The following is from Sabrina Artel’s Trailer Talk: The Frack Talk Marcellus Shale Water Project. You can listen to the complete program here.
These last few days for gas drilling news in New York as been critical and a new level of urgency has been reached as the country watches how New York defines and decides its fate, the future of its famous unfiltered water supply, and communities in the directly impacted regions, whether for or against drilling are forging ahead to determine their immediate future and that for future generations.
It’s coming down to Home Rule and self-determination as a way to protect municipalities from fracking. As the Department of Environmental Conservation (DEC) releases New Recommendations for Drilling in New York explained in the Supplemental Generic Environmental Impact Statement (SGEIS) released a few days ago, environmental groups, like Catskill Mountainkeeper are calling for a statewide ban and municipalities organize to decide the fate of their towns.
One of the important and positive points in the otherwise very problematic and potentially dangerous draft, combined with a governor apparently wanting to surge forward with gas extraction is this: “Local Land Use & Zoning: Applicant must certify that a proposed activity is consistent with local land use and zoning laws. Failure to certify or a challenge by a locality would trigger additional DEC review before a permit could be issued.” These words in the SGEIS give further power to Home Rule.
The Highland and Lumberland Committees on Energy and the Environment formed last year to decide the fate of their towns. They sponsored a forum on February 19th that was held at the Eldred High School to talk about the options that municipalities have to protect themselves from being industrialized and how the power of Home Rule can be preserved. The speakers were Helen Slottje, an attorney with the Community Environmental Defense Council based in Ithaca, NY and Ben Price, the Projects Director from the Community Environmental Legal Defense Fund (CELDF) located in Chambersburg, PA. Ben Price has been advising residents about stopping fracking in their communities acting on the premise that they already have the right to say no. He states, “…You have the right to protect your community, your families, your kids, your property values, your drinking water. These are fundamental rights…”
More towns in upstate New York are re-writing their plans and residents are becoming involved in their town politics whether organizing educational meetings, deciding to run for office and reaching out for advice. One such person is Narrowsburg resident Andrea Reynosa, an artist and farmer who lives with her family on a homestead that has been farmed since 1841. Their farm includes river frontage on the East Ten Mile River and sits in the Delaware River Valley, an area under urgent threat from drilling as its neighbor Pennsylvania sits across the Delaware with drill pads in the watershed waiting for approval.
Andrea says, “In November of 2010, we created a local chapter of Concerned Citizens, Tusten Concerned Citizens, whose primary focus is initiating and establishing stringent Land Use laws into our municipal zoning ordinances that address Heavy Industrial Use, i.e. gas drilling, to protect the health, safety and welfare of the citizens of the Town of Tusten. The Town of Tusten is working with Helen and David Slottje and the Tusten Concerned Citizens along with its First Saturday of the Month SkyDog Supper Club will be hosting a Democracy School led by Ben Price later this year.” In addition to organizing the town hall meeting supper club as a place for community engagement, Andrea and her partner Kevin Vertrees have been organizing collaborative art events, Flow Projects that are celebrations of pure water as their community is threatened by drilling and hydraulic fracturing.
This is the continuation of the story of individuals speaking up when the gas corporations are attempting to control their hometowns and of individual becoming increasingly involved in their local government, collaborating with each other as they face drilling throughout the area.
The following is from Ben Price of the Community Environmental Legal Defense Fund speaking to residents of the Sullivan County Catskills in Eldred, New York. You can read (or hear) Helen Slottje’s part of the talk here. The event was moderated by John Conway.
John Conway: Ben Price, will talk about a little bit different approach. And Ben’s approach involves an outright ban, passing a local law that would provide an outright ban on drilling.
Ben Price is the Projects Director of the Community Environmental Legal Defense Fund. Ben coordinates community organizing across Pennsylvania, where over 100 communities have already adopted Legal Defense Fund-drafted laws. He has served as consultant to the Pittsburgh City Council; assisted in drafting Pittsburgh’s Protection from Natural Gas Drilling Ordinance; and is working with other communities in both Pennsylvania and New York, as well as Maryland and Ohio, to adopt community rights ordinances that assert the authority of municipalities to protect their community health, safety, welfare, quality of life, and the natural environment by banning industrial activities such as gas extraction. As Projects Director, Ben offers communities free organizing assistance and training for municipal officials and residents for the adoption of local laws.
He also assists with strategic organizing in New England and northern California, and is the First Chair Democracy School lecturer. Ladies and gentlemen, Ben Price.
Ben Price: Thank you, John, and thanks to everybody for being here this morning. I’ll tell a little bit more about the Legal Defense Fund in just a second, but before I begin I wanted to say something maybe you may not expect, but I agree with everything that Helen said. I do. That is where we are right now. And I actually do believe that given the state of affairs with New York law, that land use laws are a viable tool in order to actually keep the drilling out. I think that makes sense as a starting point.
I’m here, I guess in a way, to offer a cautionary tale. I think that it behooves you and your communities to engage in precautionary measures in anticipation of what has happened in other states. The Legal Defense Fund opened its doors in 1995, and the plan was to offer free legal services to municipalities and community groups in order to assist them to protect their quality of life, their health, safety and welfare, their environments, because in general it’s those small municipalities and towns — it’s the community groups — that don’t have the financial wherewithal to fight the large corporations when they come in and they say, “Here’s what we’re going to do whether you like it or not.” And whether you like it not, sometimes — as everyone has heard already — you can sue anybody for anything with one small caveat — if you’ve got the cash. And the industries have the money, and in general the municipalities and the people do not.
Our experience early on back in ’95 when the Legal Defense Fund opened their doors was pretty typical. We engaged in rather traditional community organizing, which is to say that we assisted community groups and individuals to challenge permits from being issued, to review the applications for permits that would allow for some legal activity — and by the way, gas drilling in Pennsylvania and in New York, and Ohio and West Virginia and Maryland is legal. It’s legal. And it’s regulated — we know that, too.
But the permits are the license to engage in the activity.
What we found was that the state more and more — the state legislature — adopted laws wherein they occupied the field of regulation and stripped local governments of the opportunity to regulate industry and the activities they engage in locally. And just to give you an example, the Legal Defense Fund didn’t start working with communities on the gas drilling issue. That’s become a huge issue. Everywhere I go, the crowds get larger and larger. When we go to municipal meetings and talk to folks, the crowds are getting huge. People are just energized about this issue.
But that’s not where we started working. Frankly, we began working in rural communities in Pennsylvania on issues generally having to do with agriculture — communities that were concerned about the establishment of factory farms as the new way of engaging in agriculture in Pennsylvania. That wasn’t seemingly such a big problem back before the mid-1990s. We had about 400 communities — municipalities in Pennsylvania at the time — that had ordinances in place — legal ordinances — not challenging any existing law, that said that factory farms essentially were excluded. They wanted to support independent family farming.
Unfortunately — and this is part of the precautionary tale I want to tell — is that just because you have what looked like strong local authority under your home rule provisions of your constitution doesn’t mean they’re permanent. And I don’t mean that just to scare you. As a Pennsylvanian, I envy your Home Rule law. I think it’s great as it stands. It really does afford a degree of local control that the folks in Pennsylvania — 12-1/2 million of them in over 1,200 municipalities — wish they could have back.
We have experienced, though, that when industry wants to make it easier to get what they want, they change the laws for us. That’s what we experienced. That’s why we changed our strategy in terms of what to do in order to combat the industrialization of our communities, and really … you’ll hear me talk about corporations — I’m not anti-corporation; I actually work for one. It’s a nonprofit, but I actually work for one. They’re good tools; they’re good legal tools. They can also be used in a negative way, just like a lot of legal things can be.
What we experienced beginning in the early 2000s was a transformation of state law that stripped local communities of the authority to say “no” to the industrialization of agriculture … by the way, to say “no” to mining. We had land use laws under the Municipalities Planning Code — that’s the state code of land use law — that did not prohibit communities from zoning out mining, and did not prohibit them from zoning out agriculture that was industrialized. The Municipalities Planning Code was amended any number of times, and it’s a litany of surrender of local control and Home Rule authority to industry, where the Municipalities Planning Code was amended to disallow local municipal control or regulation of the timber industry, of mining, of water withdrawals, of agriculture, one after another after another, to the point where what we have left in terms of our ability to deal with an industry like gas drilling is, we can regulate the roads and impact on roads. We can attempt to impose conditions in terms of putting up fences and what color paint is used on the drilling rigs so that they blend in with the background.
Doesn’t mean we have no local control over gas drilling in Pennsylvania. We can say where they can drill, but not whether or not they can drill — the idea of zoning being that we still retain the authority to segregate incompatible uses of land, to try to keep the drill rigs away from the swings and the monkey bars in the kids’ playground. We can try to do that.
You can separate incompatible uses of land, but you’re not allowed to say “no” to a legal use of land. That’s where we are in Pennsylvania. I don’t want that to be where you come to in New York.
When it comes to what authority and what power we have to protect our health, safety and welfare at the local level, we’re up against three main obstacles. The first one is state preemption, which I just talked about briefly, which is where the state decides to adopt state laws, or to amend existing laws that strip that local authority. In New York, as well as in other states, general laws of the state apply to all communities, and if a general law specifically preempts — in other words, it strips the authority of the municipality — to say “no” to a particular legal use of land — and how do we know it’s a legal use of land? Well, permits are issued for it. Permits are issued for gas drilling by the State of New York. You have not yet been preempted to adopt local land use laws that have the effect of excluding gas drilling. And I do agree with Helen — that’s a tool you should use. You have it, you should use it. You should, in fact.
Preemption is one of the main obstacles we have to overcome if it’s in place. Right now, you don’t have preemption of land use in place, but you do have preemption in terms of regulating the industry. State law essentially says, yes, you can in effect preempt it through your land use decisions, but you can’t say anything about the process of the extraction. You can’t regulate the industrial activity itself. The state has occupied the field of regulation there, and that is to say you are preempted.
But those laws in existence today in New York that say you can stop it through land use are not immutable, and they’re not perpetual.
There’s another obstacle to local control called “Dylan’s Rule,” and it’s a theory of law that says — by the way, it’s not in the U.S. Constitution; it’s not really even in the state constitution — but it’s a tradition of and a theory of law that says municipalities essentially have the same relationship to the state — the state legislature — as a child has to a parent — which is to say that the municipality has no authority of its own and no agency of its own unless the state delegates that power and that authority … which also means that at any given time the state can withdraw that power or that authority. That’s the experience I’ve been relating to that we’ve had in Pennsylvania on lots of issues.
By the way, it’s also the experience they have in Ohio. In 2005, the state legislature adopted a law dealing with the regulation of oil and gas, and they stripped municipalities of the authority to regulate — to do anything at the local level that applies to those industries.
We’re used to hearing about that horrible term, the “Halliburton loophole.” Most of you have heard that, right? It’s that horrible thing that they did at the federal level that said this gas industry is exempt from a host of federal laws that purport to protect our environment and our communities — you know, the Clean Drinking Water Act; the Clean Air Act; the Superfund Act — things like that.
We don’t generally think about the fact that in many states — and by the way, in New York as well, the industry is also exempt from local control, local regulation in New York, fortunately, as Helen pointed out, except in terms of land use.
But in terms of industrial activities themselves, they are exempt from local laws. I’d just like to question, what does that word “exempt” mean? It means you don’t have to obey laws that everybody else does. It means you’re above those laws. It means you’re exceptional and you have privileges that no one else in the community, the state or the land has. And that’s the position of the gas industry in terms of those ostensibly protective laws. Why would they have to be exempt from them? Maybe it’s because they couldn’t live up to them; maybe it’s because they couldn’t actually obey them and actually continue to engage in the industrial activities that they want to be involved in.
So, I mentioned preemption and Dylan’s Rule, and what I’m getting at now, too, is a third obstacle that we have to actually creating the kinds of communities that we want to live in, and that is corporate supremacy. As individuals, we don’t get exemptions from laws that the rest of our neighbors have to obey. That’s not a privilege that we as human beings have. But corporations do, and corporations have been recognized by the courts to share protections of the Bill of Rights of the United States Constitution as though they were living human beings. Again, I’m not against corporations — I think they’re actually very useful tools.
Folks who benefit from private for-profit corporations benefit also from the fact that they often have limited liability; that the individuals who benefit from those corporations that engage in activities that in general community majorities find to be harmful — that those individuals benefitting from those harmful activities are not responsible for the harm. That’s the joy of a limited liability.
On top of that, they get an extra scoop of rights to come in to your community as a corporation. As individuals, every member of the board of directors of a corporations has individual constitutional protections. As individuals, every investor in a corporation retains those rights — not the responsibilities for the harms they inflict using that legal tool of the corporation when they enter your community. They hold on to their rights and they aren’t responsible for the actions.
Now, I know you’re at a good spot here where you can potentially adopt land use laws to actually prohibit … keep out the drilling for now. You can’t use other types of laws because you have been preempted from doing so. In Pennsylvania and Ohio, in Maryland and West Virginia, communities there have no such comparable Home Rule power through land use laws. So, what do they do and what have they begun to do?
Well, in Pittsburg, which is probably the one community that you may have heard of dealing with it in this way, in a community rights forum … What they’ve done is, they adopted a law — and I’ll just describe it in general terms. It’s not simply an outright prohibition on gas drilling, although it does prohibit gas drilling. That’s not where it starts. We refer to them as “community rights laws” because it starts with a local bill of rights that enumerate rights such as the right to local self-government on issues with direct impact on the community — the assertion that the state does not have the authority to license corporations to engage in activities that actually violate the rights of the members of the community.
We actually are self-governing people with rights that we retain and have not surrendered, and we’re going to act on that premise, and if the state believes we do not have the right to protect our health, safety, welfare, quality of life, natural environment, they’ll need to come and take away our rights ’cause we’re not going to sit on our hands and act as though we do not have those rights. That’s a pretty profound and provocative thing for them to do, I admit it. And they didn’t do it lightly. And we don’t engage … The Legal Defense Fund does not engage in the kind of community organizing that we do lightly either.
But when the consent of the governed is denied, and when private interests are licensed to engage in activities against the consent of the governed, we’re left with a question of what to do about it, and I think maybe there’s about three choices that we can select from, and I mean it sincerely — it’s not up to me to decide for any given community. I have a voice in my own, but not in yours or anyone else’s. Which choice your community takes is up to you and your community, and I’m not being sarcastic about it when I go through these three choices, the first one being, you can decide to do nothing.
And even with the strength of your land use laws in New York, the ability to use them to stop the drilling, there will be communities, I dare say, that will decide to do nothing — they won’t pursue that. They may not be convinced. And Helen, I hope you do convince them because I think it would behoove them all to do it, if at minimum to do that. Absolutely.
But some won’t do it, and they’ll have arguments to say — and I don’t mean … again, this isn’t meant in any judgmental way — “Well, we’re too busy; we’re not really that concerned about it.” Whatever the reasons are, that is a valid choice. But we’re the adults in the room and we’re responsible for the outcomes of our decisions, and if we decide to do nothing, and the outcome of our decision is that our communities are destroyed for future generations to live in them and enjoy their natural environment, their drinking water and the rest of it, we are responsible to that choice; we in our communities are responsible for those choices.
The second of three possible decisions we might make is to attempt to use existing structure of law to create the outcomes that we want. We don’t want drilling; let’s try to use the laws we have, and that means use your land use laws to try and stop the drilling. But you can’t use other types of laws; you don’t have regulatory authority over the industry in your municipality, so you don’t have that option.
What we can try to do is regulate it. In general, that’s what we’re given. What does it mean to regulate? It doesn’t mean to disallow. It means to allow under certain conditions. And so, a community might say, “Well, we’re not really going to impose land use laws that have the effect of eliminating the drilling; we’re going to allow it in certain places,” which means we’re going to decide which parts of our municipality to surrender to the industry — that’s a choice. I think doing nothing and using existing law, you have a very strong possibility of getting fracked — a very strong possibility.
The third option is the one that the Legal Defense Fund has been pursing and advising communities on, and it has to do with acting on the premise that you already have the right to say “no,” that you already have the right to protect your community, your families, your kids, your property values, your drinking water — that those are fundamental rights. It’s a crazy thing — in Pennsylvania we actually have it. It says it right in the Constitution, Article 1, Section 27, that we have a right to clean air, clean water, clean soil, and that the state has the responsibility to protect the resources of the state and to be the steward of those resources for all of Pennsylvania for generations to come. And then the Supreme Court of the state says things like, “However, Article 1, Declaration of Rights — those rights are actually non-self-executing.” I’m not a lawyer, if I didn’t mention that, but sometimes they say silly things like that, which is to say, “These rights — long list of rights — they’re not self-executing.”
What does that mean? It means that the state has not created explicit statutory law to tell us how we’re allowed to enjoy those rights. I know I’m speaking colloquially; I’m not being precise in my legal language. I engage in community organizing around these issues, and I think it’s important for people to understand what it is — what does it really mean?
And what we’re being told is, the right to clean air, clean water and the rest of it — well, that’s protected by the Department of Environmental Protection. The laws and the regulations of the state through that agency — that’s how we can enjoy those rights. And then we look to see what those agencies actually do. They issue permits to industry to engage in activities that the people in our communities are told they have no authority to say “no” to — and that’s how our rights get protected.
What can we do in anticipation of New York going the way of Pennsylvania and Ohio and Maryland and West Virginia? There really are differences among the states in terms of Home Rule authority. About 46 states have some form of Home Rule at the municipal level. Some of it is statutory; some of it’s constitutional; some of it is a mix.
In Pennsylvania, in 1968, they amended the state constitution to allow for municipal home rule. Well, we’ve got quite a few municipalities in Pennsylvania; 67 of them have decided to go Home Rule. Why so few? Because the state legislature has been very busy since 1968 adopting laws that newly preempt Home Rule authority. So, we had statutory municipalities before, and they were being preempted; and now we have Home Rule communities and their local Home Rule authority is being whittled away one after another.
How does that happen? Our experience is that industry has the ear of our legislators. And, for instance, when the DEP talks about their clients, they’re talking about the industries that they’re charged with assisting to engage in the activities that they permit. It’s kind of an upside-down view of what an environmental agency might do.
So, by the way, is the regulatory system of most states, including New York, where when it comes to preemptive power, what they say is, “Here is the maximum amount of protection legally that a municipality will be offered — that the members of a municipality will be offered by the state.” And you would be acting beyond your authority to adopt laws that regulate that industry any more strictly and offer more protection to your community. If we had legislatures who considered the human beings in the state to be their constituents, we might see a regulatory regime that said, “Here is the minimum amount of protection every community must offer its members, and if they so decide, they can impose more strict regulations to protect the health, safety and welfare of their communities.” Just the opposite is the case.
What we’re suggesting is that communities take seriously their rights — and members of the communities take seriously the rights. When Pittsburgh adopted their ordinance, they were not the first in Pennsylvania or the first in other states … By the way, we have worked in communities in New Hampshire, in Maine, in Virginia and elsewhere where local laws have been adopted that stand in the face of state preemption and challenge those laws and say, “The state is acting beyond its authority to deprive the rights of the members of this community by licensing state-chartered corporations to engage in activities that threaten our rights.” The ordinances do a couple of other interesting things. They recognize the inalienable rights of natural communities and ecosystems to exist and flourish — what does that mean? And does it mean that the communities that adopted these ordinances have all gone “enviro,” or turned into Druids or something? No, it doesn’t mean that.
Most of the communities that have adopted rights-of-nature provisions have been what I would describe as rather conservative, but they understand the real pragmatic reason for doing so. When it comes to protecting your environment — and yes, we can litigate over anything we want to … But if you want to sue a corporation for engaging in a harmful activity in your community and you go to court, one of the first things they’re going to ask is, “Well, what’s your interest in this?” to explore to see if you have standing. Are you actually going to be materially harmed, or have you been materially harmed by this corporate activity? In other words, do you own the land that’s been harmed? Has your property value been damaged? Something along those lines. And if the answer is “No, I live on the other side of town but I just didn’t want to see our environment destroyed,” your case is dismissed.
What if, in your bill of rights, in a community rights ordinance you include a recognition of the rights of ecosystems to exist and flourish, and you further recognize that every member of the community has legal standing to advocate for those rights in a court of law? And then the legal relationship in terms of property is not the relevant question. The question is, “Have these rights been violated?”
One other provision, which is a key one … Sometimes we’re told what we’re really interested in is just getting rid of corporate rights, and there’s bill of rights protections that corporations have been granted.
We have a provision in the ordinance that says corporations that would violate the prohibitions of this law will not be recognized to have the legal protections of the Bill of Rights and similar protections of state law. Why would we do that? It’s not just because we want to be nasty. It’s because people in our communities are at disadvantages when lawyers for corporations come in and they say, “We’re suing; we’re bringing a Section 1983 lawsuit, which is a civil rights lawsuit, on behalf of the civil rights of the corporation that are being violated.” It’s that “takings” thing. “Takings” means that your Fifth Amendment protections of government not to take private property for public use without just compensation are being violated. And a corporation lawyer comes in and claims, “That’s exactly what your municipality’s doing to us by adopting a local law that says we can’t access our minerals, or we can’t exercise the lease, or the permit.” That’s the type of argument we get.
Nullifying that claim is not about stripping rights from corporations; it’s about making sure that the rights of the members of the community are understood to be superior to the privileges of state-chartered corporations — chartered corporations, and they are chartered by the state legislature in the name of the people. The state cannot turn around, not legitimately, and issue permits to them in a way that would have the effect of violating the rights of the very people who chartered the corporation. It’s a Frankenstein model. It makes no sense to allow that to stand, and so we do challenge that.
This is very provocative stuff. We know it. We understand that this isn’t for everybody, because it takes a lot to explain it, and I, with 30 minutes quite frankly, have really but scratched the surface.
What would we suggest in terms of New York and where you are? And again, it’s back to the cautionary tale, and I think the precautionary measures that I would suggest, we would suggest, which is to say, put in place your land use laws to eliminate the use of land for gas extraction, combined with community rights provisions that recognize that you’re doing so not only because you acknowledge the authority of the state which has devolved these powers to you, but also because you understand and embrace the rights of the community to adopt laws and have the effect of governing state-chartered corporations in the name of the people. This is about, I believe, putting in place local laws that anticipate the possibility of losing the one tool you do have right now. I wish you had more tools, because in a self-governing democracy, the people wouldn’t simply be allowed one last shot at self-governance through land use; it would actually be a broad spectrum of authority understood and recognized by the state.
There’s a lot to this, and if you have further questions, I’m happy to answer them. Thanks.
Conway: Thank you, Ben.
Ben, our first question: “What role, or what impact, if any, would a public health officer in a town or the county or public health law have on gas drilling?” Can public health issues be used in a town ordinance to prohibit gas drilling?
Price: I’m not going to presume to speak on New York law specifically. I’m not an attorney to begin with, but New York law — I’m familiar with it to the degree I am.
When we talk about a bill of rights and these local ordinances, they’re not limited in scope. I mean, if it’s a matter of retained rights of the people being enumerated locally, and prohibitions being put in place as Pittsburgh did, the prohibition on gas drilling is not simply a free-floating prohibition. It’s put in place, and specifically the language of the law says, “This prohibition is intended to protect the rights enumerated in this ordinance.” And so, a right to health and not to have health damaged would seem to be a legitimate jumping-off point for prohibition on drilling.
Conway: Ben, you mentioned the Pennsylvania State Constitution. I’m not sure if you can address this, but, “Does New York have the same right to clean water, land, soil, in our state constitution, and can we enact a ban or a bill of rights at the same time? And once a ban or a bill of rights is enacted, can it be overturned once it’s passed?”
Price: To my knowledge, the New York Constitution isn’t quite as explicit as Pennsylvania’s, but it’s not based on Pennsylvania’s constitution that these ordinances are being drawn up the way they are. We’re not claiming that we get our authority or our rights from Article 1, Section 27 of the Pennsylvania Constitution. That right preexists the Pennsylvania Constitution.
The theory of government, in this country at least, going all the way back to the Declaration of Independence — it declares that governments are instituted — what for? — by the people to defend and protect their rights. And when governments no longer act in that manner, then it is not only the right, but it says the duty of people to alter or abolish it.
So, the rights precede the constitution, and it doesn’t matter whether you have that language in the New York Constitution. That’s not the question to ask on whether or not you can institute local bills of rights that recognize those rights. Retained rights — I mean, if you want to look for a place, the Ninth Amendment of the U.S. Constitution talks about unenumerated rights being retained by the people. Unenumerated — just because there’s 10 amendments to the Constitution early on doesn’t mean that the listing of those rights is exhaustive. Unenumerated rights are retained by the people. Let’s enumerate them and protect them.
Conway: Ben, if corporations are considered a person, as has become prevalent of late, do they have the same protections as a person might expect?
Price: Well, the same and more. And there are specific examples I could give. There are particular amendments to the Constitution that corporate attorneys will claim belong to corporations now. The 14th Amendment was the first one, and it guaranteed equal protection of the law and due process of law. The 14th Amendment was adopted after the Civil War. The 13th Amendment ended slavery, and the 14th Amendment — at least as I read it, and many folks read it — was intended to guarantee equal protection of the law and due process of the law to those freed slaves — and, by the way, to everyone, ’cause it didn’t mention that it was just freed slaves.
The courts looked at the word “person” and the second clause of that amendment, and determined in 1886 that the word “person” also referred to corporations as well, and in that particular case, the Santa Clara case, decided that corporations had the 14th Amendment protection of equal protection of the law, which was the foot in the door, and now we see that corporations are recognized to have First Amendment free speech protections — that was first decided in the Bilotti case of 1978; it wasn’t the Citizens United case that actually opened that can of worms; that was just the cherry on top.
You know, Fifth Amendment protections — wonderful stuff. In 1922, Pennsylvania had a state law on the books that said corporations must leave columns of coal under the ground. They couldn’t just strip out all of the coal with the effect of the surface collapsing in, subsidence, destroying surface properties and ponds and having streams disappear, and the rest of it.
Well, Pennsylvania Coal Company went to court and they got a nice decision from the Supreme Court that said, “You know, that’s a violation of the Fifth Amendment protections of that corporation under the ‘Takings’ clause, because making them leave their coal underground — those pillars of coal — that’s their property. It’s stuff they could have harvested and made a profit selling on the market. And so, you can’t make them … Pennsylvania … you can’t make them leave that there.” And the state law was overturned.
It’s a bizarre thing. Do corporations have the same rights as people? I don’t know. I think that in that case, and in many similar cases, in fact the people living on the surface lost their rights and the corporations gained them.
And by the way, it wasn’t just the Pennsylvania Coal Company that gained that Fifth Amendment “Takings” protection. It was every corporation in the country. Every time that the U.S. Supreme Court decides to find, to discover, corporations in the U.S. Constitution, the word doesn’t appear there, by the way. Every time they discover corporations in the Constitution, that’s a discovery for every corporation, not just for the one that goes to court. We don’t get such benefits when we get a court decision in general.
And by the way, future lost profits as a property right belonging to corporations — can you imagine? I’m going to exaggerate a little bit here, but what if you went down to a nearby business, filled out a job application, and said, “I’d like this job,” and you got turned down? Imagine trying to sue for the future profits you could have made if they’d have only hired you. Well, it sounds absurd, I know. I think it’s absurd that a corporation could, under any guise, say that the gas they have plans to retrieve is something that they can claim a vested property right in under any guise.
Conway: Okay, we’re going to call this the last question, and I’m combining a bunch here, Ben, so I’d ask you to try to address this in its entirety as quickly as possible. A number of people expressed kind of a helplessness here. “Are there any actions that citizen groups can take if their townships are all pro-drilling? How does a resident stop a test well from becoming a production well now, and, based on your experience, what is the timeframe it would take to put your community rights provisions into effect?”
Price: The work we do really is not so much about making sure that we stop drilling, just to be honest with you. Our job is to make sure that we attempt to empower community majorities to establish local control to the greatest degree possible.
Having said that, if you have a community majority that is against gas drilling, how long would it take to get an ordinance in place? In general, the process I’m used to in Pennsylvania and elsewhere — there’s usually … there’s a legal process you have to go through of advertising a proposed ordinance at one meeting, and then as soon as possible would be to have a hearing, and then maybe a vote on it at that very meeting. So, a couple of months. But that’s a couple of months after you’ve persuaded your community, “This is the way to go”; after you’ve secured and persuaded your local officials to vote in the affirmative, assuming you don’t have initiative and referendum; and also, assuming that you’ve got the language in place. We don’t simply hand communities, “Here’s the finished product,” and say, “There it is; go with it.”
We engage in a real dialogue with people in the community; find out what it is precisely they want to do. We have some communities, all they want to do is ban drilling — that’s it. Someone’ll say, “We want to ban drilling. We also want to ban them from depositing the frack water anywhere in our community. We want to ban them from withdrawing water and using that for the drilling process, even if they don’t do it in our community.” There are a number of things that we can discuss about what outcome you’re looking for — what the law’s going to look for. Length of process — it varies. The shortest would be a couple of months. That would be real fast, I think.
You can listen to the complete program here.
By Sabrina Artel, AlterNet
Full url: http://www.alternet.org/water/151646/banning_corporate_personhood_how_communities_are_taking_the_law_back_from_big_companies?page=entire
Sabrina Artel is the creator and host of Trailer Talk, stories from America’s kitchen table. Her weekly radio show explores community engagement through conversations about culture, politics, the arts and the environment. To find out more about Trailer Talk’s Frack Talk Marcellus Shale Water Project please visit Trailer Talk.