For all the enthusiasm that “going local” has garnered in recent years, securing local control as a legal entitlement is generally a very different matter. Federal and state law tend to place strict limits on what local communities can do to protect themselves from outside commercial forces.
A hearty salute, then, to the path-breaking work by the Community Environmental Legal Defense Fund, a Pennsylvania nonprofit that provides legal advice and advocacy for municipal governments and, more recently, international allies. Journalist Barry Yeoman has a terrific profile of CELDF, Rebel Towns,” in the latest issue of The Nation (February 4).
The truth of the matter is that local communities don’t really have much legal authority to prohibit polluters and extractive industries (mining, water-bottling, timber companies) from coming into their towns and ruining the place. In the U.S., at least, and in most other places around the world, national governments have the sovereign power to override local authorities, and they are only too willing to do so. After all, politicians’ partnerships with major industries help grow the economy, boost tax revenues and reap political contributions to repeat the whole cycle.
Of course, the “market externalities” that result -- poisoned soil, polluted rivers, etc. – aren’t taken into account. The traditional response of public-interest attorneys is to “work within the system” to deal with these problems, using available laws and judicial processes.
Thomas Linzey, the 43-year-old lawyer who started CELDF, came to the conclusion that the only real way to make progress, nowadays, is through open defiance and civil disobedience. The system is just too compromised to yield reliable democratic outcomes. Yeoman writes: “He [Linzey] compares this to northern jurors who refused to convict defendants in fugitive slave cases, suffragists who risked arrest to vote and African-Americans who sat down at segregated lunch counters. “Change does not happen by silver-tongued lawyers going into courthouses,’ he says. “The only way law changes is through disobedience.”
Linzey and his team have worked with over 110 municipalities in Pennsylvania, New Hampshire, Maine and Virginia to draft and enact new municipal ordinances – to prevent the siting of factory hog farms, groundwater extraction by bottling companies and the construction of wind farms that would ruin rural ridge-lines and send the electricity to the cities. CELDF has even gone international, advising Ecuador how to insert a provision in its constitution giving nature a legal right of “respect for its existence and for the maintenance and regeneration of its life cycles” – a provision that has been used to prevent illegal mining and road construction.
There are some activists who believe that CELDF’s legal work detracts from conventional advocacy and litigation because it is so likely to be ruled unconstitutional. Why waste time and money on hopeless tactics? But CELDF is gaining greater currency precisely because the conventional channels of policymaking and legal redress are so corrupted. Why waste time and money on a charade that merely legitimizes eco-destructive practices? Since international treaties and national constitutions generally preempt local control, and citizen access to legislatures and treaty-negotiations have been safely captured by Exxon, Wal-mart, Comcast and all the other big national and transnational corporations, why should citizens participate in such scams?
“The whole regulatory business feels like being a hamster in a hamster wheel,” one citizen told Yeoman. It is a lawyer- and expert-dominated charade that is politically manipulated, notwithstanding the scientific evidence, and assisted by politicians bought off by corporate campaign contributions.
International attorney Polly Higgins has come to a similar conclusion in her “Stop Ecocide” campaign. She proposes local empowerment as a necessary step in mobilizing citizens and changing the political narrative. As her website puts it:
By setting out what your community cares about (this includes tangible assets as well as intangible values), a community can put in place the enabling conditions so that their values are upheld. In the UK, there is now a law so that local communities can register their land-based assets (Localism Act) and in many other countries many other communities are putting in place lists of what they value and care about (e.g. in the US) without waiting for a law to be put in place.
By shifting the narrative, a community can establish their own ground rules – what they wish to put in place for the benefit of their own people and for future generations. When that happens, a community can set in place their overriding values and make the most of the wedges of opportunity that can be widened. Our rights and obligations go hand in hand, and by assessing our community values and how we want to life in our communities, we can open up the opportunity to envision a better world where we live in harmony with nature rather than bearing witness to its destruction.
Campaigns for local empowerment will be an uphill battle, not least because the law is so stacked against them. There is also the complicating reality that sometimes national and international legal principles should prevail. But at a time when the market/state duopoly has strayed so far from democratic access and accountability, it is now clear that the only transformative solutions to the existing drift of “market progress” (i.e., ecocide) will require mobilization “from below.”
If that means that municipalities have to engage in civil disobedience to be heard, why then, let them make the most of it. Their protests should be heard. A candid world will then be allowed to judge who’s on the side of earth justice. In times of reactionary entrenchment, as reformers from Gandhi to King have shown, sometimes law can only be changed from outside of the law.