Of Corporations, Law, and Democracy: Claiming the Rights of Communities and Nature
25th Annual E. F. Schumacher Lectures
October 2005, Stockbridge, Massachusetts
Edited by Hildegarde Hannum
Copyright © 2006 E. F. Schumacher Society (now New Economics Institute) and Thomas Linzey
By Thomas Linzey
Introduction by Christopher Lindstrom,
E. F. Schumacher Society
It was above all the concept of decentralism that brought me to the Schumacher Society, the idea of citizens coming together in their communities to find ways of creating a sustainable life on the local level rather than thinking our needs can be met by large and cold corporations and governments. Decentralism involves searching for solutions on an individual and family and community level.
In this regard it is my privilege to be introducing Tom Linzey, co-founder of and staff attorney for the Community Environmental Legal Defense Fund, which provides free legal services to grassroots, community-based environmental groups and rural municipal governments. Tom provides the tools for communities to organize and take a stand against corporate power. He has awe-inspiring stories to tell, archetypal David and Goliath tales. His bold charisma and his relentless commitment to defending the rights of community and the environment have provided inspiration and hope to people throughout this nation.
Last year I heard Tom speak at the Bioneers Conference in California. There was a cast of truly extraordinary speakers, and they were all given a standing ovation at this conference. When Tom finished speaking, not only did the audience of two thousand people roar their approval but people could not settle for just standing up; the majority stood on their seats and started jumping up and down and whistling. It was really remarkable. That gives you a sense of who he is.
Tom is a warm and generous and positive person. He is also a warrior for the cause he is dedicated to. He is phenomenal in the work he does on behalf of the legal rights of communities and local municipalities. As you will hear, he is a force to be reckoned with, especially if you happen to be a large misbehaving corporation.
It gives me great pleasure to introduce Tom Linzey.
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First I’d like to thank the Schumacher Society for having me here today. This is the end of a twenty-day tour. I’ve just returned from Anchorage, Alaska, where one of our democracy schools is being set up and from the Bioneers conference in California. Until a year ago it was not usual for us—me and other staff from the Community Environmental Legal Defense Fund, where I work—to speak in the kind of places where we’ve been speaking lately. At Bioneers we spoke to about 3,500 people last year, and this year we did a workshop that overflowed with 800 people so that we had to move to the auditorium. I’m amazed at the number of people who seem to be responding positively to the work we’re doing, which one reporter in Pennsylvania has termed “the keystone revolt” because we’re from Pennsylvania, nicknamed the Keystone State. The name “Whiskey Rebellion” (a revolt of western Pennsylvania settlers in 1794 against a federal tax on whisky) was already taken. Someone has referred to the work we do as collective nonviolent civil disobedience through municipal lawmaking.
Now people come to our lectures because they want to find out exactly what we’re doing in Pennsylvania so that they can replicate it in their home communities. It didn’t start that way. The talks we gave over the four years prior to this past one were in much different venues—in salt sheds, where rural municipal officials actually store the salt to spread in the wintertime; in one-room schoolhouses in rural Pennsylvania municipalities that don’t have enough money for an office; in church basements and bingo halls with folks I’m going to tell you about.
The joke about Pennsylvania, and I can tell it because I was born in Alabama, is that we have Pittsburgh on the west side of the state, Philadelphia on the east side, and the state of Mississippi in the middle—in the middle of Pennsylvania—by which I mean that the culture of rural Pennsylvania is similar to that of rural Mississippi. Ninety percent of our work is in Mississippi with 80 percent rural conservative Republicans who wear the John Deere hats and the steel-toed boots, and, as my friend from Texas likes to say, the belt buckles that would make a Texan proud. These people have become our clients over the past seven years. And what’s happening now in Pennsylvania bears promise to grow into something we all desperately want to see happen.
Although the talks during that four-year period took place in salt sheds and one-room schoolhouses and church basements and bingo halls, we didn’t start there either. In fact my career and the work of the Community Environmental Legal Defense Fund in Pennsylvania have been an evolution of sorts. I graduated from law school wanting to wear the white hat and represent communities that were being damaged or assaulted by toxic waste incinerators, landfills, and various projects invading certain parts of Pennsylvania. Coming out of law school, it floored me to learn that in the United States there were only two hundred full-time public interest lawyers. Two hundred in the entire United States. An additional score of lawyers across the country wanted to do public-interest law even after being saddled with $120,000 in law-school debt, but they couldn’t find jobs in the public-interest field. The four of us making up CELDF at the time therefore decided to frame the problem as a lack of public-interest lawyers due to a lack of resources to hire enough of them. Today we frame the problem quite differently. Having lawyers is not a solution when they are thwarted by the very structure of the law itself. There’s more to winning under our system then hiring a lawyer, even a good one.
We started out doing the work that conventional, traditional environmental lawyers do in the United States. We took on community groups as clients. We believe that democracy begins around a kitchen table in a specific community where people gather to frame a problem and then begin to frame a solution to that problem and then do the work in their home communities.
When we got phone calls from those groups asking us to come and assist them, our work generally was focused on the use of the environmental regulatory process to try to stop a project that was coming into a community. As a typical example, a community group contacted us and said, “A toxic-waste incinerator corporation has applied for a regulatory permit to locate here, but long-term sustainability for this community doesn’t happen to include a toxic-waste incinerator smack dab in the middle of it.” And we said to these nice, courageous, front-line fighting folks, “We’re sorry, but the law doesn’t allow you to say no to something coming in; what the law does allow you to do is use the environmental regulatory process to regulate what comes in.” Their response was: “Fine. You’re the experts, you’re the lawyers. We’re going to turn tactics and strategy over to you, and we’re going to become fundraisers to pay for photocopies and fees to get expert witnesses into the regulatory process.”
Now, anybody who has ever worked with the environmental regulatory process knows that at the regulatory agency, which is where environmental activists have invested their work for the past thirty or forty years, an environmental reviewer sits at a desk, far away from the community that will bear the impact of a prospective facility. On one side of the desk is a checklist, which is required by the environmental regulations of the state or federal agency; on the other side of the desk is the application that’s been submitted by the toxic-waste-incinerator corporation or the landfill owner. The job of the environmental reviewer in that office is to check off the items on the checklist. If the list is complete, i.e., the application is administratively complete, the permit is issued.
As conventional, traditional environmental attorneys, among whom we counted ourselves at one time, our job was to appear before the administrative law judge and argue over the permit. We’d say: “Your honor, this permit is missing what’s required by 26 CFR, Section little 2, little c, little i, little a, little 2d. You know, they were supposed to prepare an erosion and sedimentation plan for this permit application, and they did, but they used data that were ten years old.” Or: “So-and-so from the corporation was supposed to sign the permit application. The signature is missing.” Or: “There’s a bond requirement, and they’re about $5,000 short of that bond requirement.” We got very good at doing that type of work. The judge would look back at us a number of times, and he’d say: “You’re absolutely right. Little 2, little c, little 2, little d, little 2, little a is missing from this application. I’m going to throw the permit out because it’s not complete.”
The community group would invite us to the home of one of the leaders of the group, and we’d have a victory party. We’d celebrate. People patted themselves on the back, and they’d say: “We did everything right. We came together in our community. We decided there was a problem, we picked up the phone, found an attorney, raised the money for photocopies and gas and everything we needed to carry this process through. When our case was put before the judge, he agreed with us and threw the permit out.” So we’d have some beer and some snacks. Everybody was happy.
Three months later something curious would happen. Not curious at all, looking back on it. The corporation would resubmit the application, and this time those gaps and omissions we had identified in the permit application weren’t there anymore. The community group would come back to us and say: “We don’t want this toxic-waste incinerator in our community. You stopped it once, maybe you can do it again.” But we had to look at them and say: “There’s nothing we can do for you. All the gaps in the application are filled in. We don’t have any more levers. Even little 2, little i, little 2, little d, little i won’t help anymore.” Two months later, three months later, four months later, there was the toxic-waste incinerator in their community. This story was repeated more times than I care to remember.
This resulted in a thinking process that led us to say to ourselves: “We went to law school to wear the white hat, to go in and protect communities, to protect the natural environment. What’s actually happening here is that we’re working for the corporations.” A corporation would come back with the revised permit application and say, “Thank you very much for making our permit application much better.” I began to look at the compliance budgets these corporations use when a little nuisance community group flares up and tries to stop a permit. The corporation actually sets aside money to fight the permit challenge. It’s a cost of doing business; not only is it a cost of doing business it’s tax deductible. Tax deductible! Working within the regulatory system, which has been the hallmark of environmental activism for the past thirty or forty years, has meant in essence working from a script that has been written for us. It has made us predictable in the way we do our work.
Some words came back to haunt me shortly after all this occurred. They were written by someone who was apparently a lot smarter than I was in going through the process. “The only thing that environmental regulations regulate is environmentalists.” They regulate the way environmentalists respond, and this makes us predictable. I mulled this over for a while and came to the conclusion that—I always get in trouble for saying this—we’ve never had an environmental movement in this country. It would be fascinating to try to build one. The people’s movements in this country that have made a real difference—the abolitionists, the women’s rights movement—have been about driving rights into the Constitution, driving rights into the fundamental framework of governance that we have in this country. The abolitionists didn’t ask for a slave protection agency, did they?
Furthermore, nature has no rights. The work of environmental activists over the past thirty or forty years has been about chasing projects across the landscape, trying to put out spot fires as they emerge in that landscape. Nature, under our current structure of law, is property, which means that mountains have no rights, ecosystems have no rights, streams have no rights, forests have no rights. They are property under the law. There was a time when people were property too. That’s what the abolitionist movement addressed.
To my mind, the fact that environmental rights have not been driven into the constitutional framework, that nature has no rights, that nature is property, indicates that we’ve never had an environmental movement in the United States and that we’ve been wasting our time with regulatory agencies, with regulatory enforcement, and with drafting the regulations—all those good things. Keep in mind that the verb “to regulate” postulates that what is regulated has been allowed. We take for granted that what we regulate will be on-going. In spite of all our work in the regulatory arena, according to every major environmental statistic in the United States things are worse now than they were forty years ago. Ninety-six percent of all original forests have been logged; 50 percent of plants and 11,000 animal species now face extinction on the planet; 50 percent of waterways are now unsafe for recreation or consumption; every year a million acres of land is developed. On and on and on.
There have been millions of permit appeals. Billions of dollars have been donated to the large environmental organizations in the United States. We have been trying to do our buying on the basis of our beliefs; we have been trying to boycott those things that are made contrary to our beliefs. We promote green investment, and there are investment companies that focus on green investment. We talk about “ethical production”; we talk about “ethical consumption”; we try to practice both. We encourage “corporate responsibility” and “corporate accountability.” All this is done by good people across this planet who are trying to do good things, yet in the environmental sphere things are worse now than they were forty years ago. Why is what we’re doing not working? When we lose a battle we think it’s our fault, our fault that we didn’t bring out enough people to a demonstration or we needed a new tripod or we should have advertised better or issued more press releases. What is it that we don’t understand? Why isn’t our work succeeding in getting us where we need to be?
Luckily for us, or maybe unluckily, back in 1998 our phones started ringing off the hook just as we were starting to go through a conversion of sorts, looking at ourselves in the mirror and saying, “Exactly what are we doing?” The phone calls were from clients whom we were not set up to assist. We were established to help small community-based environmental organizations, but now we were hearing from municipal governments from rural Pennsylvania that were calling from places like Mississippi. And it was not ten local governments or twenty or one hundred or two hundred. It was four hundred rural municipal governments out of a total of about nine hundred in Pennsylvania. They were all coming to us for one reason: corporate factory hog farms were invading the state.
It would be one thing if those corporate factory farms and the agribusiness corporations behind them didn’t have any help in the process of opening up rural Pennsylvania. But major environmental organizations themselves joined with agribusiness to write a state law called the Nutrient Management Act. I remember watching the signing on television: environmental groups on one side, agribusiness people on the other, and the governor saying this was a win-win situation. Whenever you hear those words “win win,” watch out!
What does the Nutrient Management Act do? Well, it says corporate factory farms aren’t really a social, economic, and cultural problem. There’s just one problem with them, which is the liquid manure that gets produced in massive quantities from the industrialized, corporatized production system, and so the Nutrient Management Act is going to regulate the amount of hog manure that can be applied per acre. It’s a regulatory law. That’s one thing; in addition, at midnight—which is when our legislative committees do their best work, as we’ve learned over the past six years—a preemption provision was slipped into the law, a provision that prohibits rural local governments in Pennsylvania from adopting any regulation more stringent than what is in the state law.
Until now local governments had been keeping corporate factory farms out by passing tough-to-meet ordinances that dealt with the amount of manure that could be applied per acre in those communities. But then agribusiness said, “We don’t want to bother with these little nuisance communities that have the gall to think they have the right and authority to make the rules for their own community, and so in one fell swoop we’re going to use the legislature to get around them.” And that’s what the Nutrient Management Act does, applauded of course by the major traditional environmental organizations in Pennsylvania, which appreciate the fact that Pennsylvania is the first state in the United States to pass a Nutrient Management Act..
People in rural municipal governments have been coming to grips with some facts and statistics: four corporations in the United States control 65 percent of pork production in this country; 300,000 farms have been eliminated over the past twenty years, 3500 independent livestock farms in Pennsylvania alone. We are losing 330 farms a week. Only four cents from a food dollar you spend in the grocery store makes it back to the farmer. Six percent of farms operated by agribusiness make 59 percent of farm revenue. The statistic that shocked me the most, which one of our rural elected officials came across, is that suicide among farmers has now surpassed equipment-related deaths as the number one cause of farmer deaths in the United States. This is not related to a change in the form of production; it’s related to the elimination of a rural culture.
How do corporations operate? Well, they used to buy farms. Smithfield Foods or Hatfield Foods Corporation would simply buy a farm outright, operate it, and send the livestock into the market. There was a problem with that back in the late 1980s, early 1990s, however, because what the corporation found was that when something went wrong on that farm—say, the water became polluted—it was then liable. And so, in the ways that we’ve known corporations and the corporate few who run them to act, they decided to transfer liability to the farmers. They now use what is called an output contract between the agribusiness corporation and the farmer. Agribusiness likes to refer nicely to this as partnering with farmers to keep them afloat, but if you take a look at these output contracts, they are not nice. They give the corporation unfettered discretion to cancel a contract with the farmer at any time. The livestock and animals are no longer owned by the farmer but by the corporation—unless the animals die, and then title transfers to the farmer for disposal. Grain, delivery of animals, everything under the contract is tightly controlled by the corporation.
Two years ago 140 once-independent family livestock farmers in northern Arkansas signed up with Tyson Foods Corporation to raise hogs. Tyson Foods decided that production wasn’t going well enough to get an adequate profit margin, and so the company canceled the contracts overnight, which left these 140 once-independent family hog farmers without a way to make a living and without a way to clean up the massive manure lagoons next to their facilities. A reporter went to someone at the county Chamber of Commerce and said: “These farmers can’t go back to being independent family farmers because they now have intensive feeding operations on their property and mortgages that paid for them. What are these folks supposed to do?” And the Chamber of Commerce guy doesn’t miss a beat; he answers, “We need to find them a new corporation.”
When municipal governments started to call us, we told them we didn’t know shinola about factory farms or about agriculture. So we had to learn. One of the places where we went to learn was the Midwest. You see, Pennsylvania has boutique factory farms with 3,000 to 5,000 head; what they have in the Midwest are hog factory farms with 250,000 head and 400,000 head and 600,000 head. There are also huge chicken operations that produce millions of broilers for a handful of agribusiness corporations. And of course concentrated hog and chicken production parallels the rest of the agriculture industry. Kraft now controls 65 percent of cheese production in the United States. It’s all the same—it’s about the corporatization of agriculture.
When we started to look at the Midwestern states, which had been hit a lot harder than Pennsylvania, we found something interesting: nine states in the Midwest had passed laws banning agribusiness corporations from farming. Nine states, starting as early as 1904 in Oklahoma and as late as the 1980s and 1990s in Nebraska and South Dakota. Perhaps even more amazing than those laws was the fact that in Nebraska and South Dakota the ban on agribusiness corporations becoming involved in farming was driven into the constitution. At some point there was a shift from regulating the activity to defining the actor. This shift became evident when we started talking to the people who had worked on those laws. What I heard from them was similar to what I was now hearing in Pennsylvania: that regulating an activity automatically allows it and acknowledges that we have essentially been stripped of our sovereign power to decide what our communities will look like. Instead, we just sit and regulate whatever comes in.
What did we do in Pennsylvania? Well, deprived of pride of authorship we stole Amendment E from South Dakota’s Constitution and brought it back to Pennsylvania. We reworked it into a local ordinance, and we added to it a citizen’s-suit provision so that if the local municipality didn’t enforce the law, citizens could take matters into their own hands to enforce it. We sent the ordinance into the hinterlands of Pennsylvania, to rural Mississippi. First one township passed it, then two, then five, then ten. Now twelve rural municipal governments in five different counties have banned agribusiness corporations from farming within their municipality. They were the first ones in Pennsylvania to do so.
At about the same time that we were dealing with the corporatization of agriculture and the corporate factory hog farms coming into Pennsylvania, we started getting a different type of phone call from municipal governments. Local officials who had been following our work with the hog farms were concerned about another issue as well, and that was sewage sludge. For those who don’t know much about sewage sludge, it’s everything that’s produced by centralized sewage treatment systems. It can contain up to 600,000 different contaminants, but environmental agencies test the waste stream for a grand total of only eleven. In Pennsylvania two children died after driving their All-Terrain Vehicles through sludge fields. The schools that we’ve set up to teach folks about organizing are called the Daniel Pennock Democracy Schools after one of those children., whose parents have now become active on the sludge issue.
Municipalities were coming to us and saying pretty much the same thing: “We don’t want to just regulate the land application of sludge a little bit better. We don’t want it here in this community at all. We want to just plain say no.” They said: “We’ve been following what you were doing about agribusiness and those corporate factory hog farms. Can you help us draft an ordinance that shifts from regulating activities to defining the types of corporate actors that are able to do this business in our communities?” And we said, “Absolutely”! We set about drafting a sludge ordinance parallel to the corporate factory farm approach we had taken earlier.
We sent the ordinance into the hinterlands. First one, then ten, then twenty, then fifty, and now seventy-four townships in nine Pennsylvania counties have passed that ordinance. To give you an idea of the numbers here: at that point in 2003, out of about 900 rural municipal governments 10 percent of them had passed our ordinance, which shifts from regulating the activities to defining the actors. This has brought liberation to local officials who didn’t want to become experts about mayflies in a stream environment or well contamination or all the minutia and data that we as environmental activists have to deal with. After all, we’re told that being an environmental activist requires a Ph.D. or other professional expertise. But a lot of folks were saying: “Wait a minute. It doesn’t have so much to do with data. It has to do with whether we govern our own communities. Either we do or we don’t.”
The picture becomes very stark in some places in south-central Pennsylvania. The PBS television program “NOW” reported on one of our groups, which is trying to ward off a quarry corporation in its community. There are 5,870 residents in the township that is battling the quarry.
The corporation that’s coming in is run by three directors who make the decisions for the corporation, three people who can use the law and the Constitution to override what 5,870 people want in that community.
We have some wonderful language in our state Constitutions that says people are the source of all governing authority. It says that right in the Pennsylvania Constitution, Article 1, Section 1. We’ve looked at about thirty states, and they all refer to the consent of the governed. People are the source of all governing authority. What weight does all that good language carry? Apparently it doesn’t mean much within the structure we have, because even when we do the work of building a community majority—and almost everybody in this room knows how difficult it is to build a majority of people within a community who actually decide to take action on something—our structure of law does not allow the majority in that community to build the type of community they want. That is horrifying. It’s almost as if we not only do not have a democracy in this country, we can’t even imagine what one looks like.
Everybody who has done this work or similar work knows that for every action there’s an equal and opposite reaction. In Pennsylvania about 10 percent of our communities have passed laws that specify what people want their communities to look like in twenty, thirty, or forty years. But when you’re dealing with the largest agribusiness and sludge corporations in the United States, the reaction is apt to be unequal, not equal. The corporations have used every means at their disposal to thwart the elected municipal officials who were passing those laws. Agribusiness corporations have used the courts to bring suit against the laws that ban agribusiness corporations from doing business in local communities, contending that the corporations’ equal protection constitutional rights were being violated by the ordinances passed. None of our local ordinances has been struck down so far, but two state laws in the Midwest have been.
Now let’s take a step back. Under our system corporations have been deemed to be persons under the law by virtue of over a century of Supreme Court decisions as well as decisions made by thousands of lower courts. In 1886 corporations became persons for purposes of equal protection. It’s fascinating to look back at the history of the women’s rights movement. Women didn’t become persons for purposes of the equal protection clause until thirty years later. Corporations became persons in this country before women did. In the early years of our work there were some who said the concept that corporations are persons and are protected by the Bill of Rights—rights that we fought, bled, and died for to drive into the Constitution—is abstract and academic, something they learned about in high school or law school. Well, it’s not academic at all, because when members of a community take steps to build the type of world they know needs to be built, the corporate boys pull our Constitution out of their back pockets and use the rights that originally accrued only to living, breathing persons to strike down laws that majorities in our communities have adopted.
What happened to a small township in Pennsylvania called Belfast in Fulton County, one of the most rural counties in Pennsylvania, serves as an example. Belfast had passed an anti-corporate farming law. Because the corporation trying to get in is deemed to be a person, it used the equal protection and due process clause in the Fourteenth Amendment to sue the supervisors. To make the story even more horrifying, not only did it use the Constitution to overturn the ordinance, it also used a little known statue, which goes by the name of Section 1983, to sue the supervisors individually for damages and lost profits! How is that possible? Section 1983 was passed after the Civil War to protect freed slaves and their ability to vote by giving them the authority not only to overturn the voting tests and IQ tests and other means that were used to keep them from voting but also to sue elections officials for damages. The law that was passed by Congress for the best of goals and purposes—to protect people’s rights—doesn’t use the word African Americans or blacks or freed slaves; it uses the word “persons.”
Corporations, including the telecommunications corporations, have made use of Section 1983 to sue local and state governments for damages and lost profits. To take that one step further, it doesn’t matter anymore whether a corporation actually sites a facility in a community or not. One way to make money is to site a quarry in the middle of a community, operate the quarry, then take the revenue and profit out. The other way is simply to attempt to site the quarry, have the community say no—which is essentially illegal to do because our structure of law doesn’t allow us to say no, it allows us only to regulate—and the corporation then brings a suit against the municipality for guess what—lost profits! It doesn’t matter whether the corporation sites or not. That is what we’re up against.
In addition to attacking through the courts, corporations have also made a cultural attack. It’s all around us. We don’t have sewage sludge anymore in Pennsylvania. Thanks to a public relations firm that was hired to change the language, we now have biosolids, which sounds more acceptable. We don’t have factory farms anymore either. What we have are modern farms and advanced farming, and who are you hayseeds in rural Pennsylvania to stop farmers from gaining access to modern and advanced farming techniques? Who are you to stop progress in communities? There has also been a legislative response. The Pennsylvania House and Senate Agriculture Committees are not just bought and sold by the agribusiness interests, they are the agribusiness interests. When committee members refer to “our advanced and modern farms,” it’s not a matter of public relations; it’s what they believe we have. Those committees fashioned legislation to put a stop to elected rural municipal officials’ attempts to ban agribusiness and sludge from their communities.
Our response was to form the Pennsylvania Family Farm Coalition, which brought together a rather motley array of interests that had not been represented at the same table for probably fifty years. We had family farmers, we had representatives from 400 municipal governments, we had the Sierra Club and other traditional environmental groups, we had organized labor in the form of the AFL-CIO and the United Mine Workers, we had the Pennsylvania Association for Sustainable Agriculture and the Pennsylvania Farmers Union all come together, and they were able to stop legislation from being passed for over five years. For the past thirty years the number one legislative priority of the Pennsylvania Farm Bureau had always passed the legislature. This time, thanks to the amazing work of all those groups, when the legislation came around, it was defeated.
Six months ago a piece of legislation intended to invalidate our ordinances made it through the Pennsylvania legislature. It was signed by Governor Ed Rendell, a liberal Democrat who used to be mayor of Philadelphia. He was the one who pushed it through the legislative process. As a result, when communities pass an ordinance to influence what their future will look like, the institutions of government come crashing down on them. Whether cultural institutions, legislative institutions, or judicial institutions, the corporations are using them to crush local ordinances into the ground.
What’s happening has raised questions for those we work with in rural Pennsylvania. Why do agribusiness corporations control the legislative process when it comes to agricultural issues? Why can agribusiness corporations sue our local governments? What gives corporations the authority and the power to go into court to contest ordinances passed at the local level? To find the answers, farmers from the most rural places in Pennsylvania started going to public hearings in one-room schoolhouses and salt sheds, and they had copies of the Pennsylvania Constitution, printed out from the Internet, tucked into the back pocket of their jeans. They also brought the Declaration of Independence and read its words out loud at meetings. They said: “These documents say we are the source of all governing authority. That’s what the American Revolution was about.”
The American Revolution was about people having certain rights by virtue of being born. We have fundamental inalienable civil and political rights: fundamental because they’re with us when we are born, inalienable because they can’t be taken from us. The American Revolution was also about creating government in order to secure our rights. It wouldn’t make any sense if we created government to deny the rights we’re born with. Yet now governments have conferred rights on a corporate few, rights that are being used to squash communities trying to create a different vision for themselves. In essence, government is doing indirectly what it is prohibited under our structure of law from doing directly, which is to deny our rights.
Provocative ideas began to be discussed at these public meetings. I heard language I’ve never heard anywhere else that defended the right to be sovereign, the right to determine the course of the community. And something else started to bubble up. I remember talking to a group in a place called Licking Township in Clarion County, about an hour and a half north of Pittsburgh. I was giving an update on legislative progress, on the judicial challenges, and on other work we’ve been doing, which includes stitching together a network of local government officials across Pennsylvania to deal with the question of why corporations have more rights than communities. The chairman of a board of supervisors in Clarion County stood up and said, “Mr. Linzey, it is all well and good that we have ordinances dealing with single issues—you know, factory farms or sludge—but what good is it to pass these ordinances if a corporation can come in and sue us by using our Constitution against us?”
I was a little annoyed, and I replied: “We’re a very small outfit, but we’ve been to every public meeting at which the ordinances we drafted were passed. We’ve traveled the state for two years, going into the smallest communities. We’ve organized a townships network to pass ordinances from hand to hand so that people in many places will understand what they are and can discuss them. What more do you want us to do?” The chairman of the board of supervisors said, “We want you to draft an ordinance for us that strips corporations of their constitutional rights in our municipalities.” I said, “We can do that!”
We went back to the office and drafted the Corporate Rights Elimination Ordinance. We sent it out into Pennsylvania’s rural areas, having no idea what would become of it. Now there actually seem to be growing pockets of disobedience. In Clarion County, for example, a small place of about 3000 people called Porter Township held a public hearing on this new ordinance. I’ve never heard that level of conversation and debate and discussion, this among what you would think are the unlikeliest of people in the unlikeliest of places, but they are actually the likeliest of people in the likeliest of places. Why? Because Philadelphia doesn’t dump its sludge in suburban areas outside of Philadelphia. Philadelphia, Pittsburgh, and other cities dump sludge in rural Pennsylvania. Factory farms aren’t put in Montgomery County or Chester County or the suburban neighborhoods right outside of Pittsburgh; 94 percent of them are sited in rural Pennsylvania.
In December of 2003 Porter Township became the first municipal government in the United States to pass a binding ordinance—not a resolution but a binding law—refusing to acknowledge constitutional rights for corporations within the municipality. Licking Township followed two months later. They are the only places in the United States where corporations don’t have constitutional rights, so if you’re driving through on your way to Pittsburgh, you should pause to breathe the rarified air.
Underlying the question of why it is so easy for a corporate few to use the Constitution to override local decision-making there is another, broader question: Why is it so easy under the present structure of law for a few to govern the many, which is fundamentally incompatible with the founding values of this country? This is the question that is starting to circulate. When people in townships in rural Pennsylvania, south central and north central, ask these questions at the community level, they are coming up with a different type of answer from simply, “We need to regulate corporations or corporate activities or behavior.” The answer they’re coming up with is that we need a new framework of governance in this country.
What does that mean, a new framework of governance? Well, some really exciting work is being done right now on the topic of the Constitution as the property-and-commerce constitution it currently is. There are two ways to approach this. One is based on the fact that the founding fathers obviously knew nothing about global warming, deforestation, and the other global problems we’re faced with today, so how can a framework of governance based on a property-and-commerce constitution instead of a rights-and-nature constitution even begin to solve the problems we have today? The other approach is based on the fact that when the Constitution was written, only 20 percent of the people were actually people—women weren’t at the table writing the Constitution; indentured servants weren’t at the table; slaves weren’t at the table; nor were white men without property. Thus, there’s a fundamental need for a new framework that reconsiders the Constitution from the ground up and begins to build something new.
Pennsylvanians aren’t strategically and tactically stupid. They are saying, “It will take a long time before we can change the framework of governance that’s in place in the United States, but what we can do, at the community level, is introduce something called “home rule.” Forty-three states now have home rule. It’s a fascinating process by which the citizens of a community can dismantle the old municipal government and build a new one in its place. Essentially, home rule cuts the cord that ties communities to the state. Instead of being able to do only what’s specifically delegated to them by the state, it allows them to do everything that’s not prohibited by the Constitution. People in two Pennsylvania communities are voting on home rule next month. If they vote it in, they won’t need to tinker with ordinances.
When we sat down and thought about it, we realized that for the past eight years what we’ve been doing is defining the types of sustainable communities we want by default. We’ve been saying what they are not. In other words, we know a sustainable community doesn’t include a 5000-head hog factory farm smack dab in the middle of it; we know that a sustainable community doesn’t include sewage sludge being brought into the community. If we know what sustainable communities are not, what vehicle is there that enables us to proactively define a new vision of what they are? How do we not only chart this vision but drive it into law using the sacred, fundamental, voluntary documents that we call constitutions?
The answer to these questions is that we must turn a property-and-commerce constitution into a rights-and-nature constitution. People in the rural communities I’ve been working with are not only writing into their constitutions that they prohibit corporations from farming in their communities and they ban sewage sludge from being applied to the land, they are also writing in the rights of nature. They are writing in constitutional rights for ecosystems while stripping corporations of constitutional rights. They are providing for initiative, referendum, and recall within the constitutions being adopted at the local level. These folks are serious. They are seeking to build a democratic oasis in a thoroughly undemocratic structure.
What’s the big picture in Pennsylvania at present? We are working with communities to bring home rule to as many as 700 of them. The legislation will have some common denominators, such as stripping corporations of constitutional rights in order to enable communities to govern again and allowing people to stand in as trustees to enforce the rights of nature, of ecosystems. Folks in Pennsylvania also have their sights set on rewriting the Pennsylvania Constitution. Just like the abolitionists, who in 1831—thirty-four years before the Civil War was over—began writing the text of the Thirteenth, Fourteenth, and Fifteenth Amendments, which were adopted after the Civil War, these folks are putting together, little by little and piece by piece, what will eventually become the new Pennsylvania Constitution. That’s the big picture: it’s about reworking and rewriting the fundamental structure of governance. People are trying to answer the question I asked earlier: What didn’t we know about our country when we started doing this work?
We were getting a large number of phone calls—in fact they were taking up fifteen hours a week—from people in other states who were saying: “We’ve heard about what’s happening in Pennsylvania, and we want to replicate it here. Please send us a draft ordinance in an e-mail attachment in Word format.” We explained that the ordinance itself is not the product nor is the language that goes into the ordinance; the product is people. It is people becoming uncolonized in their heads so they can understand that the structure of governance we currently have in this country is what’s divesting them of their rights at the local level and that there is thus a need to build a real movement to restructure governance in a fundamental way.
I started getting a little upset because the out-of-state calls were taking up so much of our time, and I said to one caller, “You know, we’re getting tired of all these calls,” and the person on the other end of the line, who was much smarter than I am, said, “Why don’t you start a school?” I answered with another question: “Do you think anybody would come?” His response was: “I don’t know. Why don’t you try it?” And so we did.
In our Daniel Pennock Democracy Schools we cover the regulatory process; we cover the rights of people and the rights of corporations; and we also consider single issues people are working on and help to reframe them in a way that enables people to take on basic power structures. Our democracy schools are essentially weekend workshops, but some of them have become permanent. There are now fifteen permanent locations across the United States. We have already taught sixty workshops and have graduated 900 students. We recently launched a new school in Anchorage, Alaska, and we have one in Boston. We’re spending time on training lecturers. In fact, this part of our work is taking over. The schools have grown to the point that the rest of the program areas of the Community Environmental Legal Defense Fund are being dwarfed by them.
In conclusion I’m going to leave you with a quote from Jack Kerouac that was given to me by Shawna Larson, a Native from the town of Chickaloon, Alaska. She’s going to be a lecturer for us and will teach in the Alaska schools (there will be two schools there by 2006 and probably four by 2007). I think these lines apply to most people here as well as to the Pennsylvanians I’ve been working with:
"Here’s to the crazy ones. The misfits. The rebels. The troublemakers. The round pegs in the square holes. The ones who see things differently. They’re not fond of rules, and they have no respect for the status quo. You can quote them, disagree with them, glorify, or vilify them. About the only thing you can’t do is ignore them because they change things. They push the human race forward. And while some may see them as crazy, we see genius. Because the people who are crazy enough to think they can change the world, are the ones who do."
The limit to our work is essentially our imagination. Our goal is to bring about the change from a “property and commerce” Constitution to a “rights and nature” Constitution.
For some reason we have a fetish in this country concerning the Founding Fathers with their vision of a concentrated, centralized federal government. They used thinkers like Locke and Montesquieu to validate the vision, yet our collective histories reveal that it was people’s movements of the past—like the Levellers and the Diggers in England—who actually believed in a people’s democracy. We do a disservice to the Levellers, the Diggers, and also the American Indians when we fail to look to them to provide a vision for our future.
The Declaration of Independence, in the traditional legal culture, is treated not as a governing document but as a separation document. When the abolitionists and radical Republicans drove the Thirteenth, Fourteenth, and Fifteenth Amendments into the Constitution, they thought the Fourteenth essentially converted the Constitution into a liberty constitution. That’s what they were working for, and they thought their job was done, but twenty years later the railroad corporations seized the Fourteenth Amendment and wrapped themselves in it.
It’s a perverse situation when people’s movements—like the Populists, the abolitionists, the labor and women’s rights movements—drive fundamental change into law and those victories are then taken from them by corporations and used to protect their property. The Constitution lends itself to that because of its commerce and contracts clauses as well as its amendments and the Bill of Rights, which are then used by corporations to crush communities. When the citizens of Virginia, for example, wanted to ban out-of-state waste from coming in, the Waste Management Corporation used the commerce clause to overturn the law. When citizens in Iowa wanted to keep meat-packing corporations from owning the animals before they went to slaughter, Smithfield Foods Corporation used the commerce and contracts clauses to knock down their law. It happens all the time.
When you scratch the surface, you find that what we think of as single issues are really about something else. It’s about the law enabling the few to govern the many. That’s a horrifying concept to many of us. It’s taken me a long time to understand how the system actually works. Unless we dig down and cut out that cancer completely, a lot of the good work we’re doing today will turn out to be the reason why things have gotten worse over the past forty years rather than better. That’s perverse. It's taken me a long time to understand how the system actually works.
It seems to me that these are basic questions that have to be worked through the legal system all the way to the Supreme Court. Is that happening?
The courts never assist in building movements nor do legislatures. The question is, How do we build a people’s movement, an army of people, to bring change—without relying on the hope that the courts will validate the work going on within that movement?
The court does only what you force it to do. The Civil Rights movement, for example, put 10,000 cases on the dockets in the federal courts. Those cases concerned individuals who broke the law by sitting in at lunch counters. In a way, movements are about breaking unjust laws. The only reason the Supreme Court turned restaurants that were once private actors into state actors and held them to constitutional responsibilities was that it had 10,000 cases clogging the courts because of people who were sitting in and demonstrating. Movements break unjust laws—we have to bring that out into the open.
American revolutionaries didn’t go to court seeking an order that said the Revolution was legal. When a slave was beaten and called the sheriff, the abolitionists knew it was the slave whom the sheriff would arrest. People did not have remedies under the Constitution as it was then. They had to change the framework of governance by putting in the Thirteenth, Fourteenth, and Fifteenth Amendments. Richard Grossman has done seminal work in this area, pointing out that when we say a “property and commerce” constitution we also mean a “slave” constitution. The Constitution codified slavery with its “return of bonded labor” clause and its “three-fifths” clause. We have to be very honest with ourselves as to what kind of document that was—and is. The million-dollar question for me at this point is whether we can build the type of world we so desperately need and want with the Constitution as it is today.
What impact does home rule have on federal funding for local projects?
The Pennsylvania Constitution enables communities to choose home rule, so neither state nor federal funding is affected. But to take your question one step further, just as corporations won’t allow the ordinances we’ve passed in Pennsylvania to stand, neither will they allow home rule to stand. On our chart that we draw of the organizing in Pennsylvania, we have “home rule,” and then we have a little arrow with a question mark and an X next to it. That’s because we know what happens when the corporations try to overturn the sacred, fundamental document that’s been voted on by a majority of the citizens in a community: They go to a federal court and use their constitutional rights to overturn what’s been accomplished by the community.
Should we say, “Well, we tried”? We tried to rescue the world that’s being destroyed. We tried, and now the courts have told us we can’t. Do we pack up and go home? Or is there something else to try? There are citizens in our communities who are talking about things as controversial as separation—separation from the county or from the state. Some say it will never come to that, it’s just crazy talk because that’s secession. I think we will eventually get there, although it will take five or ten years.
I need to make clear that what’s happening in Pennsylvania will be crushed unless it happens elsewhere. It has to happen in one thousand, two thousand, three thousand communities across the United States. That’s the dream. The democracy schools are one way of making it happen because we’re graduating people from different communities, from different states, and they are introducing what they learned into their own communities. All the traveling we do to so many communities is useless unless people start to take responsibility and act on their own.
I think what you’re doing is perhaps the most hopeful and positive and important thing happening in this country. You’re bringing a message that unlocks a pent-up reservoir of frustrated hope. I see corporations as the expression of the tendency of our economic system to form disproportionate concentrations of capital.
Somebody asked me after one of my earlier talks what kind of economic system I think is growing out of this work, and I said, “I have no idea.” But I do know it’s decentralized, it’s locally based, and it’s about using public monies and public resources to get where we need to be. We’re used to being private groups that go out and raise private monies to do voluntary things—that’s been the mode of organizing—rather than using municipal governments and public funds to build the kind of community we want to have. Or we could instead use the coercive force of law—which the corporations have mastered completely but we seem to have trouble doing—to build those communities. I’ve heard folks say: “Let’s make it the law in this community that the only type of agriculture that can be practiced is sustainable and organic. And then let’s use public monies to fund the transition.” Why have we not thought that way before? What does it mean to use public monies to help a market transition? I don’t know, but I think what’s being given birth to is something new that has strands of the old woven through it.
Many of those communities in Pennsylvania that have passed anticorporate farming laws now support community supported agriculture and small-scale farmers’ markets. There’s no name for that type of economic system yet, but it’s about people building decentralized local economies along the lines of Schumacher instead of supporting centralized corporate authority.
There’s also a community whose citizens said: “You know, we’re banning sludge corporations from coming in and doing business here, yet we produce our own sludge and send it elsewhere. What we need to do is begin to take care of our own.” And so they passed a binding ordinance to mandate the use of composting toilets as the waste management system in their community. There’s no money backing any of this; it’s just people who are moving forward on their own in disparate communities.
What I’m hearing is that not paying allegiance to the external authority when it’s morally or ethically incorrect shifts the invisible structure of the game. How do we encourage that shift? How do we invoke the light inside people so that we don’t have to legislate what they must do?
The answer to both questions is that the only way is by doing. It won’t happen just by sitting around and talking and discussing but by actually doing. If we’ve learned one thing in Pennsylvania, it’s that under the existing structure of law we have almost no authority at all as people, which robs us of our inherent self-worth. People are bringing their civil and political rights into play and plugging into that basic stuff which was the birth of the American Revolution, but they can uncolonize and change the way they think only through actually doing the work in a structured way. Over the past eight years I’ve had in-depth conversations with the very few who are doing this work, Richard Grossman and others, and we’ve come to the conclusion that you have thinking and you have doing, and neither works without the other.
When people take on the fundamental power structures because they have no authority to say no in their own communities, it draws a response. The key is to program this response so that it does your organizing for you. In other words, you’re uncolonizing people’s heads almost through jujitsu: when you have no energy and the aggressors are coming at you, you turn their energy around and use it against them. The organizing model we’re using in Pennsylvania is not new at all because it builds on the shoulders of the abolitionists and the Populists, who understood very well—much more deeply than we give them credit for—that unless you draw a response, the model won’t work. It was people’s response to the state and to the institutions of government that served to uncolonize people’s minds. The key is to figure out how to do the work in a way that programs the right response. It’s the response that actually builds the organizing.
It sounds as though the places you’re working are in a crisis situation. What about places where there aren’t crises? Or at least people aren’t living as if there is one. Staten Island is not in crisis, but in rural Pennsylvania when somebody dies from driving through sludge, that’s a crisis. How do we phrase this for the people not paying attention?
That question has popped up in a number of different places. I don’t pretend to know how to answer it yet, but I do know we have to learn how to reframe problems. Is the problem really sludge being shipped into a community, or is it the fact that four corporations control over 60 percent of the sludge industry? In other words, what it really comes down to is that corporations as private governments are making decisions that trump the decisions made by democratically elected ones. If your issue is campaign finance reform, by looking at it from a different angle than how campaign cash is regulated, you see that it’s about stripping corporations First Amendment rights to participate in electoral activities.
Some folks sit at home and say, “Well, there’s no real crisis, and I’m just going to tweak the edges a little bit.” We have no time for that right now. In fact, we have very little time for people with that attitude, because there are so many others asking for help.
In our democracy schools I spend half a day talking about how bad things are because the structure of law doesn’t work for us, and our institutions of government are not really ours. But then I say that what gives me hope is knowing from history that we can accomplish just about anything.
In the coming years there will be thousands of different single issues in this country that people valiantly and courageously struggle with. In Pennsylvania we’ve worked on two of them so far. Very few of them have ever been reframed. These issues provide the opportunity for us to take our work forward, and that gives me hope.
Although we talk a good deal about corporations in our travels, our work is not really about corporations; it’s not even about the corporate few who run them. The work is really about what lies between us and building the world that we so want and so need. It’s about us as people and who we think we are. That’s the key, and that’s what gives me hope.
Thomas Linzey is co-founder of and staff attorney for the nonprofit Community Environmental Legal Defense Fund. Established in Pennsylvania in 1995, the Fund provides affordable or free legal services to community groups and has assisted over three hundred local governments in asserting democratic control when threatened by corporate infringement of their laws. Linzey has expertise in the history of corporations and in organizing tactics that help local communities claim their rights.
He is a co-founder of the Daniel Pennock Democracy Schools—weekend workshops held at twelve locations (and growing) across the United States—which assist groups and communities to strengthen and preserve their democratic self-governance. He also serves as coordinator of the Franklin County Coalition, an association of twenty-one community groups and over thirty locally owned businesses seeking to build a sustainable county in south-central Pennsylvania.
A cum laude graduate of Widener University School of Law in Harrisburg, Pennsylvania, Tom Linzey is a three-time recipient of the school’s Public Interest Law Award, a 2003 recipient of its Young Alumni Award, a 2003 finalist for the Ford Foundation’s Leadership for a Changing World Award, and the 2004 recipient of the Pennsylvania Farmers Union’s Golden Triangle Legislative Award.