By Treothe Joseph Bullock – Portland, Willamette Valley, Oregon, Cascadia
Thomas gave 2 talks as Portland kicked off its Food Sustainability (No GMO +) Community Rights Initiative Campaign. Thomas is an environmental lawyer who has been recognized by the likes of Al Gore in the Whitehouse for his environmental firms 130/5 win record (A distinction he says was for work that ultimately had little meaning) and has been listed by Forbes magazine as one of the world’s top 10 revolutionaries (another honor whose source he cites as dubious). His work began with conservative south central Pennsylvania farmers fighting a migration of industrial corporate hog farms into their rural communities. He is a cofounder of the Community Environmental Legal Defense Fund.
Over the course of his work he has come to some conclusions – which if they were truly comprehended by the majority of citizens – would hasten us to the revolution we need if we are to have a sustainable future – if we are to have a future at all.
His conclusion – which he came to after running a standard pro bono environmental firm it’s first 7 years – with a paper record of success and yet no real ability to stop the harms it was fighting – is that we have a government which has become a corporate state in which citizens have no meaningful legal right to protect the health and safety and sustainability of their local, regional, national or global communities.
His clients pushed him to initiate new strategies beyond the textbook environmental law, and so it is that his firm has developed a model for unified community legal civil disobedience. This is done through the passage of local ordinances and charter amendments that reframe basic human and ecological rights in mini constitutions at the local level. This is an emerging movement, which has passed over 160 local laws, which enshrine community rights and remove corporate constitutional rights. They defy a 4-pronged tiny box that has been created legally to confine the ability of local communities to respond to corporations polluting, destroying and exploiting these communities against their will.
He explained how a complex 8000 moving parts set of law has been developed – primarily by corporate litigation in case law – yet with intentional roots in the US Constitution which can be traced back to the seminal event that gave birth to the English language – William the Conqueror and the Norman Invasion of 1066 – which resulted in the imposition of Common Law as a way of thoroughly colonizing and subjugating the indigenous population and landscape of Great Britain with a finder’s keepers law that elevates the rights of owned property above the rights of the living. This original system of law was so effective at enabling the colonial process it has been replicated in the British Commonwealth and colonial states around the world to the almost complete destruction of ecological diversity and human cultural diversity. (A recent UN report concluded that 70% of the world’s ecological diversity has been destroyed!)
The small box which citizens and local communities and the landscapes which make life possible have been hemmed into – with extreme punishments awaiting those who attempt to step out of – has 4 major legal ways of being enforced. These 4 strategies are Regulatory Law, Corporate Constitutional Rights, Preemption, and Dillon’s Rule. Here are some examples of each of these 4 walls the corporate / state alliance uses to push against the exercise of basic existential rights.
First it is important to understand that the US constitution provides no rights based protections for living organisms or ecosystems. In fact only about 1% of Humans in America were recognized as having legal rights or standing when the constitution was framed. It was limited to white male landowners – who saw the rapid exploitation of the existing peoples, landscape and resources as the quickest path to their ambitious rise to a world power status. Because under US law, all living beings which are part of ecosystems and which are a part of the landscape are considered property – property is regulated under the Commerce Clause. Under current law any property owner has the right to destroy said property, which includes the living systems. We learned from Thomas that property turns out to have more rights than living beings under the US Constitution and its developed legal system.
Regulatory law enables harm by creating a formal permitting process for harmful activities. Most regulatory law has been written by the industries it claims to regulate. Local communities do not have the right to prohibit harm to their communities when it is a part of federal or state legal private business enterprise. They only have the right to find some problem in the narrow scope of required permit application paperwork. Business activity is protected under the commerce clause and so must be allowed even when a community does not want it. As one analyst observed “All that regulatory law really regulates are environmentalists.” One of the railroad barons who participated in the development of regulatory law in the 1880’s was quoted as saying “Regulatory law will do little while giving the people the feeling that much is being done.” The regulatory process and its hearings are rarely attended by decision makers and are really formalities, which rarely hinder the intents of unwanted corporate activity. Some states force witnesses to speak into cones so no one in the public can hear them. They make environmentalists predictable and drain their energy and financial resources in ways, which have little if any impact on the plans or corporate industries. Corporate farms have been successful at passing legislation to prohibit documentation of their activities and prosecute individuals who attempt to as terrorists making it impossible for independent verification of their practices by the media. Environmentalists often think that in litigating that beyond slowing the harm they are at least costing the Corporations. All corporate legal expenses are tax deductible – they are subsidized by the taxpayers.
Corporate Constitutional Rights are much more than Corporate Personhood and have developed through a large body of statutory law over the last 200 years. Corporate Personhood gives corporations speech rights, protections from search and seizure, equal protection under the law, which in effect gives them more rights than individuals. When corporate law attorneys bill as much as $2000 an hour it becomes extremely difficult for individuals or small communities to afford the costs of litigating against corporations. They use the laws developed to protect Black Americans after emancipation to protect themselves from being “discriminated” against by local communities. Local communities who have done things like banned outside industrial waste from being dumped in their midst have found themselves sued for lost profits under the Commerce Clause which prohibits local communities from interfering in interstate trade which the federal government reserves the right to regulate. Corporations are not living organisms – they are properties. They have a rights status under the law, which is fundamentally elevated above the rights of local communities to self-determination or sustainability legislation.
Preemption is a more commonly used tool in which corporations have the federal or state congresses pass legislation which bans local communities from regulating their activities in any way. They are basically anti democracy laws. Monsanto recently had one of these passed so that they could finish growing any crops found to cause harm and be excused from any liabilities. Here in Oregon where several communities have initiated Sustainable Food System Ordinance Campaigns there is a vote scheduled on September 30, 2013 – snuck into a budget compromise bill that will prohibit local communities from regulating GMO’s. The Governor and leaders of both major parties have currently approved it – our citizenry has the task of raising the red flag on this attempt at eliminating democratic choice.
Preemption is also being used at early levels in campaigns by creating lawsuits against initiative campaigns before they even get a chance for a vote. In Pennsylvania the Corporate Hog Industry got legislation passed requiring the State Attorney General’s office to prosecute local communities which attempted to ban their operations so that they would not even need to pay for their litigation – but the local communities tax money would pay for the elimination of their democratic rights.
Dillon’s Rule says that local government only has rights that are specifically given to them by states or the federal government. They are in a relationship akin to a child / parent relationship. When a local community attempts to defend itself from harm from corporate activity it usually extends into areas of law, which are prohibited from the local domain by Dillon’s Rule. Corporations regularly use this rule to sue and win against local community attempts to stop them from harmful developments or activities.
It is because of this tight 4-pronged box that little can be done in the US to stop the mining, polluting, fouling and running over and destruction of communities by corporate will. One county in Colorado has licensed over 18,000 fracking wells where they are even pumping diesel fuel directly into the ground to explode it and release gas. These are the same laws exported to nation states around the world and put on steroids by international trade agreements, which subjugate whole nations to the Dillon’s Rule hierarchy under multinational corporate agendas.
CELDF has been brilliant in using Constitutional law such as Oregon’s Article 1, which says:
Natural rights inherent in people. We declare that all men, when they form a social compact are equal in right: that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; and they have at all times a right to alter, reform, or abolish the government in such manner as they may think proper.
to then nullify Corporate Constitutional Rights and any of the other 4-pronged tools which are used to prevent the exercise of the people’s democratic right to protect their existential rights. By removing Corporate Constitutional Rights they lose standing in any local jurisdictions and cannot even litigate. To litigate they must take on the constitution. In addition to this rights are being given to nature, to natural ecosystems, to watersheds so that they cannot be treated as destroyable private property and can have standing to defend themselves under the law. Ecuador invited CELDF attorneys to assist in developing the first nation state constitution, which gives rights to nature. In 4 cases that have gone to the Supreme Court Nature keeps winning! Nepal and Bolivia have or are developing similar constitutional standing for nature.
This initial legal civil disobedience is preamble to the real work, which is a rewriting of our constitutions to refound the possibility of local home rule using democratic processes to create a sustainable future. 5 states have already established statewide Community Rights networks to begin visioning the rewriting of State Constitutions. Next year the first National Community Rights Network will meet to begin the work of envisioning rewriting our national constitution. In the mean time most citizens have no idea that the vehicles of government have been coopted so completely in the interests of Corporate Private Property Rights and that their existential rights have been diminished to a tiny box in the legal realm – until they face a life and death battle in their own local community. We must make the exponential growth of destruction of living systems – which is currently legal and seemingly unstoppable – a thing of the past. To do this we have to make structural changes to our law system so that living’s rights are raised above the rights of private property and commerce.
All first nations and indigenous peoples have understood that the living landscape cannot be owned as property but is a trust we pass forward to future generations. We must make such wisdom legal! Support the Community Rights movement before a Corporation moves in on you and your loved ones!
Please check out
CELDF.org where you can read examples of ordinances and catch the latest news
communityrightspdx.org where you can get involved in the Portland , Oregon initiative
paulcienfuegos.com where you can follow one of the lead organizers in Cascadia and get workshop schedules to get additional training for organizing
Audio and Video was made of the talks and will be available soon.