This episode of the Green Flame is an interview with Kim Hill, a permaculture design teacher based on the South East coast of New South Wales, and Joanna Pinkiewicz, a women’s rights activist and environmental activist, based in Tasmania. We discuss the Australian bush fires, the role of fire in the landscape, indigenous land management practices, land defense, grief rituals and nature connection, and the likelihood that corporations and developers with backing from the government will open up fire-affected land to development and mining. Two of DENNI’s songs are included with permission: Trees and Wise Ones.
The Green Flame is a Deep Green Resistance podcast offering revolutionary analysis, skill sharing, and inspiration for the movement to save the planet by any means necessary. Our hosts are Max Wilbert and Jennifer Murnan.
“In a ruling taken as a devastating blow for climate campaigners worldwide, the 9th Circuit Court of Appeals in the United States on Friday afternoon threw out a lawsuit brought by 21 youth plaintiffs who accused the U.S. government of failing its constitutional mandate by refusing to act urgently and responsibly to address the existential threat of human-caused global warming.
The case at issue, Juliana vs. United States, has been seen as a potential landmark case not just domestically but across the globe and while the three-member panel of the 9th Circuit—notably seen as one of the country’s most liberal-minded circuit courts—agreed with the plaintiff’s argument that the U.S. government has operated as a barrier to climate action it concluded the courts were not the appropriate avenue for their complaint.
In the 2-1 majority ruling, written by Circuit Court Judge Andrew Hurwitz, he stated that while the panel was convinced by the narrative set forth in the lawsuit—agreeing the climate crisis has brought the world close to the “eve of destruction” and that “the government’s contribution to climate change is not simply a result of inaction”—it ultimately and “reluctantly concluded that the plaintiffs’ case must be made to the political branches or to the electorate at large.”
Deep Green Resistance covered this case back in November, when we published an article titled “The Legal System Will Not Save the Planet.” That article more or less predicated an ineffective outcome for this case—which is not something we revel in. We wish that this case were effective. But it will not be, for a variety of reasons discussed in that piece.
“Legally speaking, judges can rule anything they want, as long as they can justify it using legal precedent. But there are also specific legal and doctrinal barriers that confine all judges who sincerely believe in the structure of American law. Namely, as mentioned earlier, the notion that nature is property, that property can be rightfully destroyed or consumed by its owner, and the principles of corporate rights all stand in the way in the significant legal change. Further, even favorable court rulings would depend on the Executive and Legislative branches of the U.S. government, as well as on police, military, and other Federal employees, to enforce such a legal shift.”
Following the U.S. assassination of prominent Iranian General Qassem Soleimani last Friday, Iran has launched a missile strike against U.S. military bases in Iraq.
It is unclear what will happen from here, but there is a possibility of escalation and the potential of a major war. This would be a disaster for the people of Iran and Iraq, for the ecology of the region and of the entire planet, and likely for the United States as well.
There are two hallmarks of modern warfare: civilian deaths, and ecological devastation. Between sanctions, the Gulf War, and the 2003 invasion and occupation, the U.S. government is responsible for more than 2 million Iraqi civilian deaths. Falluja is a toxic nightmare of depleted uranium and birth defects, and the emissions from U.S. wars are a major contributor to global warming. This is not to mention the torture and other war crimes.
A war in Iran would only create untold suffering and instability, as we have seen from the fallout of the U.S. invasions of Afghanistan and Iraq.
Iran is no saint, either. Those who lionize Iran simply for standing up to U.S. power forget the lessons of the past. Most modern wars are not fought between good and evil, but between two different varieties of evil. This is the trajectory of civilizations. They are expansionist, aggressive powers that must fight to maintain their position. Iran is no more a force for good than was Saddam Hussein. Deep Green Resistance stands against all imperialism, whether the aggressor is the United States or China or Iran, and whether the weapon is cyber warfare, proxy conflicts, sanctions, international “aid,” or Predator drones.
So how do we resist a war such as this?
We are a radical environmental organization that advocates for dismantling the global industrial economy by any means necessary. We believe the Deep Green Resistance strategy provides a viable way to oppose imperialism by making modern industrialized warfare impossible. We do not aim to simply stop this war. We aim to stop all modern warfare, including the oldest war of them all: the war against the planet.
Civilian casualties in Iraq, Afghanistan, and September 11th, by James Buckley. Used under CC BY-NC 2.0. Image is from 2010, so figures are more heavily skewed towards civilian deaths by now.
Featured image: Kuwaiti oil wells on fire during the first Gulf War. Public domain photo.
This episode of The Green Flame focuses on colonization and has three interviews: the first with Anne Keala Kelly, a native Hawaiian organizer, journalist, and award-winning filmmaker; the second with Mari Boine, a world-reknowned Sami indigenous musician; and the third with a river.
We discuss colonization, history, tourism, the TMT telescope project on Mauna Kea, indigenous peoples of Europe, music, and how to connect with the land. Three of Mari Boine’s songs are used in this episode, with permission: Gula Gula, Goaskinvielija (Eagle Brother), and Vilges Suola.
The Green Flame is a Deep Green Resistance podcast offering revolutionary analysis, skill sharing, and inspiration for the movement to save the planet by any means necessary. Our hosts are Max Wilbert and Jennifer Murnan.
Bios
Anne Keala Kelly is a journalist and filmmaker. Keala’s published articles and Op-Eds have appeared in the Honolulu Star-Advertiser, The Nation, Indian Country Today, Honolulu Weekly, Honolulu Civil Beat, Hana Hou! Magazine, Big Island Journal, and other publications. Her broadcast journalism has aired on Free Speech Radio News, Independent Native News, Al Jazeera English, The Newshour with Jim Lehrer, Democracy Now!, The Environment Report, and more. She is a frequent guest commentator on First Voices Indigenous Radio, and has been interviewed on numerous nationally syndicated radio programs, from KPFK Los Angeles’ Rise-Up to Native America Calling in Anchorage to the Australia Broadcast Corporation’s Pacific Beat. Her reporting on Hawaiian poverty and homelessness garnered her Native American Journalism Awards. And her documentary, Noho Hewa: The Wrongful Occupation of Hawai’i, has received international film festival awards, and is widely taught in university courses focusing on Indigenous Peoples, colonization, Hawaiian sovereignty, and militarism. Keala is an outspoken Native advocate for Indigenous representation in media, and has been a guest speaker at universities in Hawai’i, the U.S., and Aotearoa-New Zealand. She has delivered conference keynotes and participated in conference and community panels and roundtables. She has an MFA in production from the UCLA School of Theater, Film, and Television. To learn more about her film, go to www.nohohewa.com.
Mari Boine: Imagine the ice and snow of the Arctic landscape, the bitter cold of the Northern wind, the hint of compelling blue under a crystallized lake. Close your eyes. Then listen. Really listen. You’ll feel a voice before you even hear it. It’s like none other. It’s a voice that brings the landscape alive with a mesmerizing purity; a voice that represents a thousand years of ancestral connection to an unyielding frozen space. This is Mari Boine. Musician. Songwriter. Singer. A genre-bending trailblazer with a taste for jazz, folk, rock, and world. An artist whose music is inspired by and infused with her Sámi roots. A woman who knows who she is, where she’s come from and what she stands for. A music icon who has inspired indigenous artists the world over.
The result of last week’s election was both unsurprising and, oddly helpful. It demonstrated what many of us already know; that most of the electorate are ill-informed, and incapable of making even a basic, reasonable decision. We know that the media is corporately controlled and designed to protect corporate interests. We know that this culture’s downward spiral is accelerating and that it will not voluntarily transform itself into the promised “better society”.
It was perhaps the starkest choice the British electorate has ever had to face. On the one hand a racist, sexist, upper class, proven liar at the head of a political party that offered very little (in reality) for the people. On the other, an imperfect but, seemingly, honest man with a history of integrity, who has fought for disadvantaged people for decades. A man at the head of a party whose policies might at least have helped those less well off in the UK, people who really needed immediate relief from austerity. I normally spoil my ballot paper because I want radical not incremental change . This year I voted.
I knew that my vote would not be enough. Corbyn’s policies, at least less destructive than the Sociopath’s, did not go nearly far enough in terms of halting the destruction of the earth. I knew that even if Corbyn won we would still have to resist. I voted because it was a choice between a vile self-centred man who craves power and a decent human being whose aim is to help the disadvantaged.
I was disappointed but not surprised when the country elected the Sociopath. This is a profoundly dishonest and sociopathic culture. Psychologist, J. Schumaker (2016) claims “Human culture has mutated into a sociopathic marketing machine dominated by economic priorities and psychological manipulation.”, so of course it would elect a dishonest sociopath to lead it. In actual fact, the more you learn, the more you realise the situation is far worse than that. Life on earth is facing extermination. Everyday 200 species disappear forever, climate change accelerates, this culture continues to poison our air, water and land. If life is to survive we need to create a vibrant diverse culture of resistance.
According to Umail Haque, Anglo-America is “entering a death spiral, from which there’s probably no return.” The “only two rich societies in the world with falling lifeexpectancies, incomes, savings, happiness, trust — every single social indicator you can imagine — are America and Britain.” In fact the whole world is in a death spiral, or rather, industrial civilisation is killing life on earth. Every single ecosystem is in decline. You might think this is an exaggeration, in which case I invite you to investigate. It is a hard truth to face but we ALL NEED TO face it and ACT. We need to resist or we die.
In the The Sixth Extinction: An Unnatural History (2014) Elizabeth Kolbert and the scientists she interviews, identify three main causes of global extinction; climate change/ocean acidification, habitat loss and foreign species introduction. Pre-industrialised humanity did not cause climate change and ocean acidification. Habitat loss was not caused by indigenous people, it was caused by agriculture and the spread of civilisation. Foreign species introduction only became a global problem with the rise of globalisation. Industrial civilisation is not causing the 6th mass extinction, rather it is committing the first mass extermination of life on earth. It is not an extinction event. It is genocide.
Johnathan Cook claims that this election has helped to burn the illusion that we live in a functioning democracy. We do not. As Chris Hedgespoints out, the corporate coup d’etat took place decades ago. The media is owned by the elite and they would not permit a man who posed a threat to their ability to thrive, to be elected. Cook also points to part of the solution, stating we must take to the streets. We know this alone will not be enough.
We need to stop the idiocy, we need to increase people’s ability to think things through, we need to take this whole mess down. We need a resistance movement that knows what the root cause of the problem is; industrial civilisation. A movement schooled in the strategies and tactics that have led to unlikely victories in the past. We need support networks. Sabotage. Educated, underground, militant, direct action groups, who are willing to take any necessary action to stop the machinery of this cannibalistic system from poisoning the air, the soil and the sea. We need peaceful protests. We need boycotts. We need strikes and we need people to support the strikers. We need all truly effective actions. We needed it decades ago. We need it now before it is too late.
This election result should not dispirit us. It must galvanise us. I WILL SEE YOU. I will see you in the streets, in the trees, and at the gates of the elite. I will see you at night dismantling the machines of destruction. I will see you in the jungles in front of bulldozers or chasing colonizers from your land. See you at the rivers letting them run free. See you anywhere life is under threat. I see as all working together to turn the tide of this merciless destructive culture. And I see us all regenerating this wild beautiful bleeding world. I see us.
Ben Warner is a longtime organizer with Deep Green Resistance UK. He is a white, urban-raised, middle-class male, who recognises that cities, white supremacy, male supremacy, human supremacy, and capitalism need to be dismantled.
Featured image: original artwork provided by the author.
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:
Depriving Drewes Farms of its fundamental right to freedom of speech and to petition the courts under the First Amendment;
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;
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
Depriving Drewes Farms of its rights without due process.”
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.
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.
“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.
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.
“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.
