August 24, 2011
U.S.

Can communities reclaim the right to say “no”?

by Mari Margil, Yes! Magazine, www.yesmagazine.org 24 August 2011

Many communities trying to keep fracking, drilling, or big box stores out are finding they don’t have the legal right to say no. Their response? Take on the very structure of law.

It’s no wonder that many communities want nothing to do with the natural gas drilling procedure known as hydraulic fracturing, or “fracking.”

The practice, which involves pumping chemical-laced water underground at high pressure, results in millions of gallons of frack wastewater that’s been found to contain dangerous levels of radioactivity, carcinogenic chemicals, and highly corrosive salts. Last year, 16 cattle died after being exposed to the wastewater; a famous scene in the documentary Gasland shows a resident lighting his tap water on fire.

But communities trying to protect their drinking water from fracking haven’t found it at all easy to do.

No Right to Self-Government?

In June, the city council of Morgantown, West Virginia—which draws its drinking water from the Monongahela River, just downstream of a new natural gas well—passed a ban on horizontal drilling and fracking within one mile of city limits. Two days later, a company seeking to drill sued Morgantown, claiming that because drilling is regulated by the state, it wasn’t within the city’s authority to keep fracking out.

In August, a circuit court agreed, invalidating the city’s ordinance. In her decision, Judge Susan Tucker ruled that municipalities are but “creatures of the state” without jurisdiction to legislate on drilling or fracking within their borders. Tucker further wrote that “the State’s interest in oil and gas development and production throughout the State…provides for the exclusive control of this area of law to be within the hands” of the state of West Virgina. The environmental concerns of the residents of Morgantown, she determined, were not relevant to her ruling.

Morgantown is far from the only town to have discovered that it doesn’t seem to have the legal authority to say “no” to drilling and fracking. When communities try to exercise such authority to protect themselves, they are met with threats of corporate lawsuits and state efforts to override their decisions.

Why is it that cities and towns facing the direct impacts of these and a wide range of other harmful corporate activities do not have the authority to determine whether they should occur? How is it that corporate directors who live hundreds if not thousands of miles away—working hand-in-hand with the state and federal officials that residents often expect to protect them—are able to override local, democratic decision making like Morgantown’s?

Since the early part of the 19th Century, the U.S. Supreme Court has granted ever-expanding rights and protections to business corporations under the Commerce and Contracts Clause of the U.S. Constitution, and the First, Fourth, Fifth, Sixth, and Fourteenth Amendments. Corporations use these “rights”—originally intended for actual people—to challenge laws protecting the environment and public health.

At the state level, once an activity is deemed a “legal use,” communities are legally prohibited from banning it. Legal uses include everything from drilling and fracking to factory farming and corporate water bottling projects. When state governments legally authorize corporations to conduct fracking, they simultaneously prohibit communities from saying “no” to it.

When a community finds itself facing fracking and drilling, it learns that its municipal powers are very limited, largely confined to influencing site selection by zoning. If it attempts to use zoning to ban drilling or another legal use, it finds itself violating the corporation´s “right” under the law.

This is why communities engaged in traditional “site fights”—trying to stop an unwanted corporate project by appealing state-issued regulatory permits that allow corporations to site a new drill well, factory farm, Walmart, or other unwanted activity—are relegated to fighting about limiting traffic, noise, or odor, instead of about whether the activity should be allowed to occur at all.

Communities are therefore left with a choice. They can fight the traditional site fight, or they can decide to take a different approach, one that challenges the fundamental structure of law that allows corporate interests to override the best interests of people, communities, and nature.

Remaking the Law

So far, over 100 communities across the U.S. have taken that alternate route, adopting ordinances that challenge the structure of law that grants corporations rights that override local, democratic decision making.

Pittsburgh, Pennsylvania, is one such community. In November, the city council adopted a local ordinance banning corporations from drilling for natural gas within the city, and invalidating any state or federal permits that violate that prohibition. A first-in-the-nation law, the ordinance also takes on the structural barriers that stand in the way of communities saying “no”—allowing them to exercise their right to local self-governance and to protect against destructive activities such as fracking. In May and June, neighboring Pennsylvania towns adopted similar ordinances.

These ordinances don’t just ban drilling; they counter the legal rights of corporations by creating legal protections for communities and the natural environment. The Pittsburgh ordinance, passed unanimously, affirms a “fundamental and inalienable right” to water—not just for residents, but also for ecosystems. It also legally “recognizes that all power is inherent in the people, that all free governments are founded on the people’s authority and consent, and that corporate entities and their directors and managers shall not enjoy special privileges or powers under the law which make community majorities subordinate to them.”

The ordinance also recognizes the fundamental right of “natural communities and ecosystems, including, but not limited to, wetlands, streams, rivers, aquifers, and other water systems” to exist and flourish. Since natural systems can’t speak up for themselves in court, it empowers Pittsburgh residents with the legal standing to enforce their rights.

For the communities passing them, these new laws come with an understanding that they are part of a long-term effort to make lasting change. The goal is not simply to regulate fracking better, but to transform the balance of power between people and corporations—to change a prevailing structure of law, economy, and culture that depends upon environmental harm, no matter the consequence. These communities often think of their work as akin to that of the abolitionists or suffragists, who succeeded in supplanting deeply entrenched but fundamentally unjust legal systems.

It will be a difficult and long process: to put in place a structure of law and governance that recognizes the right to local self-governance and establishes a new relationship between humankind and nature. It requires a restructuring of law to elevate that which we value most—people, our communities, the natural world we depend on—rather than the corporate form whose interests are, as historian Richard Grossman has written, about the production of “endless more.”

Will this involve risk? Certainly. Taking on hundreds of years of law, governance, culture, and our dominant economic system is inherently risky. But as Pittsburgh City Councilman Doug Shields said in June at a conference on drilling and fracking, “You’re already at risk. So what do you do? You act.”

Mari Margil wrote this article for YES! Magazine, a national, nonprofit media organization that fuses powerful ideas with practical actions. Mari is the associate director of the Community Environmental Legal Defense Fund, a nonprofit, public interest law firm providing legal services to communities facing threats to their local environment, agriculture, economy, and quality of life.

URL to article:  https://www.wind-watch.org/news/2011/08/24/can-communities-reclaim-the-right-to-say-no/