Scientists Find Microplastics in Human Organs

Scientists Find Microplastics in Human Organs

The production of plastics must halt. It is the only way to stop the influx of toxic substances into streams, rivers, lakes, oceans, and into our own bodies. This piece, which is made up of excerpts from a longer article, discusses new research into microplastics found in human organs.


by Krissy Waite / Common Dreams

“The best way to tackle the problem is to massively reduce the amount of plastic that’s being made and used.”

Arizona State University scientists on Monday presented their research on finding micro- and nanoplastics in human organs to the American Chemical Society

Microplastics are plastics that are less than five millimeters in diameter and nanoplastics are less than 0.001 millimeters in diameter. Both are broken down bits of larger plastic pieces that were dumped into the environment. According  to PlasticsEurope.org, 359 million tons of plastic was produced globally in 2019.

Previous research has shown that people could be eating a credit card’s worth of plastic a day; a study published in 2019 suggests humans eat, drink, and breathe almost 74,000 microplastic particles a year. Microplastics have been found in places ranging from the tallest mountains in the world to the depths of the Mariana Trench.

Plastic particles in wildlife have been shown to substantially harm entire ecosystems, especially marine organisms.

The Arizona State University scientists developed and tested a new method to identify dozens of plastics in human tissue that could eventually be used to collect global data on microplastic pollution and its impact on people. To test the technique, the scientists used 47 tissue samples from lung, liver, spleen, and kidney samples collected from a tissue bank. Researchers then added particles to the samples and found they could detect microplastics in every sample.

These specific tissues were used because these organs are the most likely to be exposed to, filter, or collect plastics in the human body. Because the samples were taken from a tissue bank, scientists also were able to analyze the donors’ lifestyles including environmental and occupational exposures.

“It would be naive to believe there is plastic everywhere but just not in us,”

Rolf Halden, a scientist on the team, told The Guardian. “We are now providing a research platform that will allow us and others to look for what is invisible—these particles too small for the naked eye to see. The risk [to health] really resides in the small particles … This shared resource will help build a plastic exposure database so that we can compare exposures in organs and groups of people over time and geographic space.”

The researchers found bisphenol A (BPA) in all 47 samples and were also able to detect polyethylene terephthalate (PET)—a chemical used in plastic drink bottles and shopping bags. They also found and analyzed polycarbonate (PC) and polyethylene (PE). These particles can end up in human bodies through the air or by consuming wildlife like seafood that has eaten plastic; or by consuming other foods with trace amounts of plastic from packaging. The team also developed a computer program that converts the collected data on plastic particle count into units of mass and area.

“In a few short decades, we’ve gone from seeing plastic as a wonderful benefit to considering it a threat,”

Charles Rolsky, a member of the team, said in a press release. “There’s evidence that plastic is making its way into our bodies, but very few studies have looked for it there. And at this point, we don’t know whether this plastic is just a nuisance or whether it represents a human health hazard.”


This article was first published on 17th August 2020.

‘Our Life is Plasticized’: New Research Shows Microplastics in Our Food, Water, Air

‘Our Life is Plasticized’: New Research Shows Microplastics in Our Food, Water, Air

In this article Elizabeth Claire Alberts describes Charles Moore’s discovery of microplastics throughout the ocean, freshwater rivers and lakes, and even in mist and rain.


‘Our life is plasticized’: New research shows microplastics in our food, water, air

by Elizabeth Claire Alberts / Mongabay

  • Microplastics, plastic pieces smaller than 5 millimeters, have become increasingly prevalent in the natural world, and a suite of studies published in the last three years, including several from 2020, shows that they’ve contaminated not only the ocean and pristine wildernesses, but the air, our food, and even our bodies.
  • Past research has indicated that 5.25 trillion plastic pieces are floating in the ocean, but a new study says that there are 2.5 to 10 times more microplastics in the ocean than previously thought, while another recent study found that microplastic “hotspots” could hold 1.9 million pieces per square meter.
  • Other emerging research suggests that 136,000 tons of microplastics in the ocean are being ejected into the atmosphere each year, and blowing back onto land with the sea breeze, posing a risk to human health.
  • Microplastics are also present in drinking water, and edible fruits and vegetables, according to new research, which means that humans are ingesting microplastics every day.

In 1997, Charles Moore was sailing a catamaran from Hawaii to California when he and his crew got stuck in windless waters in the North Pacific Ocean. As they motored along, searching for a breeze to fill their sails, Moore noticed that the ocean was speckled with “odd bits and flakes,” as he describes it in his book, Plastic OceanIt was plastic: drinking bottles, fishing nets, and countless pieces of broken-down objects.

“It wasn’t an eureka moment … I didn’t come across a mountain of trash,” Moore told Mongabay. “But there was this feeling of unease that this material had got [as] far from human civilization as it possibly could.”

Moore, credited as the person who discovered what’s now known as the Great Pacific Garbage Patch, returned to the same spot two years later on a citizen science mission. When he and his crew collected water samples, they found that, along with larger “macroplastics,” the seawater was swirling with tiny plastic particles: microplastics, which are defined as anything smaller than 5 millimeters but bigger than 1 micron, which is 1/1000th of a millimeter. Microplastics can form when larger pieces of plastics break down into small particles, or when tiny, microscopic fibers detach from polyester clothing or synthetic fishing gear. Other microplastics are deliberately manufactured, such as the tiny plastic beads in exfoliating cleaners.

“That’s when we really had the eureka moment,” Moore said. “When we pulled in that first trawl, which was outside of what we thought was going to be the center [of the gyre], and found it was full of plastic. Then we realized, ‘Wow, this is a serious situation.’”

This new research shows that there’s actually a larger quantity of plastic in the ocean than previously thought, and that the plastic even enters the atmosphere and blows back onto land with the sea breeze. Recent studies also indicate that plastic is infiltrating our bodies through food and drinking water.


Originally published on 15 July 2020. Read the rest of the article here: https://news.mongabay.com/2020/07/our-life-is-plasticized-new-research-shows-microplastics-in-our-food-water-air/

Featured image: Marine debris litters a beach on Laysan Island in the Hawaiian Islands National Wildlife Refuge, where it washed ashore. Image by Susan White / USFWS.

[The Ohio River Speaks] There Must Be Settler Colonialism in the Water

[The Ohio River Speaks] There Must Be Settler Colonialism in the Water

The Ohio River is the most polluted river in the United States. In this series of essays entitled ‘The Ohio River Speaks,‘ Will Falk travels the length of the river and tells her story. Read the first, second, third, fourth, fifth and sixth part of Will’s journey.


Red Oak Memories

On the banks of the Ohio River, in downtown Warren, PA, I stood under the long limbs of an ancient red oak wondering what this magnificent tree must have witnessed in her lifetime. Red oaks can live for 400 years or more and this one had a circumference of what looked like 25 or 30 feet. Even if she was only 300 years old, she would have witnessed the arrival of European settlers in the area.

I tried to imagine what the scene before me looked like when the red oak was young. The hulking asphalt bridge carrying traffic across the river vanished. When it did, the screeching brakes, honking car horns, and police sirens hushed. The multi-story buildings crowding the opposite shore, with their advertisements painted in loud colors, disappeared. The stone man dressed as a Union officer brashly observing the town’s movements from his perch on an obelisk dedicated to the area’s Civil War casualties disintegrated. From the brass crucifix on a steeple casting a shadow over the river, Jesus ascended to heaven. And, he took the church building with him.

Beyond my vision, the Kinzua Dam was inconceivable and the Allegheny Reservoir was unthinkable. The oil wells’ metal pumpjacks methodically sucking crude oil from the earth like mechanical vampires throughout the Allegheny National Forest were centuries away from invention. Warren’s United Refining Company was unnecessary because no one thought they needed the extravagant energy made possible by petroleum.

With all of the evidence of the town of Warren gone, I saw the red oak’s kin growing thick around me, showering the ground with acorns. I saw towering, straight white pines and thick-foliaged hemlocks. These trees had never heard the haunting sounds metal saws make as they slice their way through forests. I heard the songbird symphonies in their full glory. I watched the intense gaze of blue herons stalking crawdads. I delighted in the flamboyancy of the green herons displaying their plumage. Mergansers and mallards led their downy chicks in wobbly lines up and down the river. Black bear cubs wrestled and climbed trees while their mother eyed trout in the shallows.

I also saw humans. I saw the Senecas and their ancestors who had lived here for thousands of years. I saw adults working on a new canoe that would carry them and their trading goods as far as the MTississippi hundreds of miles away. I saw elders telling teenagers stories to live by. I saw parents let their children swim and splash in the river with no fear of untreated sewage spills, oil refinery pollution, toxic fertilizers, or radioactive fracking wastewater.

The red oak’s and my view of downtown Warren, PA.

The red oak’s and my view of downtown Warren, PA.

There Must Be Something in the Water

These visions slowly drifted away until a blaring train horn brought me fully back to the present. It hurt to be back. I wished I could permanently transport to a time before asphalt bridges, oil refineries, and church steeples occupied the Ohio River basin. I wished I lived here before the town of Warren was built. I yearned for the time when traditional cultures governed these lands. I wished Europeans never found this land.

I began to feel sick to my stomach. I tried to recall if I had eaten something, but all I had eaten all day was an apple and a handful of cashews and almonds. This meal had never given me trouble before.

An acorn fell from the branches and bounced near my feet. The red oak’s branches caught my attention. I saw her leaves turning in the late afternoon sunshine. She glowed with a verdant light – one of the forest’s original colors. She glimmered with memories of times past. Then, a statement echoed in my mind: “There must be something in the water.”

My nausea intensified. It was a hot day and I was guzzling water. I had filled my water bottle up at several public fountains in town. Was something in the water? What was making me sick?

Above me, four flags snapped in the wind. One flag was a blue field with three gold fleur de lis. This was the old, royal French flag carried by French explorers in the area. One flag was the British Union Jack carried by British explorers. The third flag was the one carried by American forces during the Revolution. It showed 13 white stars arranged in a circle on a blue square with alternating red and white stripes. The last flag was the Seneca Nation’s. It was red and displayed the Seneca’s respect for nonhuman life with eight animals in a circle. They were deer, heron, hawk, snipe, bear, wolf, beaver, and turtle.

Below the flags, a plaque explained that originally this monument flew only the three imperial flags of the Europeans who claimed this land. Later, the Seneca Nation flag was added. That irony provoked in me a desire to learn the history of how indigenous peoples were pushed off this land. I hoped this would reveal what was in the water.

Settler Occupation Heartbreak

The history of the settler occupation of the Ohio River basin is heartbreaking. White settlers, especially Americans, engaged in decades of ethnic cleansing and genocide to open the region to settlement. This process is called settler colonialism. Historian Patrick Wolfe sums up the goal of settler colonialism as elimination of indigenous populations in order to make land available to settlers. And, in her essential book An Indigenous Peoples’ History of the United States, Dr. Roxanne Dunbar-Ortiz elaborates:

“Settler colonialism, as an institution or system, requires violence or the threat of violence to attain its goals. People do not hand over their land, resources, children and futures without a fight, and that fight is met with violence. In employing the force necessary to accomplish its expansionist goals, a colonizing regime institutionalizes violence. The notion that settler-indigenous conflict is an inevitable product of cultural differences and misunderstandings, or that violence was committed equally by the colonized and the colonizer, blurs the nature of the historical processes. Euro-American colonialism, an aspect of the capitalist economic globalization, had from its beginnings a genocidal tendency.”

Air Force officer and Associate Professor of History at the United States Air Force Academy Lieutenant Colonel John Grenier goes so far as to call the extravagant violence perpetrated by Americans against indigenous peoples as the US military’s “first way of war.” He explains in his book The First Way of War: American War Making on the Frontier, 1607-1814:

“For the first 200 years of our military heritage, then, Americans depended on arts of war that contemporary professional soldiers supposedly abhorred: razing and destroying enemy villages and fields; killing enemy women and children; raiding settlements for captives; intimidating and brutalizing enemy noncombatants; and assassinating enemy leaders.”

The Ohio River basin is home to many indigenous nations including the Senecas, Shawnees, Miamis, and Delawares. Americans fought wars of extirpation against all of these nations. Grenier describes why:

“The one constant road block to the settlers’ expansion into the interior of the continent was always the Indians. Thus, if they could eliminate the Indians, the settlers could make North America their own. Limited wars…did little to drive the Indians from their lands. Americans thus chose the most effective means of subjugating the Indians they faced. They sent groups of men, sometimes a dozen, sometimes hundreds, to attack Indian villages and homes, kill Indian women and children, and raze Indian fields.”

When I read this history, the movements happening across the country to remove statues and memorials dedicated to genocidal men came to mind. How can anyone who has read the words of men like George Washington, words ordering Americans to ethnically cleanse the land of indigenous peoples, oppose efforts to remove memorials to these men?

There is Malice Enough in our Hearts

During the American Revolution, for example, Washington wrote instructions to Major General John Sullivan to take peremptory action against the Haudenosaunee (also known as the Iroquois confederacy which included the Ohio River basin’s Seneca) to “lay waste all the settlements around…that the country may not be merely overrun but destroyed…[Y]ou will not by any means, listen to any overture of peace before the total ruin of their settlements is effected…Our future security will be in their inability to injure us…and in the terror with which the severity of the chastisement they receive will inspire them.” Sullivan replied, “The Indians shall see that there is malice enough in our hearts to destroy everything that contributes to their support.”

In this spirit, in 1779, the Continental Congress mustered three armies against the Senecas. Dunbar-Ortiz describes how the three armies scorched “earth across New York and converged at Tioga, the principal Seneca town, in what is now northern Pennsylvania. Their orders were to wipe out the Senecas and any other Indigenous nation that opposed their separatist project, burning and looting all the villages, destroying the food supply, and turning the inhabitants into homeless refugees.” To encourage enlistment in these armies, Dunbar-Ortiz notes that the Pennsylvania Assembly authorized a bounty on Seneca scalps, without regard to sex or age and concludes, “This combination of Continental Army regulars, settler-rangers, and commercial scalp hunters ravaged most of Seneca territory.”

The end of the Revolutionary War did not ease the violence Americans employed against the indigenous peoples of the Ohio River basin. Grenier writes that, in March 1791, Secretary of War Henry Knox (the namesake of Knoxville, TN), directed Brigadier General Charles Scott to recruit 500 Kentucky mounted rangers to destroy Miami towns along the Wabash River, a major tributary of the Ohio. Scott sacked two of the Miami’s largest towns, captured 41 women and children, and then issued the following threat to the Miami:

“Your warriors will be slaughtered, your towns and villages ransacked and destroyed, your wives and children carried into captivity, and you may be assured that those who escape the fury of our mighty chiefs shall find no resting place on this side of the great lakes.”

The Shawnees received the same treatment. Dunbar-Ortiz recounts how George Washington charged alcoholic Major General “Mad” Anthony Wayne (the name sake of Fort Wayne, IN) with destroying the Shawnees. Wayne marched into what is now northwestern Ohio and established Fort Defiance. He then made this ultimatum to the Shawnees: “In pity to your innocent women and children, come and prevent the further effusion of blood.” When the Shawnee leader Blue Jacket refused submission, Wayne’s forces began destroying Shawnee villages and fields and murdering women, children, and old men. At Fallen Timbers, on August 20, 1794, the main Shawnee fighting force was overpowered and Wayne’s men created a 50-mile swath of destruction while laying waste to Shawnee houses and cornfields. Wayne and his men carried on for three days after the battle.

Photo of a painting depicting the Battle of Fallen Timbers taken by the Kentucky National Guard Public Affairs Office , I doubt the Kentucky National Guard Public Affairs Office endorses my work. My use of this image should not imply that the Office does endorse my work.

Photo of a painting depicting the Battle of Fallen Timbers taken by the Kentucky National Guard Public Affairs Office, I doubt the Kentucky National Guard Public Affairs Office endorses my work. My use of this image should not imply that the Office does endorse my work.

The history of the American invasion of North America is filled with stories like the ones described here. It would take pages upon pages to represent this history in its entirety. Anyone attempting to understand the reality of American history needs to contemplate what Dunbar-Ortiz points out: “The objective of US colonialist authorities was to terminate [native nations’] existence as peoples – not as random individuals. This is the very definition of modern genocide.”

Macutté Mong and the Wabash River

The following stories finally showed me what was in the water that made me feel so sick.

George Rogers Clark is considered a hero of the American Revolution. He was likely a psychopath. Outside of Vincennes, IN, in February 1779, Clark demanded the unconditional surrender of the British inside Fort Sackville. When Henry Hamilton, Fort Sackville’s commander, refused to accept Clark’s demands, Clark showed what Grenier characterizes as “the Americans’ darker side.”

Hamilton described the events in his journal. Clark had four Indian captives. He ordered these four men taken into the street in front of the fort’s main gate where the fort’s occupants could watch. Hamilton reported:

“One of [the Indians] was tomahawked either by Clark or one of his officers, the other three foreseeing their fate, began to sing their death songs, and were butchered in succession. A young chief of the Ottawa nation called Macutté Mong one of these last, having received the fatal stroke of a tomahawk in the head, took it out and gave it again into the hands of his executioner who repeated the stroke a second and a third time, after which the miserable being, not entirely deprived of life, was dragged to the river and thrown in with the rope about his neck where he ended his life and tortures.”

When Hamilton continued to argue for lenient terms, Clark began to wash his hands and face “still reeking” in Macutté Mong’s blood and threatened to put the entire British garrison to death if it did not surrender immediately. Hamilton opened the fort’s gates the next morning.

When I read that Macutté Mong was thrown into the Wabash River, I realized that what was left of his brutalized body was carried south towards the Ohio River. I did not know how long it takes rivers to break down human bodies. I did not know how far a body’s materials might be carried by a river, either. But, I did know that matter can neither be created nor destroyed.

Macutté Mong’s body was no doubt recycled by the Wabash and Ohio rivers over the centuries. Some of his body was likely eaten by fish and insects who in turn were eaten by other fish, insects, birds, and animals. His bones likely sank into the riverbed, reunited with the bones of countless primordial marine organisms that form the white limestone southern Indiana is famous for. His blood stained the water until the river could wash enough of it away. And, in this way, Macutté Mong was spread throughout the watershed where he was murdered. I was born in southern Indiana, not far from where Macutté Mong was dumped into the Wabash River. Ever since I encountered Macutté Mong’s story, I have been haunted by the possibility that a part of his body – no matter how minuscule – became part of my body.

In March 1782, three years after Clark used four Indian men to intimidate the British in Indiana,  Delawares living along the Tuscarawas River at a Moravian mission in Gnadenhutten, Ohio were rounded up by a Pennsylvania settler militia under the command of David Williamson. These Delawares, who had converted to Christianity, were told they were being evacuated for their own safety. Then, the militiamen searched their belongings to confiscate anything that could have been used as a weapon. The militiamen accused these Delawares of giving refuge to Delawares who had killed white people and condemned them all to death.

The condemned Delawares spent the night praying and singing hymns. In the morning, the militiamen marched over ninety people – forty-two men, twenty women, and thirty-four children – in pairs into two houses and slaughtered them methodically. Daniel K. Richter, in his book Facing East from Indian Country: A Native History of Early America, found that one killer boasted he had personally clubbed fourteen Delawares to death with a cooper’s mallet. After killing these fourteen people, he handed the mallet to an accomplice and announced, “My arm fails me. Go on with the work.”

The Tuscarawas River flows into the Muskingum which flows into the Ohio. I never learned how these Delawares were laid to rest. But, considering the wanton cruelty the Pennsylvania militiamen demonstrated while slaughtering the Delawares, it is easy to conclude the militiamen used the Tuscarawas River to dispose of their dirty work.

I couldn’t drive the images of Macutté Mong pulling the tomahawk from his head or the cooper’s mallet falling on Delaware heads from my mind. The death songs sung by the men George Rogers Clark murdered drifted across time and space to give me nightmares. I heard the Delawares singing hymns in the distance. I saw skulls shattering. Clark’s man hesitated when Macutté Mong handed him the tomahawk back. The man swinging the cooper’s mallet grunted as he tired. Mangled bodies piled up. Blood spilled across floors, washed from door frames, and swirled with river currents. Crimson pools slowly expanded in formerly clean river water.

Shattered souls spill like blood

These visions taught me what the ancient red oak I stood under in Warren, PA was trying to tell me when she suggested there must be something in the water.

Some violence is so heinous that it shatters souls when it destroys bodies. Shattered souls spill like blood. Some of the shattered souls seep into the soil and make their way into groundwater. Some of the shattered souls flow with surface water to mingle with streams and rivers. These shattered souls contaminate water with the metaphysical equivalent of chemical carcinogens. They poison water with grief and dread.

Shattered souls litter the North American continent. When you confront this history, it is difficult to envision any water untainted by the horrors of settler colonialism. And, when you drink water polluted with shattered souls, you may get sick. Symptoms include a nagging angst, inexplicable grief, spiritual discomfort, the urge to flee, and sometimes physical nausea. There is no cure for this sickness. But, you will find relief facing the violence that shattered these souls, searching for the truth, and working to ensure that settler colonialism never shatters souls again.

Buildings crowding the river in Warren, PA.

Buildings crowding the river in Warren, PA.

This painting depicts Henry Hamilton’s surrender to George Rogers Clark at Fort Sackville near Vincennes, IN. Hamilton’s surrender came after George Rogers Clark tomahawked four native men to death at the fort’s gate to intimidate the British.

This painting depicts Henry Hamilton’s surrender to George Rogers Clark at Fort Sackville near Vincennes, IN. Hamilton’s surrender came after George Rogers Clark tomahawked four native men to death at the fort’s gate to intimidate the British.


Will Falk is the author of How Dams Fall: On Representing the Colorado River in the First-Ever American Lawsuit Seeking Rights for a Major Ecosystem and a practicing rights of Nature attorney. Rights of Nature advocates work to transform the legal system so that it recognizes the “personhood” of natural beings. For the rest of 2020, Falk will travel through the Ohio River Basin asking the Ohio River the two questions he asks any client who steps into his office: “Who are you?” And, “What do you need?”

[The Ohio River Speaks] Shitting Geese, Omega-3s, and the Arithmetic of Atrocity

[The Ohio River Speaks] Shitting Geese, Omega-3s, and the Arithmetic of Atrocity

The Ohio River is the most polluted river in the United States. In this series of essays entitled ‘The Ohio River Speaks,‘ Will Falk travels the length of the river and tells her story. Read the first, second, third, and fourth part of Will’s journey.


By Will Falk / The Ohio River Speaks

Sometimes I ask the Ohio River questions. And, sometimes she asks me. West of Salamanca, New York, a few miles before the Kinzua Dam traps the Ohio River in the Allegheny Reservoir, I sat in a kayak listening. She was speaking, but I did not understand.

The water was slow. The river’s face was smooth. And, the surface reflected a blue and white mosaic created by lazy cumulus clouds drifting across the sky. She pulled me ever so gently downstream. The sensation was powerfully familiar, but I did not know why.

A mother merganser swam with her five chicks along the closest shore. I smiled at what looked like exasperation on her face as she tried to keep her children moving in the same direction. For a few moments, she anxiously eyed a space downstream where a bald eagle had disappeared into the trees. When she looked back, one duckling had gone one way and one another. The other three didn’t know who to follow.

My mind slowed to match the river’s pace. The random, anxious firing of disparate images that form my moment-to-moment consciousness throttled down until my thoughts almost disappeared entirely. They were replaced by the fullness of my experience of the river. The sun, glinting off a passing dragonfly, left a trail of turquoise light. Bugs skimmed the surface, and appeared to me like the tips of invisible pens writing disappearing messages that only the bugs could comprehend. On the edge of my vision, I saw a splash and the telltale ripples of a leaping trout.

The enchantment continued until a wedge of passing Canada geese pointed right at me. They swept low and the goose flying point shat. The shit slapped my plastic kayak – a direct hit. The honking geese laughed. And, I did, too.

***

I knew the metaphors she presented me with were meaningful. What could be more meaningful than being shit on? But, I wasn’t sure what the Ohio River was trying to communicate until a few days later.

I was listening to an interview given by agricultural critic Richard Manning, author of Against the Grain: How Agriculture Hijacked Civilization and other great books. Manning was asked about the global food shortage and whether there would be enough food to feed the world’s human population over the balance of the 21st century. Manning answered no and pointed out how we are already failing to do so “drastically.” He explained that the people who say we are not failing often assume that humans need a certain amount of calories per day (2000 is the most common number). They multiply this number by the world’s total human population. Next, they calculate the total caloric value of the planet’s corn, wheat, and other grain production. Because the total caloric value of agricultural grain production is greater than the calories they claim are needed by humans, many people declare there is no food shortage.

Manning argued, however, that 2000 calories of carbohydrates are not adequate daily nutrition. He pointed out that high carbohydrate diets are, in fact, making humans sick, and that most humans are not getting the nutrition we have evolved to need. Omega-3 fatty acids are one of the most important things missing from most human diets. Omega-3 fats are vital for brain health and, thus, for achieving human potential.

A major problem, however, is that the world is running out of this essential nutrient. Omega-3 fats primarily come from animals, especially cold-water fish. Manning mentioned a study conducted by British scientists. I found the study titled “Is the world supply of omega-3 fatty acids adequate for optimal human nutrition?” by Norman Salem, Jr. and Manfred Eggersdorfer.

Eicosapentaenoic acid (EPA) and docosahexaenoic acid (DHA) are the most important Omega-3 fatty acids for human health. The study’s abstract stated that “EPA and DHA originate in the phytoplankton and are made available in the human food chain mainly through fish and other seafood.” However, “the fish catch is not elastic and in fact has long since reached a plateau.” These acids do occur in vegetables, but “vegetable oil-derived alpha-linolenic acid, though relatively plentiful, is converted only at a trace level in humans to DHA and not very efficiently to EPA, and so cannot fill” the gap in human need for EPA and DHA. The study “concluded that fish and vegetable oil sources will not be adequate to meet future needs, but that algal oil and terrestrial plants modified genetically to produce EPA and DHA could provide for the increased world demand.”

The realities of human nutritional needs, fish population collapses, and human population growth confronts us with a series of choices. We can attempt to provide all humans alive today with adequate nutrition. And, in the attempt, exhaust cold water fish, turn the oceans into algae farms, and violate the very DNA of terrestrial plants, while creating mutant plants to serve us. We can work to reduce human population to a point where humans and cold water fish can both thrive and exist. Or, we can do nothing. And, the most privileged among us may enjoy adequate nutrition – for a time – while more and more humans fall victim to malnutrition, while fewer and fewer of us may realize our full human potential.

I remembered the trout I saw leaping near the Allegheny Reservoir. I remembered the ripples whispering with the trout’s passing. I thought of other fish who provide Omega-3 fats: the mesmerizing schools of mackerel twirling like underwater whirlpools, the once mighty runs of red salmon who made so much noise swimming upriver you could hear them a mile away, and the hardy cod who call the deep, cold seas of the North Atlantic home.

***

While I was trying to understand the Ohio River’s message contained in these experiences, I went looking for information on her fish, specifically. I landed on the Ohio River Fish Consumption Advisory Workgroup’s website. This Workgroup is a “multi-agency workgroup consisting of representatives from the six main stem states (Illinois, Indiana, Kentucky, Ohio, Pennsylvania, West Virginia) as well as the US EPA and the Ohio River Valley Water Sanitation Commission.”

The website featured rows of photos of fishermen holding up individual fish of different species. Under each photo, text described how often each species can be eaten and the chemical reason for the advisory. Under a photo of a walleye, for example, the text read “1 meal per month – PCBs.” Under a photo of a sauger, the text read “1 meal per month – Hg.” Under a photo of a white bass, the text read “6 meals per year – PCBs.” But worst of all, under the photos of both a common carp and a channel catfish, the text read “Do not eat – PCBs.” PCBs, according to the Environmental Protection Agency “belong to a broad family of man-made organic chemicals known as chlorinated hydrocarbons.” Hg is mercury.

This made me nauseous. But, probably not as nauseous as eating a common carp or channel catfish would. I wondered how it made the fish feel. I wondered how the chemicals made other animals who eat the fish feel. Mergansers eat fish. Bald eagles do, too. Canada geese are primarily herbivores, but they occasionally eat fish. Hopefully, they observe the advisories and eat less than one meal per month or 6 meals per year.

As I thought of all these creatures, I sensed I was getting closer to understanding the Ohio River’s meaning. That’s when the familiarity I felt while floating in my kayak came back to me. The first physical sensations I ever experienced must have been those I felt floating in my mother’s womb. But, I’m not just my mother’s son. I spent the first, most formative years of my life drinking the Ohio River’s water. I am the Ohio River’s son, too.

But, that wasn’t all of it. The Ohio River pushed me on. My memory drifted farther into the past. Floating was likely our oldest ancestors’ first activity. Floating is familiar because the first motions of Life on Earth began in the movement of water. I saw the primordial oceans receding, glaciers melting, and the Ohio River being born. The Ohio River is a mother. She is also a daughter of the Earth.

Her voice became clear then. I understood what she was saying. On the kayak trip, she showed me her children – mergansers, a bald eagle, a dragonfly, and shitting geese. A few days later, she drew my attention to global problems confronting humans, fish, and her kin, the oceans. To understand these problems, I delved into studies describing the extent of global destruction and found the fish advisories. Then, as I considered the pain industrial poisons cause the Ohio River’s children, she evoked the familiar sensation of floating in a mother’s womb.

The key was the word “familiar.” The Ohio River was asking me for news of her family. She gossips with her sister, the Mississippi, when she joins her near Cairo, IL. But, the Mississippi only offers correspondence from around North America. She listens to her cousins in the global water cycle, the clouds. Clouds and rivers speak similar, but not the same, languages. Sometimes the wind brings tidings from the oceans. But, the wind talks too fast and never stays long. With access to global information at my fingertips, she wanted my help.

Her questions may have been clear all along. Perhaps, my heart prevented me from hearing.

***

The news, of course, is heartbreaking. The 2018 Living Planet Index and Zoological Society of London’s Living Planet Report found that on average the abundance of vertebrate species’ populations monitored across the globe declined by 60% between 1970 and 2014. The study’s authors explained that humans are causing this decline through overexploitation of species, agriculture, and land conversion. This means that, in just 44 years, humans have destroyed more than half the world’s vertebrates. Things are worse for global freshwater species of mammals, birds, amphibians, reptiles, and fish which have declined by 83 percent between 1970 and 2014, equivalent to 4% per year since 1970.

This is the arithmetic of atrocity. Every year, due to human destructiveness, the Ohio River’s family grows smaller and smaller.

The 2016 version of the Living Planet Report found that almost half (48 percent) of global river volume had been altered by flow regulation, fragmentation, or both. The authors noted that completion of all dams planned or under construction would mean that natural hydrologic flows would be lost for 93 percent of all river volume.

Most of the Ohio River’s sisters, like she is, are held captive by dams.

Just like the numbers are grim for the animals who live in water, the news is gut-wrenching for the global water cycle. Water is being poisoned on a massive scale. For example, the United Nations Educational, Scientific, and Cultural Organization states that every day 2 million tons of sewage and other effluents drain into the world’s water. Industry discharges an estimated 300-400 megatons of waste into water bodies every year. And, globally, it is likely that over 80% of wastewater is released back into the water cycle without adequate treatment.

The water forming the Ohio River’s body and the bodies of her relatives is being poisoned.

I read these statistics out loud to the Ohio River. I’m not sure how I thought she’d respond. I waited for several days. Nothing came through my dreams. Inspiration was absent. Writing about other aspects of the river failed. For the first time, the Ohio River had nothing to say to me.


Will Falk is the author of How Dams Fall: On Representing the Colorado River in the First-Ever American Lawsuit Seeking Rights for a Major Ecosystem. He is a practicing rights of Nature attorney and a member of DGR.

Coal Plant Accident Kills Six in India

Coal Plant Accident Kills Six in India

What is electric power worth? The coal power industry is responsible for an incredible amount of suffering and death via air, soil, water pollution and land destruction. This is not to mention the gathering climate crisis apocalypse. This piece, by DGR South Asia organizer Salonika, discusses the cost of coal.


Reliance Power Accident in India Claims Six Lives

By Salonika

Amidst the increasing number of Covid-19 cases in India and talks from Prime Minister Narendra Modi on reopening selective industries, an accident in a coal-fired power plant washed away six people (three children, two men, and one woman), in Singrauli district in India . Three of them have been found dead, while three are still missing and presumed to be dead.

The flood was caused by the failure of a dam holding back “fly ash” sludge at the power plant owned by Reliance Power. Bodies were found as far as five kilometers (more than 3 miles) from the site of accident.

What Is Fly Ash?

Fly ash, along with bottom ash and “scrubber sludge”, is a by-product of burning pulverised coal. Coal ash consists of heavy metals (like arsenic, boron, lead, mercury) that are known to be carcinogenic and cause liver and kidney diseases. Mercury levels in blood samples near the Singrauli region were found to be six times greater than what is considered safe.

We know that fly ash is a global problem. Much of the fly ash produced from coal power stations is disposed of (stored) in landfills or ponds. Ash that is stored or deposited outdoors can eventually leach the toxic compounds into underground water aquifers. Once water is contaminated it affects the health of the water courses and wildlife.

Fly Ash Accidents

Given the hazardous nature of coal ash, it is usually mixed with water to keep it from blowing away and stored in an artificially created pond. Accidents occur when a breach in the dam causes the fly ash pond water to leak. Such accidents are not uncommon. This is the third incident of the type in Singrauli district (which hosts over a dozen such pond dykes) in the past 8 months: one happened in Essar Power Plant on August, and the other in NTPC plant on October.

Accidents like these comes at a substantive cost for the farmers’ sustenance as well. Essar accident caused major crop and house damage in nearby villages. NTPC incident washed away crops and cattle. The fly ash from the current accident has swallowed up entire fields in its path.

Fly ash accidents can also completely wipe out natural biodiversity in rivers and streams, killing fish, crayfish.

The Reliance Power accident.

In this particular case, speculations have been raised that the accident was caused by a heavy accumulation of fly ash in the pond. Due to the economic lockdown (as a result of the coronavirus), the waste materials could not be disposed. However, official reports reveal that the project responsible for the fly ash pond were sent repeated warnings for upgrade by the state government. A 2014 investigation reported a saturation of thermal power plants in the entire area and warned of potential damage.

Although India has delineated plans for scientific disposal and 100% utilization of fly ash since 1999, it has not yet been successful. Slurries have previously been dumped directly into water bodies used as sources of drinking water by locals. Local people have been fighting for resettlement rights of the people displaced by the thermal power project, and against the associated environmental pollution. In this case, suspicion has been raised regarding a planned sabotage in order to let the toxic waste run into the local water bodies.

The local authorities have declared that “strictest possible action” will be taken. Most likely, a minor fine will be given to the company. Meanwhile, Reliance Power has declared that the plant would continue to run normally.

What Are The Problems With Continuing Use of Coal Power Plants?

In this case, there is clear evidence of the company disregarding regulatory policies. Meanwhile, regulatory policies in most countries do not adequately address the risks associated with the storage of coal ash—let alone the existential risks of climate change. For example, in United States the Environmental Protection Agency under the Trump Administration loosened regulations on storage and disposal of coal ash in 2018. If put in place, these loosened regulations will increase instances of toxic waste being leaked into local water bodies, harming both human and natural communities.

The 100% utilization policy in India mandates all of coal ash to be used in what is termed “beneficial uses”. One prime example of these include mixing the coal ash with concrete. The associated health risks of living in a house built with coal ash has not been properly studied yet. It is likely that the risks would only be manifested as harmful to health years later, making it difficult for the cause to be determined.

From a biophilic perspective, the existence of coal ash itself is problematic. Coal ash is a byproduct of a coal power plant, and is multiple times more toxic than coal in its natural form, which would in itself provide a strong argument for stopping the creation of coal ash in the first place. However, driven from a growth imperative, coal power plants have become an integral part of the industrial civilization. From such a perspective, the repetitive failures of the storage ponds to contain the toxic material becomes a “necessary evil.” Generally, the health risks associated with toxification are limited to a small group of people, whereas the benefits are enjoyed by a larger group of (often privileged) individuals. In this case, all the major industries in Singrauli district are power plants: the human and natural communities there currently face the dire consequences of a third breach in the past year.

We cannot count on these industries or on the government to regulate themselves. They will have to be shut down by people’s movements.


Salonika is an organizer at DGR South Asia based on Nepal. She believes that the needs of the natural world should trump the needs of the industrial civilization.

Not all of us can on the front lines. But we can all contribute.

If we are going to ask people to take on substantial personal risk in pursuit of ecological justice, then we need to provide those revolutionaries with the training, legal, and financial resources they need. We need your help to do this.

Throughout history all resistance movements have faced ruthless enemies that had unlimited resources. And, unlike the past, now everything’s at stake.

Here’s your opportunity to fund the resistance. Join those of us who cannot be on the front lines in supporting the struggle for life and justice. Your help literally makes our work possible.

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.