’s words were so important: “I could imagine no explanation of how commoners in the United States have been politically, economically, and legally subordinated to the corporate class. Only Americans choose to ignore this structure…Debra revealed a simple truth that stares non-Native Americans in the face, but too-often goes unnoticed.”
Tribal Sovereignty
The Cambridge Dictionary defines “sovereignty” as “the power of a country to control its own government.” The Merriam-Webster Dictionary includes in its definition “freedom from external control.” To assess whether tribes are actually sovereign in the United States, we need to ask: Do tribes possess the power to control their own government? Are they free from external control?
Rhetoric is not reality
Photo by Rene DeAnda on Unsplash
The American government often makes proclamations that make it appear that the American government respects tribal sovereignty. In 2000, for example, the Clinton Administration issued an executive order titled “Consultation and Coordination with Indian Tribal Governments.” The order contains these exciting declarations:
“The United States recognizes the right of Indian tribes to self-government and supports tribal sovereignty and self-determination.” And, “Agencies shall respect Indian tribal self-government and sovereignty, honor tribal treaty and other rights, and strive to meet the responsibilities that arise from the unique legal relationship between the Federal Government and Indian tribal governments.”
A few days after taking office in January, 2021, Joe Biden issued a “Memorandum for the Heads of Executive Departments and Agencies” on “Tribal Consultation and Strengthening Nation-to-Nation Relationships” in which he expressed support for Clinton’s executive order quoted from above. In his memorandum, Biden declared: “It is a priority for my Administration to make respect for Tribal sovereignty and self-governance, commitment to fulfilling Federal trust and treaty responsibilities to Tribal Nations, and regular, meaningful, and robust consultation with Tribal Nations cornerstones of Federal Indian Policy.” More recently, on December 6, 2023, Biden issued an executive order on “Reforming Federal Funding and Support for Tribal Nations to Better Embrace Our Trust Responsibilities and Promote the Next Era of Tribal Self-Determination.” In the order, Biden declared, “My Administration is committed to protecting and supporting Tribal sovereignty and self-determination, and to honoring our trust and treaty obligations to Tribal Nations.”
This all sounds good, doesn’t it? The problem is, sounding good is all these proclamations do. They make people think that the federal government honors tribal sovereignty when in reality it does not.
I describe below how Congress and the courts make Biden’s declarations to support tribal sovereignty impossible. It might be tempting to conclude that members of the executive branch, here, are trying to do the right thing while Congress and the courts won’t let them. However, readers must remember that both Bill Clinton and Joe Biden are lawyers and Biden a former member of Congress and Clinton a former Governor. Both were or are supported by very capable lawyers who understand how tribal sovereignty really operates in this country. Biden’s statements are nothing more than political rhetoric designed to secure Native and sympathetic liberal votes. There will be no true tribal sovereignty until more people refuse to be pacified by these pretty sounding words.
Congress has declared that tribal nations are not independent nations
Under the American federal system of governance, the President does not make law. Congress makes law and federal courts interpret that law. In simpler terms: Congress writes the law and courts tell us what Congress wrote means.
Photo by Joshua Woods on Unsplash
Congress long ago clearly legislated that Indian tribes are not sovereign nations. On March 3, 1871, Congress passed Title 25, United States Code § 71, titled “Future treaties with Indian tribes” and declared: “No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty…” Recall the definition of sovereignty given above. Sovereign nations are independent and have the power to make treaties with other sovereign nations. But, Congress explicitly declared in 1871 that no Indian nation or tribe is an independent nation with the power to make treaties with the United States.
Federal courts have declared that Congress has plenary power over the tribes
Photo by Woods on Unsplash
Federal courts have the final say over the rights possessed by federally recognized tribes. To assess what those rights are, it is necessary to examine court decisions about the rights of federally recognized tribes. Perhaps no one has described the situation as clearly as a Montana federal district court when the court explained: “No doubt the Indian
tribes were at one time sovereign and even now the tribes are sometimes described as being sovereign. The blunt fact, however, is that an Indian tribe is sovereign to the extent that the United States permits it to be sovereign – neither more nor less.” United States v. Blackfeet Tribe of Blackfeet Ind. Res., 364 F. Supp. 192, 194 (D. Mont. 1973).
The court is absolutely correct that “Indian tribes were at one time sovereign.” Before the arrival of Europeans in North America, each Native American First Nation was just that: a sovereign nation with the power to govern its own affairs, use militant force to defend its land and people, enter into treaties and agreements with other First Nations, etc. – all the powers that the truly sovereign nations of today possess. Beginning in 1492, European nations invaded North America. and Britain, France, Spain, the Netherlands, Russia and the United States systematically destroyed Native governments and the ability of Native nations to defend themselves. The result, today, is exactly as the Montana judge described: whatever so-called sovereignty Indian tribes now possess, that sovereignty only comes by the permission of the US government. This is not sovereignty, but the comforting illusion of sovereignty.
The Supreme Court is the supreme authority on the rights of federally-recognized tribes. The first Supreme Court case to explicitly address tribal sovereignty was Johnson and Graham’s Lessee v. William McIntosh, 21 US 543 (1823) (known colloquially as “Johnson v. McIntosh”). In Johnson v. McIntosh, Supreme Court Justice John Marshall formally adopted the Doctrine of Discovery, which holds that the first European nations to “discover” Native American lands gained the exclusive right to own those lands because those European nations were the first Christians to “discover” those lands.
The Supreme Court explained that the rights of Native Americans in land “discovered” by Europeans “were necessarily, to a considerable extent, impaired…their rights to complete sovereignty, as independent nations, were necessarily diminished…” Id. at 574. And, the European discovery of Native land gave the United States “an exclusive right to extinguish the Indian title of occupancy, either by purchase or conquest…” Id. at 587. Translation: the federal government has the legal right to push Native Americans off their land.
Photo by Bermix Studio on Unsplash
Sovereign nations have absolute and exclusive ownership over their lands. In Johnson v. McIntosh, Marshall explicitly rejected the notion that Indians have absolute and exclusive ownership over their lands: “All our institutions recognize the absolute title of the [federal government], subject only to the Indian right of occupancy, and recognize the absolute title of the [federal government] to extinguish that right. This is incompatible with an absolute and complete title in the Indians.” Id. at 588. In other words, the Supreme Court has never viewed tribes as being sovereign. This is true even for Supreme Court justices venerated by liberals like Ruth Bader Ginsburg who wrote in City of Sherrill v. Oneida Indian Nation of New York: “Under the Doctrine of Discovery…fee title to the land occupied by Indians when the colonists arrived became vested in the sovereign – first the discovering European nation and later the original States and the United States.” City of Sherrill v. Oneida Indian Nation of NY, 544 U.S. 197, 204, footnote 1 (2005)
Down to the 21st century, the Supreme Court has ruled that Congress’s power over Indian tribes is “plenary and exclusive.” United States v. Lara, 541 U.S. 193, 200 (2004). And, “It is thoroughly established that Congress has plenary authority over the Indians and all their tribal relations.” Winton v. Amos, 255 U.S. 373, 391 (1921). Plenary means full, complete, absolute, and unqualified. So, when the Supreme Court holds that Congress’s power over Indian tribes is “plenary,” that means Congress’s power over Indian tribes is full, complete, absolute, and unqualified. That doesn’t sound like sovereignty, does it?
Photo by Nellie Adamyan on Unsplash
A few more Supreme Court rulings about Congress’s plenary power of Indian tribes: “Our cases leave little doubt that Congress’s power [over Indian tribes] is muscular, superseding both tribal and state authority.” Brackeen v. Haaland, 599 U.S. ___ (2023). “Congress has plenary authority to limit, modify, or eliminate the powers of local self-government which the tribes otherwise possess.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978). “Virtually all authority over Indian commerce and Indian tribes” lies with the federal government. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 62 (1996). “Congress possesse[s] a paramount power over the property of the Indians.” Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903).
The enforceability of treaties between the federal government and Indian tribes is another widely misunderstood aspect of tribal non-sovereignty. Many people assume that treaties between the federal government and Indian tribes are imbued with some kind of magical force that binds the federal government to honor treaties made with Indian tribes. Unfortunately, that’s never been the case. The federal government, under American law, is not required to honor treaties made with Indian peoples. This should make readers angry. But, readers should resist the urge to deny this reality. Tribal sovereignty advocates who believe treaties will protect them will likely spend countless hours and money making treaty-based legal arguments that will not win.
I’ll quote the court decisions that state this below. However, we don’t really need to read those decisions to understand this. We just need to use common political sense and ask, when two truly sovereign nations enter into a treaty and one of those nations breaks the treaty, how does the sovereign nation who is harmed by the broken treaty enforce the treaty? The answer, of course, is simple: war. Or, at least, the credible threat of war. It is true that sovereign nations might try other things before war including economic sanctions, restrictive tariffs, withholding goods and services, threatening military intervention, diplomacy and compromise, etc.
But, at the end of the day, the only way to truly enforce a treaty is to physically force another nation to comply with the treaty. And, that happens at the point of a gun or the fat nose of a nuclear warhead. When was the last time an Indian tribe forced the United States to honor a treaty?
Photo by Andrew James on Unsplash
If that doesn’t convince you, let the Supreme Court:
“The power exists to abrogate the provisions of an Indian treaty…When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be availed of from considerations of governmental policy…”
Lone Wolf v. Hitchcock, 187 US 553, 566 (1903).
Not only does Congress have the power to break treaties when it wants to, Congress has the power to terminate a tribe’s recognition. For example, on August 1, 1953, Congress passed House Concurrent Resolution No. 108, which became better known as the “Termination Act.” Between 1954 and 1964, Congress terminated 109 tribes in eight states. Today, if a tribe seeks federal recognition, it must petition the government and prove that it meets seven criteria that, according to the federal government, proves that the group seeking recognition is, in fact, a tribe. Again, if a nation is sovereign, that nation’s sovereignty cannot be revoked or terminated by another nation. And, if a nation is sovereign, that nation should not have to request that another nation recognize its sovereignty.
Regardless, despite rhetoric that makes people think tribes are sovereign, the truth is Congress has legislated that tribes are not independent nations, the Supreme Court has ruled over and over again that tribes are neither sovereign nor independent nations, that Congress has plenary power over Indian tribes, that Congress has power to break treaties with Indian tribes and even to terminate Indian tribes. This means that tribes do not control their own government nor are they free from external control. So, the tribes are not truly sovereign. And, while it is true that sometimes legal decisions beneficial to tribes are made, ultimate sovereignty over tribes lies with the federal government.
The Right to Local Self-Government
Many Americans assume that their communities have a right to ban activities that harm their communities. Let’s say, for example, that a corporation proposes to construct a fracking waste injection well within a small town’s city limits. The residents of that small town learn about the public health and environmental risks associated with these injection wells and, therefore, oppose the well’s construction. What legal options do these people have to stop the injection well?
Photo by CELDF
If these citizens go to their city government and propose passing a law banning injection wells within city limits, the city attorney will introduce them to a legal doctrine known as “Dillon’s Rule,” which holds that a local government may exercise only those powers that their state government grants them. Or inform them of a state law passed by the legislature giving the state sole control and legal authority over oil/gas activities and preempting them from passing any laws on that topic.
Therefore, because these injection wells are legal under state and federal law, city laws banning injection wells are preempted and illegal.
John Forrest Dillon, the Iowa Supreme Court justice and later, general counsel to the Union Pacific Railroad and Western Union Telegraph Company, articulated “Dillon’s Rule,” describing the relationship between municipalities and state governments like this: “Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so may it destroy. If it may destroy, it may abridge and control.” Clinton v Cedar Rapids and the Missouri River Railroad, (24 Iowa 455; 1868).
In 1907, the United States Supreme Court officially adopted Dillon’s Rule. The Court, referring to the powers of city governments, wrote:
“The State…at its pleasure may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All of this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects, the State is supreme…” Hunter v. Pittsburgh, 201 US 161, 178-79 (1907).
For good measure, the Supreme Court doubled down on Dillon’s Rule in a 1923 case when it ruled: “A municipality is merely a department of the State, and the State may withhold, grant or withdraw powers and privileges as it sees fit. However great or small its sphere of action, it remains the creature of the State exercising and holding powers and privileges subject to the sovereign will.” Trenton v. New Jersey, 262 US 182, 187 (1923).
Perceptive readers might point out that a handful of states have passed what are called “home rule amendments” in order to specifically grant city governments some rights to local self-government. The Ohio Constitution, for example, declares:
“Subject to the requirements of Section 1 of Article V of this constitution, municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” Article XVIII, Section 3.
The key here, however, is the last part of the Amendment that limits local self-government to laws that “are not in conflict with general laws.”
This means that, in Ohio, if the state government has already legalized injection wells, then city governments are precluded from passing laws that make them illegal. Most states have never enacted home rule or local self-government provisions, which means that local governments in those states have even fewer rights to local-self government than states which have passed these provisions, like Ohio.
Just as Congress has supreme power over Indian tribes, state governments have supreme power over city governments. Just as Congress can terminate an Indian tribe, state governments may terminate city governments. Just as Congress’ sovereignty trumps tribal sovereignty, state sovereignty trumps municipal sovereignty. Municipalities, as Debra White Plume correctly deduced, are, indeed, “white man’s reservations.”
How would Indian tribes and municipalities gain true sovereignty?
How do we change all this? How would tribes truly gain sovereignty? How would city governments truly gain the right to local self-government? The harsh truth is those who benefit from the way American government is structured – the federal government, state governments, corporations, and large landowners – will viciously oppose any effective efforts to give tribes and city governments true sovereignty. Capitalists benefit from business friendly legal doctrines and a uniform regulatory system where they do not have to contend with patchwork prohibitions and restrictions enforced by sovereign communities. The entire American real property system is built on land stolen from Native peoples and would collapse if that land was returned to Native peoples. Empowering municipalities to reject harmful corporate projects would upend the legal mandate to maximize shareholder wealth. Judges and politicians are fully aware of this. And, they’re not going to be persuaded to change the dominant power arrangement.
The good news is persuasion is only one way to create change. Force is another. Force can, but does not have to, be violent. Power is not monolithic. What that means is those in power depend on us, depend on our obedience and cooperation to wield power. We can refuse our obedience. We can refuse to cooperate. Unfortunately, those in power can easily overwhelm isolated pockets of resistance. A few tribes, here or there, standing up for true sovereignty will be overpowered. A few municipalities, here or there, standing up for true sovereignty will be swatted down. For tribes and municipalities to gain true sovereignty non-violently, a mass movement of hundreds of tribes and municipalities must form, must refuse to comply with governmental, court, and police orders, and must put their sovereignty into practice.
At the end of the day, true sovereignty exists in the power of a community to physically enforce their sovereignty. The United States has supreme power over Indian tribes because the United States can send more soldiers, with more advanced weapons, to force Indian tribes to comply. The same is true for municipalities. So, if Indian tribes and city governments are serious about protecting their communities, they’ll need to learn how to counter the raw force the federal government can bring to bear. There is strength in numbers. And, if Indian tribes and municipalities saw themselves as the natural allies they truly are, they could join together to support and protect each other’s sovereignty.
Bio: Will Falk is an attorney. He co-founded Protect Thacker Pass and works with the Community Environmental Legal Defense Fund.
On August 2, 2014, Toledo residents awoke to government alerts to not drink, bathe, use or touch the water coming out of their taps. The water could make adult humans very sick and even worse for babies, children, and anyone with compromised immune systems. Fish, animals, and plants weren’t even considered. What was clear though, this was not a simple “boil alert” as has become commonplace in recent years.
For three long, hot summer days that August in 2014, 500,000 people in NW Ohio learned just how connected to nature they really are. Restaurants, business,es and the local hospital all had to shut down with no water. People lucky enough to have a reliable vehicle could drive the 100+ miles to find store shelves with some bottled water still on them.
That summer, the recurring annual algae bloom in Lake Erie got into the City of Toledo’s water intake. There had been even larger algae blooms in Lake Erie in years prior, but this one got into the city water system. It was almost as if Lake Erie was pleading with the people to help her, to pay attention. Humans with their industrial culture and economies have been using Lake Erie as a waste dump for decades and suffocating her with their chemicals, their manure, and their disregard. In 2014, she made them finally take notice.
Industrial agriculture in NW Ohio, featuring monocropped farms sprayed with RoundUp and other herbicides has combined with the ever growing number of animal factories (confined animal feeding operations, or CAFOs) producing more and more animal manure to bombard the Lake Erie watershed with phosphorus and nitrogen that has caused a recurring algae bloom that is the epitome of planetary overshoot. The constant lure of “progress,” measured as more jobs, more profits and more growth all came to a head that weekend in NW Ohio.
The shock and immensity of the “water crisis,” as it came to be known, propelled people to become active and concerned citizens of the community for a few years afterward. Many environmental groups wrote and confronted elected officials and government regulators. Those government officials made promises and spent money for more testing and more studies. But, the cause of the poisonous algae – nutrient loading in the watershed – is long proven. The prohibitive politics of the situation dictated that money-wasting studies and testing would divert growing public outrage from the obvious changes that must be made to corporate Big Ag practices for there to be a solution.
Several years into this charade, some grassroots folks from Toledo attended a Rights of Nature presentation in Bowling Green put on by several of us at CELDF. They wondered if maybe, this could help Lake Erie. We went for a beer after the presentation and drafted a rough version of the Lake Erie Bill of Rights (LEBOR) on a cocktail napkin. Personally, I wasn’t sure I would ever hear from them again as we all said goodnight that evening in 2017. What I underestimated about this group from the other community groups I had worked with in Ohio, though, was that these residents knew first hand what it meant to a community to be without water. They had experienced that without water, there is no community.
And so a movement arose. We assisted Toledoans in drafting the LEBOR, they collected signatures and we collectively battled the arcane election regulation system to get it on the ballot, even going to the Ohio Supreme Court several times.
Finally, in February 2019, LEBOR appeared on a ballot and the voters approved it by over 61% of the vote. The celebration ended abruptly 12 hours later when a federal lawsuit was filed by a corporate agricultural entity that wanted LEBOR overturned because it might harm a paper entity and its corporate rights.
The system’s veto of the Rights of Nature didn’t end there. In April 2019, the Ohio Chamber of Commerce drafted language to preempt any other Rights of Nature legal attempts from even being raised in any court in the state of Ohio. They delivered this to a legislator, who sneakily inserted it into the budget bill being voted on the next day. The stealth snuffing of the right to raise the issue of whether Nature should have separate and acknowledged status in the courts was complete. Then, in February 2020, a federal judge overturned LEBOR in recognition of the corporate agriculture entity’s “rights” to continue the contamination of Lake Erie that causes algae to prosper, discarding entirely the notion that Lake Erie has inherent rights.
With LEBOR stripped from the options for curtailing Lake Erie’s ongoing assassination, the algae persists, effectively unstoppable. “We know how to predict the blooms. We know how to track them,” says Tom Bridgeman, director of the Lake Erie Center at the University of Toledo. “We know how to provide early warning to the water plants. The water plants know how to handle the blooms … but we haven’t made a lot of progress in preventing them in the first place.”
“We do have a lake water problem, and it’s worse than it was 10 years ago today, and that’s the real shame,” says Toledo’s Mayor Wade Kapszukiewicz. “And I can tell you the folks in Columbus are just not interested in being serious about solving it.”
Despite these troubling circumstances, the sociopolitical landscape is changing. Few people, even many in Toledo, have failed to note the lasting and positive effects caused by their efforts. LEBOR garnered an onslaught of media attention not only nationwide, but worldwide. News agencies from all over the US reported on it, from the New York Times, US News and World Report, CNN, and NPR, to international press like the Guardian,LeMonde, and Maclean’s. It even became a segment on TheDaily Show and a clue on Jeopardy! I believe more people were exposed to the idea of Rights of Nature with this one campaign than with all the previous efforts combined. Toledo voters passing LEBOR was one of those “shots heard round the world” moments.
The reverberations continue long after the water crisis of 2014 and the enactment of the LEBOR in 2019. International activist artist, Andrea Bowers, learned about the Lake Erie Bill of Rights and built an entire exhibition around it. A huge neon artwork by her facing Lake Erie at the Great Lakes Science Center in Cleveland shines a literal light on the need to recognize and respect the inherent rights of the lake. A New York state legislator with CELDF’s help has introduced a Great Lakes Bill of Rights in the NY legislature.
Legislators in other states are considering doing the same to change the relationship and ultimately human practices when it comes to the life force that is water.
In 2024, the story of the Toledo water crisis and LEBOR have been included in countless research papers, chapters in books, doctoral theses and are the subject of podcasts and webinars, and documentaries. So, when we at CELDF and those continuing to work on moving the Rights of Nature movement forward reflect on what has happened over the past decade, we know the problems aren’t solved yet, but we heard the cries of Lake Erie and we understand that simply regulating the harms and devastation is not enough. We are and will continue to work on getting her inherent rights to Exist, Flourish and Naturally Evolve recognized, legalized and enforced. We invite you to join us!
Athens Local Businesses Support Rights of Nature and the City’s Plastic Bag Ban in Amicus Curiae
OHIO, Athens County – CELDF has filed an amicus brief in Athens County, Ohio Common Pleas Court on behalf of two local businesses who support the City of Athens against a State of Ohio lawsuit seeking to strike Athens’ locally-enacted plastic bag ban. The businesses, Village Bakery & Café and Cool Digs, Inc. back the council-passed ban as well as a 2014 citizen-adopted law known as the Community Bill of Rights and Water Supply Protection Ordinance.
The Community Bill of Rights contains very specific language giving both the city, the residents, and nature the right to protect their health and community from chemical trespass posed by harms such as plastic bag production and usage within the city. From the City of Athens Codified Ordinances § 97.01.04(B):
“All residents of the City of Athens possess a fundamental and inalienable right to a healthy environment, which includes the right to clean air, water, soil, flora, and fauna…and the right to protect the rights of natural communities and ecosystems upon which each resident is both intrinsically a part and dependent.”
And from § 97.01.04(D):
“Ecosystems and natural communities possess the right to exist and flourish within the City of Athens and its jurisdiction. The residents of Athens have the inalienable right to enforce and defend those rights to protect all ecosystems, including, but not limited to, wetlands, streams, rivers, aquifers, and other water systems, within the City of Athens or its jurisdiction.”
The central question in play here is whether the citizens of Ohio, through their local municipal governments, have the right to protect themselves, their communities, and the ecosystems they and their communities depend on from pollution and chemical trespass. Stated differently, can the state override a local government when that government institutes a higher level of protection for its people and ecosystems?
“It’s death by a thousand cuts when we list out all the harms we face on a daily basis including exposure to plastics and microplastics,” says Tish O’Dell, CELDF’s Consulting Director. “But it’s also the case when we take stock of all the times the state has stepped on the actions of local communities stepping up to protect the health and quality of all life within the community.”
The volume of studies released in the last 10 to 15 years demonstrates that there is a global epidemic of microplastics causing a myriad of harms to human health and the environment on which life depends. CELDF notes in the brief, “The Washington Post recently reported that in one study micro plastics were found in every single one of 62 placentas studied and, in another study, micro plastics were found in every artery studied.”
“Village Bakery & Café and Cool Digs Inc. are asking whether or not the People have the inalienable right to protect the health and safety of the community in which they reside,“ said O’Dell. “We believe they do.”
About CELDF — Community Environmental Legal Defense Fund
The Community Environmental Legal Defense Fund (CELDF) is helping build a movement for Community Rights and the Rights of Nature to advance democratic, economic, social, and environmental rights – building upward from the grassroots to the state, federal, and international levels.
Book cover design by Sabrina Bedford, cover photo by Julie Dermansky
Thursday, May 16 from 2-3:30 pm at moCa Cleveland in Cleveland, OH
CELDF and moCa Cleveland invite you to this Cleveland stop on author and journalist Justin Nobel’s Book Tour of his just-published book Petroleum-238 on the dangers to all of us and nature from the radioactive waste produced by the oil and gas industry. This event will connect Science, Art, Music, Dialogue and Rights of Nature. Joining Justin will be musical performers Pierson Keating and Karen LeBlanc. Also, Tish O’Dell from CELDF will be on hand to weave Rights of Nature into the conversation. If you want to come early, you can tour the Rights of Nature exhibit by Andrea Bowers prior to the book discussion. The museum doors open at 11:00 and has free admission.
CELDF’s Consulting Director, Tish O’Dell, submitted her testimony, “Am I an Activist?” to the 2024 Spring Activism Peace Chronicle publication. Tish has been involved in community rights and Rights of Nature work starting in her own community of Broadview Heights, Ohio, which led to the adoption of Ohio’s first Home Rule charter amendment creating a Community Bill of Rights banning fracking and recognizing Rights of Nature. She has since gone on to work with dozens of Ohio communities on anti-fracking, anti-pipeline, right to a livable climate, fair and free elections and water privatization issues. Today, Tish works with communities all over the country and internationally.
Here’s an excerpt from Tish’s testimony, “I recently helped to organize a Truth and Reckoning event for Nature and the Great Lakes. We invited people to give testimony from lived experience and knowledge about various topics related to our current culture and how each impacts the Great Lakes and Nature as a whole. We heard from a Catholic nun, a college professor, a medical doctor, a journalist, an environmental lawyer, a former EPA contractor as well as many others including Indigenous people, college students, and community members too. It was an impactful day, listening to their truths, hearing about their part in the system and culture that we have all been born into, and ultimately how to reckon with those truths.”
“Am I an “activist”? If anyone would have asked me this question a year ago, I would have quickly replied “yes”. Ask me today and I might say no. We live in a time where there is more chaos and less order than when I was a younger woman or at least that is how it seems looking back and through the lens of my personal reality. Maybe reading this, some of my words will resonate with you, maybe they won’t. And that’s ok. That is one of many recent lessons I have learned.”
Cleveland, Ohio – 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. Andrea Bowers Exist, Flourish, Evolve opens at moCa Cleveland this Friday, February 2, 2024 and runs through May 26, 2024.
Bowers bears witness in her work, drawing attention to and inspiring action on urgent issues of our time. Her drawings, sculptures, installations, and films document collective action and amplify the labor and lived experiences of activists dedicated to change. Developed through an ongoing partnership with CELDF Exist, Flourish, Evolve is a new, multi-site, multimedia campaign that builds awareness and action around the dangers facing Lake Erie and the Great Lakes ecosystem.
This project is anchored by a new, monumental neon public artwork installed on the Great Lakes Science Center (GLSC) building and facing Lake Erie that declares the right of Lake Erie to exist, flourish, and naturally evolve—words drawn from CELDF’s Lake Erie Bill of Rights. Created with commission support from VIA Art Fund, the bright, buoyant light sculpture obliges us to examine our role in damaging, repairing, protecting, partnering with, and ensuring the health of the Great Lakes that we depend on for survival.
Additional works in Bowers’s exhibition include a neon leaf chandelier, an LED text and light installation that is a corollary to the downtown neon sculpture, drawings of the Lake Erie Bill of Rights and Great Lakes Bill of Rights, and a documentary film investigating the impact of factory farming on Lake Erie’s ecosystem.
Truth, Reckoning, & Right Relationship with the Great Lakes Gathering
Part 2 – April 22 & 23, 2024
Working with Andrea and moCa Cleveland, CELDF developed a means to both confront ecological and human systems truths along with designing ways to move away from systematically harmful behavior and moving towards right relationship with people, communities, and ecosystems. Part 1 “truth and reckoning” was held at the Rock and Roll Hall of Fame in October 2023 and featured testimony from a chorus of viewpoints including healthcare, higher education, youth activism, indigenous knowledge, and the environmental regulatory world. Part 2 “right relationship” will continue at moCa this spring and will include experiential breakout sessions, keynote speakers and panels, and more. The timing of these discussions coincide with proposals for Lakefront Development in many communities and the hope is that the Rights of Lake Erie and the Great Lakes become the central points of conversations.
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About CELDF — Community Environmental Legal Defense Fund
Begun as a traditional public interest law firm seeking to protect the environment, CELDF sought to protect communities from projects that cause environmental harm. Along the way, we encountered barriers put in place by both government and corporations. Such barriers included corporate constitutional “rights” and the unilateral preemptive authority of state government – both of which are used to override community decision making and local democracy.
Our mission is to build sustainable communities by assisting people to assert their right to local self-government and the rights of nature.
On October 16, 2023 CELDF hosted Part 1 of Truth, Reckoning & Right Relationship for the Great Lakes, Nature, and each other at the Rock and Roll Hall of Fame in Cleveland, Ohio. Set on the shoreline of Lake Erie, over 70 invited guests were witness to Part 1: Truth and Reckoning of a two-part experience, which will culminate in April 2024 with Right Relationship with the Great Lakes, Nature, and each other.
For over two decades, CELDF has been attempting to shift culture and laws by educating residents of communities on how the system isn’t broken, but set up to protect corporations and their profit-making over all else. In partnership with CELDF, these communities tried using the legal system and the courts to enforce new community rights laws to protect things like the rights of nature and the people’s right of local self-governance as a direct means to stop corporate harms. Those efforts of resilience and resistance contained the kinds of kernels of possibility that would lead to a paradigm shift in the law and a cultural shift in people’s thinking about nature. But despite the daily pressures and the destructive toll the system continues to inflict, the needed revolutionary spark for that paradigm shift has yet to ignite. The question that nags us is, what will it take?
And then a new spark flared up. In 2019, CELDF received an email from Los Angeles-based artist, Andrea Bowers. She had read an article about the Lake Erie Bill of Rights and wanted to discuss collaborating with us on an art exhibit on Lake Erie and Rights of Nature to be displayed at the Museum of Contemporary Art Cleveland (moCa Cleveland). At first we were skeptical. We are a public interest law firm …what does art have to do with law? Maybe the time had come to expand the kinds of community engagement necessary to not only spark the needed paradigm shift but to keep the flame lit for as long as it takes.
This began many conversations that would eventually lead to the Truth, Reckoning & Right Relationship with the Great Lakes Ecosystem project.
Today most of the environmental discussions, actions, and legal actions are centered on stopping a single project, activity, or harm. For example, electric car manufacturing will bring jobs and will reduce carbon emissions, but what is the impact on communities and nature where the mining for the needed rare Earth minerals are extracted? How do we grapple with doing what might be better for humans while not considering the full impact on nature?
In order to answer how to grapple with these big issues, we first have to be truthful about our culture, our system, and our roles. The mid-October event included testimony given by 15 individuals from New York, Pennsylvania, Ohio, and Michigan in front of many witnesses.
Water Ceremony led by Sundance, AIM Cleveland, and Leon Briggs, Tonawanda Seneca Nation
The event was not about assigning blame but rather about having the courage to acknowledge how this current culture we have been born into impacts both nature and future generations in both some positive ways, but also in many negative ways.
Those in attendance heard powerful testimony from University Professor Dr. Dave Riley, Award-winning journalist Valerie Vande Panne, American Indian Movement-Cleveland Executive Director, Sundance, Sister of Charity, Carol DeAngelo, Kirk Scirto, MD, MPH, Scientist and former EPA contractor, Susan Vonderhaar, Lawyer and author, Will Falk, Executive Director of moCa Cleveland, Megan Reich, Grant Township Supervisor, Stacy Long, GARN North American Hub facilitator, Caitlyn Sutherin, along with Community members Sherry Fleming from Williams County, Ohio and Paul Winnie of the Tonawanda Seneca Nation. Also representing the youth perspective, were Reed Singer, student at Ohio University and Olivia Sheldon and Jessica Bisbee from Niagara University.
Part 1 – Reckoning with the truth to get in right relationship with the Great Lakes
Law and culture. Culture and law. Which comes first, and how are they related? CELDF and partners hosted Truth, Reckoning & Right Relationship with the Great Lakes – Part 1 in the fall of 2023 to wrestle with these questions. On April 22 and 23, 2024, many of the doctors, lawyers, Indigenous activists, educators, students, religious practitioners, artists, environmental regulators, and community activists – young and old – returned to Cleveland, along with many new participants from an expanded area to reconvene for Part 2 at moCa Cleveland.
Artist, Andrea Bowers & Megan Reich of moCa Cleveland – Art as Trojan Horse
Albert Lalonde & ShiTao Zhang of the David Suzuki Foundation – Generation of Hope
Michelle Beatty of CELDF – Original song, We Are Kin
Alison McKim, instructor, nature mentor, and herbalist – Soul Journey: Returning to Kinship with the Earth
Sundance of American Indian Movement, Cleveland – Right Relationship, An Indigenous Perspective
The CELDF crew
Will Falk, writer, poet, lawyer, and fierce environmental protector & Natalie Greene of GARN – Potential and Pitfalls with Rights of Nature
This powerful compilation video of this two-day Part 2 of Truth, Reckoning & Right Relationship gathering not only reflects and grounds us in the truths revealed during Part 1 but then expands further to gain a better understanding to reckon with some hard truths.
Part 2 – Reckoning with the truth to get in right relationship with the Great Lakes
The attendees moved forward through exploration and connection exercises and workshops, all moving towards right relationship with the Great Lakes, Nature, and each other. This video provides a window into what it will take individually and collectively to change culture and our behavior to create a better world.
The revolution may not be televised but it needs to go viral and that’s where you come in. CELDF’s Multimedia Specialist is key to building awareness and motivating people and communities into action. CELDF has the tools and options for deep systems change – come help us build a movement.
Summary of Position
10 Hours per week (contract position) at $20/hour
CELDF is an action-directed non-profit working on big systems changes in the realms of community-based governing authority, controlling corporate power, and instituting a culture and system that is naturecentric – honoring and protecting the rights of ecosystems. Our approach to building and supporting the potential for such changes is engaged in awareness building, education, and various levels of action in the name of community resilience/resistance. As such, there is a need to continually generate a range of content both for new arrivals to the work, as well as for those more seasoned.
CELDF is in need of a multimedia specialist who can generate content in a variety of formats and of varying levels of complexity. There are three categories of content generation: regular, event-specific, and special projects. Regular content would be aimed at social media platforms as well as mass communications like regular eblasts. Event-specific content would include promotional items and live streaming, as well as recordings of events to use as educational items based on workshops, webinars, presentations, etc. Special projects would range between video brochures, content for the education program area, and donor relations. The formats of content would range from animation to podcasts to short videos. Because of the weight and potential of the work CELDF is engaged in the expectation is that the Multimedia Specialist will create content that is highly engaging, visually appealing, and serves as an effective aid in all aspects: awareness, education, and action.
Duties and Responsibilities
Develop and design multimedia content, including video, audio, graphics, animation, and interactive media, to support our awareness building, education, and action efforts.
Create innovative multimedia materials for a range of stakeholders.
Participate in brainstorming sessions to generate creative ideas for multimedia projects.
Ensure multimedia content meets organization standards for quality and brand consistency.
Work with project teams to ensure multimedia projects are completed within tight deadlines.
Monitor and track multimedia project progress.
Ensure all multimedia materials are stored, backed up and archived properly.
Abilities, Knowledge, And Skills
Bachelor’s degree or equivalent training in multimedia design, graphic design, or related field
At least 3 years of experience in multimedia design and production.
Proficiency in using multimedia software + tools such as Adobe Creative Suite and Autodesk 3ds Max.
Knowledge of video and audio production techniques.
Excellent problem-solving, communication, and organizational skills.
Able to work on multiple projects simultaneously and meet tight deadlines.
Strong eye for detail and commitment to producing high-quality work.
To Apply
Please email a resume and cover letter describing your interest in this position and the ways in which you satisfy the required qualifications. To apply, email info@celdf.org, with the subject line: Multimedia Specialist Coordinator Position. Deadline: September 30, 2023.
CELDF is helping build a decolonial movement for Community Rights and the Rights of Nature to advance democratic, economic, social, and environmental rights – building upward from the grassroots to the state, federal, and international levels. For more information, go to celdf.org.
American Delusion: How Dignity and Disobedience are the Keys to Transforming Into a Democracy
Date/Time/Location: August 21st, 7pm, Art Share Los Angeles + August 23rd, 7pm, Omni Commons Oakland.
The US Constitution is a 4,000-word death sentence for people and the planet. Myth and indoctrination have elevated a systemically corrupt document to such vaulted status that despite ecosystem collapse, massive inequality, and collective societal anxiety, the 99% find ourselves unable to transform our communities.
American Delusion is an honest and provocative discussion about the realities of what we are up against including needing a new governing document, what it will take to change direction, and our chances of getting beyond a system of deadly capitalism. The evening event will be an intriguing mashup of law (elevating rights of nature), culture, movements (advocating for community rights), and corporate power (abolitioning corporate rights), and how the innate desire for a grassroots, community-led democracy emerges when we practice dignity and disobedience.
Featuring:
Dr. Camila Vergara – Constitutional scholar, grassroots democracy activist, and author of Systemic Corruption.
Chad Nicholson – Community Resilience + Resistance Director for the Community Environmental Legal Defense Fund and lead supporter of the community resistance efforts in Grant Township, Pennsylvania as featured in Rolling Stone and the documentaries the Invisible HandandHellbent
Kai Huschke – Executive Director for the Community Environmental Legal Defense Fund
On August 10th, CELDF’s Michelle Sanborn will be presenting at the New Moon Mycology Summit on the Rights of Nature.
The New Moon Mycology Summit is a gathering for communal learning around environmental + social justice through the lens of fungi. With 50+ presenters from various fields, this multi-day outdoor event offers interdisciplinary workshops, panel discussions, and skill-shares to bring a critical approach to science and education based in multiple ways of knowing.
Michelle will be sharing about how political and legal structures have been set up to protect the interests of an elite minority, at the expense of the majority of people and Nature, and how our current system of government and law have evolved to protect wealth and privilege over community self-government and biodiverse ecosystems. We’ll look at how communities have pushed back against these oppressive structures to reclaim democratic self-government and recognize Rights of Nature in their communities.
“Congress shall make no law…abridging the freedom of speech… or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
This First Amendment to the U.S. Constitution is well understood to be the most significant legal right in any so-called free society. Without the freedom of the people and the press to exchange ideas and expose corruption, the idea and practice of democracy goes the way of the Truffula tree.
We are living in a time when we the people are witnessing more and more of our protected constitutional human rights eroded or taken away at an alarming rate, while also witnessing the expansion of “corporate rights”. As a passionate environmental activist and organizer, working for the recognition of the Rights of Nature, there is some irony and also more than a few “ah-ha” moments over the past decade while studying past history and living current history at the same time.
Photo by Photo by Isabella Fischer
I grew up believing in the First Amendment and the values expressed in it. Throughout the decades, I thought my limited activism and my rights were genuinely protected by this critical amendment.
I protested and marched in Washington DC for the passage of the Women’s Equal Rights Amendment, I was challenged by local government when I placed a single political election sign in my yard (so instead I got a whole bunch of them and taped them to my garage door and all across the front of my house because that was “my property”) and when my son and his friend were almost hit by a car while riding their bikes, I petitioned for sidewalks on our street, which I lost, but I believed because I was “allowed” to collect my neighbors’ signatures and present them to city council, that somehow I was freely exercising my First Amendment rights.
A few more decades went by, and the issues kept coming and so did my understanding of the system. First, it was the issue of bow hunting deer within city limits, a law that city electeds adopted. This was actually the first time I was introduced to the Community Environmental Legal Defense Fund (CELDF) attorney Terry Lodge, although neither of us were aware of CELDF at the time. Again, I gathered facts and data, as all good activists do, and again used my free speech rights to share my knowledge with other residents and local government officials. This time I learned about our right as residents to revoke a law that the city council had passed. Again, this involved collecting signatures and placing a referendum of that law before the voters on a “real” election ballot. We exercised our First Amendment rights, and in this case, we won!
However, the stakes were much higher with the next community issue – the arrival of the oil and gas industry and the boom of hydraulic fracking. I had heard about “corporate rights” and of the Supreme Court case Citizens United related to campaign financing, but neither, to date, had touched me directly.
I soon came to discover that being unaware of how the system works, didn’t mean it hadn’t or couldn’t affect me. So once again, I began where all activists begin.
Researching information about the issue at hand, collecting data, and then going to those I presumed had the “authority” to deal with the issue and finding fellow community members also concerned along the way.
I worked for the local vocational school at the time during the day and did my research and citizen activism (scouring the internet, attending every council meeting, attending public hearings, scheduling meetings with inspectors, regulatory agencies, and attending conferences about fracking) at night or on weekends. The more I learned about the chemicals and the waste and that the supposed protection agencies weren’t doing any protection of the environment or the people, the more upset I got.
When I finally realized that none of the authority figures were going to do anything to protect my community, I decided to turn to the electoral process and run for office to become one of those authority figures. Watching a campaign from the sidelines is quite different than being one of the candidates….especially against a well-funded incumbent. I learned first-hand what that Citizens United case was all about, even in a small town local race. When I pulled up campaign finance reports, I understood how the money flows in for candidates supporting the corporate agenda and how much more “free speech” that can buy you in a campaign. I now understood that as the candidate wanting to protect nature, to speak for the trees, I could not buy enough mailers and advertisements to compete fairly with the candidate supported by the industry that will harm nature.
A bright side in a lot of moments of darkness was during this campaign someone asked me if I had ever heard of CELDF. I hadn’t and so I looked them up and I liked what I read, especially about our right to local self-governance.
Why shouldn’t the residents of the community get to decide if fracking happened here or not? Why did the state get to pass a law making it “illegal” for us to decide one way or the other if we wanted fracking?
Fast, Furious, and a Steep Learning Curve
After contacting CELDF and speaking with Ben Price on a conference call, a small group of local residents started meeting weekly to learn about how CELDF was assisting communities to resist and become resilient. Though the practice of local self-governance and recognizing nature as a living entity weren’t really new, they were new to us because in our land of so-called freedom and democracy, we had never been exposed to them.
CELDF had been instrumental in forming a small movement of people learning from the past and resurrecting these concepts and incorporating them into Western laws through direct citizen democracy. The goal is to breathe life back into these concepts, so we can use them as a legal tool to protect the people and nature in the communities where we live.
The lightbulbs in our minds flickered on and brightened the more we heard. Yes, we the people have the right to be the decision-makers in our community to decide if we want fracking or not. And we would use our democratic and constitutional rights to do this.
CELDF helped us draft a law that gave the people the right to say “no” and to also recognize the legal Rights of Nature in our community, affirming that fracking violated both the community’s and nature’s rights. A small group of volunteers started meeting and eventually went door-to-door with petitions in hand sharing these ideas with as many residents as possible.
Enter Dave Mansbery, a local resident who just so happened to be the owner of an oil/gas drilling company, and did not appreciate the sharing of ideas and information about the industry or a waste by-product of drilling he was marketing to the public as a harmless road deicer.
In March of 2012, he filed a Strategic Lawsuit Against Public Participation (SLAPP) against me and another resident working on stopping this by-product from being spread on local roads, claiming we were factually misrepresenting the nature of his deicer, AquaSalina. He was worried about his profits. The SLAPP suit is yet another tool that industry and corporations have to intimidate and stop citizens and activists. Dave Mansbery used this tool to silence our Free Speech and keep us from sharing critical information and ideas that people need to protect themselves. Such information, if made public, might impact profits, a priority routinely held in higher esteem than people and nature.
Regardless of the action to single out and bully a few of us, our community group forged ahead and collected the required signatures to qualify our law for the ballot. We won, with over 60% of the vote! Again, our belief in democracy and our rights were at an all-time high…but apparently what goes up must come down when you live in a corporate state.
Word spread quickly when two oil/gas drilling corporations, Bass Energy Inc. and Ohio Valley Energy Systems Corporation, sued the community claiming the law that the people had passed, violated their “rights”. Perhaps in 2023, it comes as no surprise that the courts ruled in favor of the drillers “rights” to profit over the people’s rights to democracy, but in 2013, it was like a sucker punch to the gut to all of us who had worked so hard for several years to get our law passed.
Photo by Tobias Bjerknes
In addition, the court completely ignored nature’s rights and never even discussed them, keeping nature invisible in our legal system.
Despite what appeared to be gameover events, the seeds of the new idea of Rights of Nature and local self-governance had been planted in many minds both within my community and far beyond.
The Power of Ideas: How They Threaten the Status Quo
Of course, the court overturning my community’s people-passed law was an attempt to intimidate any other community from trying what we had done. Unfortunately for industry, the seeds had already begun to sprout in many other places. In Ohio, we saw one community after another pop up and start proposing similar laws…Athens, Youngstown, Yellow Springs, and Oberlin quickly followed. Then Kent, Columbus, Medina County, Gates Mills, Portage County, Athens County, Fulton County, and Toledo.
The powers that be were very threatened that the ideas of legal Rights of Nature and local self-governance were spreading and so the pushback became more aggressive and more authoritarian. First, they used the courts to keep some of these citizen-initiated laws off the ballot. When they found that too difficult and costly, the legislature then snuck language into an unrelated foreclosure bill granting authority to unelected bureaucratic boards of elections to use their “judgment” to keep procedurally qualified initiatives off the ballot. The courts of course now could set new precedents when these cases came before them.
When these first case decisions still didn’t stop communities from new attempts at passing Rights of Nature laws and county charters, the State Supreme Court found itself in the middle of a contradictory web of decisions that they had created. There were more dissenting opinions, the more cases that were brought.
Separation of powers, past precedent, and the people’s constitutional right to initiative were all discussed in these court decisions. A lot of ideas were being shared between the justices!
It was actually because of all the cases and contradictory decisions that the Lake Erie Bill of Rights got on the ballot in 2019, but that’s a story for another time.
Why Fighting for Our Constitutional Rights and Nature’s is So Important
“Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.”
William O. Douglas, U.S. Supreme Court Justice
So how exactly do protecting the community, nature, and free speech rights interconnect?
From residents being shut down from speaking about their concerns over oil/gas waste injection wells at a government public meeting, to a shareholder being escorted out and arrested at a Berkshire Hathaway shareholder meeting for voicing an opinion that Warren Buffett and others in charge apparently didn’t like, to the Ohio Supreme Court keeping citizen initiatives off ballots preventing voters from speaking through casting of ballots, to medical doctors who were not allowed to question the science provided by pharmaceutical corporations and government agencies, to college professors who are not even allowed to read from past published works without fear of losing their jobs, to journalists being censored and intimidated by social media corporations and elected officials and others even imprisoned like Julian Assange and then back to corporations filing lawsuits (SLAPP) against individual citizens, like myself—we have to ask what do these all have in common?
Photo by Jackson Simmer
What they have in common is shutting down the exchange of ideas. Ideas that differ from the narrative that gets fed down to us from the top. Ideas that challenge the current status quo that protects the interests of the wealthiest minority, the 1%.
And yet because there are so many diverse situations and circumstances where this shutting down happens, it is hard to see it for what it is at times. The system through propaganda and media control even gets a segment of the people themselves agreeing with the shutting down of free speech.
When we add to the mix that we have been taught from childhood on to believe in democracy in our government, authority figures in our communities and country, justice in our courts and expert data from respected universities and regulatory agencies, it is easy to see why we get confused and doubt our own instincts and gut feelings when something seems off to us.
It is hard to fight an enemy who has outposts in your head.
Sally Kempton
Rights of Nature is a new idea in Western law and culture. Our federal and state constitutions recognize rights for humans and corporations, but not for nature. In our legal system, one is either a legal subject (humans and corporations) or a legal object (nature). A legal subject can “do” to a legal object (use it, damage it, even destroy it) and the legal object has no way to protect its interests. Of course, we have lots of rights codified and those rights are not absolute or guaranteed as many of us have learned firsthand. Rights conflict all the time between humans and between corporate “persons” too, it is why the courts have so many cases. But what having recognized rights can provide is a foot into the courtroom door and possibly “a seat at the table” and hopefully, a chance to adjudicate your position. This is what the current corporate “rights” holders fear. They would have another recognized entity challenging and fighting their actions as violating the rights of others.
It is why they will go to extreme measures to stop Rights of Nature from becoming law and will even do so unconstitutionally. For example, in Ohio, after Toledo voters approved the Lake Erie Bill of Rights in 2019, big business interests decided this must be prohibited from happening again. How did they do this…by the Ohio Chamber of Commerce drafting a preemptive law against Rights of Nature and having a legislator sneak it into the budget bill right before the legislature voted…slamming the courtroom door shut on nature and the people wanting to speak for nature!
Language inserted into the spring 2020 Ohio budget:
Nature or any ecosystem does not have standing to participate in or bring an action in any court of common pleas. No person, on behalf of or representing nature or an ecosystem, shall bring an action in any court of common pleas. No person shall bring an action in any court of common pleas against a person who is acting on behalf of or representing nature or an ecosystem. No person, on behalf of or representing nature or an ecosystem, shall intervene in any manner, such as by filing a counterclaim, cross-claim, or third-party complaint, in any action brought in any court of common pleas.
You can’t pass a law prohibiting what can or can’t be raised in court. Not only does this close the courts to people desirous of having nature recognized as an entity deserving protection in its own right, but the legislature has curbed the judge’s speech and ability to deliver comprehensive justice. There must not be limits imposed on what arguments and ideas can be raised through the courts. That statute is unconstitutional on its face. The legislature cannot unilaterally pass a law denying nature its rights, period.
Just as abolition, women’s suffrage, the right to privacy, gay marriage, and other issues all started out as an idea to be shared; they morphed through dialogs, debates, protests, actions, and even court cases and turned into more. It is why the status quo wants and needs to quash any sharing of the “new” idea of Rights of Nature. It is why it is so important to fight and protect our first amendment rights to free speech and free press and then to codify this new idea into our laws and constitutions. It is why I decided to challenge the SLAPP lawsuit and court decision filed against me a decade later. If we don’t fight for our rights and Nature’s Rights, who will? If we don’t, and the result is our speech is silenced, who then will be left to speak for the trees?
Written by Community Environmental Legal Defense Fund (CELDF) Staff
(This piece was inspired by Caitlin Johnstone’s post “15 Questions that are more useful than ‘What Presidential Candidate Should Americans Vote for’)
As staff members of a public interest environmental law organization, we are always getting questions from community members and environmentalists who have just found out that some corporate or industry project is coming to town. Or sometimes it is to dump or “process” waste in the community. They always want us to tell them how to stop it from happening and unfortunately, we have bad news for them. It’s illegal to succeed in stopping them. Well, no, it’s not illegal to try; it’s just illegal to succeed, using the bureaucracies erected for our entertainment.
What we can offer here are some questions that might help communities understand why they can’t find help in the current regulatory system and from environmental laws when they want to protect themselves and their local environment. The law doesn’t even recognize that they are a part of that ecosystem, because how could they be part of somebody else’s property? Difficult as it may be, we’d all be better off focusing on how to change the legal system itself instead of pleading for stricter regulations.
Instead of asking “how many jobs will be coming”, we ask “what kind of jobs will be coming, will they be living wage jobs; who will fill them and how much of taxpayers’ corporate bribery money in the form of incentives and tax abatements are part of the secretly negotiated concessions handed over as ransom?”
When the local elected officials tell the people that “it is a done deal”, why are the people just hearing about it for the first time? Why weren’t the community members consulted before it was a done deal? Was the public left out until now because of all the public resources given away to bring this fabulous deal home?
Why does the industry get to have closed door meetings with our elected “public servants” and unlimited time to speak and present their project, but the people are limited to 3 minutes to speak, if at all?
Who provided the “facts and data” stating that the project is safe? Was it the corporation or industry proposing the project? Have any independent experts been consulted?
If the EPA is so great at protecting the environment, why is it that over 50 years of their “environmental protection”, the environment is worse off than ever and we are on the verge of ecological collapse? And If the Clean Water Act is such a good law, why does a report out in 2022 state that over 50% of the U.S. lakes, streams and rivers are too polluted to drink, swim or fish in?
Whose priorities are being protected when the majority of comments made at a public hearing are AGAINST the project, and the regulatory agency still issues the permit?
Why are the corporations’ empty promises more believable than the concerns of the community?
Why do we go to public hearings on air and water permits and fight to get the industry held to regulatory standards that legalize harmful levels of toxins instead of banning them completely? (The permit makes the harm legal)
Why do we believe that making a monetary contribution to ‘save the polar bears in the Arctic’ actually works, when we can’t stop a pipeline, fracking, lithium mining, water withdrawals or an industrial chicken facility in our own community? Are we really just alleviating underlying guilt feelings, knowing that our donations won’t end the polar bears suffering, just our sense of responsibility as complicit participants?
When we advocate for banning plastic bags do we ever consider the harms to forests and communities to produce paper bags? Or that when we believe electric cars are better than gas ones, or that wind and solar somehow don’t have dangerous harmful effects to the environment, we are really kidding ourselves without changing the outcome?
Why are people who are willing to put their bodies on the line to protect drinking water, clean air and healthy food for all of us ridiculed, arrested and sued, while the corporations poisoning the water, air and soil not considered criminals and terrorists?
Instead of avoiding neighbors and community members because they have different political, religious or cultural views, maybe we should reach out based on what we have in common…wanting clean water to drink, clean air to breathe and healthy food to eat for ourselves and our families?
Is it possible for us to admit that with all our fancy degrees and western science, we could learn something from cultures that lived in a more symbiotic and respectful way with nature for millennia?
To learn more about Community Rights and Rights of Nature explore our CELDF website while you are here.
OHIO, Cuyahoga County – On Friday, June 16, a motion was filed in the Cuyahoga Court of Common Pleas for relief from judgment for Tish O’Dell to terminate the permanent injunction from a Strategic Lawsuit Against Public Participation (SLAPP) filed against her in March 2012 by Duck Creek Energy which claimed defamation and loss of business profits.
O’Dell had been active at the time, educating both her community, elected leaders and neighbors about the harmful effects of urban oil/gas drilling happening in her community of Broadview Heights and surrounding communities by sending emails, posting information online and attending community meetings. In the process, she had learned of Duck Creek Energy’s road deicer, AquaSalina, which according to Duck Creek Energy President, Dave Mansbery, was a byproduct of oil/gas drilling. O’Dell’s concern increased upon learning, from test results reported to the Ohio Department of Natural Resources (ODNR), about the high levels of substances like benzene, toluene and ethylbenzene contained within the supposedly harmless deicer. These substances are known to be carcinogenic. She also continued to conduct more research on ODNR’s website and in other places in order to inform herself and educate others as to what takes place during the drilling process and fracking.
“When I learned that AquaSalina was being used on my community’s streets as well as in neighboring communities, I wanted to inform people about what I had learned,” said O’Dell. “I felt people needed to know what was being spread on the roads that they, their kids, and their pets were walking on. And common sense indicated to me that what is spread on our streets gets into our air and our lawns and goes down street drains to water supplies. I knew the oil/gas industry was powerful, but I also believed in my right and everyone’s right to free speech and the right to question the government and their decisions. I had never heard of a SLAPP lawsuit until there was a knock at my front door and the person asked if I was Tish O’Dell and told me ‘You’ve been served’.”
After a year of court filings, depositions, and much pressure directed against O’Dell’s inclination to go to trial, a settlement was signed in the fall of 2013. Part of the settlement involved granting a permanent injunction, an extraordinary remedy in a defamation case, against O’Dell, prohibiting her from using certain words to describe the product AquaSalina. During this time Mansbery began bottling and selling the product on store shelves in local hardware stores and even at several Lowe’s locations in Ohio. This afforded activists and scientists the opportunity to purchase the product and begin testing it. And in the decade since, there has been much research and testing of the product by the state agency ODNR, universities, Rolling Stone Magazine and other publications. The tests affirmed that not only was the product chemically toxic, it is also high in radioactive elements, Radium 226 and 228. In October 2021 the Ohio Department of Transportation stopped using AquaSalina in part because of the environmental concerns.
Because these recent test results and scientific research papers didn’t exist in 2012, O’Dell is filing this motion to dissolve the court order so she can again speak freely and warn people about the dangers of this product to both humans and nature. There have been several attempts over the past few years to pass a law at the state level which would make a commodity out of this drilling byproduct. And with the state opening up leasing of park land for fracking this year, there will be more brine produced.
“SLAPP suits are just another tool used by industry and corporations to silence and intimidate those who speak out against them and their activities,” stated Wyatt Sugrue, Chicago attorney. “The goal is not only to silence journalists, individuals and organizations, but to also make others afraid to speak up. In recent years there have been high profile cases of SLAPP suits against John Oliver and HBO, Mother Jones Magazine and recently Texas Gubernatorial candidate Beto O’Rourke who was served with a SLAPP by the CEO of Energy Transfer Partners, Kelcy Warren.”
As stated in the motion:
The Ohio court system has in essence allowed a limited-purpose public figure, Duck Creek Energy, to immunize itself from public scrutiny, and the court system is acting as the personal police force for the company to stop such scrutiny.
“What I have learned over the past decade is how our system, controlled by an elite minority, is quashing the people’s constitutional rights. I witnessed this first hand working with so many great people across the state who were also attempting to protect their own communities and nature. They inspired me to do this,” stated O’Dell. “I can’t just tell others to stand up for their rights and what they believe in and to have courage even when it seems scary, and not practice what I preach.”
A recent article by EarthJustice, September 2022, sums it up, “We aspire for the courts to be an institution that upholds the rights of all, however, SLAPP suits are a way for the rich and powerful to abuse the court system and turn it into a tool that silences individuals and organizations. SLAPP suits disguise themselves as legitimate lawsuits, and while most end up being dismissed, their real goal is quashing legitimate dissent and protest in the process. Protesting is one of the cornerstones of our democracy, a right so important in the early days of our country that it is explicitly included in the first amendment. One thing is clear. Our courts must uphold this right for everyone and cannot become tools for the rich and powerful to abuse power and limit the ability of all of us to seek justice and speak out against issues impacting our communities.”
In the O’Rourke SLAPP, it has been discovered that Warren, the plaintiff, has also made campaign contributions to six of the nine Texas Supreme Court Justices that could ultimately hear the case.
According to CELDF Attorney Terry Lodge, “Ending the gag order on Tish O’Dell is important to our work as an organization. CELDF works with community members and activists throughout the state and country to assert their constitutional and democratic rights to expose harms and stand up for protecting the community and nature. If the wealthy and powerful can file lawsuits to silence their voices, those must always be opposed.”
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About CELDF — Community Environmental Legal Defense Fund
The Community Environmental Legal Defense Fund (CELDF) is helping build a decolonial movement for Community Rights and the Rights of Nature to advance democratic, economic, social, and environmental rights – building upward from the grassroots to the state, federal, and international levels.
“We hadn’t planned to stop running or abandon our addiction to over-consumption and the over-exploitation of our planet’s resources. We thought we had just found a more efficient way to be human. We didn’t have any more space for agriculture, or the time to eat and keep on feeding an ever-growing population. Our industries needed more space to expand, and we needed a more-efficient-kind of human. A human being that wouldn’t have to depend on meals and other species to survive. A human being that could keep on working as long as the sun was up, harvesting nutrients directly from the soil.”
Blake Lavia and Tzintzun Aguilar-Izzo together make up Talking Wings. Blake is a filmmaker, illustrator and author and Tzintzun is an environmental artist-scholar and story weaver, striving to plant the seeds of a regenerative future. This amazingly creative team was able to take CELDF’s verbal description of our Rights of Nature work and transform it into creative illustrations and logos to convey our message visually. Art has always played an important role in movements for systemic change.
The posting of this piece is a reflection of CELDF’s commitment to featuring diverse perspectives and ideas in the quest to bring about a community rights and rights of nature existence into full being.
Grant Township, Indiana County, PA: Last week, Pennsylvania General Energy, LLC (PGE) notified the Pennsylvania Department of Environmental Protection (DEP) that it intends to plug its proposed toxic frack-waste injection well in Grant Township after this Memorial Day. Multiple violations have been issued by DEP for problems at the proposed well site in recent months.
To date, not a single drop of frack waste has been injected within the Township due to hard work, resistance, and resilience.
This development comes after nearly a decade of efforts by Township residents in an epic ant-and-rubber-tree tale. The community’s concerns have been vindicated. Their fight to protect their water and what they love – despite all efforts to punish them by corporations, courts, and taxpayer-funded governmental “environmental protection” agencies – are on display for all to see, and for all to learn from.
For those unfamiliar with Grant Township’s story, there are links footnoted below that detail timelines, court documents, and media stories. But in short, Grant Township has been fighting to keep out this frack-waste injection well since 2013. About 700 people live in this rural community in western PA, with an annual tax revenue of around $30,000.
Grant’s efforts have included the passage of multiple ordinances and a Home Rule Charter (local constitution) that we at the Community Environmental Legal Defense Fund (CELDF) have worked to draft with them, and defend in court, since 2014. These laws have asserted rights for nature, the right of the community to local self-government, and the right to be free from the dumping of frack waste to protect those rights.
Grant Township Supervisor and Chairman Stacy Long said, “What a development. The notice to finally plug this well really does illustrate how hard communities have to work to protect themselves. We passed a law that protected Grant Township from this injection well, and have been taken to court repeatedly for doing so. We await the full understanding of why this plugging is happening with great interest. We didn’t have the benefit of cookie-cutter laws so enjoyed by these huge corporations that don’t work for the rest of us.”
Two cases – one federal, and one state – are still active, and the implications of this well-plugging are not yet clear. There will be much more to come, but a quick litigation overview:
Grant Township has been sued twice in federal court by PGE. In the first case, brought in 2014, the judge – who owned stock in the oil company KBR, Inc., a division of Halliburton, until just before taking the case – held two attorneys working for CELDF, as well as the Township, liable for sanctions and fees in the tens of thousands of dollars after ruling against the Township. Given the latest news about well-plugging, the ongoing second federal case currently has a status conference scheduled for May 22.
Grant Township has also been sued in Pennsylvania’s Commonwealth Court by DEP. The PA DEP sued Grant Township for trying to protect its environment in 2017, claiming that regulation of oil and gas wells was a matter of state concern, not a local issue. Grant Township was sued by the PA Department of Environmental Protection for trying to protect its environment. Grant Township countersued, claiming DEP has failed to adequately protect people and nature in PA, and that it absolutely is a right and responsibility for local officials to protect the environment under Article 1, Section 27 of the PA Constitution, the Environmental Rights Amendment. That case was set for trial last year, but in July 2022 a Commonwealth Court judge tossed out Grant’s Home Rule Charter before Grant Township could get its day in court. That case is currently on appeal before the PA Supreme Court.
Grant Township has refused to submit to repeated coordinated assaults by corporations, state agencies, and the judiciary. In September 2020, an article in Marcellus Drilling News, a pro-industry publication, described community members as, “Unrepentant. That’s the best single word we can think of describing the attitude of ‘leaders’ in Grant Township.”
Unrepentant for sure, and also vindicated. PGE is a multi-million dollar oil and gas corporation, and has been listed as one of the top permit-violators in PA by the Department of Environmental Protection.
Everything that Grant Township has been fighting for, and against, has proven what it has always known: that it is on the right side of this fight, on the right side of protecting what is truly important, and on the right side of history. And right for refusing to doubt its convictions when nearly every “official” has said that Grant Township was full of shit and it absolutely did not have the right to protect itself, its community, and its environment.
“This is what resistance, resilience, and success can look like,” said CELDF’s Chad Nicholson. “The community in Grant Township has demonstrated true courage in the face of a legal, political, and economic system stacked against them at every turn. We are proud to continue to stand with those in Grant Township. There is more to come, and this fight is not over, yet this news is a major victory for the rights of people, communities, and nature.”
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About Grant Township
For more information on Grant Township’s fight, here is a link to much more background, a timeline, and court documents. Grant Township has also been featured in national media, including RollingStone and The New Republic, as well as two documentaries, Hellbent and Invisible Hand.
Photo by Mike Belleme of Rolling Stone
About CELDF — Community Environmental Legal Defense Fund
The Community Environmental Legal Defense Fund (CELDF) is building a movement for Community Rights and the Rights of Nature to advance democratic, economic, social, and environmental rights – building upward from the grassroots to the state, federal, and international level.
Feature Photo by Weave News activists on the ground in Oaxaca
As more and more communities stand up for themselves and the land they are part of, they find themselves directly clashing with the existing capitalist, colonial system. And as more people are willing to put their bodies on the line, we have to anticipate that those who currently hold power within the dominant system will respond with force.
Just the other day we received a message from our friends at Talking Rivers (Blake and Tzintzun who did the CELDF Rights of Nature logo) about the military repression and eviction of the “Tierra y Libertad” (Land and Liberty) protest camp, which is located in the Mogoñe Viejo community, Huichicovi, Oaxaca. Mexico.The Mixe indigenous community had been maintaining this camp for 61 days, on the railroad tracks that are part of the hyper-capitalistic “Interoceanic Corridor” megaproject.
Photo by Weave News activists on the ground in Oaxaca
Photo by Weave News activists on the ground in Oaxaca
Photo by Weave News activists on the ground in Oaxaca
And on Tuesday, April 25th, a group of protestors successfully disrupted a lithium mining project at Thacker Pass in Nevada. One member of the group was Dean Barlese, an elder of the Pyramid Lake Paiute-Shoshone, who told us “We’ve got to stand up for our ancestors, they gave their lives, they shed their blood fighting for this land.”
Photo by Bucky Horjo
Photo by Bucky Horjo
Our friend Max Wilbert of Protect Thacker Pass states, “This industrial culture is literally killing the planet and all living beings on Earth. It has poisoned every square inch of land and every ounce of water on the planet. If we want a future for ourselves, for our children and grandchildren, we MUST defend the land. Bulldozing a sacred mountain is not ‘green.’ It’s wrong to sacrifice biodiversity and cultural sites for greed and luxury cars.”
CELDF has been fighting to change the dominant corporatist system for over 25 years. Over those years we’ve come to understand and organize for multiple fronts, including direct action, for both taking down that system and for planting the new one. Do you believe it’s possible? And, how far are you willing to go to protect what you love?
Room 119, Samson Pavilion, Health Education Campus, Cleveland, Ohio.
CELDF’s Tish O’Dell will be present with information on Rights of Nature and how plastics interfere with those rights at this free public event as part of the community programming for the exhibition Everlasting Plastics, curated by the Cleveland gallery SPACES for the 2023 Venice Architecture Biennial.
Join local environmentally-focused community organizations for casual but crucial conversations on art, impact, and the environment while hearing virtually from the curatorial team and participating artists. Joyce P. Huang, Director of Cleveland’s City Planning Commission, will moderate a virtual conversation with Lauren Leving (MoCA), and Tizziana Baldenebro (Executive Director, SPACES) live from Venice, Italy as they prepare for the exhibition’s grand opening!
Everlasting Plastics explores the infinite ways in which plastic permeates our bodies and our world. It offers intimate and political accounts of our fraught relationship with the material that—rather than making a case for or against plastic—attempts to register our ongoing relationship to it, its impact on material cultures, and the harm and possibilities it entangles for our collective futures. This event is an invitation to see the theme of Everlasting Plastics as no mere static event, but rather as an evolving shared conversation.
Written by Tish O’Dell and Chad Nicholson – This is a more in-depth follow up to the piece recently published In These Times.
Rolling catastrophes like the train derailment in East Palestine, Ohio, on February 3 are unfortunately too similar to the same stories that we at the Community Environmental Legal Defense Fund (CELDF) have been privy to for over 25 years. Hearing bad news on a daily basis hardens you, but this man-made disaster struck very close to home for both of us. Chad lives one hour southeast of East Palestine and Tish one hour northwest. As Community Rights and Rights of Nature organizers and activists, we are well aware that every environmental disaster impacts us all, but this one hit closer than most.
As events unfolded, it became clear that this story, like so many others, is following the same sad script.
Public Photo
We understand this is a horrific event and we feel sorrow and empathy for the people, plants, and wildlife that have been and will continue to be harmed by this disaster. We also feel a strong obligation to dissect this particular disaster and remind people that, like Bill Murray in the movie Groundhog Day, much of what is happening in East Palestine is a never-ending replay of similar events we have observed in hundreds of other communities across the nation.
The hope that drives our work at CELDF is that more of us finally wake up and realize that disasters like these keep happening because the system – the train – keeps rolling, exactly as it was designed to function. It may not always be on time, but it keeps chugging along, permitting and legalizing the harms to keep happening, with the consequences held by communities and nature and the spoils going to the economic elites.
The Regulatory Boxcar
We are taught that our government and its agencies are created to serve us, the people. We’re told that agencies like the Environmental Protection Agency, the Department of Transportation, the Federal Railroad Administration, and an alphabet soup of other local, state, and federal agencies exist to ensure our safety and wellbeing.
Just as trains are engineered for a specific purpose, so are our regulatory agencies. Few people are aware that the first regulatory agency in this country – the Interstate Commerce Commission in 1887 – was created at the insistence of, ironically, the major railroad corporations, as a way to limit public oversight and take the heat off the industry’s increasingly brazen assaults on communities, workers, and the environment.
Immediately after the derailment in East Palestine, there was confusion from reporters, first responders, and local, state and federal officials about exactly what chemicals were even in the train’s burning cars. Yet, right on cue, despite not knowing what effects the various chemicals could have within an explosive situation, the EPA reported that the air and water was safe to breathe and drink.
Public Photo
As more reports trickled out in the days that followed, we learned that train cars were carrying at least five toxic chemicals (vinyl chloride, ethylene glycol monobutyl ether, butyl acrylate, ethylhexyl acrylate, and isobutylene), despite those chemicals not being classified as “highly hazardous” by Norfolk Southern representatives. According to government and scientific data sheets, exposure can cause multiple forms of cancer and other serious health issues. First responders had little idea what they were dealing with.
Many people we work with wonder, “how can this be?” How is it that corporations seem to be able to literally roll into our communities without accountability to those who live there, while also not being accountable to the government agencies who apparently oversee them? The finger pointing about who’s responsible – whether the corporation, the government agencies, elected officials, etc. – has been almost as sad as the harms inflicted on the community and surrounding natural areas.
Listening to the Experts: Whose Experts and for Whose Benefit?
In the days following the derailment, Governor DeWine of Ohio, in consultation with Norfolk Southern representatives, greenlighted a plan to blow holes in five of the cars containing toxic chemicals, which would lead to a “controlled burn.” Residents in multiple nearby communities were ordered to evacuate. According to an article in CounterPunch, “It’s unclear how much the rail company consulted with the EPA before making this fateful decision, but soon after the fire started a black mushroom cloud of smoke, ash and debris rose over the town and hovered there for the next few days. The air tested positive for phosgene, hydrogen chloride, VOCs (volatile organic compounds) and particulate matter for at least the next 72 hours.”
This decision was defended by public officials and Norfolk Southern as the “safest way” to handle the situation. But was it? Shouldn’t the residents affected by the harm have a right to know if other experts were consulted besides the railroad, if any? In such a dire emergency with such deadly consequences, shouldn’t as many experts and opinions be considered, with all information available to those affected? And then, who gets to make the final decision? Most of us would likely get a second opinion if presented with such a devastating diagnosis.
Public Photo
Efforts by the news media to get answers were also stymied. At a press conference with Governor DeWine and other officials, a reporter for NewsNation was shoved to the ground and then arrested for…reporting the news. Though the charges were later dismissed, this was yet another illustration of how the government and the corporation were working to limit access to information.
The controlled burn was carried out on Monday February 6, and the trains began running again on February 8, according to a Norfolk Southern message to customers. As thousands of dead fish floated in local waterways, and nearby residents were reporting ill health, as well as dead pets and animals, the railroad chugged along to get back to business as usual.
It’s About the Economy, Stupid
Since this country’s founding, our system of government has placed profits and property interests over people and planet. The derailment in East Palestine illustrates this clearly. For over 150 years, railroad workers have been telling employers like Norfolk Southern and the government that their working conditions are deplorable and dangerous.
With deregulation of the industry in the 1980’s, which included Wall Street mergers and “short term profit imperatives”, trains have been getting longer and longer while the number of employees get smaller and smaller. Norfolk Southern and other railroad corporations, meanwhile, continue to record massive profits. Norfolk Southern reported $4.8 Billion in profits for 2022, a record year. Compare that to the $3.4 million the company has offered to residents of the community.
Photo by Calvin Fitra Anggara
Governmental fines are laughable when compared to the corporation’s profits. In industries like these, it’s easier, and more profitable, to first act recklessly and then ask for forgiveness later.
The railroad corporation is currently saying all the right things to try and diffuse the bad publicity. The corporate executives “promise to make this right,” and provide whatever it takes to make the community safe again, including monetary support.
Lawyers and NGOs are also swooping into the community, picking at the debris with promises of class action lawsuits and big settlements. Yet based on past catastrophes of this magnitude, no matter how much money is distributed in the end, harms have already happened, and the long-term consequences are still difficult to assess.
In the words of hazardous materials expert and retired Youngstown Fire Chief Sil Caggiano, “We basically nuked a town with chemicals so we could get a railroad open.”
Nature Does Not Recognize Human Boundaries
On Monday February 6, Ohio Governor Mike DeWine held a press conference in East Palestine to inform the community and the media about the controlled burn that was scheduled. He showed a map of the area with two circles, one red and one orange. If you were in the red circle, you were told it was a matter of life and death that you leave. If you were in the orange circle, it was recommended that you leave. Most humans heard the message, but did anyone notify the birds, the fish, the animals and all other life in those areas?
And what about rain and wind, which do not abide by the circles drawn on human maps? One local headline asked, “Is there acid rain in Ohio?” Under our current system, we are too often taught only to look to experts to confirm our common sense. “Acid rain could have formed after the controlled release and burn of chemicals on February 6,” Kevin Crist, professor of chemical and biomolecular engineering and the director of the Air Quality Center at Ohio University, said. “If in that plume you got moisture there may be a local effect on the trees and stuff in that area, but it would be gone now.” Crist goes on, “If it [acid rain] did form and fall, it would have most likely occurred downwind of East Palestine.” At least there’s good news for people and ecosystems upwind!
Public photo
The consequences continue to have impacts to humans and nature far beyond those circles drawn on a map. Over 2,980 tons of contaminated soil and 4.85 million gallons of contaminated water have already been removed, sent to dumping grounds that will affect other communities somewhere else. Recently, the EPA ordered Norfolk Southern to stop removing contaminated soil due to increasing concerns from communities located near dump sites that were not willing to accept the toxic waste. Then, a few days later, EPA announced that the contaminated water and soil will be sent to four locations in Indiana and Ohio, instructing us to trust their years of experience in handling toxic waste. And most recently, the EPA has told states that they cannot refuse shipments of waste from East Palestine.
On February 17, DeWine spoke about a plume of butyl acrylate – a chemical known to cause skin rashes and lung damage – that was released into the Ohio River (the most polluted river in the United States according to the EPA) due to the derailment. It has “completely dissipated” according to the latest testing, DeWine said. “We do believe that there’s no reason to be concerned about water from the Ohio River and there’s never really been a reason to be concerned.” Even still, DeWine stated that some municipal water systems will close off their intakes, but the fish, birds, plants and other wildlife have no valves to close.
In the words of the Lorax, “who speaks for the trees?”
The Final Report
We doubt we’ll learn much more from the final government reports on the derailment. Many lawsuits have already been filed, so there may be other information we receive, though likely years down the line. Many of those lawsuits will also likely be settled, which means that evidence, depositions, and other information that comes out through court proceedings will likely be sealed.
We will “learn,” yet again, that protecting commerce, profits and property is placed as the top priority.
As people develop illnesses and maybe even die, will anyone even notice? Maybe in a decade or so courageous community activists will start to put the pieces together, and fight for the government agencies to do studies to connect the dots. Maybe the area will be declared a “cancer cluster” or maybe a “superfund site,” of which we already have so many.
Photo by Markus Spiske
Maybe East Palestine will be just another story added to the long list of other corporate homicides, which include (among many many others): Love Canal Niagara Falls, New York; Times Beach Missouri; Middlefield Ohio; Flint Michigan; Gulf Coast Louisiana.
As Community Rights and Rights of Nature activists and organizers, we hope not. Our work is about helping people connect some of these events and focus on systemic change to finally break the cycle and get out of Groundhog Day once and for all. To do this we must first acknowledge the roots of the problem, and then re-imagine and build a new system.
Any new system we create must be one where the people get to not only have a voice in the process, but actually have binding decision making authority over the issues that will impact the human and natural communities. A system where community protection laws and policies are paramount. A system where corporations and elected officials are directly accountable to those they serve. A system where corporations and policymakers need to prove the safety of any project before it rolls into town, and ask for permission first…and not forgiveness later.
It’s time to abandon where this track leads, and come together to lay a whole new foundation that places people, communities, and nature as its highest priority.
Increased political polarization. Runs on banks. Record numbers of school shootings. Inflation. Long-term climate change. Natural and man-made environmental disasters. Skyrocketing health care costs. Erosion of worker protections. Failing public infrastructure. Faith in our political institutions at record lows.
This is not an exhaustive list. And while many of these issues are intensifying in recent years, they are also not that different from what marginalized classes of people in the United States have been faced with since our constitutional structure was implemented in the late 1700s.
This country was founded on English Common Law principles, which were developed to protect property and commercial interests above those of people, communities, and nature. Though we are told that we fought a revolution to establish a Constitutional government more closely associated with democracy and protection of rights, most people and ecosystems – the 99% – have found those principles to be worth little more than words on paper.
We don’t intend to exaggerate, but there are simple reasons why people’s movements to expand rights in this country – abolitionists, suffragists, labor movements, civil rights movements, the movement for marriage equality – take decades of struggle to gain recognition and protections. And why large economic actors – banks, corporations, etc. – are, by contrast, given bailouts and privileges by our governmental agencies.
It’s not an accident. And we at the Community Environmental Legal Defense Fund (CELDF) have seen this system play out over and over and over again during our decades of working with communities to protect their health and safety from harmful corporate projects.
Photo by Michael Held
Yet it’s not all gloomy, and the good news is that we, in our communities, already have the tools and knowledge we need to stop the harms and move towards a saner and more just future. I worked in New Orleans after Hurricane Katrina hit. I was disgusted with how disorganized the relief efforts were, and how few of the resources that were sent to help people rebuild actually made it to those in need.
And yet, people still came together to take care of themselves, their communities, and to take care of each other and provide support, relief, and make real change even in the absence of outside help. I don’t want to make the on-the-ground realities sound rosier than they were as time has passed. Things were extremely difficult.
But it is also true, in difficult times, that our communities have the skills, resources, and solidarity to make the changes needed when business and/or government agencies fail. Even in the wake of the recent train derailment in East Palestine, community members organized water drops, food banks, and distributed information and their own experiences to each other given that the official corporate and government narratives were constantly shifting and changing. There is a bond of trust formed between community members who share a common space and in these cases, a disaster.
Photo by Joes Muniz
Mutual aid and alternative community-based systems have been a core component to every major movement in our country’s history, and the limits to what we can do to take care of each other and the future of our communities is only in our imagination. Some examples of creative initiatives taken up by communities include:
Community-based elections: What would an electoral process look like that people actually trust?
Local, independent media: Building on past tactics such as broadsides, independent radio, etc., how can we better educate each other?
Protests and direct action: There is a long history of people not obeying unjust laws in the US. How can we build off past efforts and come up with creative new tactics to create lasting change?
Strikes: When employers are oppressive, how can workers exercise power?
Community courts: When a company like Norfolk Southern or BP inflicts harm on a community, who should be a part of the justice system?
Participatory budgeting: Who’s actually determining how public funds are raised and spent?
Community-based healthcare: Do we really need huge hospitals and industrial complexes to provide for health needs in our communities?
Local food production: Can we go beyond community gardens to ensure healthy food in the places where we live?
Public banks: Do we really need too-big-to-fail private institutions to take care of the wealth and resources in our communities?
Alternative forms of government: What if we organized our political and economic systems based on watersheds, or other natural formations that provide for a more local approach based on our relationship with the natural world?
Rights of nature: Shouldn’t nature, of which we humans are a part of, have the same rights and protections afforded to the rest of us?
Photo by Priscilla Gyamfi
Most of these ideas are not new, because what we are facing is not entirely new. We just haven’t put them together into a larger, grassroots movement that is premised on not waiting for someone from somewhere else – whether government, an NGO or a business – to solve our problems for us. We must start trusting in ourselves and in our community members to be able to meet our needs, solve our problems and create truly participatory community-based forms of government and public spaces.
In these uncertain times, we already know what to do, and who we can rely on. We just need to act on it.
