Dakota Access Pipeline resister stands with integrity in face of long prison sentence

Dakota Access Pipeline resister stands with integrity in face of long prison sentence

Sentenced to eight years in prison for acts of sabotage, water protector Jessica Reznicek reflects on her faith-driven resistance.

By Cristina Yurena Zerr

This article was first published in the German newspaper taz, and has been translated and edited for Waging Nonviolence.

On June 28, the federal court in Des Moines, Iowa was silent and filled to capacity. Fifty people were there to witness the sentencing of 40-year old Jessica Reznicek, charged with “conspiracy to damage an energy production facility” and “malicious use of fire.” The prosecution, asking for an extended sentence, argued that Reznicek’s acts could be classified as domestic terrorism.

This was not the first time Reznicek had been on trial, but this time she was facing a prison sentence of up to 20 years.

Sitting across from her was U.S. District Court Judge Rebecca Goodgame Ebinger, the prosecutor and an FBI agent. Numerous police officers in bulletproof vests stood around the courtroom. The defendant was called upon to give her closing speech.

In her loud, clear voice, Reznicek told them about her strong connection to the water. In her childhood she regularly went to the river to swim and play. But that’s no longer possible, she said, because the two rivers that run through Des Moines — Iowa’s capital — are now poisoned by agrobusiness pesticides and waste.

It was for these very personal reasons that she decided to fight the construction of the Dakota Access Pipeline, Reznicek told those in attendance. At least eight leaks, she explained, had already occurred in 2017, with 20,983 gallons of crude oil leeching into soils and the waterways. “I was acting out of desperation,” she said, describing her motivations for sabotage.

“Indigenous tradition teaches us that water is life. Scripture teaches that in the beginning, God created the waters and the earth and that it was good.” With these words, she ended her closing argument. The prison sentence followed shortly thereafter: eight years in federal prison, three years of probation, and a restitution of $3,198,512.70 to the corporation Energy Transfer.

The Des Moines River (Cristina Yurena Zerr)

On July 24, 2017 — two years before sentencing — Jessica Reznicek can be seen in a shaky video with her activist partner Ruby Montoya, a former elementary school teacher who was 27 at the time. They stand in front of a group of journalists next to a busy street. The speech they give would drastically change their lives.

After several months of secretly sabotaging one of the country’s most controversial construction projects, the two women, whose paths would later part, went public. “We acted for our children because the world they inherit does not meet their needs. There are over five major bodies of water here in Iowa, and none of them are clean. After having explored and exhausted all avenues of process, including attending public hearings, gathering signatures for valid requests for environmental impact statements, participating in civil disobedience, hunger strikes, marches and rallies, boycotts and encampments, we saw the clear refusal of our government to hear the people’s demands.”

That’s why Reznicek and Montoya burned five machines at a pipeline construction site in Iowa on election night in November 2016. They would later change their methods, using a welding torch to dismantle the pipeline’s surface-mounted steel valves, delaying construction by weeks. “After the success of this peaceful action, we began to use this tactic up and down the pipeline, throughout Iowa,” the two women say.

But no media reported on their activities; the corporation cited other — false — reasons for the delay. When the activists noticed during an action that oil was already flowing in the pipes, they decided to go public, as they had to admit a kind of defeat.

The two women appear clear and determined on this day in the summer of 2017 as they take turns reciting their pre-written text. “If there are any regrets, it is that we did not act enough.” They end their speeches and are led away in handcuffs by three police officers.

Using the slogan “Mni wiconi,” meaning “Water is Life,” in the Lakota (Sioux) language, a broad movement was organized in 2016 against the construction of the Dakota Access Pipeline. The protest of the Standing Rock Sioux tribe garnered national and international attention.

The tribe sees the construction of the pipeline as a threat to their water supply because the pipeline runs under Lake Oahe, which is near the reservation. Other bodies of water are also at risk because the pipeline crosses under rivers and lakes in many places, which could contaminate the drinking water of many people in the event of an accident. In addition, ancient burial sites and sacred places of great cultural value would be threatened by the construction. Opponents of the pipeline speak of ecological racism — not only because Indigenous rights to self-government would be curtailed, but also because the construction of so-called Man Camps (temporary container cities for construction workers who move from other states) would lead to prostitution and an increase in violence against Indigenous women.

Their government — the Sioux Tribe is a sovereign nation — issued a resolution back in 2015 saying the pipeline “poses a serious risk to the very survival of our tribe and […] would destroy valuable cultural resources.” Construction would also break the Fort Laramie Treaty, which guarantees them the “undisturbed use and occupation” of reservation land. But their arguments went unheard by both the company and the government.

The operating company said the pipeline would not harm the environment, would not affect Indigenous rights and would not pose a threat to drinking water supplies. But the protest, which stretches across several states along the pipeline, has developed into one of the largest environmental movements in the United States. Native Americans from different nations and reservations are joining, along with landowners, environmental organizations and left-wing autonomous movements.

Reznicek first heard about the pipeline when she was released from prison six years ago, after serving a two-month stint for her protest against a U.S. military weapons contractor in Omaha, Nebraska. An organizer from Standing Rock had come to Des Moines to mobilize people for the protest. “I decided that I wanted to learn more about Indigenous ceremony, understanding that I am a white person, I cannot just go in and express my demands. And I also wanted to focus on stopping the Dakota Access Pipeline Project. So I drove up to Standing Rock.”

Lake Erie Bill of Rights: Time for Direct Action

Lake Erie Bill of Rights: Time for Direct Action

By Will Falk

Featured image: Harmful algae blooms in Lake Erie in 2017. Public domain photo via NASA.


On Tuesday, January 28, at 10 AM, a hearing will be held in the United States District Courthouse in Toledo, OH in the case Drewes Farms Partnership v. City of Toledo. At stake in this case is the constitutionality of the Lake Erie Bill of Rights. It is possible – likely, even – that the Lake Erie Bill of Rights (LEBOR), democratically enacted by the people of Toledo, will be struck down by United States District Judge Jack Zouhary at this hearing.

If Zouhary strikes LEBOR down, he will do so despite a clear expression of the people of Toledo’s political will. LEBOR, after all was enacted with a 61% majority of the 15,000 Toledoans who voted on it. If Zouhary strikes LEBOR down, he will do so despite the ongoing harm current industrial and agricultural processes are causing to Lake Erie and all those who depend on Lake Erie’s water. If Zouhary strikes LEBOR down, he will do so despite the intensifying danger that once again a toxic algae bloom will get so bad that hundreds of thousands of Toledoans will be left without drinking water. And, perhaps the worst if of all, if Zouhary strikes LEBOR down, all those who worked so hard to see LEBOR enacted will be tempted to despair, to give up.

Do not despair. Do not give up. LEBOR represents only one of many tactics that can be used to protect Lake Erie.

To date, we have only employed indirect methods for protecting Lake Erie. We have asked the government and the courts to protect Lake Erie and they have consistently refused to do so. We have asked Zouhary to validate a democratically enacted local law. Hell, we asked Zouhary for permission to simply argue on Lake Erie’s and LEBOR’s behalf in Drewes Farms Partnership v. City of Toledo and he wouldn’t even grant us that. It is time we stop asking. It is time we stop using merely persuasive means for change. It is time we act directly to protect Lake Erie.

What would it mean to “act directly” to protect Lake Erie? The term “direct action” has been used so often in environmental and social movements in so many different contexts that it is in danger of losing its meaning. It is difficult to locate a clear definition of direct action in activist or academic literature rooted in a radical analysis, so I have formed my own. My definition has three parts: First, direct action involves a clearly-defined and obtainable goal. Second, the success of that goal is demonstrable by a quantifiable reduction in the opposition’s physical power. Third, it is primarily the actions of those engaging in the direct action that produce the desired goal.  

It is important that a proposed action begins with a clearly-defined and obtainable goal because an action involving a poorly-defined goal makes it difficult to determine the scope of the action. And, proposed actions with unobtainable goals will be, by definition, ineffective. Planning to change the world through an educational program designed to illustrate the evils of the fossil fuel industry, for example, is neither clearly-defined nor obtainable. What does it mean “to change the world?” And, how will you possibly reach enough people to effect this change? Planning to disable a factory farm producing manure runoff into the Lake Erie watershed, however, is both clearly-defined and obtainable. Direct actionists can, without too much imagination, envision a successful action.

Once a clearly-defined and obtainable goal is established, the direct action must be designed to materially affect the opposition’s physical power. Let’s say activists come up with a plan to drop a banner that says “Rights for Lake Erie!” from the rafters of the Ohio State Capitol Building. The plan is both clearly-defined, and with some clever security dodging, obtainable. This action, however, is not direct action because there is no way to quantify how, or even if, the banner affects Lake Erie’s polluters ability to pollute.

Let’s consider another hypothetical plan: Activists plan to blockade trucks transporting manure through northern Ohio where the manure will be spread on farms. And, they plan to blockade these trucks for 24 hours. This plan has a clearly-defined and obtainable goal. The goal also reflects an understanding of power. Trucks transporting manure is one of the primary methods agricultural corporations use to pollute. Depriving these corporations of their manure for one day may not be a big hit to corporate power, but it is quantifiable.

It is primarily the actions of those engaging in the direct action that produce the desired goal. Another way to say this is: There is a clear causal link between the direct action and the desired goal. If the goal is to restrict the movement of trucks transporting manure, for example, then the planned action must literally restrict the trucks. Yet another way to say this is: direct action does not leave it to external decision-makers (governmental, judicial, or otherwise) to produce the desired goal. Direct action is not an appeal to those in power. It does not rely solely on moral persuasion, shame, or economic cost-benefit analyses.

This chart, excerpted from the book “Deep Green Resistance,” shows a taxonomy of action: a broad classification of different types of resistance actions that can be taken, including various types of direct action.

Viewed through this lens, the efforts to enact LEBOR, while heroic, are not direct action. LEBOR was a response to the toxic algae bloom that occurred in August, 2014 and left 500,000 Toledoans without drinking water during the hottest time of year. Toxic algae blooms, which have become a regular occurrence in Lake Erie, are primarily fed by agricultural runoff and are exacerbated by climate change. To stop the algae blooms requires stopping the agricultural runoff. In order for citizens to use LEBOR to stop agricultural runoff, first requires the federal courts to rule that LEBOR is constitutional and valid. Not only do we need Zouhary to rule in favor of LEBOR, but, if Zouhary rules in favor of LEBOR, it’s likely that Drewes Farms Partnership and the State of Ohio would appeal Zouhary’s decision to the Sixth Circuit. Then, if the Sixth Circuit ruled in favor of LEBOR, Drewes Farms Partnership and the State of Ohio, would likely appeal to the Supreme Court.

So, before we could ever use LEBOR to bring actions against agricultural polluters for violating Lake Erie’s rights, we’d have to convince three different courts to uphold LEBOR. Even if we succeeded in convincing each level of the federal courts to rule in favor of LEBOR, we would then, in each case brought against agricultural polluters under LEBOR, need to convince a judge that the actions of agricultural polluters violate Lake Erie’s rights.  In other words, LEBOR is not direct action because it relies on external decision makers – the courts – to produce the desired goal.

I am not in any way suggesting that the tremendous efforts Toledoans have put into LEBOR have been a waste. They have not been. The efforts to enact LEBOR placed the question of rights of nature before the people of Toledo and secured a clear, democratic expression that the people of Toledo do, in fact, support rights of nature. This strengthens the moral superiority of our claims. Not only are we justified in stopping agricultural polluters because they are poisoning Toledo’s drinking water, we are justified because the majority of the community believes Lake Erie should have rights to be free from this pollution.

In many ways, it would be easier if we could convince the courts to uphold Lake Erie’s rights. If the courts recognized LEBOR, we could sue polluters. And, in those lawsuits, after finding that the polluters have violated Lake Erie’s rights, judges could order armed men and women (the police) to force polluters to stop polluting. The important thing to recognize though is that the police do not own a monopoly on power. We have the power to stop polluters from polluting, too. Factory farms can be occupied. Access to manure can be limited. The capacity to distribute manure can be impaired.

It is true that those who effectively engage in direct action to protect Lake Erie will place themselves in danger. It is possible that direct actionists will be arrested, that the police will respond violently, and that the media and members of the public will criticize and ostracize us. But the truth is violence is already being used against us. Poisoning a city’s drinking water is violence. And, if we don’t succeed in stopping this poisoning, more nonhumans will be murdered, more humans (especially the most vulnerable among us such as children and the elderly) will get sick and may even die, too. If we don’t succeed in stopping this poisoning, in other words, the violence will only intensify.

Fear in the face of these dangers is understandable. The question is: How do we overcome the fear? Bravery is a personal thing. It is something each individual must find for her or himself. No one can find it for you.

Personally, I find my courage on Lake Erie’s shore. I find it witnessing the sick, pale bellies of dead perch floating through the thick, green scum that forms on Lake Erie’s surface and suffocates fish every summer. I find it in the scent of the rotting corpses of dogs, deer, foxes, gulls, eagles, herons, and the many other animals who drink and feed from Lake Erie. I find it in the looks on the faces of children who arrive cheerfully on Lake Erie’s beaches in the heat of summer only to find the lake is too dangerous to swim in. I find it in the rashes that form on the skin of children who were unaware of the danger toxic algae blooms pose. I find it in the vomit of those unlucky enough to unknowingly drink toxic Lake Erie water. I find it when I read studies about the cancer, Alzheimer’s disease, and other illnesses toxic algae blooms cause. I find it when I remember that only a few short centuries ago, indigenous peoples bathed on Lake Erie’s shores, celebrated the deliciousness of Lake Erie’s fish, and drank freely of Lake Erie’s waters with no inkling of the destruction to come.

I find my courage when I realize that all of this is only going to get worse if we don’t act, directly and decisively, to protect Lake Erie’s life-giving water.


Will Falk is a writer, lawyer, and environmental activist. The natural world speaks and Will’s work is how he listens. He believes the ongoing destruction of the natural world is the most pressing issue confronting us today. For Will, writing is a tool to be used in resistance.

Will graduated from the University of Wisconsin-Madison Law School and practiced as a public defender in Kenosha, WI. He left the public defender office to pursue frontline environmental activism. So far, activism has taken him to the Unist’ot’en Camp – an indigenous cultural center and pipeline blockade on unceded Wet’suwet’en territory in so-called British Columbia, Canada, to a construction blockade on Mauna Kea in Hawai’i, and to endangered pinyon-juniper forests in the Great Basin.

His writing has been published by CounterPunch, Earth Island Journal, CATALYST Magazine, Whole Terrain, Dark Mountain Project, the San Diego Free Press, and Deep Green Resistance News Service among others. His first book How Dams Fall: Stories the Colorado River Told Me was published in August, 2019 by Homebound Publications.

http://willfalk.org/

Rights for Lake Erie? Why Corporate Rights and Preemption Must Go

Rights for Lake Erie? Why Corporate Rights and Preemption Must Go

by Sean Butler and Will Falk / Featured image: an aerial photograph showing harmful algae blooms in Lake Erie in August of 2017. These are believed to be caused by the effluent runoff from factory farms in the watershed. Public domain photo by NOAA.


Rights of nature advocates often repeat the words, “The structure of the legal system makes meaningful environmental protection illegal.” It’s a bold claim, but for most people it’s too vague to mean anything. Most folks (understandably) don’t know the difference between a federal district court and a circuit court of appeals, let alone what we mean by the “structure” of the legal system.

But it’s actually quite simple. We’re referring to two aspects of the American legal system: (1) laws and regulations at the federal, state, and local (city and county) levels and the relative hierarchy among them; and (2) the holdings of various state and federal courts throughout the history of our country, which establish “precedent” for what those laws and regulations actually mean.

Perhaps nowhere in recent memory has the “structure of the legal system” been laid bare more clearly than in the aftermath of the passage of the Lake Erie Bill of Rights by the citizens of Toledo, OH in February 2019. The Lake Erie Bill of Rights (LEBOR) grants Lake Erie the rights to exist, flourish, and naturally evolve; grants the residents of Toledo a right to a healthy environment; and “elevates the rights of the community and its natural environment over powers claimed by certain corporations.”

Although remarkable on its face, LEBOR is only one of dozens of similar local laws that have been passed in recent years in cities and counties across the United States. What is truly remarkable is the response LEBOR has received from existing institutions.

Mere hours after the City of Toledo certified LEBOR’s election results, entrenched interests opposed to environmental protection leveraged the existing structure of American law to mount an urgent opposition to LEBOR.  Drewes Farms Partnership (“Drewes Farms”), represented by a corporate law firm, sued the City seeking an injunction against enforcing the law on the basis that LEBOR violates Drewes Farms’ “civil rights.” The State of Ohio was allowed to intervene in the case to argue for LEBOR’s invalidation while the grassroots community group, Toledoans for Safe Water – who drafted LEBOR and ushered it through Ohio’s citizen initiative process — was barred from the case by the federal judge. Then, the Ohio State legislature (at the request of the Ohio Chamber of Commerce) included in its 2019 budget a provision explicitly making it illegal for local governments to make or enforce laws ascribing legal rights to nature.

In short, the existing legal system and those who profit from it brought the full weight of the legal system against LEBOR. To really understand what is meant when we say that the structure of the legal system makes meaningful environmental protection illegal we need to dig into the specifics of this onslaught.

LEBOR’s opponents make primarily two legal arguments against it. First, they claim that LEBOR should be invalidated because it infringes on corporate constitutional rights. Second, they argue that LEBOR is preempted by state and federal law that reserves the right of the state of Ohio and the federal government to legislate on environmental matters.

Drewes Farms makes the corporate constitutional rights argument very clearly in the complaint it filed in federal court, claiming that:

“LEBOR causes real and concrete harms on Drewes Farms by violating the United States Constitution including but not limited to:

  1. Depriving Drewes Farms of its fundamental right to freedom of speech and to petition the courts under the First Amendment;
  2. Violating Drewes Farms’ right to equal protection by targeting it for liability based solely on the fact that it operates as a partnership business entity;
  3. Violating the Fifth Amendment protection against vague laws by exposing Drewes Farms to strict criminal liability and massive damages and fines under a standardless Charter Amendment; and
  4. Depriving Drewes Farms of its rights without due process.”
Map by Kim Michalson. This 2010 map shows the location of major factory farming operations in Ohio and corresponding water quality readings. Ohio has among the highest density of CAFOs (Concentrated Animal Feeding Operations) of any U.S. state.

This 2010 map shows the location of major factory farming operations in Ohio and corresponding water quality readings. Ohio has among the highest density of CAFOs (Concentrated Animal Feeding Operations) of any U.S. state. Map by Kim Michalson.

Just so we’re clear, Drewes Farms, a non-human legal entity, lays claim to rights under the First, Fifth, and Fourteenth Amendments to the US Constitution AND claims that those rights are violated by a law that recognizes nature’s right to exist, flourish, and naturally evolve.

Meanwhile, the State of Ohio, in its Complaint for Declaratory Judgment and Injunctive Relief plainly states that “[t]he Ohio Constitution art. XVIII § 3 does not allow a municipality to enact an ordinance that prohibits regulated activity authorized under state permits issued pursuant to state laws of general applicability.” To support its claim, the State cited a recent Ohio case in which the judge ruled “[s]tate laws with state-wide application preempt local ordinances that discriminate, unfairly impede, or obstruct general laws regulating oil and gas activities.” In other words, the Ohio state constitution itself specifically prohibits any local government to enact laws that prohibit activities that are permitted by state laws.

The fundamental issue with both of these arguments is…they are absolutely, totally, and completely right. Under current American jurisprudence, Drewes Farms does have civil rights under the First, Fifth, and Fourteenth Amendments (among others), and LEBOR does violate principles of preemption.

And that is precisely the problem.

Because American law has long recognized corporate civil rights and has long used preemption to invalidate local laws that provide for stricter regulations than federal or state governments, the State of Ohio and Drewes Farms would have us believe that this should be the end of the discussion. But, ending the discussion here leaves several problematic assumptions unchallenged. Arguing that LEBOR should be invalidated because it infringes on corporate rights only makes sense if corporations should enjoy those rights under our system of law. And arguing that LEBOR should never be enforced because it violates established principles of preemption only makes sense if preemption is beneficial to American citizens.

So, we must dig deeper. We must ask: Why do corporations exist? What are corporate rights? Why does the American legal system afford corporations rights in the first place? We must also ask: Why does preemption exist? Why does the American legal system protect the state and federal governments’ power to preempt laws passed by local communities? And, is there a connection between growing corporate power and preemption?

While there is a debate about what corporations should exist to do, the fact remains that corporations exist to amass wealth, or to borrow one of corporate apologists’ favorite phrases, to “maximize shareholder value.” We can see this argument clearly in the hugely influential essay published in 1970 by the Nobel Prize-winning economist Milton Friedman in The New York Times Magazine aptly-titled “The Social Responsibility of Business is to Increase its Profits.” Environmental author and philosopher Derrick Jensen, in The Culture of Make Believe, is more direct:

“To expect corporations to function differently than they do is to engage in magical thinking. We may as well expect a clock to cook, a car to give birth, or a gun to plant flowers. The specific and explicit function of for-profit corporations is to amass wealth. The function is not to guarantee that children are raised in environments free of toxic chemicals, nor to respect the autonomy or existence of indigenous peoples, nor to protect the vocational or personal integrity of workers, nor to design safe modes of transportation, nor to support life on this planet. Nor is the function to serve communities. It never has been and never will be.”

Wealth is power. This is especially true in the legal system. Many people envision law as an all-powerful list of rules that dictates what someone can or cannot do. Similarly, many people think of rights as a list of privileges that specify what a person is entitled to do or entitled to be free from. As such, many people imagine that they can simply invoke these rights to be safe. But, it is a mistake to think that rules written somewhere in a book of statutes or rights listed in the Constitution have the power to jump off the paper where they are written and enforce themselves.

The key to understanding law and rights lies in understanding how they are enforced. Judges enforce law and rights by making decisions in court. And those decisions in court, in turn, are enforced by the police who are entitled to use physical force to ensure a judge’s decision is adhered to. When most people think about how this works, they envision examples such as President Eisenhower’s use of the National Guard to desegregate schools to uphold African Americans’ Fourteenth Amendment rights. But, a more apt and contemporary example is reflected in how the police were used at Standing Rock. Dogs, water cannons, and military-style weapons were turned against nonviolent protesters once the owner of the pipeline project, a corporation, won a favorable court ruling. These corporate rights-holders harnessed the state’s police power through the courts.

A typical "animal waste lagoon." These containment ponds continuously leach into groundwater, and often overflow. Public domain photo by NRCS.

A typical “animal waste lagoon.” These containment ponds continuously leach into groundwater, and often overflow. Public domain photo by NRCS.

Rights, then, are power, too. When shareholders form a corporation, the corporation gains the privilege of “corporate personhood.” Because American courts treat corporations as “persons,” corporations have long exercised rights, including those afforded the highest level of protection under the Bill of Rights’ Contracts Clause, Due Process Clause, Fourteenth Amendment Equal Protection Clause, First Amendment, Fourth Amendment, Fifth Amendment Takings and Double Jeopardy Clauses, Sixth Amendment, and Seventh Amendment.

These rights have, for the most part, been judicially created and have consistently expanded throughout American history. The word “corporation” is found nowhere in the Constitution. Despite this, in 1819, in Dartmouth College v. Woodward, the U.S. Supreme Court ruled that the Contract Clause of the Constitution granted private business corporations protection from governmental interference in internal governance. In 1886, in Santa Clara County v. Southern Pacific Railroad Company, the Supreme Court ruled that a corporation is a person under the law and is therefore entitled to equal protection under the Fourteenth Amendment. In 1922, the Supreme Court ruled in Pennsylvania Coal Company v. Mahon, that coal corporations were entitled to protection under the Fifth Amendment “Takings Clause” and that the government must compensate corporations for property value lost due to mining regulations. In 2010, the Supreme Court ruled that federal laws which limited corporate spending in elections violated corporate First Amendment “free speech” rights in Citizens United v. Federal Elections Committee. Then, in 2014, the Supreme Court, in Burwell v. Hobby Lobby Stores, allowed corporations to deny its employees health coverage of contraception to which the employees would otherwise be entitled because corporations are entitled to First Amendment freedom of religion protection.

This might not seem problematic on its face, but recall that rights only have practical effect to the extent that rights holders can access the courts in order to ask a judge to enforce those rights. Corporations, that exist to, and have grown quite adept at, amassing wealth, have greater means to put behind the legal enforcement of rights. This naturally means more cases won by corporate plaintiffs, more caselaw upholding corporate rights, and therefore, by extension, more caselaw expanding the sphere of corporate civil rights. And the sheer number of cases bear out this reality. As an example, consider this: between 1868, when the Fourteenth Amendment was ratified, and 1912, the Supreme Court ruled on only 28 cases involving the rights of African Americans and an astonishing 312 cases on the rights of corporations, it is easy to conclude that the Fourteenth Amendment has done a better job protecting the rights of corporations than that of African Americans.

At the same time, the expansion of rights in one sphere necessarily produces the curtailing of rights in another. Deep ecologist John Livingston describes the problem:

Effluent discharge pipe. Public domain image from USDA.

Effluent discharge pipe. Public domain image from USDA.

“We sometimes forget that every time a court or legislature – or even custom – confers or confirms a right in someone, someone else’s right is nibbled at: the right of women to equal employment opportunity is an infringement of the freedom of the misogynist employer; the right to make a profit is at someone else’s cost; the right to run a motorcycle or a snowmobile reduces someone else’s right to peace and quiet in his own backyard; the rights of embryos impinge upon the rights of the women who carry them. And so on.”

In other words, the expansion of corporate rights shrinks the rights enjoyed by citizens and communities. Because American law extends to corporations many of the same constitutional rights humans enjoy and because corporations exist to accumulate wealth, we should not be surprised when corporations use their power to do exactly that at the expense of the rights of human beings and nature.

The other major legal argument made against LEBOR is that it is preempted by state and federal law. Preemption is a doctrine that says the law of a higher jurisdiction should displace the law of a lower jurisdiction when the two jurisdictions conflict. The American legal system is divided basically into three jurisdictions: federal, state, and local law (local law is a general term for the law of the smallest legislating entities American law allows, entities such as municipalities, cities, or villages). When federal and state law conflict, American courts interpret the Supremacy Clause of the United States Constitution (Article VI, Section 2) to mean that federal law should displace state law. Similarly, state law usually trumps local law when the two conflict.

Corporations, using their superior wealth and their constitutional rights, have found tremendous success in influencing federal and state legislatures, especially pro-business, conservative legislatures and persuading them to enact aggressive new preemption laws. When local governments pass laws with stricter restrictions than the federal or state legislatures, corporations lobby legislatures to employ preemption to attack these local laws. This typically happens in one of two ways. First, government lawyers, primarily attorneys general, assert the doctrine of preemption in court. The State of Ohio’s arguments against LEBOR are a perfect example. Second, legislatures pass legislation known as “blanket” preemption to expressly forbid local ordinances that contradict state law. And, in fact, the Ohio House of Representatives recently employed blanket preemption when it adopted its 2020-2021 budget with provisions that prohibit anyone, including local governments, from enforcing rights of nature laws.

That’s what preemption is. The more important question is: Why does American law protect the federal and state governments’ power to preempt laws passed by local communities?  The answer, quite simply, is corporate power.

The modern preemption doctrine was born from an 1868 decision written by Iowa Supreme Court Chief Justice John Dillon in The City of Clinton v. The Cedar Rapids and Missouri River Railroad Company. The case involved an attempt by the people of Clinton, Iowa to prevent railroad corporations from building railroads through their town. An ordinance was passed by the Clinton city council which prohibited any “railroad company from constructing its track through or upon any street within the limits of the city, and from occupying the same for right of way or other railroad purposes.”

In the decision, Dillon struck down Clinton’s ordinance and described his philosophy of the limited powers of municipal corporations and other local governing entities. This philosophy is now known as “Dillon’s Rule.” He wrote:

Municipal corporations owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. If it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations in the State, and the corporation could not prevent it. We know of no limitation on this right so far as the corporations themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature. 24 Iowa 455, 475.

https://creativecommons.org/licenses/by/2.0/ Via Mercy for Animals - hog at factory farming operation

A pig at a factory farming operation. These industrial farms are the largest source of nutrient pollution in Lake Erie. https://creativecommons.org/licenses/by/2.0/ Via Mercy for Animals.

And, Dillon’s Rule was later adopted by the United States Supreme Court in 1907 in Hunter v. Pittsburgh.

As you can see, from the outset, preemption has been, quite literally, about corporations “railroading” local communities who do oppose destructive corporate projects. Today, preemption has grown into a powerful tool wielded by, especially, conservative, pro-business state legislatures. Judge Jon D. Russell and Aaron Bostrom, in a white paper titled “Federalism, Dillon Rule and Home Rule” recently written for the American City County Exchange (an organization that “helps to advance limited government and free market principles in local government through model policies, conferences, and online collaboration”), provide a solid example of the rationale employed by state legislators to defend preempting local laws.

Russell and Bostrom write:

The Dillon Rule guarantees a certain level of uniformity throughout the state…Rather than having vastly different policies and codes in each local jurisdiction, the state can create uniform tax codes and licensing policies, making it a business-friendly environment. Without commonality between local governments on these issues, businesses find more red tape than opportunity, making it difficult for the state and businesses to prosper.

Dr. Lori Riverstone-Newell, an expert in the interaction of governments in the American system, describes how in the past few years, “a growing number of state officials have sponsored and supported preemption legislation with the intent to weaken local authority and to thwart local progressive policies.” In simpler terms, conservative state legislators are learning how to use preemption to prevent progressive communities from enacting progressive laws.

We can see why some commentators argue we live in a corporate state. If the fundamental element of a democracy is the right of the people to enact and enforce the laws to which they are subject, then preemption is fundamentally an anti-democratic concept, especially as the doctrine has been influenced and wielded by entrenched economic interests and the state and federal legislators who support (and who are, of course, supported by) those interests.

Indeed legislators are not working alone; they are implementing policies pushed by corporate lobbyists. Dr. Riverstone-Newell explains, “Recent preemption efforts can be understood, at one level, as part of longstanding campaigns waged by industry groups hoping to stop or limit progressive local policies in order to create a friendlier business environment for themselves.” She describes how industry groups and trade associations first began pressuring state legislatures to rein in their cities in the late 1980s. R.J. Reynolds, the tobacco corporation, “pressed states to enact preemption laws in the 1980s as a central strategy to overcome local smoking restrictions and bans.” Abby Rapoport, a journalist writing for The American Prospect, reports how the National Rifle Association launched a campaign in the 1990s for state preemption of local gun regulations. This campaign was so successful “43 states now have some form of maximum preemption preventing localities from passing additional gun regulations on top of state law.”

It may very well be that “a certain level of uniformity” of laws in different jurisdictions enables business to “prosper,” but having reached the point in our nation’s history where we are confronting ecological collapse, we have to ask ourselves, whether blanket uniformity and unchecked economic growth and prosperity are the only values that matter to us. Or, instead, might it be that local environmental protection laws are key to protecting local ecology? Might it be that the unique ecosystems in one ‘jurisdiction’ require unique laws and regulations in order for them to thrive? Why should we expect that laws protecting swamplands in Florida be the same as those protecting the Nevada desert? If we are to see our way through the current environmental crisis, we can’t simply accept the doctrine of preemption on its face; we must consider the value of it, and its history and development, in order to determine whether or not it is compatible with the future we want for our grandchildren and the planet.

The failure to recognize how American law makes sustainability illegal is a primary reason environmentalists have failed to keep the health of the North American continent from deteriorating over the last century. Because we fail to recognize this, we keep seeking to protect the natural world through legal and political processes that do not – cannot – work. The late corporate anthropologist Jane Anne Morris described our predicament clairvoyantly:

Lake Erie (left) is the 11th largest lake in the world. Public domain NASA photo.

Lake Erie (left) is the 11th largest lake in the world. Public domain NASA photo.

“Our campaigns follow the gambling addiction model. The last bet didn’t pay off but the next one might if…if…if we just had a new, improved tripod, three more experts, more labor or church support, ten more elected officials on our side, a hundred more people at the demo, or a thousand more letters in the mail…Who are we kidding? We are just doing the ‘same old thing’ over and over again and fooling ourselves that it might work next time. We are stuck in a feedback loop where our failures are interpreted as signs that we should repeat our failed tactics, but try harder. This is what it is to be colonized.”

Lawyers, and their clients, are especially vulnerable to falling victim to Morris’ gambling addiction model. The adversarial, competitive nature of law where two or more sides jockey for the approval of a judge makes it easy for losing parties to conclude that if they just hired a more expensive law firm, or if they just argued an issue differently, or if they just cited this case instead of that case then they would have won. The problem, however, is not that we need to try harder; the problem is that the structure of American law prevents our ability to implement strong enough measures to truly protect the natural world.

The people of the City of Toledo, recognizing that corporate rights and preemption must be confronted and overturned to protect Lake Erie and all those who depend on her, voted to enact the Lake Erie Bill of Rights. The arguments made by the State of Ohio and Drewes Farms Partnership are currently the law en vogue. This is one of the major reasons American law makes sustainability illegal. This must change if the natural world, and all of us who depend on her, are going to survive the current ecological predicament. To achieve a sane, sustainable culture, corporate rights and preemption must go.

Alberta suffers third major oil spill in a month as Enbridge spills 26,450 gallons

By EcoWatch

To borrow a popular hockey term, Canada has scored a hat trick of the worst kind: Three major oil spills in just over one month.

The culprit this time around is Enbridge, the Calgary, Alberta-based operator of the world’s longest crude oil and liquids pipeline system, situated in Canada and the U.S. On June 19 the company confirmed that about 1,450 barrels (230,000 litres) of crude oil spilled from a pumping station onto farmland near Elk Point, Alberta, according to The Globe and Mail. Fortunately, this spill managed to occur in an area devoid of waterways.

Others haven’t been so lucky.

On June 7, Albertans living downstream from the Red Deer River suffered a scare when a pipeline owned by Plains Midstream Canada ruptured, spewing around 3,000 barrels of oil and posing a severe risk to the drinking water supply of 100,000 people, according to CBC News—Calgary. This spill began beneath Jackson Creek, a tributary of the Red Deer River, ending in Gleniffer Lake and reservoir where the majority of clean-up efforts and monitoring continue to take place.

According to Canada.com, the “province is still advising people not to draw water directly from the river or lake, and it’s telling people not to swim or fish in the lake, either.”

Topping them all is Pace Oil and Gas Ltd., which spilled an estimated 22,000 barrels of oil mixed with water near Rainbow Lake, in the northwestern corner of Alberta, according to Bloomberg.

Because of its remote location, the Pace Oil and Gas spill managed to stay relatively quiet despite being one of the largest and most calamitous oil spills in North America in recent years. The spill released more oil into the environment than the much higher profile Kalamazoo River spill almost two years ago in Michigan, compliments of—yet again—Enbridge, that pumped around 19,500 barrels into the Kalamazoo and surrounding marshes.

The latest Enbridge oil spill near Elk Point is one more to a tally exceeding 800 spills since 1999, and this is the corporation lobbying to build the massive Northern Gateway Pipeline stretching from Bruderheim, Alberta to Kitimat, British Columbia—crossing the Northern Rocky Mountains and innumerable streams, marshes and vital wildlife habitat.

Will we ever learn from this ongoing train wreck? If history is any indication—and it always is—the answer is probably not. Here in the U.S., we still suffer the relentless indignities of elected officials and company men assuring us that projects such as the Keystone XL pipeline pose no risk to the millions who depend upon the Ogallala aquifer for drinking water.

Perhaps a trip north to Gleniffer Lake might put things in perspective, or a trip to our own southern shores along the Gulf of Mexico. But clearly, this debate isn’t about logic or learning from our mistakes at all.

From EcoWatch

How an indigenous activist has fought to shut down funding for an 800 foot dam in Ethiopia

By Rachel Nuwer / The New York Times

At a casual glance, Lake Turkana in northern Kenya may not seem a fount of milk and honey. The temperature around the lake hovers around 100 degrees, and tourists are warned not to approach the water because of the crocodiles and vipers lurking among the volcanic rocks.

Yet Lake Turkana, the world’s largest permanent desert lake, is regarded by many anthropologists as the cradle of humankind. Today it serves a vital purpose for local indigenous communities that depend on its waters for fish and other resources; in 1997, citing its rich biodiversity, Unesco listed it as a World Heritage site.

Ikal Angelei, 31, one of the six winners of this year’s Goldman Environmental Prize, grew up playing on Lake Turkana’s dusty shores, chatting with old fishermen who sold their daily catch to her family and others. When she graduated from high school, she moved to the capital to study at the University of Nairobi, traveling later to the United States to earn a master’s degree in public policy and political science at Stony Brook University on Long Island.

Then she returned home and began working on community outreach for a group called the Turkana Basin Institute.

That’s when she learned about a proposed dam.

The chairman of the institute, Richard Leakey, approached her with a document outlining the plan for the dam, on the Omo River in Ethiopia — one of Lake Turkana’s lifelines. “He said to me, this is your people, your lake, your problem,” Ms. Angelei said in an interview. His words stirred her, she said, and she began researching the dam project in her spare time.

If completed, the Gibe 3 Dam() would be the largest hydroelectric plant in Africa and provide increased electrical power to Kenya and Ethiopia. But in a region more desperate for food than electricity, the dam would take a significant toll on water levels and thus on fisheries, potentially worsening relations between disparate communities that are already enmeshed in resource-based conflicts.

“At first, I thought, it can’t be real,” Ms. Angelei said. “I couldn’t imagine the area without the lake.” Reflecting on her father’s own anti-dam activism in the late 1980s, she began making phone calls, sending e-mails, and broadcasting appeals from a local radio station.

Day by day, her campaign gained resonance as more and more people from divided and marginalized local communities shared their stories with her. In 2009 she founded a grass-roots organization, Friends of Lake Turkana, to provide a unified voice for the peoples of the lake.

Together they demanded that the Kenyan government and investors in the dam halt the $60 billion project. To Ms. Angelei’s surprise, the World Bank, the European Investment Bank and the African Development Bank all withdrew their financing. Last year the Kenyan Parliament mandated that the government commission an independent environment assessment from Ethiopia.

“The feeling that the actual construction had lost its funding was amazing — it gives me hope that we can go on,” Ms. Angelei said.

The struggle is not quite over. China, the last big investor, is still pushing for construction. Ms. Angelei believes that ultimately governments will have to step up to put the Gibe 3 Dam to rest. “China may have green policies they’re trying to implement, but as long as there’s not a format for holding Chinese companies and banks accountable, then the policies do not work,” she said.

Taxpayers in Western countries could help by holding their governments responsible for backing flawed development projects, she added.

Although she has frequently been discouraged, Ms. Angelei said, witnessing the struggles of local families and women helped her keep her goal in sight. Often she was approached by strangers who could offer her little more than blessings and encouragement, she said: “It was seeing the look in people’s eyes that kept me going.”

For her efforts to protect her community, Ms. Angelei was awarded the Goldman Prize in the African regional category; each year, the prize is also awarded to a recipient in Asia, Europe, an island nation, North America and South or Central America. Each honoree receives an award of $150,000. (The program was initiated in 1990 by Richard and Rhoda Goldman, civic leaders and philanthropists in San Francisco.)

“These are people who normally go unrecognized but do so much of the work,” said Lorrae Rominger, the deputy director of the prize program. “Hopefully, when they go back to their country, people will look, listen, stop and want to know more about what they’re doing,” she said of the recipients.

As a young woman living in an an area where violence is out of check, Ms. Angelei stood out for “taking this risk upon herself and making such a big difference,” Ms. Rominger said.

Ms. Angelei said that struggling to make a difference is not easy but that not trying means becoming part of the problem. Her father often cited the adage that “it’s better to die on your feet than to live on your knees,” she said. “Even if you don’t win, at least you’re opening the platform for others after you.”

From The New York Times: http://green.blogs.nytimes.com/2012/04/16/to-fight-a-dam-rather-than-live-on-your-knees/