LANDMARK RULING – U.S. judge elevates rights of communities over those of corporations

Community Bill of Rights liberates citizens to build economically and environmentally sustainable communities free from corporate interference

No 708 Posted by fw, April 02, 2013

“The ruling represents the first crack in the judicial armor that has been so meticulously welded together by major corporations. And it affirms what many communities already know – that change only occurs when people begin to openly question and challenge legal doctrines that have been treated as sacred by most lawyers and judges. It is that disobedience – of entire communities sitting at lunch counters demanding to be served – that is our only hope of salvation in a world increasingly commandeered by a small handful of corporate decision-makers intent on remaking the world as their own.” —Thomas Linzey

A Pennsylvania Judge Holds That Corporations Are Not “Persons” Under the Pennsylvania Constitution  by Thomas Alan Linzey, CELDF Executive Director, March 28, 2013

A new Civil Rights Movement liberates our communities from corporate control.

To protect small and family farms from industrial factory farms, over a decade ago a handful of Pennsylvania townships picked a fight with some of the country’s largest agribusiness corporations. Recognizing that the state and federal government, rather than protecting them from factory farms, were in fact forcing them into communities, the townships took the unprecedented step of banning corporate farming within their borders.

Thus began the journey to spark a new civil rights movement – one aimed at elevating the right of communities over the “rights” of corporations to use communities for their own ends.

In a departure from the usual David and Goliath story, with one tiny community battling a giant corporation, today there are over 150 “Davids” in eight states that have followed the lead of those Pennsylvania townships.  Community by community, they’ve banned corporate “fracking” for shale gas, factory farming, sludge dumping, large-scale water withdrawals, and industrial-scale energy projects.

But they’re not intent on simply stopping the immediate threat of fracking or factory farming. Rather, they’re adopting Community Bills of Rights that ban such projects as violations of the community’s right to a sustainable energy and farming future. And to protect those Bills of Rights, they are legislatively overturning a slew of corporate legal doctrines – like corporate “personhood” – that have been concocted over the past century to keep communities from interfering with corporate prerogatives.

These communities believe that if ten thousand other localities do the same, that those tremors will begin to shake loose a new system of law – a system in which courts and legislatures begin to elevate community rights above corporate rights, and thus, begin to liberate cities and towns to build economically and environmentally sustainable communities free from corporate interference.

Last week, a Pennsylvania county court gave this new movement a boost – declaring that corporations are not “persons” under the Pennsylvania Constitution, and therefore, that corporations cannot elevate their “private rights” above the rights of people.

The ruling was delivered in a case brought by several Western Pennsylvania newspapers which sought the release of a sealed settlement agreement between a family claiming to be affected by water contamination from gas fracking, and Range Resources – one of the largest gas extraction corporations in the state. Range Resources argued that unsealing the settlement agreement would violate the corporation’s constitutional right to privacy under the Pennsylvania Constitution.

In a landmark ruling, President Judge Debbie O’Dell-Seneca of the Washington County Court of Common Pleas denied the corporation’s request on the basis that the Pennsylvania Constitution only protects the rights of people, not business entities.

In the ruling, Judge O’Dell-Seneca declared that “in the absence of state law, business entities are nothing.” If corporations could claim rights independent from people, she asserted, then “the chattel would become the co-equal to its owners, the servant on par with its masters, the agent the peer of its principals, and the legal fabrication superior to the law that created and sustains it.”

She further found that “the constitution vests in business entities no special rights that the laws of this Commonwealth cannot extinguish. In sum, [corporations] cannot assert [constitutional privacy] protections because they are not mentioned in its text.”

Judge O’Dell-Seneca cited sections of the 1776 Pennsylvania Constitution in support of her contention that corporations were never intended to be constitutionally protected “persons.” She declared that “an even more dubious proposition is that the framers of the Constitution of 1776, given their egalitarian sympathies, would have concerned themselves with vesting, for the first time in history, indefeasible rights in such entities. . . that language extends only to natural persons.”

Finally, she tackled the very nature of corporations by declaring that “it is axiomatic that corporations, companies, and partnerships have no ‘spiritual nature,’ ‘feelings,’ ‘intellect,’ ‘beliefs,’ ‘thoughts,’ ‘emotions,’ or ‘sensations,’ because they do not exist in the manner that humankind exists. . . They cannot be ‘let alone’ by government, because businesses are but grapes, ripe upon the vine of the law, that the people of this Commonwealth raise, tend, and prune at their pleasure and need.”

The court records unsealed by the ruling reveal that Range Resources, and the other corporations which were the subject of the complaint, paid out $750,000 to settle claims of water contamination caused by fracking.

The ruling represents the first crack in the judicial armor that has been so meticulously welded together by major corporations. And it affirms what many communities already know – that change only occurs when people begin to openly question and challenge legal doctrines that have been treated as sacred by most lawyers and judges.

It is that disobedience – of entire communities sitting at lunch counters demanding to be served – that is our only hope of salvation in a world increasingly commandeered by a small handful of corporate decision-makers intent on remaking the world as their own.

A revolution that subordinates the powers and rights of corporations to the rights of people and nature now waits in the wings. Perhaps now, we’re ready to move it to center stage.

SEE ALSO

• In a 6-minute video interview, Thomas Linzey, explains the significance of a legal decision declaring that corporations are not “persons” under the Pennsylvania Constitution.

FAIR USE NOTICE: This blog, Citizen Action Monitor, may contain copyrighted material that may not have been specifically authorized by the copyright owner. I claim no ownership of such materials. Such material, published without profit, is made available for educational purposes, to advance understanding of human rights, democracy, scientific, moral, ethical, and social justice issues. It is published in accordance with the provisions of the 2004 Supreme Court of Canada ruling and its six principle criteria for evaluating fair dealing.

Comparing Ecojustice Canada’s approach to legal environmental action with U.S.’s Community Environmental Legal Defense Fund (CELDF)

No 547 Posted by fw, August 14, 2012

If you enter the term ‘CELDF’ in my blog’s “Search this site” box it immediately becomes apparent from the relatively large number of posts that I’m a fan. I especially appreciate the revolutionary approach this Pennsylvania-based NGO employs in carrying out its mission: “Building sustainable communities by assisting people to assert their right to local self-government and the rights of nature.”

I have also been an avid follower and donor to Ecojustice Canada, “a national charitable organization dedicated to defending Canadians’ right to a healthy environment”.

Curious to compare their respective approaches to the legal protection of the environment, I invited Ecojustice to examine and comment on CELDF’s strategy. Devon Page, Executive Director, Ecojustice, promptly responded with his first impressions. With his subsequent permission to publish his feedback, our email exchange follows.

MY REQUEST FOR INFORMATION

To:            Ecojustice Canada
From:       Frank White
Sent:         July 31, 2012
Subject:    Ecojustice Inquiry

Further to our telephone conversation yesterday, as promised, here is my opening request for information re Ecojustice’s work in “defending Canadians’ right to a healthy environment.”

I acknowledge up front that I am not sufficiently familiar with the work of Ecojustice to be able to make an informed critique of your four key areas of concentration: clean water, natural spaces, healthy communities and climate protection.

I am somewhat more familiar with the efforts of two or three U.S. NGOs. So starting with what I do know, I thought I would provide examples of some exciting legal developments happening south of the border and ask if Ecojustice is doing anything comparable here.

Let’s start with the work of Community Environmental Legal Defense Fund (CELDF), a Pennsylvania-based organization. What distinguishes CELDF from other environmental NGOs engaged in legal action, is captured, in part, from these passages excepted from my blog post Far and away the best damned strategy I’ve seen for building a grassroots transformational mass movement, which, by the way, was not written by a member of CELDF but was posted on its website presumably because it was a reasonably accurate profile of what CELDF is doing –

“The CELDF strategy isn’t meant to succeed according to the [existing] system’s own rules, but rather to provide a political and organizational framework for resisting the system’s depredations and for building a democratic relocalization movement. It’s not so much to level the playing field as to set up a new one.”

“This idea that people have rights and that the state has no authority to license violation of those rights, is the core principle, the underlying premise, for mounting a new civil rights movement for the legal recognition and protection of community rights…”

“The CELDF isn’t naive about how well these ordinances and bills of rights are likely to fare in the system courts. The strategy doesn’t depend on “winning in court”. The plan is for communities to organize around their ordinances and constitutions, then confederate toward larger-scale constitutional conventions which would turn pre-emptive “federalism” right side up. So each community draws up its own bill of rights, and then this constitutional network is used toward building an amend-the-constitution movement. None of this is to say that the ordinances are “only” symbolic, or that we concede being ignored in court. This is just, this is the real law, this is the constitution, this is the right thing to do. Any legitimate court will uphold it.”

I hope the above is just enough to capture your attention and interest in reading more. I have numerous other posts on my blog about CELDF, and by entering the term in the “Search this site” box you can access them all. But let me bring to your immediate attention my two most recent posts that are directly or indirectly related to CELDF’s work –

• Big legal battle shaping up in US as more than 200 cities in 15 states pass local ordinances banning fracking
• Pennsylvania legal decision strips oil and gas industry of power to control property, returning it to municipalities

That’s enough for now. Depending on the response I get, I would like to follow up with another example of significant U.S. NGO legal action.

Granted I may be asking too much of your busy staff, but if someone could take a look at what CELDF is doing, contrast and compare it with what Ecojustice is up to, and get back to me with comments and/or articles that illustrate comparable work by Ecojustice I would be grateful. Perhaps I could use your response as the basis for a post on my blog.

Thanks for your cooperation in this matter.

ECOJUSTICE’S REPLY: (Note: Apart from my added hyperlinks for information, the email is unedited)

From:       Devon Page
Sent:         July 31, 2012
Subject:    Ecojustice Inquiry

Hi Frank,

My colleagues mentioned your call – I was intrigued and asked to be forwarded your email so that I could consider it and write you directly.

First, thank you for taking the time to get in touch with us and for describing the approach of other organizations.  Within the context of our charitable mission of using the law to protect and restore the environment, Ecojustice is committed to engaging in the most effective activities possible.  I appreciate you taking the time to think about how we could be more effective.

When I reviewed CELDF’s website, I was intrigued so combed it to determine the exact strategies they use to advance environmental legal outcomes.  I’ve reached the conclusion that our activities encompass those CELDF undertakes but with a different emphasis.

For example, we similarly work at the municipal level.  First, I must note that our research in seeking legal advances on oil and gas development, including considering methods and activities in the United States, reveals that municipal authority in the US is stronger than that which exists in Canada – here, municipalities have fewer opportunities to proactively protect the environment. But, to the extent we can, we often engage at the municipal level to achieve environmental gains.  For example, in 2001, our intervention in the Supreme Court of Canada in support of the Quebec community of Hudson’s right to ban cosmetic pesticides resulted in the introduction of the precautionary principle in Canada and contributed to cosmetic pesticide bans across Canada. [See: Hudson Pesticide Supreme Court Victory, Ecojustice, January 12, 2010].

More recently, 2 weeks ago, we worked with lower mainland municipalities to inform them of their rights to challenge Kinder Morgan’s intention to more than double pipeline offloading capacity of tar sands bitumen in the Burrard inlet adjoining Vancouver. You may wish to watch the interview of our climate lawyer, Karen Campbell, speaking to the issue on behalf of Burnaby community members on tonight’s BC news (either BC CTV or Global – both interviewed her). In this context, our work mirrors that of CELDF. [Although I did not find a video link to the Karen Campbell interview, I did find this print account: Helping landowners protect themselves from a Kinder Morgan oil spill, by Karen Campbell, Ecojustice, July 31, 2012].

We complement this work, however, with, a majority focus on litigation activities.  Simply put, our record demonstrates that winning victories in court is often a final and concrete step towards protecting the environment.  Our recent victory in the Federal Court of Appeal successfully challenging federal failure to protect killer whale habitat directly resulted in more stringent protections.  I believe that the shift in emphasis for CELDF from litigation to community mobilization directly relates to the increased powers of local government. [See: Resident killer whale lawsuit, Ecojustice, June 19, 2012].

Having said that, I find it interesting that more recently we’ve evolved in directions similar to that adopted by CELDF in terms of area of focus.  For example, we are expanding our primary activity of litigation to encompass progressive law reform, including at the municipal level. More particularly, much as CELDF seeks to introduce local bills of rights, last year, Ecojustice identified as an organizational priority the introduction of Canadian environmental bills of rights at the federal, provincial and municipal levels.  Over the next 5 years, we will be working on dedicated litigation and law reform campaign to achieve much the same outcomes as CELDF seeks – the individual right to clean air, clean water and a healthy landscape, with the initial focus on key municipalities and provinces.  In this regard, I will be taking a close look at CELDF’s approach to see if we can adopt or mirror their activities.

I do note that CELDF engages to a much greater extent than we in community organization (we do that, but only to the extent that we seek to assemble community groups to represent as clients).  We’re currently evaluating campaigning/citizen mobilization to determine if it could better enable environmental/legal outcomes we seek. 

As a former litigator with Ecojustice, I’ve watched court wins yield material results.  I remain convinced that our emphasis on litigation outcomes presents the best chance of achieving material outcomes.  But, I’m going to investigate further to see if CELDF, aside from the ‘leg up’ they have from stronger local laws, can teach us something to enhance our effectiveness.

Maximizing Ecojustice effectiveness is a constant goal for my colleagues and I.  If you want to speak further, feel free to call me.

Again, thank you for taking the time to write. Your interest and support is much appreciated.

Devon Page, Executive Director| Ecojustice

**********

In closing, I’m pleased that Devon plans to further investigate CELDF’s daring approach to protect the “rights of nature.” I do intend to follow up on Devon’s kind invitation to speak further. If anything of general interest emerges from this ongoing discussion, I’ll be sure to post it. Incidentally, the bold text highlighting in Devon Page’s email is mine, added to emphasize the importance that I attach to these passages.

Big legal battle shaping up in US as more than 200 cities in 15 states pass local ordinances banning fracking

State governments and Big Oil & Gas launching legal challenges to local ordinances

No 536 Posted by fw, July 30, 2012

“As evidence of the public health and environmental risks involved in fracking increases, more and more communities across the country are taking matters into their own hands and enacting local bans on fracking. But the oil and gas industry has found natural gas extraction extremely profitable and is mobilizing its resources to try to retain access to shale beds. By passing “Community Rights bills,” local communities are creatively changing the conversation. By making this an issue of democratic control and local choice, they should increase their chances of prevailing in court. And we expect they will expand their grassroots support in the process, since the right of local self-determination is a strongly held American value.”

The foregoing passage is the concluding paragraph from an article by OMB Watch, a nonprofit research and advocacy organization formed in 1983 to track federal budget, taxation and government performance, access to government information, and regulatory policy. OMB watch is a treasure trove of reports.

The rest of the article appears below in a slightly modified version. Alternatively, you can read the full original piece by clicking on the following linked title.

Local Officials Standing Up to Protect Their Communities from Fracking, OMB Watch, July 24, 2012.

Local officials from more than 200 municipalities in 15 states, including city councils, town boards, and county legislatures, have banned natural gas drilling that uses hydraulic fracturing, commonly referred to as fracking. These officials have decided that fracking poses an unacceptable risk to the drinking water, health, and future of their communities. However, state governments and corporations have started legally challenging these efforts, a move that would strip the power of democratically elected local governments to establish quality-of-life protections their constituencies want.

Background

Natural gas fracking is an extraction process in which a well is drilled and sand and fluids are pumped underground at very high pressure to cause fissures in the shale rock that contains methane gas; the well brings the gas to the surface for sale. Numerous toxic chemicals are typically added to the mixture, including benzene (a known carcinogen), toluene, and pesticides, among other harmful substances.

The process has been linked to contamination of drinking water, and the fluids involved in the process create public health and environmental hazards. Drilling each well brings an increase in air and noise pollution, as drilling equipment, water, sand, and chemicals are trucked in and gas is piped out. New studies link fracking-related activities to contaminated groundwater, air pollution, and health problems in animals and humans. A recent study from the Colorado School of Public Health found that those living within a half-mile of a natural gas drilling site faced greater risks of health problems – such as headaches, dizziness, eye irritation, fatigue, and cancer – than those who live further away.

Local Fracking Bans and Moratoriums

Local communities across the country, tired of waiting for state or federal protections,are passing bans or moratoriums on fracking activity within their local jurisdictional boundaries. Many of these new laws also prohibit other activities related to the fracking process, such as the storage, use, treatment, and disposal of wastewater. In fact, in New York State alone, more than 90 towns and counties have passed local ordinances banning drilling and other fracking-related activities.

Supporters of local bans explain that blocking fracking gives their towns a chance to enact safeguards to protect the water supply, maintain infrastructure, and minimize the impact large-scale drilling will have on their towns. For instance, Creedmoor, NC, which passed a fracking ban in January, sits at the headwaters of Falls Lake, which is the primary source of drinking water for Raleigh and several Wake County towns. Mayor Darryl Moss and other council members approved the ban so steps could be taken to protect the reservoir. Creedmoor officials also expressed concerns about the impact of heavy trucks and worried about falling property values. “Our roads are already strained now and this will add more stress than is needed,” Moss said.

Legal Challenges to Local Fracking Bans

Local bans have not turned out to be the simple solution that many communities were hoping for. Increasingly, corporations and state governments have been challenging the local ordinances with lawsuits. For example, the Anschutz Exploration Corporation slapped the town of Dryden, NY, with a lawsuit for passing a local fracking ban, arguing that the state’s interest in developing its energy resources preempted the town’s authority to regulate land use. In Middlefield, NY, the legal challenge to the town’s ban came from the president of Cooperstown Holdstein Corporation, a dairy farm, arguing that the town was unfairly blocking the company from using its resources. In both of these cases, the towns argued that banning drilling fell within their rights to regulate local land use, and trial judges agreed. However, both companies have appealed the rulings.

In some prior cases, courts have ruled in favor of corporations, holding that local bans are preempted by state law. For example, in June 2011, Northeast Natural Energy sued the city of Morganton, WV, for an ordinance banning fracking within the city or one mile outside of city limits. A state trial court judge ruled in favor of the energy company, holding that the state has exclusive control over oil and gas development and that the town “didn’t establish that fracking threatened the community’s right to clean air and water.”

In 2006, the U.S. 5th Circuit Court of Appeals ruled in favor of Energy Management Corporation, holding that the City of Shreveport, LA, did not have the right to ban drilling within 1,000 feet of its lake. The ruling reversed the decision of a federal district court, which had found that Shreveport was within its rights to enact a ban in an effort to protect its city’s water supply.

States and Local Communities Struggle over Rights

Some state officials are seeking to legislatively strip local communities of their ability to control whether fracking can occur in their areas. A number of states have passed or are considering legislation that would establish that state decisions on natural gas drilling preempt, or override, any local decisions. In Idaho and Pennsylvania, legislators have made clear commitments to expanding gas production. In an effort to ensure local concerns do not jeopardize this expansion, Pennsylvania legislators passed Act 13, a law that preempts the authority of local governments to ban gas drilling. Seven municipalities in Pennsylvania have challenged the constitutionality of the law. In Idaho, state legislators passed House Bill 464 in March, which forbids local communities from enacting ordinances to prohibit gas drilling.

CELDF leading the challenge of state regulatory laws tilted in favor of corporations

In efforts to establish a better legal position for communities to win preemption challenges, a new strategy has emerged. Local communities have begun passing community-rights ordinances. In April, Las Vegas, NM, passed a “Community Bill of Rights,” which seeks to elevate the civil rights of the community and of its natural resources. The ordinance declares “the right of all residents, natural communities and ecosystems to water from natural sources, to unpolluted water for use in agriculture, the rights of natural ecosystems to exist and flourish, and the rights of residents to protect their environment by enforcing these rights.” Las Vegas enlisted the support of the Community Environmental Legal Defense Fund (CELDF), a Pennsylvania-based organization, to draft its ordinance.

CELDF has been helping community groups and municipalities create rights-based ordinances, which focus on a community’s rights – i.e., a community’s right to local self-government, rights to clean water, and rights of community members over corporations. According to CELDF, most fracking bans that have been overturned by the courts are based on state regulatory laws. For this reason, when a corporation sues a local municipality, the laws are stacked on behalf of the corporations, and the legal battle focuses on the violations of a corporation’s civil and constitutional rights. But, with a rights-based ordinance, the legal battle would instead be focused on the community’s democratic right to self-governance. Over 100 communities across the United States have adopted CELDF-drafted laws.

“I would rather be sued than poisoned” says citizen

Despite potential legal action by industry and/or states and the considerable monetary costs that accompany such battles, communities continue to see local bans as a necessary step to protect their communities. Lee Einer, a Las Vegas, NM, resident, says of the risk of legal challenges, “I would rather be sued than poisoned.” Besides, Einer said, “even if the ordinance is struck down, the city will be protected until that point.”

Conclusion

As evidence of the public health and environmental risks involved in fracking increases, more and more communities across the country are taking matters into their own hands and enacting local bans on fracking. But the oil and gas industry has found natural gas extraction extremely profitable and is mobilizing its resources to try to retain access to shale beds. By passing “Community Rights bills,” local communities are creatively changing the conversation. By making this an issue of democratic control and local choice, they should increase their chances of prevailing in court. And we expect they will expand their grassroots support in the process, since the right of local self-determination is a strongly held American value.

Fair Use Notice: This blog, Citizen Action Monitor, may contain copyrighted material that may not have been specifically authorized by the copyright owner. Such material, published without profit, is made available for educational purposes, to advance understanding of human rights, democracy, scientific, moral, ethical, and social justice issues. It is published in accordance with the provisions of the 2004 Supreme Court of Canada ruling and its six principle criteria for evaluating fair dealing