Community Environmental Legal Defense Fund spearheads “massive disobedience” to U.S. law

No 142 Posted by fw, March 30, 2011

Following up on the three previous posts, which featured video recordings and transcripts of a 2009 talk by Mari Margil about the work of the Pennsylvania-based Community Environmental Legal Defense Fund (CELDF) in helping citizens protect their communities’ ecological rights from invasive corporations, this post focuses on CELDF’s Democracy School.

1. CELDF spearheads “massive disobedience” movement

It was only after watching a 57:50-minute video of a February 18, 2011 Democracy School class in action in Seattle that the revolutionary significance of CELDF’s campaign sunk in. The following transcribed passage from the video may help to give you a sense of this NGO’s ground-breaking initiative, and motivate you to watch the video that follows. To set the context, the following excerpt, spoken by Executive Director, Thomas Linzey, comes towards the end of the video,where he talks about “massive disobedience to the existing structure of [US] law” and the ominous challenges ahead:

It’s not only un-American but illegal to move outside of this [regulatory] process. ‘What else is there?’ means doing what the abolitionists and suffragists did, which is massive disobedience to the existing structure of law. There’s going to be a thousand lawsuits. There’s going to be ten thousand lawsuits by the time this is done because the institutions, including the courts are not going to help build this when people move outside of this [the existing regulatory structure]. They’re going to punish that process. And so if we know that, how do we incorporate that into the organizing to actually build it instead of have it fall apart? Because today when we go into court, and the judge rules against us, the community group dissolves and we go away. How do we capture that residue so that a loss in the court actually energizes and accelerates the organizing to happen rather than shut it down?

Not only is the video content itself informative, the engaging teaching approach is a treat to watch. No tedious talking heads here, lecturing participants into a state of cognitive stupor. Mari Margil in particular nurtures a supportive relationship with participants by valuing everyone’s contribution.

For those who might like to fast-forward through this rather long video, below are some selected notes and verbatim transcriptions of main points emphasized by CELDF’s two instructors, Mari Margil and Thomas Linzey, which might help you to zero in on sections of personal interest.

2. Mari Margil explains how state-issued permits to corporations are essentially “permits to pollute”

Drawing on an article from a 1997 edition of Virginia’s Roanoke Times, Margil methodically works her way through a journalist’s report of  a court case, repeatedly engaging participants with probing questions to direct their attention to, and test their understanding of, key passages:

  • How could a company, Smithfield Foods, violate state water permits more than 22,000 times over the past decade and remain in business?
  • What’s the significance of the word ‘excessive’ in a selected sentence in the article? (It signifies that permits are just that, “permits” to emit pollutants to a level that the law regulates as “acceptable”)
  • What’s the nature of the conversation when the state’s assistant attorney general asks the judge to consider the seriousness of Smithfield’s violations and whether or not the company has benefited from them? (It’s strictly a monetary conversation with no discussion at all of the damage done to the environment)
  • What’s the significance of a company employee’s pleading the 5th amendment when refusing to answer questions about the outcome of a previous trial in which he was found guilty of destroying and falsifying company documents? (The employee’s use of the 5th, allowed Smithfield to plead the 6th amendment — which gives a defendant the right to confront an accuser — in the current case, thereby protecting itself from the employee’s earlier testimony)
  • Why did the newspaper report not do a better job of informing the public about the legal basis underpinning the court decision? (Because corporate mainstream media has a tendency to simplify legal proceedings to make the process seem quite banal, “normal and acceptable”, with the result that citizens remain blissfully and irresponsibly ignorant about how their government really works).
  • To summarize, how does the U.S. regulatory system function? (The state issues permits to allow companies to conduct their activities, which are in fact permits to pollute to some acceptable level. And, as many companies do, they routinely exceed the limits — in Smithfield’s case over 22,000 times — which seemed to be “the standard operating procedure” for this company. And they call this a “regulatory system?”)

3. Edward Bernays (1891-1995) taught the corporate world how to tame the masses

In this section, Margil turns her attention to Edward Bernays‘ influence in developing techniques to control and manipulate public opinion. Bernays, Freud’s nephew, is considered one of the father’s of modern public relations, and the first to use psychology as a manipulative tool. One of his favorite techniques for manipulating public opinion was the use of “third party authorities” to plead his clients’ causes. He demonstrated that “If you can influence the leaders, either with or without their conscious cooperation, you automatically influence the group which they sway“. For example, in order to promote bacon sales, Bernays surveyed a sample of physicians and publicized their recommendation that people should eat heavy breakfasts. He sent his research findings to 5,000 physicians, along with publicity touting bacon and eggs as a heavy breakfast. Pork consumption spiked.

In his 1928 book, Propaganda, Bernays argued that the manipulation of public opinion was a necessary part of democracy:

“The conscious and intelligent manipulation of the organized habits and opinions of the masses is an important element in democratic society. Those who manipulate this unseen mechanism of society constitute an invisible government which is the true ruling power of our country. …We are governed, our minds are molded, our tastes formed, our ideas suggested, largely by men we have never heard of. This is a logical result of the way in which our democratic society is organized. Vast numbers of human beings must cooperate in this manner if they are to live together as a smoothly functioning society. …In almost every act of our daily lives, whether in the sphere of politics or business, in our social conduct or our ethical thinking, we are dominated by the relatively small number of persons…who understand the mental processes and social patterns of the masses. It is they who pull the wires which control the public mind.”

CELDF’s Democracy School is, in part, a valiant attempt to undo the dumbing-down cultural indoctrination of “growing up corporate” in a wireless, diversionary world of endless infotainment.

4. Thomas Linzey on how corporations use doublespeak to disguise the truth

Referring to handouts in the manual distributed to Seattle’s Democracy School’s participants, Linzey illustrated how euphemisms are used to sanitize terms such as “sewage sludge” and “factory farm” to make them more palatable to the sensitivities of the general public and to project a positive business image. Sewage treatment plants, for instance, send waste sludge to farms for land fill and to be deposited on land where crops are grown for human and animal consumption — only they don’t call it “sewage sludge”, they call it “cake”. Regardless, sludge by any other name is still harmful. Cake can contain up to 100,000 different toxic components. EPA tests for 9. Two New Hampshire children died after driving their ATVs through a sludge-laden field. Incidentally, the term “biosolids” was coined in 1991 ostensibly to differentiate raw, untreated “sewage sludge” from treated and tested sludge that can legally be spread on farm fields. Perhaps it was just a coincidence that the name change came hard on the heels of an environmental crisis caused by dumping sewage sludge at sea off the New Jersey coast. Linzey points out that when activists and environmentalists use the euphemism “biosolids” they are unwittingly committing acts of self-censorship.

Linzey turns to another article that talks about “factory farm” operations. He notes, we no longer have “factory farms”, we now have “advanced and modern farms“, doublespeak to connote improved efficiency. To further obfuscate the reality of the transformation in farming practices, university agriculture departments adopted “Advanced and Modern Farms Department“, giving it a cultural legitimacy that its doesn’t deserve.

The real problem with factory farms is not just the volume of water usage, or the odor. It’s the level of concentrated corporate ownership of farming, controlling an increasing proportion of the food that Americans eat. Four corporations control 65% of pork production; another four control 70% of chicken production; and one, Kraft, controls 60% of all cheese production. This consolidation reduces competition, increases prices, and eliminates the small family farm. All in the name of efficiency. Seldom mentioned at all in the corporate controlled mainstream media is the way animals are treated on factory farms — no reference to the crowded conditions and the use of hormones and antibiotics.

5. Mari Margil returns to explain how the U.S. “regulatory triangle” gives corporations an unjust advantage in dispute settlements

First — Communities broadly define the problem with factory farms.

Thomas Linzey talks about the "regulatory triangle"

Mari begins this section by asking the class: “Why don’t communities want factory farms?” The rapid-fire answers include: don’t want toxic sludge; foul odor; reduces value of neighboring properties; water and other environmental contamination; wipes out small farms; increased truck traffic; and rise in farmer suicides. So the community defines the problem of factory farms very broadly in terms of negative impacts on the community — environmental, economic, agricultural, cultural, and impact on the food system. The Community’s Broad Problem Statement is graphically represented along the broad base of the “regulatory triangle”, which, as you can see from the image on the right, is actually an inverted triangle.

Second — In contrast, when states issue permits to factory farms, the permit narrowly defines how the farm will conduct its business, in terms of “manure management”.

On the corporate side of the equation, the state’s Nutrient Management Act (NMA) is a planning law that requires the factory farm owner to apply for a state permit. The application must outline how the farm will manage manure. Manure management, in other words, becomes the primary constraint that determines how the farm will conduct its business. It is not irrelevant that the NMA was adopted in response to a powerful agricultural lobbying effort, and that agribusiness representatives helped to write the law. The factory farm’s position on the inverted regulatory triangle is graphically represented by the large black dot at the inverted apex point.

Third — The result — as Margil and Linzey reveal in considerable detail — litigations and disputes between factory farm owners and the local community inevitably end up in a dead end “regulatory triangle” that gives corporations an unjust advantage.

According to Margil and Linzey, here’s what typically happens in a dispute. By virtue of the rules and regulations of the Nutrient Management Act, the state has effectively defined any legal dispute in very narrow terms as a manure management issue, thus driving the community argument down to this sole “regulatory point”. The only thing the community is allowed to talk about is, in this particular case, manure management. None of the community’s broad concerns count — not toxic waste, foul odor, depressed real estate values, etc. All these concerns and more end up being dismissed  as irrelevant.

6. Margil on how CELDF itself and other environmental organizations unwittingly helped to drive communities down to this regulatory point

When a community came to us and said ‘Hey, we want to stop a factory farm from coming in‘. We said, ‘Oh, all right. Well there’s a Nutrient Management Act, and there’s a permit system and you get to talk about manure and if you want to do this we will help you to appeal that permit.‘ So we drove them down to this point too. We also defined this very broad problem very narrowly because the state did it for us. We did this work for a number of years and we figured out that we weren’t helping communities to do anything. We certainly weren’t stopping factory farms from being able to come in. And any number of environmental organizations help communities through this process and all that happens is that, at best, it delays the thing from coming in. Ultimately, the thing gets sited.

So what did we do? Well, figuring out that this doesn’t work – this regulatory system – we couldn’t run other issues through the regulatory triangle. For example, if the community is facing a Wal-Mart from coming in. But the state now defines that problem of Wal-Mart very narrowly so that basically you’re left to talk about traffic. So the community’s activism is focused on traffic. The problem is you have all these forces sending the problem down to a very narrowly defined problem so that the solution that they find is very narrow.”

The communities were asking us ‘Why is this system the way it is?‘ And that’s when we took a big step back and looked at how does the system work? And our work now turns this thing upside down. Now communities ask: ‘Tell us what else we can do.’ And that’s when our work started to change.

7. Thomas Linzey on how environmental organizations have become “more of an obstacle than the actual corporations that the community’s attempting to fight”

It’s very difficult, almost impossible, to have conversations with these folks [NGOs, especially environmental organizations]. I have friends on all the major environmental groups – NRDC, Sierra Club, etc, — who say privately, “It’s very good stuff you’re doing Linzey but we’ll never do it.” It’s very tough because there are careers built on this [regulatory process]. You’ll find large law firms, huge law firms, international law firms, with environmental lawyers who litigate only section 301A2ia of the Clean Water Act. That’s their life. That’s the only litigation they do. They built a career out of this. . . . There are literally hundreds of millions of dollars that get shovelled into this process every year. And there are places where it gets reinforced. This is the glue that holds the shit together in a very dependent cycle within the United States. I had to learn the hard way because the Sierra Club and the major environmental groups in Pennsylvania came to us privately to urge us to stop doing the work that we were doing in Pennsylvania because they said if you actually liberate community self-government to build new bill of rights structures that actually prohibit corporate farming it’s going to lose, number 1, and number 2, you’re going to piss off all the legislators and they’re going to take away our regulatory window. They’re going to take away our regulatory options. That was one of our awakenings. The groups that we thought would be allies, that they would be interested in helping – they have not. It’s not long-time activists [who are moving this work]. It’s not progressives. It’s not liberals. It’s first-time activists who are coming into this stuff.  We found them [long-time activists] to be a problem, to be an obstacle. And in some places they’re more of an obstacle than the actual corporations that the community’s attempting to fight.

It’s like the city of Pittsburgh, the city council we were working with as a municipal client — who, for the first time, a major municipality bringing up an ordinance that strips natural gas corporations of constitutional rights in the municipality — and the largest environmental groups in Pennsylvania got together to send a coordinated letter to the city council saying “You can’t do it. It’s illegal and unconstitutional and you can’t do it and you’re going to get sued and we don’t support it.”

8. Linzey: “The regulatory system is about regulating us

It’s about building a new constituency of people who can actually see what’s happening and take action. The bigger structural problem is that we don’t decide what happens in our own communities. ”It’s a democracy issue. . . . It’s about the structure itself that we’re stuck in. . . .The regulatory system is about regulating us, regulating what we do and how we come at these problems . . .The boys have written a script for us. And there’s an even bigger script, which deals with corporate rights, and preemption and all this other stuff.

RELATED READING

Oh, yes, in case you’re interested, Ontario has it very own Nutrient Management Act. The Act is referenced in an article titled: Regulation of Factory Farm Manure Disposal. Now ain’t that the damnedest coincidence!

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