Thomas Linzey
Bringing Democracy Back to America
Bringing Democracy Back to America
By Stephanie Marohn
stephaniemarohn.com
stephaniemarohn.com
North Bay Natural Pages
(October 2007 – March 2008)
(October 2007 – March 2008)
Email: www.naturalpages.com
In the past few years, the citizens of 100 towns in rural Pennsylvania have discovered that they have no say in what goes on in their community. They have discovered that the government and the courts they thought were there to protect them are actually working for someone else.
Determined to safeguard their homes and families, they have found a way to stand up to the formidable forces arrayed against them. They found attorney Thomas Linzey and the Community Environmental Legal Defense Fund (CELDF), a nonprofit law firm in Chambersburg, Pennsylvania, of which he is executive director and cofounder. CELDF provides legal services to groups and local governments seeking to protect their community's quality of life and natural environment.
With Linzey's help, the residents of the 100 towns have taken back their right to self-govern and are rebuilding democracy from the ground up, despite lawsuits filed against them by the state's attorney general.
How Conservative Townsfolk Became Revolutionaries
So what is going on in these 100 towns? The same thing that is, unfortunately, happening all over the United States: Corporations want to use property in a town for a purpose the townspeople don't want, and force their way in with the help of state and federal government and the legal system.
In this case, the corporations are factory pig farms (agribusiness) and sewage waste disposal (land-applied sewage sludge), both of which are hazardous to the health of humans and the environment.
All 100 communities, in 11 counties in central Pennsylvania, passed local ordinances to keep the corporations out. The state responded by enacting legislation allowing the state attorney general to sue municipalities to overturn such ordinances on the grounds that they are illegal and unconstitutional. Pennsylvania's liberal governor signed the bill into law and the attorney general has already filed five lawsuits against the resisting municipalities.
“People have had the veil ripped away from their eyes,” says Linzey. “They're saying, 'We thought the state was here to help us, we thought the state was us, yet here's the state stepping in to stomp us.'”
Unless a courageous judge refuses to uphold the law, the citizens won't find help in the courtroom either. The problem stems from an 1886 U.S. Supreme Court ruling that granted corporations “personhood,” with all the rights that go with that, including due process and equal protection. Corporations have been using that early precedent ever since to sue actual people (local governments) for violating their constitutional rights.
With the mega-resources that mega-corporations have at their disposal, any legal battle is ridiculously one-sided. In addition, with the rights of personhood, corporations can argue that people who try to stop them from coming into an area are interfering with their “personal” right to conduct business. This is absurdly unfair, as the mega-businesses they conduct have a gigantic environmental and human impact, so far beyond that of “persons” and small businesses that they cannot even be compared.
The upshot is that as long as corporations are legally viewed as “persons,” real people have no real recourse against them. This is why Linzey and CELDF are helping municipalities to write ordinances stripping corporations of their
personhood and even, in some cases, to rewrite their local constitutions to override state and federal government.
So far, five years after the first towns in Pennsylvania stood up to the factory farms and the sewage sludge corporations, not one new factory farm or “one new teaspoon of sludge,” as Linzey puts it, has gone into the 100 communities.
The fight is far from over, however. The lawsuits are winding their way through the judicial system, but the townspeople in this traditionally conservative region of the state vow they will not submit, even to judges' rulings. Their experience has turned them into revolutionaries akin to the early colonists resisting the rule of the English monarchy. They now see that we do not have a democracy in this country, says Linzey, and have learned
that it's up to them to take back their right to govern themselves.
Guess What? We Don't Live in a Democracy
It was difficult for people involved in the Pennsylvania fight to believe at first that a clear majority vote in their community could be overridden by outside interests and that the government was not on their side. Linzey has seen the same initial disbelief in people in other states (Virginia, New Hampshire, New York, Ohio, and Alaska) where CELDF has helped communities engaged in similar battles. “We thought the state was here to help us. We thought the state was us, yet here's the state stepping in to stomp us.”
Their experiences soon dispel the disbelief, however. “People with their backs up against the wall come out kicking,” observes Linzey. “That's when the organizing happens, when people understand that the system has not left them any other choice but to revolt.”
What small-town America is learning is that “there is a corporate class in this country, a select number of people who operate the largest corporations that do business in the U.S,” says Linzey. “And governance has been stripped away from the people and given to a very few people whose decisions automatically trump and override community majorities.”
Though our schools teach that this country was founded as a democracy, Linzey and others trace the history of corporate control back to America's inception. “One of the reasons for the Constitution was to create a centralized federal government that had ultimate power over commerce, because George Washington and other land speculators were trying to build canals in between the states and they wanted a strong centralized federal government that had the power to override the state objections to that type of economic development,” Linzey explains. “And so they wrote a centralized federal government plan that in essence and on paper—it's in the Constitution—places the federal government in a preemptive position over all other local governments and municipalities in the United States.”
The fact that only white men of property were entitled to participate in the drafting of the Constitution, excluding 80% of the people in the country at that time, lends credence to the argument that we've never had a democracy. As does the fact that the Supreme Court accorded personhood to corporations before women or African-Americans enjoyed the same constitutional rights.
Proof of the existence of corporate control comes to the CELDF offices every day, Linzey reports. “What happens when communities actually stand up and say, 'We're going to make key governing decisions for ourselves about what the community's going to look like,' is that they get squashed by their own governmental institutions. And that there's a corporate state operating today that has nothing to do with democracy.”
This history and current reality are part of what people learn in the Daniel Pennock Democracy School, started by CELDF and Richard Grossman, writer, historian, and cofounder of the Program on Corporations, Law, and Democracy (POCLAD), named for a 17-year-old resident of Berks County, Pennsylvania, who died after exposure to land-applied sewage sludge, the school offers three-day trainings to provide people with the historical background, analysis of the regulatory system, and other information they need to oppose corporate control of their communities. Launched in Chambersburg, PA, Democracy Schools are now run in more than a dozen sites around the country, with more in the offing. Check their schedule at www.celdf.org for weekend programs near you.
A New Kind of Activism
When the Alabama-born Linzey, who earned his law degree at Widener in Harrisburg,PA, cofounded CELDF with Stacey Schmader in 1995, it was to represent groups across Pennsylvania in permit appeals in the environmental regulatory process. Linzey now calls this process the “regulatory chute”, because it funnels people into arguing over “parts per million or paper versus plastic or how many odors are going to be released or how much of the river is going to be polluted” instead of working to prevent the business from coming into a community and polluting at all.
After five years of being in the regulatory chute, Linzey was frustrated with the process and how little it accomplished for communities and the environment. He saw that this adherence to the regulatory model is the reason that 40 years of environmental activism in the United States has failed to stop degradation of the environment. “Our activism has been in the regulatory dump,” he says. “That's why today, by almost every environmental standard, things are worse in this country today than they were 40 years ago.”
“ Governance has been stripped away from the people and given to a very few people whose decisions automatically trump and override community majorities.”
After getting no recourse from the regulatory process through state departments of environmental protection and/or the federal Environmental Protection Agency (EPA), people come to Linzey and say, “The regulatory agencies are broken, because they're not protecting our health, safety, and welfare.” Linzey's response is “Maybe the regulatory agencies are working perfectly, because their job is not to protect your health, safety, and welfare, but to be a buffer between you on the ground and in your community and the corporations that are actually making the decisions to govern you.” As with the discovery that we do not live in a democracy, people are slow to believe that the agencies that, in theory, are supposed to be controlled by us are actually being used by a minority of people to squash us.”
The understanding that the conventional avenues of environmental activism were not working led Linzey to change CELDF's tactics from regulatory-based to community-based organizing. Now when communities come to him for help, their first step is to figure out how to regain control of their local government, if they don't already have it, or if they do, what ordinances they need to pass to keep the toxic waste incinerator, sewage sludge, factory farm, cell phone tower, or other environmental hazard out of their community.
“There's a corporate state operating today that has nothing to do with democracy.”
Whereas previously the work has happened town by town, which is slow going, recent developments in Virginia are taking democracy organizing to a new level. There, the people in three counties were told there was nothing they could do to stop the dumping in their communities of sewage sludge from New Jersey. They skipped their town governances and went right to the county governments to demand that they pass an ordinance to prohibit
the dumping. This puts the county board of supervisors in a difficult position because corporations have found yet another way to manipulate the law to force local governments into submission.
A telecommunications corporation (or rather, its lawyers) was responsible for dreaming up this new way to beat down communities. Linzey explains that the corporation invoked an old civil rights act, originally passed to protect the rights of newly emancipated slaves.
Clever manipulation of this act forces municipalities to allow installation of cell phone towers, for example. Corporations can use the act in this way because it does not specify African-Americans, but says only “persons.” Since the Supreme Court recognized corporations as persons, they are able not only to force the overturning of any ordinances or zoning barring the towers, which at least leaves the municipalities no worse off than before they passed the ordinance, but also to sue for “future lost profits” as a result of that ordinance being in operation.
“This means that the corporation doesn't have to put the cell phone tower in to make the money,” notes Linzey. “One way, they make it from the marketplace…. The other way, they make it from us, because they can sue the municipality for damages, and that's our taxpayer money.”
So the Virginia county governments face possible bankruptcy, if they do the bidding of the people they represent. As in Pennsylvania, however, the people in Virginia are determined not to back down. They are already looking to replace county supervisors who are not representing their wishes. And they're not buying the corporate spin doctors'
new terminology for land-applied sewage sludge: recycled biosolids. They know the potential health consequences of allowing sewage sludge into their neighborhoods and no sanitized names are going to change the fact that sludge typically carries pathogens, chemical carcinogens such as PCBs (polychlorinated biphenyls) and dioxins, heavy metals, and other toxins from processing shared with industrial toxic waste.
Linzey reports that CELDF is now encountering municipalities that are saying, “We'd rather go bankrupt than give in to the structure of law that has been manufactured to make us second-class citizens even though this is our own elected local government.” At the same time, interest in the Democracy Schools has increased. CELDF now gets requests every week from new locations wanting the three-day training in their area. In just the two years the schools have been in existence, they have graduated 2,000 people. This year, the number of Democracy School trainings across the country will rise to 150, with 15–20 people in each. “I think we're at a turning point,” Linzey says. “You can only regulate people so long. When people understand that they're remedy-less under the existing structure of law, they move forward to change it themselves.”
The American Way
Perhaps the grassroots struggle to wrest governance from corporate control is the next American uprising in our long tradition of uprisings in the name of justice. We have a history of going against the law when the law is unjust, beginning with the overthrow of British rule and taxation without representation. Unfortunately, the new country did not accord equal rights to all. Later movements had to break laws and enact new ones to change that. The abolitionists, the suffragists, the Civil Rights movement, and the labor movement all had to go against government and the legal system in pursuit of justice.
When enough people mass behind an issue, judges and juries begin to defy the law, says Linzey. He cites the examples of northern juries who refused to send escaped slaves back to the South, judges who refused to enforce the Fugitive Slave Act, and later judges who refused to enforce segregation during the Civil Rights movement. This is what needs to happen now regarding court rulings in favor of corporations over people. “Disobedience is the only thing that's going to get us out of this,” concludes Linzey.
Wild Law and Home Rule
New and creative approaches are what Americans need now to meet the challenge of trying to return governance to where it belongs: the people. In some cases, there are disused legal structures in place that communities can put to creative use. One such structure is home rule, which exists in some form in 37 states, including California.
Home rule delegates a state's power in specified fields to its counties, municipalities, and towns or townships, resulting in local autonomy and limited state intervention at the local level. The powers and limits vary from state to state. “Home rule allows communities to, in essence, make structures of law over the heads of their elected officials. It's almost like constitution making,” explains Linzey, noting that this is exactly what is happening in some of the 100 Pennsylvania towns. “People who understand that the system of law has to be changed and the Constitution has to be rewritten are now rewriting the Constitution themselves at the local level, to recognize rights for nature and ecosystems, strip corporations of rights, and expand the rights of people in communities.”
Rights for nature and ecosystems is one of the new, creative approaches and an emerging field of law that Thomas Linzey is championing. Known as “wild law,” it gives nature a place at the table, according nature legal “personhood.” With the help of CELDF, five municipalities (all in Pennsylvania) became the first in the U.S. to pass ordinances that strip corporations of their personhood status and give personhood to nature, Linzey reports. These “new-generation ordinances” as he calls them, recognize that nature and ecosystems have legally enforceable rights. The same ordinance dismantles corporate rights, which place property over nature.
Linzey believes that wild law is an idea whose time has come—see our feature article, Wild Law: The Rights of the Earth. Already, two law schools in Florida, the Barry and St. Thomas University Law Schools, are co-hosting the first “Rights of Nature” conference to be held in the United States. Linzey has been invited to be one of two keynote speakers; the other is South African lawyer and former anti-apartheid activist Cormac Cullinan, who is also the author of Wild Law and the person credited with coining the phrase.
www.enact-international.com
Last year, the same law schools opened the Center for Earth Jurisprudence to “reenvision law and governance in ways that support the well being of the Earth community as a whole, and to foster mutually enhancing relationships among humans and nature and recognize the rights of nature.”
After the April conference, Linzey and CELDF are going on a tour of law schools across the country “to begin to transform how environmental law is practiced in this country, to change it from a regulatory model to a rights-based model,” meaning the rights of nature and people.
Although these are exciting developments, Linzey sees a lot of hard work ahead. “What you're doing is building units of hardcore believers in democracy, who are not willing to be sold out or trade anything away for what they've obtained. And I think it means 10,000 to 100,000 communities across the U.S. rising up to say, 'We're not going to do this anymore. We're not going to tolerate this system of law anymore and we're going to rebuild this place.'”
All communities can be grateful that Thomas Linzey is on the job helping them do just that.
For more info, visit www.celdf.org or call 717-709-0457.
