Protecting Water and Life: Frontline Stories from Ohioans fighting corporate and state power
This book features frontline stories from a movement fighting corporate and state power in Ohio. Edited by Tish O’Dell and Simon Davis-Cohen.
For over eight years, organizers with the Ohio Community Rights Network (OHCRN) have worked hard with CELDF to propose and pass county charters, city charter amendments and city ordinances recognizing protective local self-governance and the Rights of Nature. In Death by Democracy — we hear directly from them.
Ballot initiatives they advanced, like the Lake Erie Bill of Rights, made international headlines and expanded peoples’ political imaginations. But in the end, a power structure revealed itself that saw all branches of the government of Ohio and corporate interests go so far as to alter state law to repress the movements’ tactics and remove a total of 14 qualified initiatives from local ballots, despite all measures gathering sufficient signatures and satisfying all administrative requirements.
The stakes are high in Death by Democracy. Communities face down and organize to oppose oil/gas fracking, fracking waste injection wells, industrial agriculture, water privatization and corporate control of elections. Local community lawmaking is advanced through direct democracy to reorient the priorities and obligations of the law to protect human and ecological life.
This book is written by the local organizers who engaged in these fights. With CELDF’s help, they took on the State of Ohio, the American Petroleum Institute and other powerful corporate lobbies in Ohio.
Their organizing shifted local political dynamics, advanced rights of ecosystems and inspired campaigns and lawmaking in other states and countries, like Ireland, Netherlands, Sweden, Spain and France.
In this book, Ohioans share the lessons they learned from being on the receiving end of coordinated repression. Eventually, filing a federal civil rights lawsuit, arguing the systemic obstruction and tactics by local boards of elections and the State of Ohio – at the behest of corporate lobbies – amounted to civil rights violations resulting in censoring of local ballots and direct democracy by the people. In reality it was “death” by the democratic institutions they once believed in.
CELDF’s Kai Huschke joined Elliott Moffett for a Rights of Nature discussion. Moffett has been a very active member of the Nimiipuu (Nez Perce) and has helped it work on a variety of tribal government and environmental issues.
Grounded in 16,000 years of sustainable living in the Northwest, he and his tribe have been organizing to help the region’s population and governments to respect Mother Nature in very practical ways. He also is the president of Nimiipuu Protecting the Environment, a non-profit organization that includes Indigenous people and others who want to protect Mother Earth.
For the past 10 years, Tish O’Dell has been involved in community rights and Rights of Nature work starting in her own community of Broadview Heights, Ohio. Today, she is a CELDF Democracy School lecturer and board member of the Ohio Community Rights Network.
What is the force that propels a woman forward in taking a courageous stand for water and the environment water creates? Here is what Tish O’Dell told WATERTODAY Ohio.
In 2012, 22 people gathered in Spokane to craft what is known as the Spokane Declaration and launch the Washington Community Rights Network (WACRN). Representing six communities from across the state, the joint statement put forward observations and a call to action. “Our communities are under siege from corporations exploiting our communities for resource extraction and a variety of other uses harmful to us and the natural environment,” it read. “We recognize that this system of law renders economic and environmental sustainability illegal and impossible.” It called for collective action, declaring “that if democracy means ‘consent of the governed,’ a democracy does not exist in our communities or in Washington State, and that we must now create democracy in our municipalities and within the State.”
As efforts of such boldness do when confronting a system as powerful as the one we live under today, the WACRN faced challenges and was unable to gain and maintain the traction needed to become an agent for change. However, as also happens when injustice is so deep and pervasive, individuals and even new community rights groups kept the flame lit by embodying the words of the Spokane Declaration. The WACRN has awakened again in 2021, thanks to old and new advocates.
Spurned by the need to protect the Salish Sea, confront corporate development, call out false green energy solutions, and reimagine what true public safety could look like, the group has put forward understandings including that “citizens of the biosphere are urgently seeking to address ecological collapse and climate chaos. The health and survival of all living beings is in jeopardy as natural systems continue to be disrupted and destroyed” and that “corporate power continues to usurp and corrupt true democratic processes, override individual civil liberties, and exploit communities.” These and other “understandings” helped inform a new but also old mission statement:
“With the failure of existing governments to represent the will of the people, and in response to the urgency of climate and ecological crises, the WACRN educates, connects, and empowers communities in the pursuit of local self-determination to create new structures that protect the inherent rights of nature’s living systems, human and non-human, to equitably exist, regenerate, and flourish with each other.”
The WACRN is now working to operationalize the network to be that change agent it set out to be nearly 10 years ago. The intention of the group is to inform, educate, and activate people and communities to undertake the necessary transformational work. Contact kai@celdf.org.
Democracy School for Snohomish County Held Virtually
Despite the numerous impacts and issues that the Covid-19 pandemic has invoked or exposed, CELDF’s Democracy School has had a significant boost of interest and participation over the last two years. Virtual schools, though falling short of what in person gatherings can provide for discussion, debate, and learning, have made it far more convenient to conduct the school in a manner that has made certain elements perhaps more engaging and effective. In addition, it has allowed for a cross pollination of people from outside the host community which has benefited the quality of the schools. Over two weekends in October, Snohomish County Community Rights hosted the CELDF Democracy School. People in attendance came from Snohomish County, Seattle, San Francisco, and Denver. It probably isn’t uttered that often but, “thank you Covid-19 for bringing people together in a way that wouldn’t have happened previously.” Contact: sccr2017.org.
The United States of ALEC
American Legislative Exchange Council (ALEC) is the name and state ceiling preemption is their game. From state to state, issue to issue, corporate friendly groups like ALEC have been quite successful in drafting and passing state laws that define how particular industries will be allowed to operate. A major component to such legislation is to define if and/or how local governments will be allowed to regulate industry. Quite often these state preemption laws impose a strict ceiling on that involvement by explicitly prohibiting communities from having any say at all, impacting issues from wages to rent control to fracking to public health to agriculture to gun control to land use.
CELDF’s Kai Huschke conducted a workshop this fall in partnership with Snohomish County Community Rights titled “Preemption as a Lethal Weapon: How Corporations and Government are Deliberately Destroying Communities and Nature.” The workshop walked attendees through what preemption is, how it works, how it has been applied, what it means for nature and local democracy, and how people are organizing to both stem the tide.
The Virginia Community Rights Network has finalized text for an Ordinance Requiring an Assessment of the Compatibility of Metallic Mining with the Right to Freedom from Toxic Trespass. Its language has been in the works for months, in anticipation of high environmental impact plans for gold mining in Buckingham County. The draft ordinance sets out a community bill of rights, including rights to Self-Government, a Healthy Environment, Self, Livelihood and Home, Cultural Heritage, Water and the Rights of Ecosystems. It also creates an operational right against toxic trespass (as part of the Right to Self), which encompasses a right of people and ecosystems not to be poisoned. It requires any metallic mining operation in the county to show proof that a project of similar scale and method, having operated for over ten years, and having also been idle for ten years following mining operations, has no record of toxic impacts on people or the environment. Plans are in the works for advancing the ordinance toward adoption by the county.
The Virginia Community Rights Network (VACRN) guides, supports, and encourages local efforts to recognize and legally secure the Rights of Nature and Communities to a healthy environment through self-government at the city, county, and state level. VACRN is dedicated to challenging the injustice of ‘illegitimate’ corporate rights that impede local and direct democracy, through educational training, workshops, campaign strategy development, and public outreach. For more information, reach out to info@vacommunityrights.org
How do the Rights of Nature and Land Back Movements connect and diverge? In order to have this conversation, Sundance will present a brief history of the Native experience in Ohio since contact with white colonizers in the state as well as a brief description of the Land Back Movement. How do we unite to create a more just and sustainable vision for the future. What are the possible next steps?
Many Indigenous nations and tribes are not formally recognized by the United States government. However, many are, and they maintain government-to-government relationships with the United States.
Under duress, these Indigenous nations and confederated tribes signed treaties with the United States. But the United States, state governments and local governments have historically flouted these treaty agreements.
Treaty rights include rights to hunt and gather food in traditional landscapes and waterways. These rights, for example, extend beyond official reservation lands, and into the spaces where towns have been built and picket fences erected.
The exploitation of landscapes and waterways as well as the incorporation of settler municipalities have taken place without regard to the treaties. It’s time for municipalities to actually recognize and then become governed by local treaties.
Some towns and cities led the way in recognizing Indigenous Peoples Day. They can do the same, for substantive recognition of the treaties.
For generations, Indigenous rights movements have demanded recognition and implementation of the treaties. However, no municipality in the United States, that I am aware of, gives real deference to treaty rights within a municipal “jurisdiction.”
Informed by coalition building and relationship building with local Indigenous nations, municipalities can help lead the way in recognizing and becoming governed by the treaties on the land they sit upon.
We see seeds of such a movement, developing alongside Rights of Nature law making, in places like Quebec, where sister lawmaking was enacted by the Innu Council of Ekuanitshit and the Minganie Regional County Municipality in northern Quebec, to recognize the rights of the Magpie River. And in New Zealand, where the Parliament passed the Te Urewera Act, finalizing a settlement between the Tūhoe people and the government. The Act recognizes the Te Urewera — a former national park, of more than 2,000 square kilometers — as having “legal recognition in its own right.” The New Zealand Parliament finalized the Te Awa Tupua Act, granting the Whanganui River legal status as an ecosystem.
NOTE: CELDF’s Ben Price has authored the foreword to the new De Gruyter book Enabling Municipal Sustainability: A Guide for Towns, Cities, and Citizens. The book “discusses the most critical environmental, economic, and engineering realities of municipal life and leadership in our times, ranging from rights of nature, to rollback of tax rates, to green infrastructure. It will appeal to a broad range of town or city government employees and elected officials, as well as local activists, contemplating the issues of managing and funding sustainability that all localities worldwide face at some level.”
In the foreword, Price writes: “Fortunately, an increasingly less-quiet insurrection against the mooting of municipal sovereignty is stirring. A global quest for local community self-government, what Murray Bookchin has called Global Municipalism and some refer to as Fearless Cities, is setting roots in places widespread, from Barcelona, Spain; to Chiapas, Mexico; to Grant Township in Pennsylvania.
“A parallel and symbiotic movement for the Rights of Nature is gaining momentum. Transforming the legal status of ecosystems from that of mere property to that of rights-bearing entities promises a social / cultural revolution that could change everything for the better.”
The foreword is republished here with permission:
In Empowering Municipal Sustainability: A Guide for Towns, Cities, and Citizens, Alexandra Lajoux presents an extensive review of tools available to citizens and to locally elected officials in their quest to respond to constituent demands for community sustainability.
The book has global reach but is made in America, where citizen empowerment is sorely lacking. Most Americans seem to believe that all the governing that matters happens in state capitols and in Washington D.C.—and those centers of power are far beyond our reach and influence. The reason for this outward-looking stance toward government, and perhaps for Lajoux’s presentation of options for the governments located in our own hometowns, is that community residents have generally given up hope that local authority exists to set policy and respond to quality of life and existential challenges, such as the relationship between local industrial and extractive projects and cancer rates, habitat loss, and climate change.
When it comes to decisions being made about our communities — all without public input or consent — the general consensus seems to be, as the saying goes, you can’t fight City Hall. People don’t bother asking anymore why does it so often have to be a fight? They just don’t bother. What may be mistaken for apathy and disengagement from the public life of community is in fact a general malaise and resignation stemming from once vibrant local engagement that was met by downward looks and shaking heads, as municipal officials intoned again and again, we wish we could help, but our hands are tied.
“When it comes to decisions being made about our communities — all without public input or consent — the general consensus seems to be, as the saying goes, you can’t fight City Hall.“
Most Americans not only wouldn’t think to try using their municipal government to vindicate local interests and aspirations; they just flat-out don’t think seriously about the government closest to them. They’ve been trained to stay away from public meetings of the local government, with the imposition of three-minute public comment sessions — before municipal meetings address substantive issues; and with often-conflicted citizen advisory committees that have no power and amount to a repository for tabled issues where all good ideas go to die. The setting aside of their aspirations for the future of their community has been normalized by the routine granting of conditional uses and variances to the comprehensive plans and the zoning laws intended to realize those aspirations. The threat of unbudgetable litigation from corporate applicants for permits at-odds with local aspirations account for the constant recommendations from municipal attorneys to grant variances and ignore toothless, aspirational documents like comprehensive land use plans.
I’ll be honest: my long experience working with municipal leaders and fed-up residents has taught me that many of the tools reviewed here by Alexandra Lajoux don’t work and were never intended to work when the interests of the community conflict with the commercial interests of large corporations. When People try to use municipal government to protect their community and local environment from, for instance, state chartered and permitted waste disposal and resource extracting businesses, they discover how thoroughly the law has been crafted to eliminate local governing authority over corporate behavior within a municipality’s nominal jurisdiction.
So, why this emphasis on municipal government as the last, best hope for achieving sustainability? Lajoux makes clear that it’s within our municipally-organized hometowns that all the living and dying, all the industrial assaults on our environment and all the first-hand encounters with the challenges of modern life occur. It’s where we live and laugh and love, and for each of us, it’s the place that matters most in the world.
Alexandra Lajoux is an optimist, trying to uncover every possible avenue for municipal governments and their citizens to achieve local sustainability. From assessing challenges to sustainability, to making an inventory of available assets, to developing a practical plan to realize a community’s sustainability aspirations, Lajoux charts an idealistic path, using tools like comprehensive land use planning, zoning, land trusts, equitable taxation and budgeting. It is hard not to notice that the author touches on these and many other tools and processes in her exploration of the role municipalities might play in achieving sustainability goals, but in the end her recommendation is for a less traditionally constrained strategy.
In fact, in Chapters 10 and 11, Lajoux minces few words as she advocates for the two cornerstones of the Community Rights strategy: The Right of Local, Community Self-Government, and the Rights of Nature. These two legal concepts depart radically from the deprivations of democratic governance that are laced throughout the highly restricted menu of hierarchically administered legal codes and regulations proffered as the outer contours of municipal authority.
This volume can serve as a civics lesson worth getting familiar with. It is a necessary addition to the collective knowledge of local self-government and a guidebook, as the title suggests, for “Towns, Cities and Citizens,” which covers traditional authorities and processes your hometown can try-out in the quest for real sustainability. But it’s necessary to say, as Lajoux’s concluding chapters suggest, that the pathological relationship between municipal, state, and federal power makes local sustainability all but illegal when the interests of the public come into conflict with the interests of the so-called “private sector.” The whole of the U.S. judiciary has privileged that “private sector” with legal rights that immunize corporate actors from public governance. Hence the need for a radical approach to living well, democratically, and justly, in the face of a received system of law that does violence with impunity to our families, our natural environment, our civic lives and our most cherished values.
“This volume can serve as a civics lesson worth getting familiar with.”
Because federated nations and united kingdoms are built on property-favoring constitutions, and the United States Constitution is explicitly property and commerce oriented, and because the U.S. Supreme Court has usurped the citizenry as the final arbiter of legality, basic tenants of democratic governance have been transformed into insurmountable authoritarian obstacles that benefit incorporated wealth at the expense of People and Nature. The very structure of law – the parameters that allow legislators and courts to define the limits of popular political society — have been constricted to the point of a singularity – the continuing counter-intuitive belief that democracy exists in these states.
Commerce Clause preemption at the national level, and state invocations of the democracy-killing judicial precedent known as Dillon’s Rule and the imposition of illiberal preemptions on municipal law-making, disenfranchise community-level government in general, and are activated by the courts in defense of privileged wealth whenever the prompting of corporate lobbyists alert the system to their benefactors’ particular needs.
Fortunately, an increasingly less-quiet insurrection against the mooting of municipal sovereignty is stirring. A global quest for local community self-government, what Murray Bookchin has called Global Municipalism and some refer to as Fearless Cities, is setting roots in places widespread, from Barcelona, Spain; to Chiapas, Mexico; to Grant Township in Pennsylvania.
A parallel and symbiotic movement for the Rights of Nature is gaining momentum. Transforming the legal status of ecosystems from that of mere property to that of rights-bearing entities promises a social / cultural revolution that could change everything for the better.
Underneath this two-pronged revolution is a growing global alignment of communities against empire, colonialism, racism, privilege, hierarchy, divisiveness and perpetual war. The rights of ecosystems to survive, thrive, replenish and regenerate, is being recognized in real places around the world. With this change, there is also the accompanying rejection of the so-called enlightenment ideology that argued human superiority over Nature and those elitists believed were lesser People. It was high-class propaganda that propelled European empires to rove the globe committing genocide and ecocide with equal measures of self-righteousness.
The trend toward local community empowerment and liberation from central government dictates is, quite simply, a visceral recognition that humans evolved to gather in communities of limited size, to inhabit natural environments from which they gained sustenance, not surpluses, and that the community, when they thought of it, included the local ecosystem and their neighbors. It was the coerced amalgamation of communities into states, and states into empires, and the intentional separation of People from the land and solidarity with their neighbors, that has led to the multiple global crises that frighten us today and make large, unmoored populations of insecure People vulnerable to manipulation and submersion in the nightmare of technological “progress” that continues to create, not lessen, those dangers that frighten us.
The Community Rights Movement, rightly understood, includes the Rights of Nature Movement, and suggests a way out of the stifling desert of life-opposing lies that pass for political discourse. Like a vast expanse of dunes, the horizon in the direction of the future defined for us by corporate colonial totalitarianism appears as an endless landscape of unassailable deception and diminishing quality of life, but only because we’ve been led to believe that barren vista is the only option available. No wonder the general sense of despair has grown palpable.
“The Community Rights Movement, rightly understood, includes the Rights of Nature Movement”
To use the strongest yet truest language, this was a colonial-settler-genocidal-ecocidal cultural mandate, and its premises are more than flawed. They are maladaptive and have spawned a cultural pathology whose cause celebre was once summed up by Richard Grossman as the endless production and consumption of more. The false premises of the corporate colonial culture are these:
Humans are inherently apart from and superior to Nature, not a part of and dependent upon it.
Superiority over the natural world, including People who will not separate themselves from it, justifies conquest, subjugation, and dominion over both natural and human communities.
Reason and law are to be the governing principles of the corporate-colonial hegemony, with both reason and law rooted in the axiom that the hegemony is superior to and deservedly governs over biological persons and Nature.
The law, by premising its legitimacy on the corporate-colonial ideology, finds it rational to elevate legal rights attached to accumulated property (wealth), that is, conquered and possessed land, labor and resources, above all other rights and interests. It is an ideology with its pedigree in the Doctrine of Discovery and the Law of Conquest.
Any posited rights pertaining to People, communities and Nature are subordinate to rights attached to property ownership and conveyed to the owner through that property.
Since all the legal rights and social privileges that matter in the eyes of the law are conveyed via ownership to the owner of property, the greater the accumulated property (wealth), the more legal rights and social privileges are accrued by the owner.
All necessary laws and institutions will be devised to sustain this arrangement as the perpetual status quo.
Certainly, this is not the kind of sustainability Alexandra Lajoux is proposing here. That’s why she brings the crescendo of this book, arriving at Chapters 10 and 11, to a full-on fanfare for Community Rights and the Rights of Nature.
These are legal concepts that challenge the notion that whoever possesses the greater exclusive control over Planet Earth and its riches deserves to govern, by virtue of that material wealth. We should be howling that their social Darwinian-styled culture can’t pretend to be playing by the law of the jungle when the laws they’ve made let corporations protected against public control clear cut the jungle and suck its water and minerals and soils for every monetizable element possible — while making it illegal for us to stop them. Let’s keep in mind that Rights of Nature advocates, not neoliberal corporate colonists, are on the side of the jungle.
The Right of Local, Community Self-Government challenges black-letter law that allows the central government to veto community rights-protecting local laws in order to privilege the priorities of corporate wealth accumulation and criminalize community self-defense. Rights of Nature proponents challenge bedrock corporate-colonial law that says that Nature has no other legal status than that of property, whose owners may do as they wish to ecosystems in their possession. Community Rights advocates challenge the big lie that says People are not part of their local ecosystems. It does so by recognizing the unity of People and Nature as a community, indivisible and rights-bearing. The People, neither individually, nor collectively can “own” Nature, any more than they can own their neighbors.
“The violation of these principles for more than six hundred years has cursed humanity on a global scale”
The violation of these principles for more than six hundred years has cursed humanity on a global scale, inflicted what historian Gerald Horne calls The Apocalypse of Settler Colonialism, upon indigenous people worldwide, and brought us to a realization of the multiple existential crises confronting us today. To reverse, or at least halt the momentum, of these rolling catastrophes requires that we do more than try to make “work” the nominal and wholly inadequate tools given to municipalities. They won’t. They can’t. Not without ending the dictatorship of property and the concomitant privileges that accompany its gluttonous accumulation by the smallest of narcissistic and parasitic minorities.
We all have to start from where we are, of course If reading this book is your taking-off point, then welcome to the struggle. Keep learning, Keep asking questions. But remember: it’s going to take more than becoming informed. They say that knowledge is power, but it’s not true. Knowledge fuels our actions and our actions are power. If aimed in the right direction, if our knowledge is informed by integrity and not deceit, then our actions are where our power lives. Read and learn. Then discern. Then act. Your neighbors and your planet are counting on you.
Written by the New Hampshire Community Rights Network
The Community Rights Movement in New England is grieving the loss of a water protector. Gail Mills of Nottingham, NH, passed away this month, having paid forward a legacy of community activism that inspired local activists across the country.
Townspeople in Nottingham faced their Goliath in the mid-2000’s when USA Springs, LLC management decided to extract and bottle water from a local aquifer, to sell overseas in Italy. Gail and her husband, Chris, encouraged the community to stand their ground and do everything within their power to prevent permits from being issued by the state. What they learned through infuriating experience was that the state permitting process actually legalized the exploitation of water and the destruction of natural ecosystems when there is profit to be made. After years of losing the battle with state permitting agencies, Gail supported a new path of action.
In 2008, Nottingham became the second town in the state to adopt a water protection rights-based ordinance to make it illegal to commercially extract water for the purpose of bottling and selling it beyond the boundaries of the town. Gail was a founding member of the Nottingham Water Alliance (NWA) which was formed to propose the local initiative at town meeting. After months of education, organizing, and drafting their Water Rights law, USA Springs began to take the NWA seriously.
“I remember Gail telling me a story about how armed men dressed in black were posted across the street from her home as a means to intimidate her into backing down from the local initiative” says Michelle Sanborn of the Community Environmental Legal Defense Fund (CELDF). (The NWA partnered with CELDF for assistance with education, organizing, and legal support throughout their over-a-decade-long effort to defeat the USA Springs, LLC project.) Gail didn’t flinch at the blatant intimidation efforts. The NWA never quit and eventually succeeded in defeating the water-for-profit project.
Gail went on to become a founding member of the NH Community Rights Network (NHCRN) with a mission to educate and empower every community about our collective power of local self-governance. She championed community governing autonomy as a way to secure and protect the inherent and unalienable rights of all inhabitants of New Hampshire to economic, social and environmental justice, including the rights of nature. Through NHCRN, Gail worked to secure the larger goal of securing a right of community self-governance through a state constitutional amendment so as to level the playing field between community members and corporate actors seeking to exploit local residents and natural environments for profit.
“Our community of Nottingham, NH recently lost a mover and a shaker,” says Sandi Dow, another member of the NWA. “Gail Mills was a warm, witty and rather wise warrior actually. She cared deeply about those things she devoted her time and attention to. With help from many other townspeople including her husband Chris, along with organizations such as the Community Environmental Legal Defense Fund and Save our Groundwater, Gail spear-headed the 2008 effort to keep USA Springs, LLC from extracting and selling off the only water supply available to residents and surrounding communities.
“Gail led our Water Rights initiative that ended USA Spring’s dreams before a drop of water was lost,” continues Dow. “Eventually, the Town was able to take back the land. Now, with a new business park proposed for the site, I hope that the developer will be as good a steward of the land as Gail Mills was and that all of us will remember what an incredible gift she helped preserve for us all!”
People in coastal Massachusetts are concerned about the privatization of scenic and natural walkways. These paths have been used by the public for centuries. Now, a new generation of property owners are denying access to portions of these iconic walkways and suggesting dangerous rerouting through uneven, eroded, and often flooded areas. The common benefit and public good be damned.
The politics of false solutions is also heightening in the state. Residents are blowing the whistle on large-scale industrial solar arrays that require the cutting of old-growth forests in favor of destructive greenwashing.
And as the ecological crisis reaches a fever pitch, more people are waking up to the need for decisive action and thinking outside the box. For example, residents are expressing interest in pursuing rights for the Merrimack River that runs from New Hampshire into Massachusetts, before meeting the Atlantic. The Merrimack is one the most polluted rivers in the region; it continues to be used as a dumping ground for chemical runoff, sludge applications along its shores, landfills, and municipal wastewater.
Maine
In Maine, a community that adopted a rights-based local ordinance in 2010 that stripped corporations of their personhood rights, protections, and privileges, is now facing mineral extraction for gravel. Residents have reached out to CELDF for assistance in mounting an educational campaign. The campaign will raise awareness about how townspeople can protect their human and natural community from corporate actors that seek to use them as a resource colony for profit by recognizing the Rights of Nature and banning mineral extraction as a harmful activity.
New Hampshire
As global carbon dioxide concentrations hit their highest level in 4 million years, New Hampshire Judge Martin Honigberg has rewarded a local corporate actor in Nottingham for opposing a democratically adopted ordinance that recognized a right of townspeople to a “climate system capable of sustaining human societies.” The Freedom from Chemical Trespass Ordinance was passed by voters in 2019 and also secured rights of ecosystems “to naturally exist, flourish, regenerate, evolve, and be restored” and banned corporate activities that infringe those rights.
The June 4, 2021 ruling could force the Town of Nottingham to pay tens of thousands of dollars in attorney fees to a resident plaintiff and his corporate shield, G&F Goods, LLC, which filed a lawsuit against the unenforced Ordinance, arguing it unconstitutionally discriminates against polluting corporations. (The courts agreed with this argument.)
This ruling is like blaming the victim. Just the mere possibility of a lawsuit against a corporation merits the nullification of the town vote in order to protect capitalism. No such proactive protections from guaranteed exploitation or poisoning are provided to the townspeople or natural environments. Clearly, we cannot look to the courts for climate or social justice.
A detailed New Hampshire Community Rights Network (NHCRN) booklet is being published to support an outreach campaign to municipal officials across the state as the NHCRN prepares to reintroduce a state constitutional amendment, the NH Community Rights Amendment. The amendment seeks to recognize, secure, and protect the right of local self-government and empower local communities to collectively recognize the rights of residents and ecosystems to not be harmed by corporate polluters.
The preeminent film to date on community rights and rights of nature, “Invisible Hand”, was screened in Washington on July 16th. The film and discussion was hosted by Snohomish County Community Rights.
The award-winning documentary narrated by actor Mark Ruffalo describes the real life realities of Grant Township and its ongoing battle to keep its community from being polluted along with the growing global movement, including the work of CELDF, to move legal systems from seeing nature as a thing, to ecosystems having enforceable rights. The film continues to be an excellent resource for recruiting and building community rights efforts across the country.
Rebirth of the WACRN
Launched in 2015 by way of the Spokane Declaration, the Washington Community Rights Network (WACRN) has been idle for a number of years due to the courts attack on local direct democracy. However, community rights energy from Spokane, Seattle, Bellingham and Tacoma of years past has been tapped into more recently by community rights and rights of nature advocates from other communities including Sequim, San Juan County, Kitsap County, Olympia, Snohomish County, Newport, and elsewhere. Since early 2021 the WACRN has been working on establishing itself including looking towards how it can be the most effective in recruiting and activating more people to dig into the needed systemic change as marshaled by community rights.
How it is according to Democracy School
One positive outcome of the shutdown caused by the pandemic has been the expansion of CELDF’s Democracy School offerings around the country. CELDF made a very quick pivot towards offering the school online, presenting nearly 10 schools in the last 10 months. Washington is hosting its second school in October. Snohomish County Community Rights is the local sponsor and is looking to fill the school with area activists but will also have space for those wanting to attend from elsewhere. Full details including online registration can be found here: https://secure.everyaction.com/kSJLD4ox80-0onrr7TiVrw2
OREGON
Injustice in Lincoln County
In very short order the Oregon Court of Appeals punted on speaking up on behalf of people and ecosystems in Lincoln County by reaffirming the lower court’s reversal of a voter-enacted law that banned aerial pesticide spray and secured rights of nature. The one-page statement issued at the end of June merely said “affirmed without opinion.” In doing so, the courts denied the Siletz River watershed its right to defend itself, as well as endangered the public by siding with the state and corporate practitioners in the ongoing assault of Lincoln County by way of hazardous chemicals. After discussions between CELDF and Lincoln County Community Rights the group has decided to petition the Oregon Supreme Court. The group is actively looking for “friends of the court” to join them in questioning the power of corporate defined, state ceiling preemption.
Building Unity and Action Across the State
A fall virtual presentation series, multi-partner state summit and taking on state ceiling preemption are just some of the activities being spearheaded by CELDF’s sister organization the Oregon Community Rights Network. Coming off a successful fall 2020 and spring 2021 virtual series of presentations and discussions on topics like mutual aid, real democracy and Indigenous rights, the ORCRN is busy setting up a series of similar events on other important topics to take place in the fall. Check with orcrn.org in the coming weeks for more details.
As that work is underway so too is the formulation of a fall 2021 or spring 2022 state summit intended to bring various issue groups within Oregon together to discuss how to better support one another and come together in action in a more unified way. The ORCRN is in the process of partnering with other groups to plan and host the event.
Though the state constitutional amendment on the right of local self-government was not introduced in the 2021 Oregon legislative session, the ORCRN, with CELDF’s help, is working on new legislation aimed at securing greater local democracy from state inference. The legislation, if adopted, would provide a major boost to communities looking to advance civil, economic and environmental rights without the state being able to block such actions (almost always on behalf of corporate interests). The goal is to craft the language over the summer and have it ready for introduction to legislators in early fall. The 2022 legislative session begins at the end of January.
Check with orcrn.org in the coming weeks for more details.
Local Organizing, State Constitutional Change, and Challenging the Courts
Community Rights organizing began in Pennsylvania over two decades ago. Since then, dozens of local laws have been adopted that ban everything from factory farms, to the spreading of sewage sludge, to oil and gas fracking and pipelines. Modern Rights of Nature laws were born in coal country in Eastern PA — Tamaqua Borough, population less than 7,000 — in 2006. The community rights and Rights of Nature movement has spread exponentially since that time, to hundreds of communities across the United States, and to dozens of countries around the world.
In Pennsylvania, the work continues to deepen and to spread at the local level. Clara Township (pop. about 200) is facing a frack waste injection well, and has initiated a democratically-elected Government Study Commission to consider writing a new local constitution for the municipality. Discussions are underway with larger cities about how to implement what are currently voluntary climate action plans and to force cities to abandon investments in fossil-fuel corporations.
In Grant Township, a trial is currently scheduled for later this year. CELDF has worked closely with the people of the Township to successfully prohibit a frack-waste injection well since 2014. The Township has been sued three times since then: twice in federal court by Pennsylvania General Energy Company (the corporation that wants to dump waste) and once in Commonwealth state court by the PA Department of Environmental Protection (DEP). Yes, the DEP is suing the Township for trying to protect its environment. The trial will be in Commonwealth Court and focus on whether the DEP has failed to protect the environment in PA, as well as whether the people of Grant Township have the authority to protect their environment.
Additionally, and working with the PA Community Rights Network, it’s expected that a state constitutional amendment regarding Community Rights will be introduced in this session of the legislature. The amendment would guarantee the right of Local Community Self-Government to all Pennsylvania communities and return power to those who are most affected by important decisions: the people of the community.
This is just a snapshot of the work happening in PA at the moment, but we think it gives a good overview of how change can happen, and how movements can build over time.
We continue to:
Work with communities at the local level who are most affected by harmful activities;
challenge the corporate state, whether it’s the corporations that perpetrate the harm, the state that legalizes the harm, and/or the courts that justify the harm;
build new legislative frameworks at the local and state level that ban harmful activities and set forth new thinking and visions for a sustainable world that protects nature, people, and communities.
Michelle Beatty
Community Environmental Legal Defense Fund
michelle@celdf.org
603-387-7996
The judge has suggested residents could crowdfund to cover costs.
NOTTINGHAM, NH: As climate change brings suffering across the globe, in New Hampshire Judge Martin Honigberg has sided with a local corporate actor who seeks financial retribution against the Town of Nottingham for the popular adoption of an ordinance recognizing a right of townspeople to a “climate system capable of sustaining human societies.” On September 1, 2021 the sole corporate actor, Brent Tweed, of G&F Goods, LLC submitted a $40,281.50 bill to the court for attorney fees.
The Freedom from Chemical Trespass Ordinance, passed by voters in 2019, also secured rights of ecosystems “to naturally exist, flourish, regenerate, evolve, and be restored” and banned corporate activities that infringe those rights.
G&F Goods, LLC filed a lawsuit against the unenforced Ordinance, arguing it unconstitutionally discriminates against polluting corporations. A June 4, 2021 court ruling allowed the corporation to bill the Town for attorney fees.
“Punishing Town voters and taxpayers for taking a stand to combat climate change on the local level is not what we need right now. The courts and the corporation should be ashamed of themselves,” says CELDF Community Organizer Michelle Sanborn.
Threats to freshwater systems and climate disruption prompted residents to popularly adopt the Ordinance at their 2019 town hall meeting.
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.
Madame Tran To Nga’s media team:
Teri Kane, 917 692.1076, terikane@gmail.com
Betsy Sherman, 480 406.9556, betsyshermanaz@gmail.com
Carol Van Strum
Carol Van Strum, cvstrum@gmail.com
Kai Huschke, kai@celdf.org
Denied a Day in Court: Two Women Challenging Agent Orange Manufacturers Have Been Shut out by Courts
Efforts by both female protagonists in ‘The People vs. Agent Orange’ film have been suppressed since the award winning documentary was released.
Carol Van Strum and Madame Tran To Nga, lead protagonists in the new award-winning documentary film “The People vs. Agent Orange,” are both fearlessly challenging the herbicide industry and Agent Orange manufacturers.
Since the documentary was released, legal efforts by both have been flouted by Oregon and French courts.
“Our fight has been dismissed by the courts in both countries but Carol and I, across oceans and miles, are moving forward hand in hand to bring justice to all the victims of chemical crimes. More and more friends from all over the world will stand with us for this just cause and their conviction will make us stronger,” says Madame Tran To Nga.
In France, Madame Tran has been engaged in a lengthy lawsuit to hold 14 powerful chemical producers of Agent Orange accountable for her illness, that of her children, grandchildren, millions of other victims, and harms inflicted to the environment. Among the companies she is suing are Monsanto/Bayer and Dow, two top donors of CropLife, which opposed an Oregon county law championed by Carol.
“The supreme irony is that our courts allow a corporation — a non-living entity existing only on paper — standing in court to protect its right to poison, despoil, and destroy an entire living, breathing ecosystem, but they deny the ecosystem any right to be heard in court to defend itself,” says Carol Van Strum.
Carol, of Oregon, worked with her neighbors to successfully petition for a 2017 Lincoln County, Oregon ballot initiative. The county ordinance was a response to the historic and ongoing spread of Agent Orange and sister chemicals in the county. It banned aerial pesticide spraying by the timber industry, prompting the most powerful chemical lobby in America, CropLife, to spend millions campaigning against the law. Despite the well-funded opposition, the law was passed by voters and stood for over two years. The chemical industry then sued to overturn the ordinance. Carol was selected by residents to defend the historic law, using its recognition of enforceable rights of ecosystems. Carol intervened in the court case, as the human spokesperson of the Siletz River watershed.
The Court
In June, a French high court ruled Madame Tran’s case “inadmissible.” The court said it could not rule on the issue — because the Vietnam War, which produced the harm, was the United States’ decision — and had nothing to do with the French. Madame Tran’s legal team is appealing the dismissal.
In Carol’s case, a lower court denied Carol’s right to intervene on behalf of the Siletz River watershed, however in a rare recognition of the validity of ecosystem rights, the trial court invited the Siletz River to appeal the decision and commented that the issue of ecosystem rights “will be gaining more interest as opposed to less in the future.” Challenging the conventional property interest paradigm of legal “standing,” Carol sought to implement a provision in the adopted law that allowed human spokespersons to represent the interests of local ecosystems in court.
The Oregon appeal court denied the claim in June. Carol, like Madame Tran, was denied a day in court. Ultimately, a law crafted by the corporate powerhouse American Legislative Exchange Council was cited to strike the law. Carol and her fellow organizers with Lincoln County Community Rights have decided to petition the Oregon Supreme Court.
Blind Courts
Both of these stories expose how people with real grievances are shut out of the court process, and how rarely, if ever, they get an honest opportunity to express the substance of their arguments. Who and what the courts protect is being exposed, presenting profound questions about how these legal blind spots might be addressed.
Both women went to court against corporate interests, one to defend a law, the other to file a lawsuit. In both cases, the courts not only ruled in favor of the corporations, they denied Carol and Madame Tran a day in court.
Both are available for media interviews.
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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.
Critical race theory stipulates to the facts of American history—which include U.S. genocide of American Indians, enslavement of Black Americans, the Chinese Exclusion Act of 1882, and forced internment of Japanese-Americans during World War 2.
Lawyers stipulate, or agree upon, certain facts relevant to their case. Their stipulation provides the factual baseline from which they argue in court. But critical race theory stipulates to facts for the larger court of public opinion.
Put another way, critical race theory illuminates our historical record despite centuries-long efforts to whitewash it. White nationalists present “alternative facts” conducing to a zero-sum society of white winners and nonwhite losers.
Our nation has yet to achieve a constitutional consensus, so extremist factions dominate our politics. Hence the need for critical race theory, which envisions an equitable and inclusive America.
Meanwhile, legions of parents call out proposals to teach critical race theory in our schools as “Marxist.” They evoke McCarthyism and the many twentieth-century movements that were framed as communist conspiracies.
We’ve seen this paranoid style of politics before. After Brown v Board of Education mandated desegregation of public schools in 1954, 19 senators and 82 representatives from the South signed The Declaration of Constitutional Principles, or “Southern Manifesto.” Led by Senators Richard Russell (D-AL) and Strom Thurmond (D-SC), they argued that it was unconstitutional for white children and Black children to sit together in classrooms.
They evidently won. Public schools all over this country are arguably more segregated now than they were before Brown. Perhaps George Wallace, the former Governor of Alabama, best expressed the white-nationalist credo: Segregation today! Segregation tomorrow! Segregation forever!
But the American historical record doesn’t necessarily equate to an inherently white-supremacist USA. Some critical race theorists do argue that our nation is essentially racist. As if all Black people are oppressed and all white people are oppressor and everyone the world over is either victim or victimizer and no in between.
But the facts aren’t all doom and gloom. Black voters command majorities in select counties and cities across the land. Forty million Black Americans have over $4 trillion in aggregate purchasing power, making them one of the 15 richest peoples in the world. If considered a nation unto themselves, Black Americans are as rich as Canada.
White American households do enjoy 7.8 times the wealth of Black American households on average. But the “racial wealth gap” that many critical race theorists obsess over seems exaggerated.
Consider that most American workers regardless of race live hand to mouth as at-will employees who can be fired without cause and at a moment’s notice. Poor whites actually outnumber poor Blacks. Critical race theory tends to gloss these socioeconomic realities.
Too many critical race theorists frame the facts to portray the perfect Black victim. But Black history invokes survival and redemption, not victimhood and defeat.
Our nation’s founding documents, The Declaration of Independence and The Constitution, denote life, liberty, and the pursuit of happiness for all Americans. But Martin Luther King’s reference to them in “I Have A Dream” still rings true:
“It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked insufficient funds.”
The Fourteenth Amendment makes every person born on U.S. soil a citizen. And yet it’s a live question whether U.S. citizens not Caucasian truly belong among “We the People.” Former President Donald Trump seriously considered issuing an executive order to end birthright citizenship.
Right after the constitutional convention, Ben Franklin warned: “A republic, if you can keep it.” If we fail to achieve a constitutional consensus that stipulates to the facts of our historical record, we shall surely lose our republic, such as it is.
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.
Author’s Note: I went to law school to learn all about how We the People are sovereign and how as jurors and electors we “check and balance” the other three branches of government. A lot of this stuff I should have learned in grade school. Please email me at tytaylor521@yahoo.com with questions or comments or further dialogue.
Host Craig Williams talks to CELDF attorney Lindsey Schromen-Wawrin about the Rights of Nature doctrine, representing ecosystems, and whether Nature has its own legal rights.
Authors Note: I addressed this speech on police reform to a group of high-school students set to graduate this year. I meant to impress upon them the fact that We the People, ultimately, define the rule of law. For our informed consent is what legitimizes government. And so it’s up to us to command all of our public servants, including cops. Thanks to the Twenty-sixth Amendment, the awesome responsibilities of citizenship are now thrust upon newly-minted citizens who turn 18 this year. We the People must nullify the despotic doctrine so-called qualified immunity. The buck stops with every single citizen from their eighteenth birthday.
Introducing the Rule of Law
Since most of you are 18 years old, or turning 18 very soon, I want to welcome you to the First Branch of Government. For there are four branches of government, not three. The citizenry, the legislature, the executive branch, and the judiciary.
We learn all about “checks and balances” in civics, but we tend to learn it in terms of the other three branches of government. For example, how the president can veto congress and congress can, in turn, override his veto; how the Supreme Court can nullify federal legislation or executive orders, and so on.
But We the People check and balance too. As electors we check and balance elected officials by voting for them when we like them and by voting them out of office when we don’t.
As jurors we check and balance judges with our more common-sense notions of justice. In fact, in Federalist no. 83, Alexander Hamilton argues that trial by jury is a valuable check against judicial despotism. He says: “The strongest argument in [the jury’s] favor is, that it is a security against [judicial] corruption.”
We the People are the First Branch of Government. Ultimately, We define the Rule of Law. We must ever remind our public servants that The Constitution is, after all, an employee handbook.
The Preamble is a statement of purpose from us, the collective boss. Articles 1-3 spell out the duties and limitations of our federal employees. Article 4 focuses on our state-level employees. The Bill of Rights protects us employers from employees who may step out of their place of public servitude.
Article 1 Section 1 vests legislative powers in Congress. Article 2 Section 1 vests executive power in the President. Article 3 Section 1 vests judicial power, ultimately, in the Supreme Court. But the Tenth Amendment reserves all powers not delegated to the other three branches of government to the states, or to the People. The Tenth Amendment literally mandates power to the People.
Nor is the citizenry, the collective boss, limited to propertied white men.
The Fifteenth Amendment made Black men the boss too. Women got the right to be the boss thanks to the Nineteenth Amendment. The Twenty-sixth Amendment gave U.S.-born citizens the right to be the boss on their eighteenth birthdays. And so I say to you, newly-minted bosses, congratulations.
In short, We the People make the Rule of Law.
Alexander Hamilton, concluding Federalist no. 85, argued that The Constitution must be established by the voluntary consent of the whole people. Writing in the 1780s, he did more or less limit “the people” to propertied white men like him. But as I write in 2021, we have had millions of Black voters, a Black president, and we now have a Black female vice president.
Back to 1776. The Declaration of Independence framed our social contract in terms of equality and the inalienable rights of life, liberty, and the pursuit of happiness. “That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.”
Thus Hamilton and Thomas Jefferson based the social contract on the consent of the people. They understood the Rule of Law in terms of the informed consent of the citizenry.
Yet John Adams probably best expressed the Rule of Law when he said: “Ours is a government of laws and not of men.”
So when We determine the constitutionality of the 18,000 police departments in our 50 states plus D.C., we must ever do so in terms of the Rule of Law.
Police officers are known as “law enforcement.” For their professional purpose is to enforce the law. Moreover, The Constitution, according to Article 6, is “the supreme Law of the Land.”
Let’s spell out this syllogism:
Police officers are supposed to enforce the law.
The Constitution is “the supreme Law of the Land.”
Therefore, police officers are supposed to enforce The Constitution.
I never heard of any police officer swearing an oath to their union contract. Nor do they swear an oath to any of the 50 different state constitutions plus D.C. But every police officer does swear an oath to uphold and defend The Constitution.
The point is, whenever We allow police officers to frame the issue of proper and professional policing, in local terms, We play whack-a-mole with 18,000 different police departments. Or, if you like, We face a Hydra, the mythological beast that grew two new heads every time Hercules chopped off one of its heads.
Which is why We must frame the issue of proper policing in terms of the Rule of Law, that is, in terms of “the supreme Law of the Land,” The Constitution. If police officers are really “law enforcement,” they must enforce The Constitution. As street-level strict constructionists of The Constitution.
Their job is to apprehend the criminal suspect with minimal violence and then take them before the magistrate, all the while respecting the suspect’s presumed innocence. Properly understood, they are gofers for the judge. Insofar as they go beyond their proper job description and fail to execute The Constitution in strict terms, they are lawless law enforcement.
I’m now going to share with you a very useful heuristic that will enable you to tell, in just about any situation involving a person and a public official, whether the Rule of Law, or lawlessness, applies.
And then I’m going to apply this heuristic to the doctrine of qualified immunity, which the Supreme Court made law in the case of Pierson v. Ray in 1967. I’m going to argue that Justice William Douglas’ lone dissent in that case provides our template for police reform going forward. His dissent should frame our efforts to nullify the despotic doctrine so-called “qualified immunity.”
The Hohfeld Rule
Wesley Hohfeld, an American legal scholar who came to prominence during the early twentieth century, posited four basic legal relations. But today we’re going to focus on the two legal relations that pertain to republican government: the right—duty relation on the left of the diagram, and the privilege—no-right relation on the right.
Every time a person confronts a public official, one of the two relations applies. The person has either a right or they have a no-right. The public official has either a duty or they have a privilege.
Hence, the Hohfeld Rule and its diagram.
Here’s a simple way to think about these legal terms:
A duty is what I must do. A privilege is what I may do. A right is what some other person must do for me.
Bear in mind that Hohfeld was of the legal realist school of jurisprudence. To him, whether or not a person has a right depends on whether the court would mandate performance of its correlative duty. In other words, the ultimate test of duty is whether the court would find for the plaintiff in a lawsuit. Hohfeld dispensed with abstract notions of right. He thought that courts determine the meaning of rights and duties.
The heuristic, the Hohfeld Rule, is as follows:
Always look for the duty before you use the term right.
The pertinent questions are: 1) Who is the duty-bearer? 2) Does their expected conduct correspond with what you call a right?
If not, then no-right. If I can act, and be safe from the courts, then I have a privilege.
Now let’s work out the implications of the Hohfeld Rule regarding the doctrine of qualified immunity.
The Hohfeld Rule Regarding Pierson v. Ray
Pierson v. Ray is the 1967 case in which the Supreme Court made qualified immunity the law of the land. The case involved a group of white and Black clergymen who had attempted to use segregated facilities in a bus terminal in Jackson, Mississippi. A municipal court convicted them of violating a state statute that made it a crime to congregate in a public place if they might breach the peace and then refuse to disperse when so ordered by a police officer. They were acquitted on appeal.
The clergymen then sued the municipal-court judge and the police officers who arrested them under Section 1 of the Ku Klux Klan Act of 1871, which makes liable “every person” who under color of law intentionally and knowingly deprives another person of their rights under The Constitution.
The Court held that the Act had in no way impaired the common law’s absolute immunity for judges in their judicial acts. It held that the police officers had a qualified immunity which would protect them from liability if the court found, on retrial, that the officers acted in the good faith belief that the statute they were enforcing was constitutional.
If we look at the diagram of the Hohfeld Rule, we can see that the Pierson ruling gave judges and police officers a privilege. It thus gave citizens a no-right. The decision brings to mind the legal axiom that where there is no remedy, there is no right.
But James Madison had argued in Federalist no. 43 that if the federal government would guarantee every state a republican form of government, “the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations.” Indeed, Section 5 of the Fourteenth Amendment declared that Congress has this very same authority, with the “power to enforce, by appropriate legislation, the provisions of this article.” This means that the Civil Rights Acts were well within congressional mandate.
The Court decided wrong when it nullified the Ku Klux Klan Act. For, to use the language of Madison, the Pierson ruling sanctioned an “aristocratic innovation” that subverts our republican form of government.
But what is a republic?
In Federalist no. 39, Madison defined republic as “government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.”
Based on Madison’s definition, we can safely say that a republic is a society on the left side of the Hohfeld diagram. It is a society where every citizen is on the top left right section and every public official is on the bottom left duty section.
So far as we know, the republic is the only form of government that can bring about equality in a nation of millions. It’s thus on the left side of the diagram. But the different types of unequal societies on the right side of the diagram are legion. They include aristocracy, monarchy, apartheid society, and the police state. In unequal societies, some persons are on the diagram’s bottom right no-right section and select persons are on its top right privilege section.
As Justice Douglas makes clear in hisdissent, the Pierson majority aggravated our separate and unequal society. Through the Ku Klux Klan Act, Congress had meant to put all state actors, including judges and police officers, on the Hohfeld diagram’s bottom left duty section. Which would have put all citizens, including Black people, on its top left right section. But Pierson, to this day, echoes the infamous Dred Scott decision of 1857: “the negro has no rights which white men are bound to respect.”
Douglas Dissenting in Pierson v Ray
The Rule of Law diametrically opposes divine right. The American revolutionaries of the 1770s and 1780s stood for republican principle against the divine right of kings in the person of George III. They ended up creating a slave-lord republic that endured until the Civil War. Even so, the documents that define our social contract, especially The Declaration of Independence and The Constitution, do point the way toward the Rule of Law.
Regarding this present topic of constitutional policing, Douglas’ Pierson dissent epitomizes the Rule of Law.
The Ku Klux Klan Act says that “every person” who under color of state law or custom “subjects, or causes to be subjected, any citizen … to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” Douglas makes clear that when the Act says “every person,” it means every person. Not every person except judges or police officers.
Douglas notes the “lawlessness” that pervaded the South after the Civil War and thus necessitated the Civil Rights Acts. And lawlessness was not limited to the South nor to the namesake of the Act in question, the Ku Klux Klan. Douglas describes some judges as “instruments of oppression.” Furthermore, he describes some state courts as “instruments of suppression of civil rights.” Writing in 1967, he makes plain the continuing relevance of the Civil Rights Acts enacted during the Reconstruction era: “The methods may have changed; the means may have become more subtle; but the wrong to be remedied still exists.”
As for the argument that judges and police officers need immunity from liability to be independent and to do their jobs effectively, this is what he had to say about that: “The argument that the actions of public officials must not be subjected to public scrutiny because to do so would have an inhibiting effect on their work, is but a more sophisticated way of saying, “The King can do no wrong.”
In other words, qualified immunity is but an updated version of the divine right of kings. Or, if we look at the Hohfeld diagram, privilege denotes the divine right of judges and police officers. And no-right denotes, more often than not, Dred Scott as applied to Black and brown people.
Justice William Douglas did champion the Rule of Law. But he was in lone dissent.
Conclusion
Fifty-four years later, apologists for lawless law enforcement and police brutality are still saying, in so many words, that “The King can do no wrong.” Thanks to the persistence of qualified immunity, the “king” either sits on a bench or they wear a blue uniform.
But We are citizens, all four branches of government. Our democratic republic brooks no kings nor queens, no princes nor princesses. We are citizens all. Of a republic, not a police state.
We the People must therefore overturn Pierson. We must insist that our public servants, our tax-paid employees, even those who wear black robes or blue uniforms, guarantee our republican form of government as mandated by Article 4 Section 4 of The Constitution.
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.
CONTACT:
Michelle Beatty
Community Environmental Legal Defense Fund
michelle@celdf.org
Judge suggests residents could crowdfund to cover costs
NOTTINGHAM, NH: As global carbon dioxide concentrations hit their highest level in 4 million years, New Hampshire Judge Martin Honigberg has rewarded a local corporate actor in Nottingham for opposing a democratically adopted ordinance that recognized a right of townspeople to a “climate system capable of sustaining human societies.” The Freedom from Chemical Trespass Ordinance was passed by voters in 2019 and also secured rights of ecosystems “to naturally exist, flourish, regenerate, evolve, and be restored” and banned corporate activities that infringe those rights.
The June 4, 2021 ruling will force the Town of Nottingham to pay tens of thousands of dollars in attorney fees to a resident plaintiff and his corporate shield, G&F Goods, LLC, which filed a lawsuit against the unenforced Ordinance, arguing it unconstitutionally discriminates against polluting corporations. (The courts agreed with this argument.)
“This ruling is like rewarding the rapist and penalizing the victim,” says CELDF Community Organizer Michelle Sanborn. “Just the mere possibility of a lawsuit against a corporation merits the nullification of the town vote in order to protect capitalism. No such proactive protections from guaranteed exploitation or poisoning are provided to the townspeople or natural environments. Clearly, we cannot look to the courts for climate or social justice.”
The judge ruled that the corporate lawsuit against the popularly adopted ordinance did everyone in the Town a favor and “conferr[ed] a substantial public benefit to Town residents.” Therefore, “on behalf of the public,” the judge ruled Town residents ought to pay the corporation’s attorney fees, even suggesting the Town could raise taxes and receive donations from tax paying residents to cover the cost.
Threats to freshwater systems and climate disruption prompted residents to popularly adopt the Ordinance at their 2019 town hall meeting. “This ruling reveals the judge believes he knows what is best for the townspeople of Nottingham, ignoring the fact that the ‘public’ of Nottingham voted to adopt the rights and protections he overturned,” said Peter White of Nottingham Water Alliance, the local group that championed the ordinance.
Town officials opposed the demand for attorney fees and said the whole “case was entirely unnecessary,” yet refused to defend the direct democracy vote of the people.
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.
CONTACT:
Community Environmental Legal Defense Fund
info@celdf.org
Fewer than 100 of Pennsylvania’s 2,700+ municipalities have established Home Rule
Clara Township, Potter County, PA: On May 18, 2021, Clara Township residents voted overwhelmingly (75-25%) to create a Home Rule Government Study Commission. The Commission will be made up of seven Township residents, who were also elected on May 18. The Commissioners held their first meeting last night, June 8.
Nicole Green of the Concerned Citizens of Clara Township (CCCT) stated: “The election shows that our community is eager to learn more about how we can have more local control. This was a great community effort, and we’re looking forward to getting to work.”
Home Rule has been around in Pennsylvania since 1972, and it’s a process that any municipality can undertake. It allows communities to study their existing form of government, and then write a new municipal charter if they so choose. Since that time, about 80 Pennsylvania municipalities have become Home Rule.
A charter functions as a local constitution, and it’s about maximizing local democratic control over important issues. One main advantage of a Home Rule community is that residents are allowed to vote on laws and policies directly, through the participatory ballot initiative process, whereas in most Pennsylvania municipalities only the elected officials are allowed to make law.
CELDF has been proud to support Clara Township in their efforts thus far, and we are available to support the Government Study Commission if they so choose.
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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.
It will take many minds to birth a new legal and political paradigm. Engaging students and educators is critical. Toward that end, CELDF’s Chad Nicholson recently helped teach a short Rights of Nature seminar. Markie Miller presented at the Public Interest Environmental Law Conference and at the University of Toledo. Lindsey Schromen-Wawrin is heading up our summer law student internship program. Reach out to us to devise more collaborations.
