An Emerging Movement for Local Democracy
In the U.S., an emerging movement of local communities has set to dismantle corporate power and assert democratic self-government by passing local laws codifying the rights of citizens and communities and banning corporate activities that violate those rights.
For decades, communities and activists across America have been trying to stop a wide range of harmful and unwanted corporate projects, including fracking, toxic sewage sludge dumps, factory farming and water privatization, threatening the health, safety and well-being of citizens and destroying the natural environment. Whenever communities try to stop these projects, however, they run into legal and governmental structures that prohibit them from protecting their residents and the local environment by banning these harmful corporate activities.
The Community Rights Movement, an emerging movement of local communities, seek to change this by seizing their right to democratic self-government through local law-making, In the last 15 years, close to 200 local communities in 10 states have passed local laws banning corporate threats like fracking and shale gas drilling, factory farming, toxic sewage sludge dumping, and water privatization. By passing these ordinances the communities are directly challenging the legal and governmental system that subordinate citizens and local communities to corporations.
Community Bills of Rights
In drafting the local laws, the communities are working together with the Community Environmental Legal Defense Fund (CELDF), a non-profit law firm based in Pennsylvania, providing free legal assistance to local governments and community organizations. When it first started up in 1995, CELDF defended communities in court, trying to stop specific corporate projects by appealing permits. However, it soon became clear that it was not possible to stop the projects due to legal barriers against democratic self-government. Faced with this situation, communities then began asking CELDF to draft local laws that codify the right to local self-government and eliminate corporate so-called rights within their municipality.
First out was Wells, a small rural township in Fulton County, Pennsylvania, in 2000, trying to stop a corporation from placing a factory farm of 15000 hogs in the community, threatening their family farms and the environment. After trying to plead with the regulatory agency, they realized that the agency would not stop the factory farm as regulation is not about prohibiting corporate activities rather than issuing permits and regulating what amount of harm is allowable. The township then chose a different approach and told CELDF to draw up a local law that would ban factory farms altogether. This resulted in the anti-corporate farming ordinance, prohibiting agribusiness corporations from engaging in farming or owning farmland in Wells. The ordinance passed unanimously by the Township supervisors, and the big agribusiness corporation left.
Other communities followed suit, and within a few years, 20 rural communities had passed similar anti-corporate farming ordinances. Soon communities began to ban other harmful activities too, like banning corporations from dumping toxic sewage sludge on their farmland as well as prohibiting Nestlé and other water corporations from engaging in water withdrawal for bottling within the community.
Video: Voices from the Community Rights Movement in Portland, Oregon.
The novelty of these laws lies in that they are not just about stopping things, but are framed around rights. They are Community Bills of Rights, in which the communities codify their rights to, among other things, clean water, sustainable agriculture and energy, healthy food, and local self-government, and they ban any activity that violate those rights.
In several states, many small towns, as well as the city of Pittsburgh, Pennsylvania, have now passed rights to water ordinances. Pittsburgh was the first to pass this kind of ordinance in 2010, as the city of 300,000 was trying to stop fracking. The ordinance bans all oil and gas extraction within the municipality and strips oil and gas corporations of their constitutional rights within the municipality. Three years later, in 2013, Mora county became the first county in the US to ban oil and gas extraction by passing The Mora County Community Water Rights and Local Self-Government Ordinance
Similarly, four New Hampshire communities, where decisions are made by direct democracy in town meetings, have passed ordinances for the right to a sustainable energy future. These ordinances have a legal definition for unsustainable energy and ban anything that meets that definition.
Local Democracy Denied
These Community Bills of Rights ordinances are in fact illegal and deemed unconstitutional under the existing system of law as they violate certain legal doctrines that protect corporations and deny local communities the right to self-government. By enacting local laws the communities confront and challenge this system directly and publicly. For the root of the problem, Community Rights organizers argue, is an undemocratic and unjust legal and governmental system in which corporations have more rights than people and communities and wield those rights against communities trying to stop or interfere with their operations.
In the US constitution, corporations are defined as legal persons and enjoy a host of constitutional and civil rights, including the right to free speech, the right to protection against search and seizure, and the right to due legal process. Furthermore, the Commerce Clause grants corporations the right to engage in commercial activities across America and restricts state and local governments from interfering with the free flow of trade.
(Image: Matt Wuerker / celdf.org)
Additionally, a system of preemption bars local democracy by giving higher levels of government the power to preempt and strip the lower levels of the authority to pass laws in certain areas, so that the state trump the local and the federal trump the state. According to a legal doctrine known as Dillon’s rule, local communities are legally bound and tied to the will of their state, like a child to their parent, and municipal and county governments cannot pass any law without the permission from the their state government.
Preemption is a result of corporate control over the governmental system and it serves to move decision-making as far away as possible from the citizens and the communities most impacted by those decisions. Under this system, municipalities are defined as merely creatures of the state without any authority in themselves. The state created the municipality, thus the state have the power to control it and to eliminate it at will.
Breaking a Fixed System
The Community Rights Movement aims to expose, challenge and dismantle this anti-democratic system. As they argue, the system is not broken, it is working perfectly and we need to break it. Creating sustainable communities, protecting the environment, tackling climate change, and achieving economic justice is not possible without dismantling corporate power and the legal and governmental structures that protect it. This is why the community bills of rights, in addition to asserting the rights of people and communities, also eliminate corporate constitutional rights at the municipal level and nullify state preemption. Community rights organizing is built on the principle that only natural persons and communities can have rights. Corporations are just property that can be bought and sold; so giving rights to a corporation is as absurd as giving rights to a refrigerator or to a house.
As Community Rights-based local law-making has spread, communities are met with increasing resistance from both corporations and state governments. State legislatures and corporate lobbyists are colluding to write new preemptive state laws to prohibit the communities from passing the local ordinances. Several states have for example passed model bills written by corporate lobby groups like ALEC, including Oregon’s so-called “Monsanto Protection Act” that preempts local communities from enacting agricultural laws and controlling GMOs.
Some of the communities that have passed local Community Rights ordinances, have been sued by corporations and state governments for violating corporate constitutional rights and state preemption. Getting sued, however, is no defeat. Actually, getting sued is part of the Community Rights strategy, as the ordinances are designed to make corporations sue communities on their terms.
What tend to happen is that corporate lawyers have to argue in court that corporate rights trump the rights of human beings, while state attorneys argue that state government does not recognize that people have a self-government authority. The then Pennsylvania Attorney General Thomas Corbett, for example, outraged many people when he proclaimed in a court ruling in 2008 that “There is no inalienable right to local self-government.” By getting the system exposed in this way the Community Rights organizers are able to reframe the whole issue from being about a particular corporate project like fracking or sewage sludge to being about rights and democracy – about corporate rights vs. peoples’ rights.
Video: The Colorado Community Rights Network is campaigning to get a Community Rights initiative on the state ballot in November 2016.
Enacting and defending local Community Rights ordinances though, is just the first part of a broader organizing strategy. The long-term goal is to fundamentally change the American governmental and legal system by driving rights into the state and federal constitutions. Already local communities in several states are starting to join together in state-wide Community Rights Networks. Such networks have so far been established in six states, including Oregon, Colorado, Ohio, Pennsylvania, Washington State, and New Hampshire. The networks are aiming for amendments to the state constitution that would guarantee and protect the right to local self-government and elevate the rights of citizens and communities above those of corporations. The state networks have also created a National Community Rights Network, proposing an amendment to the federal constitution.
The Colorado Community Rights Network has come furthest in this work and are now campaigning for a 2016 ballot initiative to amend the Colorado Constitution through the Colorado Community Rights Amendment. The amendment is not limited to a certain industry, or to a specific issue like fracking or factory farming, but can be used to cover any issue that is important to a community.
Municipal Civil Disobedience
When communities pass local ordinances, they know that they are breaking the existing law, but they proceed anyway. In this sense, the lawmaking itself constitutes what the Community Rights organizers call acts of “collective municipal civil disobedience”. They are challen unjust legal structures by seizing their municipalities. In addition, direct action could be used to enforce the local laws by stopping corporations that don’t respect these bills of rights. Indeed, Grant, a Pennsylvania township, recently passed a law that legalizes non-violent direct action to stop frack wastewater injection wells within the Township to enforce a Community Bill of Rights ordinance that was passed in 2014. The ordinance established rights to clean air and water, the right to local community self-government, and the rights of nature.
Like the Abolitionists, Suffragettes and the Civil Rights movements, the Community Rights Movement is directly challenging existing law to enforce structural change from the grassroots. These prior movements were non-apologetic; they did not plead for reform, but recognized that the system itself was the problem and they drove rights into the constitution through massive civil disobedience. The Abolitionists never asked for a regulation of slavery -they demanded its abolition and sought to change the unjust legal system that defined slaves as property rather than persons. In the same way, the Community Rights Movement aims to change the legal status of local communities from being property of the state to being recognized as having the right to democratic self-governing.
This right to local self-government should however, not be used to take away already existing rights. An objection that has been raised to the Community Rights-based organizing model is that local self-government as a tool could be utilized to undo hard-won federal rights, for example by local governments passing racist and oppressive laws. But what the local ordinances do is to establish a floor of rights that cannot be lowered. The ordinances cannot be used to eliminate or weaken any existing civil, political or environmental rights set by state, federal or international law. Rights can only be expanded, not taken away.
As corporate rule is consolidating a cross the world, social movements and activists are becoming increasingly aware of the extent of anti-democratic power wielded by the large corporations and are pressing for better regulation of these global giants. What is distinctive and refreshing about the Community Rights Movement, however, is that they are not just aiming for reforms, but for the abolition of corporate power and privileges altogether and for the creation of genuine local democracy. For without the right and capacity of citizens to collectively define our future and decide what happens to the communities and places where we live, democracy is nothing but a myth.