Rigged: How Our Legal System Prevents Communities from Governing Themselves

Thomas Linzey December 23, 2016

In 2015, res­i­dents of sev­er­al rur­al Ohio coun­ties watched in shock as Ohio Sec­re­tary of State Jon Husted uni­lat­er­al­ly removed cit­i­zen-spon­sored ini­tia­tives from coun­ty bal­lots. The ini­tia­tives, which had already qual­i­fied for the bal­lot, would have banned oil and gas drilling and frack­ing in those communities.

The Ohio Supreme Court sharply rapped Husted’s knuck­les for using author­i­ty he didn’t have. How­ev­er, a year lat­er, the peo­ple of those same coun­ties watched in dis­be­lief as Husted again blocked their ini­tia­tives. This time, the Ohio Supreme Court affirmed his actions.

It is not sur­pris­ing that Husted — who as of this writ­ing is run­ning for gov­er­nor — is the dar­ling of the very oil and gas indus­try tar­get­ed by those local ini­tia­tives. Indeed, the indus­try has long-sup­port­ed his elec­toral campaigns.

Ohio Sec­re­tary of State Jon Husted. (Pho­to: col​o​rofchange​.org)

Demo­c­ra­t­ic rights matter

The peo­ple of Ohio aren’t the only vic­tims of their own gov­ern­ment. Across the coun­try we are see­ing gov­ern­ment efforts, often at the behest of cor­po­ra­tions, to restrict the author­i­ty of we the peo­ple” to the ini­tia­tive. Gov­ern­ment offi­cials are tak­ing this action even though the author­i­ty for ini­tia­tive is cod­i­fied in near­ly half the state con­sti­tu­tions in the Unit­ed States.

In Ore­gon, a cat-and-mouse game is under­way between some of the country’s largest agribusi­ness cor­po­ra­tions and res­i­dents of rur­al coun­ties. Peo­ple there are propos­ing local ini­tia­tives to ban aer­i­al pes­ti­cide spray­ing and genet­i­cal­ly mod­i­fied crops. In response, cor­po­ra­tions affect­ed by those ini­tia­tives have lawyered-up, using obscure legal pro­vi­sions to try to stop the ini­tia­tives from ever reach­ing the ballot.

In Wash­ing­ton State, at the urg­ing of indus­try, state courts have now adopt­ed a rule that allows vir­tu­al­ly any pro­posed cit­i­zen-spon­sored ini­tia­tive to be blocked by cor­po­ra­tions before ever reach­ing the bal­lot and a vote of the people.

In New Hamp­shire and Maine, some local elect­ed offi­cials have gone even fur­ther — refus­ing to allow duly-qual­i­fied cit­i­zen ini­tia­tives to be vot­ed upon at annu­al town meet­ings. In at least one New Hamp­shire town, local elect­ed offi­cials have refused to sign an ini­tia­tive even after it was legal­ly adopt­ed by the peo­ple of the town.

Cor­po­ra­tions are work­ing to restrict demo­c­ra­t­ic rights to ini­tia­tive as com­mu­ni­ties are advanc­ing struc­tur­al change — chal­leng­ing the cur­rent sys­tem of law we live under, which insu­lates cor­po­rate projects from demo­c­ra­t­ic con­trol. In its place they are mov­ing for­ward a new sys­tem of law based on rec­og­niz­ing the right of com­mu­ni­ties to decide their own futures, and then ele­vat­ing that com­mu­ni­ty right above cor­po­rate rights.” This new sys­tem is now begin­ning to forcibly crash into the old­er, exist­ing one.

The bal­lot clash­es in Ohio, Ore­gon and else­where are all about the old sys­tem not going quietly.

The old

Here’s how the sys­tem works today. Deci­sions made by the fed­er­al gov­ern­ment trump the deci­sions and laws of state gov­ern­ments. Deci­sions and laws made by both fed­er­al and state gov­ern­ments trump the laws of local governments.

So, when the State of Ver­mont adopts a law requir­ing the label­ing of food prod­ucts con­tain­ing genet­i­cal­ly mod­i­fied ingre­di­ents, the U.S. Con­gress can sim­ply over­ride it. It did so in 2016 when our rep­re­sen­ta­tives passed a law nul­li­fy­ing state efforts to man­date food labeling.

The more cen­tral an issue is to affect­ing com­merce, the more pre­emp­tive rules you will find around it. For exam­ple, the fed­er­al gov­ern­ment con­trols almost all issues deal­ing with oil and gas pipelines and the rail trans­porta­tion of fos­sil fuels. Thus, those issues are lift­ed out of the hands of local and state governments.

State-lev­el pre­emp­tion oper­ates in a sim­i­lar fash­ion. Almost all states have oil and gas laws. Those laws reg­u­late and con­trol how fos­sil fuels are extract­ed. Those state laws have gen­er­al­ly been found to abol­ish not only the author­i­ty of local­i­ties to deter­mine how oil and gas is extract­ed, but whether oil and gas is extract­ed. Thus, state laws — such as those in Texas, Col­orado, Penn­syl­va­nia, and Ohio — elim­i­nate the author­i­ty of local com­mu­ni­ties to ban oil and gas extrac­tion altogether.

Oil boom pho­to gallery via TruthDig. (Pho­to: Charles Rex Arbogast)

Sim­i­lar­ly, state leg­is­la­tures across the coun­try have adopt­ed a slew of laws pro­hibit­ing com­mu­ni­ties from ban­ning large cor­po­rate water with­drawals, dump­ing of tox­ic sewage sludge and GMOs. Some states, includ­ing Penn­syl­va­nia and New York, have even autho­rized their state Attor­neys Gen­er­al to act as pri­vate attor­neys for cor­po­ra­tions to sue com­mu­ni­ties who buck those laws.

It all boils down to this: If you have the finan­cial and legal abil­i­ty to con­trol the upper­most lev­els of law­mak­ing and deci­sion mak­ing, you don’t have to abide by the rights and wish­es of the com­mu­ni­ties in which you operate.

But it gets even bet­ter — cor­po­rate rights”

There are rare cas­es in which peo­ple have actu­al­ly been able to use their state or fed­er­al gov­ern­ment to adopt laws that ben­e­fit the pub­lic inter­est. How­ev­er, cor­po­ra­tions then use the courts to either over­turn those laws or severe­ly lim­it their reach.

Cor­po­ra­tions are the dom­i­nant eco­nom­ic play­ers in our sys­tem. They have pio­neered the use of cor­po­rate con­sti­tu­tion­al rights” to attack any law that infringes upon their abil­i­ty to engage in com­merce or use cor­po­rate prop­er­ty. In today’s world, in which almost every mean­ing­ful reform affects com­merce or prop­er­ty, it’s rel­a­tive­ly easy to apply those rights” to over­turn laws that affect cer­tain industries.

Thus, cor­po­rate free speech rights have been lever­aged to over­turn fed­er­al laws lim­it­ing cor­po­rate cam­paign dona­tions; cor­po­rate reli­gious rights have been used to lim­it health­care leg­is­la­tion; cor­po­rate prop­er­ty rights have been used to over­turn envi­ron­men­tal reg­u­la­tions; and cor­po­rate com­merce rights have been used to strike down reg­u­la­tions on coal min­ing, truck­ing, pipelines, waste dis­pos­al, and landfills.

Thus, when cor­po­ra­tions lose at the bal­lot box, or in leg­is­la­tures, they can resort to the safe har­bor of the judi­cia­ry. This branch of gov­ern­ment has shown itself more than will­ing to vin­di­cate cor­po­rate rights” to nul­li­fy laws that cor­po­ra­tions don’t like. Mak­ing mat­ters worse, state leg­is­la­tures often take those court rul­ings and write them direct­ly into state law — thus safe­guard­ing those cor­po­rate rights” by pro­vid­ing statu­to­ry pro­tec­tion for them.

Each round of this makes it hard­er to remove those cor­po­rate pro­tec­tions, adding more and more lay­ers that must be peeled back in the future.

For we the peo­ple” to get any­thing to stick, we are forced to suc­cess­ful­ly nav­i­gate every sin­gle gaunt­let. We not only work to con­vince leg­is­la­tors to pass our laws, but then hope against hope that we can beat back the cor­po­ra­tions as they sue us for vio­lat­ing the rules of pre­emp­tion and cor­po­rate rights.”

While we have to win at every lev­el to suc­ceed, cor­po­ra­tions only need to win at one to put us back on the defen­sive. It’s the ulti­mate rigged game. It works only because the sys­tem is so cam­ou­flaged to give it the appear­ance of being open to change, and so few peo­ple under­stand the degree to which it is rigged.

Is it any sur­prise that we’ve end­ed up where we are?

The new

Over the past 20 years, peo­ple in hun­dreds of com­mu­ni­ties across the Unit­ed States have come face-to-face with the machin­ery of this sys­tem and its inevitable results.

Poll after poll and study after study reveal the same thing: Peo­ple want healthy, safe com­mu­ni­ties and pro­tec­tions for nature. And yet our sys­tem has been engi­neered to deliv­er the oppo­site. Instead of rec­og­niz­ing the pow­er of peo­ple to build those com­mu­ni­ties, it gives pow­er to those inter­est­ed in exploit­ing them.

Those try­ing to stop the spread of GMOs at the com­mu­ni­ty lev­el run up against state and fed­er­al laws that over­ride their efforts. Those try­ing to stop cor­po­rate water with­drawals run up against state water resources laws. Those try­ing to stop the dump­ing of sewage sludge run up against state nutri­ent man­age­ment acts. Those try­ing to ban frack­ing run up against state oil and gas acts. Those try­ing to stop oil and gas pipelines run up against pre­emp­tive fed­er­al author­i­ty lodged in agen­cies like the Fed­er­al Ener­gy Reg­u­la­to­ry Commission.

Many of those com­mu­ni­ties try to use tra­di­tion­al nui­sance, land use, or zon­ing laws to stop those cor­po­rate projects. In doing so, they labor to find a loop­hole in the pre­emp­tion laws, or they hire lawyers who have con­vinced the com­mu­ni­ties that con­coct­ing some kind of excep­tion to those laws is possible.

They almost always lose. And even in those rare cir­cum­stances when they win, like a self-seal­ing tire, the sys­tem devel­ops new laws that per­ma­nent­ly seal the leak — so that oth­er com­mu­ni­ties are unable to use the same arguments.

Many com­mu­ni­ties have learned from those loss­es and have begun to dri­ve a new the­o­ry of law — one not focused on try­ing to find loop­holes, crawl­ing through exemp­tions, or find­ing the right” judge who might look favor­ably on their lawmaking.

These com­mu­ni­ties have begun to under­stand that the indi­vid­ual threat or issue fac­ing their com­mu­ni­ty — frack­ing, GMOs, or oth­er­wise — is just a symp­tom of this sys­tem, not the prob­lem itself. That’s because the sys­tem we have doesn’t care what we want or need, no mat­ter what the con­se­quences to our com­mu­ni­ties and nature.

Peo­ple in com­mu­ni­ties under threat are con­front­ed with the real­i­ty of this exist­ing sys­tem. They are con­clud­ing that with­out true decen­tral­iza­tion of deci­sion-mak­ing author­i­ty down to the com­mu­ni­ty lev­el, they’ll nev­er be able to stop frack­ing or oth­er threats from invad­ing their com­mu­ni­ties. Fur­ther, they are real­iz­ing we’ll nev­er be able to move toward any­thing close to sus­tain­abil­i­ty. They’re argu­ing that the peo­ple of their com­mu­ni­ties pos­sess a con­sti­tu­tion­al right of local, com­mu­ni­ty self-gov­ern­ment — the author­i­ty to gov­ern them­selves on issues that the cor­po­rate state has removed from their control.

What will it take for com­mu­ni­ties to actu­al­ly have con­trol over whether fos­sil fuels are shipped through them? To decide if pipelines are laid? To vote if GMOs are plant­ed? To deter­mine whether they are forced to become the unwill­ing hosts of fac­to­ry farms, tox­ic dumps, or pol­lu­tion factories?

It will take the entire sys­tem of law turned upside down.

(Image: geddry​.com)

That means that com­mu­ni­ties must be able to pass laws and make them stick. It means mak­ing those com­mu­ni­ties immune from cor­po­rate rights” and the author­i­ty of high­er” gov­ern­ments to define what com­mu­ni­ties can and can­not do.

It means giv­ing birth to com­mu­ni­ty democ­ra­cy — a con­cept that, itself, is actu­al­ly old­er than the sys­tem we cur­rent­ly have: A Con­sti­tu­tion­al Right of Local Com­mu­ni­ty Self-Government.

Recog­ni­tion by the courts of a con­sti­tu­tion­al right of local com­mu­ni­ty self-gov­ern­ment would have far-reach­ing con­se­quences. A find­ing that the right exists would force oth­er legal doc­trines to give way to that right. This means, for exam­ple, that the use of cor­po­rate rights” to over­turn local laws would be pre­clud­ed as run­ning afoul of the right of self-gov­ern­ment. So would the author­i­ty of the state and fed­er­al gov­ern­ment to over­ride cer­tain types of local lawmaking.

Con­sid­er a rur­al com­mu­ni­ty fac­ing frack­ing. Today, under the old (exist­ing) sys­tem, let’s say the com­mu­ni­ty adopts a law, either by their elect­ed offi­cials or through an ini­tia­tive process, to ban frack­ing for shale gas. The law per­haps estab­lish­es a local bill of rights” that rec­og­nizes rights to clean air, pure water, and sus­tain­able ener­gy, and then bans frack­ing as a vio­la­tion of those rights.

The law is inevitably chal­lenged by oil and gas cor­po­ra­tions affect­ed by the ban. The con­sti­tu­tion­al right of the peo­ple to local com­mu­ni­ty self-gov­ern­ment is thus pit­ted direct­ly against the cor­po­rate claimed con­sti­tu­tion­al rights” and against the state government’s author­i­ty to pre­vent the com­mu­ni­ty from adopt­ing the law.

With the recog­ni­tion of a con­sti­tu­tion­al right of local self-gov­ern­ment, how­ev­er, those cor­po­rate rights” and the author­i­ty of the state gov­ern­ment must give way to the people’s con­sti­tu­tion­al right to gov­ern themselves.

Such a sys­tem, while rec­og­niz­ing the author­i­ty of the state and fed­er­al gov­ern­ment to set a min­i­mum floor” for envi­ron­men­tal, labor, and oth­er stan­dards, would pre­vent the state and fed­er­al gov­ern­ment from pro­hibit­ing com­mu­ni­ties from set­ting high­er stan­dards, or from expand­ing civ­il and envi­ron­men­tal rights at the local lev­el. It is pre­cise­ly that ceil­ing” pre­emp­tion where cor­po­ra­tions have run amok — using that pow­er to stop com­mu­ni­ties from pro­hibit­ing harm­ful cor­po­rate projects.

The clash of the old and the new

Because this new sys­tem is so unlike the old, it would be sur­pris­ing if the cor­po­rate defend­ers of the old sys­tem wouldn’t be invest­ing huge sums of mon­ey to stop this new sys­tem of law from being adopt­ed by communities.

Over the past decade, as over two hun­dred com­mu­ni­ties in ten states have dri­ven this new sys­tem into being, affect­ed cor­po­ra­tions have chal­lenged a hand­ful of those laws. Today, under­stand­ing the scope of change envi­sioned by the com­mu­ni­ty rights move­ment, those cor­po­ra­tions are now reach­ing into the elec­tions sys­tem itself, to stop those laws even before they are adopted.

We need to under­stand that these cor­po­rate chal­lenges are proof that the new sys­tem of law envi­sioned by com­mu­ni­ties is strik­ing exact­ly as intend­ed — direct­ly at the very pow­er cur­rent­ly wield­ed by cor­po­ra­tions against peo­ple and nature.

We must respond by chal­leng­ing not only the abil­i­ty of cor­po­ra­tions to stop these ini­tia­tives, but by direct­ly chal­leng­ing the author­i­ty of judges and courts to help them do it. If the actions of the cor­po­ra­tions vio­late the people’s rights of self-gov­ern­ment, and the cor­po­ra­tions are unable to pre­vent com­mu­ni­ty votes with­out the courts, then it’s time for more and more peo­ple to under­stand how the sys­tem itself stands in direct con­trast to the we the peo­ple” myth of Amer­i­can lore.

From there, rather than try­ing to reform the exist­ing struc­ture, more and more peo­ple will begin the real work of build­ing a new one.

(Com­mu­ni­ty Rights Paper #14: Demo­c­ra­t­ic Rights Mat­ter” was orig­i­nal­ly pub­lished on the Com­mu­ni­ty Envi­ron­men­tal Legal Defense Fund (CELDF) web­site and is repost­ed on Rur­al Amer­i­ca In These Times with per­mis­sion from the author. For fur­ther read­ing on the com­mu­ni­ty rights move­ment, check out a copy of We the Peo­ple: Sto­ries from the Com­mu­ni­ty Rights Move­ment in the Unit­ed States by Thomas Linzey and Anneke Campbell.) 

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Thomas Linzey, a con­tribut­ing writer to Rur­al Amer­i­ca In These Times, is the exec­u­tive direc­tor and co-founder of the Com­mu­ni­ty Envi­ron­men­tal Legal Defense Fund (CELDF) and serves as the organization’s chief legal counsel.
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