The following was co-authored with Sara Cromwell and Sarah Owens, members of the IOPS Oregon Chapter, and posted primarily for other IOPS U.S. chapters who might be considering strategic alliances with so-called “community rights” organizations. It is written from the perspective of participatory societal values with full knowledge that some visitors to IOPS who read it may disagree with our assessment, based on their own perspective and values. However, it is offered to all readers only as information/opinion, and not advice, and should not substitute for case-by-case analysis based on individual circumstances. We undertook this work because community rights-based activity is on the increase in Oregon, and, when we went looking for information, we could find very little critical analysis of the movement from a left perspective, and even less in the way of legal analysis. If you read it, we hope you find it helpful, or at least informative.
“Community Rights” as an Organizing Strategy
The path to a better future includes creating experiments in its image in the present, yes, but it also includes a long march through existing institutions, battling for changes that improve people’s lives today. Fanfare for the Future, Volume 3, by Michael Albert, Jessica Azulay and David Marty at 130 (ZBooks, 2012).
Demands made against existing institutions ought to enhance people’s lives, advance the likelihood of further successful struggle, and advance the consciousness and organizational capacity to pursue those further aims. These provide the yardsticks for measuring success. Fanfare for the Future, Volume 3, by Michael Albert, Jessica Azulay and David Marty at 130 (ZBooks, 2012).
We became interested in “community rights” through a friend who was enthusiastically recommending it and the Community Environmental Legal Defense Fund (CELDF) to just about everyone he knew. We’d heard of CELDF before, but never gave it much attention. That changed when CELDF started promoting “community rights” here in Oregon.
"Community rights" is CELDF’s fourth phase, or strategy, for protecting local communities against unwanted corporate business operations. The first, was to challenge land use permit applications, which often delayed, but ultimately failed to prevent the offending corporate activity. The second was to assist communities to enact ordinances asserting “their right to self-govern.” The third (Democracy School Online Part VII at ~17:00 to 23:00) was to assist communities to enact ordinances that purported to strip corporations of their constitutional rights. A few years later, CELDF conceived and launched its “community rights” strategy.
Now, some may be wondering, just what are “community rights”, and why haven’t they been invoked previously? Well, advocates maintain that they are “the same [rights] as those in the Declaration of Independence, especially our right to local self-governance”, whereby communities may "reject unsustainable economic and environmental policies set by state and federal governments" (see Mission Statement).
U.S.ians who remember their high school civics instruction will recall that the Declaration of Independence listed the grievances the American colonies (i.e., states) had against the King of England and that, based on those grievances, the signers of the document declared that “these United Colonies are, and of Right ought to be, Free and Independent States” and that “they are Absolved from all Allegiance to the British Crown.” According to the Declaration, the rationale supporting that rebellious act goes something like this: (1) the people have “certain inalienable [r]ights,” which include “[l]ife, [l]iberty, and the pursuit of happiness”; (2) “[g]overnments” are established “to secure these rights” and derive “their just powers from the consent of the governed“; and (3) when “any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government.” The Declaration of Independence did not “institute [a] new government” to secure these, or any other, “rights.” The Constitution of the United States, which was adopted 15 years later, did establish a “new government,” and, in addition, guaranteed certain rights to individuals and the states and established an amendment process by which the provisions of the Constitution could be altered. The Constitution does not refer to the Declaration of Independence, and Article VI of the document states:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
So, contrary to the claim of community righters, the Declaration of Independence is not the source of, or authority for, any legally enforceable right, much less “community rights.”
“Community rights” rhetoric continually conflates the right of “self-governance” -- which the Constitution recognizes through its amendment process -- with the hoped-for right to local self-governance, which the Constitution does not recognize. Therefore, even if the voters in Lane County or Benton County (Oregon) were to enact their community rights measures, all the provisions that conflict with the Constitution, federal statutes, or state law (which means virtually all the provisions community righters care about) would be unenforceable, a fact that CELDF and some, but not all, community righters know. But, are “community rights” nevertheless a good idea?
As Michael Lilliquist (Bellingham Washington City Councilor) and David MacLeod (Integral Permaculture publisher) have pointed out, “[h]yper-local democracy is a dangerous and potentially corrupting tool; you don’t want to use a tool which you would not allow others to use.” But, except for the requirement of a majority vote, “community rights” proponents have not identified any limitations on these rights. To them, the “right to local self-governance” means that cities and counties can, if they choose, exempt themselves from any state or federal law or regulation that they don’t like. So, for example, a county could adopt an ordinance prohibiting construction of an interstate highway across its boundaries, or an ordinance barring Latinos from renting or owning homes in the area, or, as David MacLeod observed, counties and cities could overturn legally sound state and federal environmental regulations, “which is exactly what the Tea Party wants to do.” Sound like a good idea to you?
Although it purports to provide cities and counties with the means to protect themselves against environmental degradation, the “community rights” movement is based on a theory of “local” self-governance and autonomy that, if applied everywhere, would almost certainly result in a patchwork approach to environmental protection. It is unreasonable to assume (as “community rights” advocates apparently do) that local communities will be any more immune to capitalist influences than the federal government or the states are, and there’s every reason to think that, for every pro-environment measure, there is likely to be a competing pro-industry measure. What if the Josephine County (Oregon) anti-GMO ordinance was enacted, but the anti-GMO ordinance on the ballot in neighboring Jackson County was not? Aquifers, rivers and streams, and the wind and the rain do not start and stop at local political boundaries; in other words, there are few, if any, completely self-contained "local" natural environments.
There is further irony in the movement’s claim to be promoting democracy, when, in fact, its brand of local self-governance would promote a sort of tribalism and insularity that are inimical to solidarity and shared responsibility. Michael Lilliquist notes correctly that "the people’s sovereignty is embodied collectively not separately by the federal and state and local governments” and that “[e]very city is not and cannot be sovereign and independent." As Lilliquist further observes, the effort to enact local ordinances that are unenforceable (because they are in direct conflict with federal and state law) “is practically designed to create a constitutional showdown between local and federal government -- but that’s not what most people are concerned about. The common target of concern is the influence of corporations in our political and legal and regulatory systems."
The questions and concerns we’ve outlined here are those that any citizen in a community considering a “community rights” ordinance could be expected to raise. Yet, neither CELDF Projects Director Ben Price in his response to MacLeod’s blog, nor the “community rights” advocacy group Coal Free Bellingham in its response to Lilliquist’s assessment of their proposed ordinance, answered or addressed them in a direct, meaningful way. Their refusal (or inability) to do so is further evidence that this model for “local self-governance” can’t withstand much scrutiny.
The “community rights” strategy, like many strategies, is complex and hard to pin down. In the words of one advocate, you have to “mobilize a majority of the people” in a community, “underneath an ordinance vehicle” that “declares” their community rights, “a new structure of law” for the community will be established, causing the community to come into “direct confrontation with the corporate entities seeking to abuse what is within our community.” If that strikes you as somewhat obscure, try the descriptions here and here).
We think the strategy boils down to this: First, convince people who oppose an ongoing or proposed local activity (1) that efforts at regulation or law reform would be pointless, (2) that there is legal authority for the right to local self-governance, (3) that “community rights” measures like this and this and this, if enacted, are “legally binding” and will protect the community from the objectionable activity, and (4) that, if such measures fail to pass or are overturned, set aside or repealed, it is because the legal system is flawed or the community lacked courage and not because the measures themselves were patently unreasonable, unconstitutional, or unworkable. Then, tell people it’s a “win-win” strategy, because enacting or attempting to enact such measures will, over time, through some unspecified process, “drive” community rights “into law”, and hide or downplay the expectation that “winning” will require massive numbers to “rise up to demand a new structure” of law in a “complete revolt of sorts” that won’t occur for decades. It also helps to motivate people if you tell them that the “community rights” strategy is substantially similar to the abolitionist, suffrage and civil rights movements’ strategies, thereby putting “community rights” activism on a moral and historical par with activism in the name of civil rights and the right to equal justice under the law. (Understanding how intelligent people have come to have these false expectations requires a detailed examination of CELDF propaganda, especially its “Democracy School” curriculum, which we intend to undertake in a subsequent blog.)
The actual consequences of this organizational strategy are likely to include: (1) substantial legal costs to cities and counties forced to defend ultimately indefensible ordinances in state and federal courts and, in some cases, pay damages to the individuals and businesses who bring the lawsuits; (2) lost-opportunity costs that result when motivated citizens spend time and energy on these ordinances instead of participating in regulatory processes, law reform actions, coalition-building and meaningful protests; (3) divided communities like Mora County, New Mexico; (4) disappointment and disillusionment when, because they are illegal and unenforceable, the ordinances turn out to be ineffective to stop the activities from which they were supposed to protect the community; and (5) the enactment of “backlash” legislation like Pennsylvania’s ACRE and Oregon’s Senate Bill 863. About 10,000 citizens of Bellingham, Washington, signed a petition to put Coal Free Bellingham’s Community Bill of Rights on the ballot last year. We very much doubt that the signature gatherers told those folks when they signed the petitions that the proposed ordinance was unconstitutional and would be unenforceable, even if adopted.
It appears that, despite years spent implementing its “community rights” strategy, CELDF has never undertaken a comprehensive review and analysis to determine whether or how well it is achieving the advertised goal of actually protecting communities from harmful or unwanted activity. Or, if it has, it has not shared the results. Of equal, if not greater, concern is the absence of any vision for the new “structure of law” that is expected to be established as a result of the “community rights” strategy. Without such a vision, there can be no real effort to prepare and develop prefigurative institutions, roles and skills, and, consequently, nothing to prevent a prompt and successful counterrevolution and return to the old “structure of law” with the multi-national corporations, again, in control.
For the reasons discussed above, we think the community rights strategy fails to measure up to the yardstick for success set out in the Fanfare quotes at the top of this blog, which requires that demands made against existing institutions enhance people’s lives, advance the likelihood of further successful struggle, and advance consciousness and organizational capacity to pursue our efforts to plant the seeds of the future in the present. IOPS members should weigh very carefully whether to associate strategically or otherwise with community rights advocacy groups in their region.
Revised 3/22/14 to correct the spelling of David MacLeod's name.
3/24 Update: we have reliable information that CELDF’s response to this blog was posted in the comments under the pseudonym “Ivan Illich.”
3/29 Update: "Ivan Illich" reports that although he associates with CELDF and community rights groups, he is not CELDF staff and does not represent CELDF.
2/13/15 Update: Rick Nikolewski reports for Watchdog.org that the US District Court invalidated the Mora County, NM's ordinance and may award tens or hundreds of thousands in attorney fees against the County. (This and a similar suit were settled in April .)
6/29/15 Update: Richard Valdmanis reports for Reuters that "Linzey says his goal is not to write local laws that are popular, or stand up in court, but rather to trigger a public debate about community rights to local self-government - even if it means a community ultimately falls into financial ruin.
"If enough of these cases get in front of a judge, there is a chance we could start to have an impact within the judiciary," said Linzey. "And if a town goes bankrupt trying to defend one of our ordinances, well, perhaps that's exactly what is needed to trigger a national movement.""
Valdmanis notes that "The group [CELDF] has never won a case that went to court." (from "Green Group's Unconventional Fight Against Fracking")