I’m going to use Jane McAlevey’s definition for organising as described in a previous post: “organizing places the agency for success with a continually expanding base of ordinary people, a mass of people never previously involved, who don’t consider themselves activists at all – that’s the point of organizing.”
In this post, I’ve included activism around ‘rights’ and ‘issues’, to make this list as comprehensive as possible. I’d also add that this is a rough sketch of what to organise (and mobilise) around and this list needs more research and probably reworking.
Workplace
The first area to organise around, with a long history is the workplace and employment. This was an important area of struggle to change society in the twentieth century, but the nature of work has changed and the trade unions have been crushed in the last 40 years. There have been, and are, several union forms; those from the past will be looked at in future posts. Currently, there are large unions, known as ‘service unions’, and ‘base unions’.
The second area to organise around is the community, including: community organising, community unions, the community rights movement, and community social welfare programmes.
Community organising was developed in the mid-twentieth century in the US. It involves campaigns to change institutional policies and practices to improve the living conditions for community members. Hackney Unites has put together a good HU-community-organising. National reformist community organising organisations doing good work include Citizens UK and Community Organisers. There will be many local groups and organisations using community organising methods all over the UK.
There has been a first step in the UK to set up a community rights movement in the formation of the Community Chartering Network. This comes from a successful community charter in Falkirk, Scotland, that resulted in the Scottish Government banning fracking in Scotland. Read the story here.
Community social welfare programs are generally run by local government or NGOs (Non-government organisations). A good example of this in the UK was the British Restaurants – communal kitchens set up in 1940 to provide cheap food so everyone could eat.
Communities have been under attack since the 1970s, with many basic services and social centers no longer in operation. Community social welfare organising now involves activists running basic services in their communities to fill the gaps where the state has been rolled back. The classic example would be the Black Panthers Free Breakfast for Children in the US in the 1960s/70s.
In 2014/2015 a pay as you feel cafe called Skipchen in Bristol served over 20,000 meals. Can Cook in Garston, Liverpool provides thousands of free hot lunches for children in poverty in the Merseyside area. Foodhall is a public dining room and kitchen in Sheffield that is managed by the community, for the community, tackling social isolation and encourage integration across a diverse range of groups. Foodhall are campaigning for a National Food Service, to develop public social eating spaces around the country. There is Cooperation Town movement based on Cooperation Kentish Town that provides a community space with healthy, cheap food, childcare and more.
Combining Workplace and Non-Workplace
The third area to organise is a combination of workplace/job and struggles outside the workplace, including: Jane McAlevey’s ‘whole worker organizing’, community unionism, and social movement unionism.
Whole worker organising merges workplace and non-workplace issues based on Jane McAlevey’s extensive experience of community and union organising. This article gives a good summary of McAlevey work in Connecticut that combined housing and workplace struggles.
Janice Fine is her 2005 article, “Community Unions and the Revival of the American Labor Movement” describes community unionism as community-based organisations of low-wage workers that focus on issues of work and wages in their communities. They are based on specific ethnic and geographic communities (as opposed to workplaces), especially immigrants and African Americans. Fine describes how they have appeared from several sources including: “community and faith-based organizing networks, Central America solidarity movements and other left-wing organizations, legal services as well as other social service agencies, immigrant nongovernmental organizations (NGOs), churches, and some labor unions.” These community unions are mainly focused on work-related issues but also include other aspects of life including housing, healthcare, and education.
Social movement unionism is currently popular in the US, involving the combination of workplace unionists and social movements to tackle issues, civil and human rights and alter structures of law and political power. This article gives a history and critique of social movement unionism. This interview with a member of the UK National Union of Teachers (now the National Education Union) describes the three legs of a stool working together to make a strong union: bread and butter issues, professional issues, social justice and community campaigning.
Megan Behrent writes about a radical form of social movement unionism called ‘social justice unionism‘ here.
Social Strike
The ‘social strike’ is described by Antonio Negre and Michael Hardt in Assembly as the ‘weapon of social unionism’. [1] Keir Milburn states here that the social strike “brings out three functions that will be required from any set of practices able to play a role equivalent to the twentieth-century strike. These are making the new conditions visible, disrupting the circulation of capital and directly socialising, collectivising and communising our social relations, reproduction and struggles.” Negre and Hardt describe the social strike as “the labor movement’s interruption of industrial production and the social movements’ disruption of the social order.” [1]
Recent examples are the UK Youth Climate Strikes and the planned global Earth Strike on September 20th. Around social reproduction, there is the Women Strike Assembly, which organised strikes in 2018 and 2019 on International Women’s Day, March 8th.
Politics
Political organising takes place via a political party or independent citizens’ platforms. Political parties come in several forms: classical traditional political parties, social movement parties, single-issue parties, and digital/internet-based political parties. Some parties combine a few of these forms.
There have been recent innovations in classical traditional political parties such as Obama’s organising/movement presidential campaigns and Bernie Sanders 2016 US presidential campaign using ‘Big Organising’.
Single issue parties would be the green parties in different countries (although many have broadened their policies over time) and the Brexit Party in the UK.
Organising around politics can also be done outside political parties, as the municipalism movement (see below) is showing. For examples of independent politics at the local level in the UK, there is The Indie-town project and Take Back the City in London.
Municipalism
Municipalism is the process of self-government by cities, towns, or municipalities. There are three broad municipalism traditions: municipal socialism, libertarian municipalism, and the right to the city movement.
Municipal socialism describes the local government-led social reform. There have been several phases in the UK. The most recent is the Preston Model, where the local authority changed the procurement for the council and local large institutions (university and hospital) to buy from local businesses and cooperatives. This strengthens the local economy. It is based on the Cleveland model and is known as community wealth building.
Libertarian municipalism (also known as Communalism) is from the theorist Murray Bookchin. Bookchin proposed a twin strategy of popular or people’s assemblies to look at local issues and start to form an alternative government, combined with running municipal candidates chosen by the people’s assemblies to stand in local electoral politics. Bookchin wanted to build institutional capacity and repurpose state power to increase libertarian collective power. The societal, larger-scale vision of libertarian municipalism or Communalism is Confederalism – where self governed cities and localities are connected in a larger network. Ideas of confederalism have been put into practice in Rojava in northeast Syria/West Kurdistan and are known as Democratic Confederalism. They have also been taken up by the international Fearless Cities Movement and Cooperative Jackson in the US.
The right to the city movement started in the 1960s with geographers such as Henri Lefebvre and David Harvey analysing the city from a Marxist perspective. They argue that the transformation of the city depends upon the exercise of collective power to reshape the processes of urbanization to meet the people’s needs.
Poor people’s Movements and Solidarity
The history of poor people’s movements have been explored in detail in the book Poor People’s Movements: Why They Succeed, How They Fail by Frances Fox Piven and Richard A. Cloward. This article gives a good summary of the more spontaneous and disruptive nature of these movements. They are based on mobilising rather than organising, which links to momentum driven organising discussed in this previous post.
DP Hunter has written a book Chav Solidarity and in this article he describes chav solidarity: “if just the left-leaning working class were to collectivise our resources (wages, savings, inheritance, homes, and whatever else), or we were to transform our economy into a communal one, we would be able to provide for one another. Those economically marginalised and living in poverty, as I was not that long ago, would not be in positions of such deprivation and exclusion, their short term concerns of where their next meal was coming from, where they would be sleeping in a week’s time, would abate.”
Institutions
Organising around institutions can take three forms: influencing institutions, reclaiming existing institutions for the left and supporting or creating alternative institutions.
Influencing institutions includes attempting to change state behaviour through laws in parliament or rulings in courts. It could also include influencing political parties, the media or corporations. A good resource on this is How Change Happens by Duncan Green.
Examples of reclaiming existing institutions for the left would be all three municipalism traditions described above. The Labour Party has recently been reclaimed for the left by Jeremy Corbyn. The UCU trade union membership recently elected a grassroots left candidate as General Secretary – Jo Grady. We Own It, campaign against privatisation and make the case for public ownership of public services.
For alternative institutions, the community social welfare programs described above in the community section is an example of this. Others are workers coops in the UK and Mondragon in Spain. Concerning alternative media, see here. Concerning credit unions, see here. Libertarian municipalist people’s assemblies (see above in municipalism section) are an example of an alternative government. There is the recent idea of public-commons partnerships where citizens become co-owners, co-earners and co-decision-makers of municipal cooperatives.
Rights and Issues
There is a lot of crossover between rights and issues, so for now I’ve combined them.
Rights include human rights, democratic and political rights (right to vote, citizenship, civil liberties), economic rights (right to a decent job and pay, and a social safety net such as benefits), rights to public goods/services (public healthcare, education, housing, media etc), community rights movement (see above), and rights of nature.
Issues include the rights of women, gay people, people of colour, disabled people, and others, anti-war and the peace movement, LGBTQ+ movement, inequality, environmental issues with climate change being the biggest concern, and the alter-globalisation or anti-globalisation movement.
Endnotes
1. Assembly, Antonio Negre and Michael Hardt, 2017, page 150
In this writing, taken from ‘The Ohio River Speaks‘, Will Falk describes the urgency in which he seeks to protect the natural world. Through documenting the journey with the Ohio River he strengthens others fighting to protect what is left of the natural world. Read the first part of the journey here.
The first headwaters of my journey with the Ohio River are located in despair. Despair and I have a long-term, intimate relationship.
Seven years ago, I tried to kill myself. Twice.
Suicidal despair is a failure to envision a livable future. The future never comes, so the future is built with the only materials at hand – experience. At times, my experience is so painful, and the pain lasts so long that, when I peer into the future, I only see more pain. When this happens, I sometimes ask: If life is so painful, if life will only remain so painful, why go on living?
I cling to my reason. I live for my family. I have seen the pain my two suicide attempts have caused my mother, father, and sister. My family also includes the natural world. I have been enchanted by the stories the Colorado River tells. I have watched the stars next to ahinahina (silverswords) on the slopes of Mauna Kea. I have seen a great horned owl dance on setting sunlight filtered through pinyon-pine needles.
This doesn’t mean, however, that I do not experience despair anymore.
Sometime last year, a spark flew from our shared global experience to fall into a tinderbox of my recent personal experiences and ignited the strongest inferno of despair I’ve felt in a long time.
I ended a long-term romantic partnership with a woman who, at one time, I thought was the love of my life. I moved in to my parents’ basement in Castle Rock, CO. And, an environmental organization I love working for almost internally combusted.
These realities are personally painful. But, they’re not unique. It is a global reality – the intensifying destruction of the natural world – that is the deepest source of my despair.
The love I feel for my mother and father, for my sister, for rivers, mountains, and forests, for ahinahina, great-horned owls, and pinyon-pines makes me deeply vulnerable. It wasn’t until I noticed the way people have been obsessively tracking confirmed cases of COVID-19 that I realized most people do not pore over studies about rates of ecological collapse like I do.
While COVID-19 is very scary, I find reports like the one from Living Planet Index and the Zoological Society of London in 2018 documenting a gut-wrenching 60% decline in the size of mammal, bird, fish, reptile, and amphibian populations in just over 40 years to be even scarier.
I am cursed with a profound sense of urgency to stop the destruction of the planet.
If millions of people are killed every year by air pollution, then each passing year is, to me, a heinous disaster. If dozens of species are driven to extinction every day, then each passing day is an unspeakable tragedy. If thousands of acres of forest are cleared every hour, then each passing hour is a horrific loss.
If all these things are true, then each passing moment screams more loudly than the last for the destruction to stop. I haven’t found many others who possess a similar sense of urgency. I haven’t even found many others who possess this sense of urgency among fellow environmentalists. The lack of urgency displayed by environmentalists is especially frustrating because environmentalists are aware of the problems we face. Despite this awareness, most environmentalists are still drinking a stale Kool-Aid brewed with the substanceless sugar of ineffective tactics.
For example, I am a practicing rights of nature attorney. In 2017, I helped to file a first-ever federal lawsuit seeking rights for a major ecosystem, the Colorado River. For the past few years, I’ve worked for a nonprofit law firm, the Community Environmental Legal Defense Fund (CELDF), that has developed a strategy for enshrining rights of Nature in American law.
American law defines Nature merely as property. Property is an object that can be consumed and destroyed. CELDF’s strategy, specifically, and rights of Nature, generally, seek to transform the status of Nature from that of property to that of a rights-bearing entity. This is similar to how ending American slavery required transforming the legal definition of African Americans as property into African Americans as rights-bearing citizens. Those with rights have power over those without rights.
And, in a culture based on competition, those with rights oppress those without rights.
A key component of CELDF’s strategy involves helping communities affected by environmental destruction to use their local lawmaking functions to enact laws granting Nature the rights to exist, flourish, regenerate, and naturally evolve. These laws also give Nature legal “personhood” which empowers community members to bring lawsuits to enforce Nature’s rights. Currently, under American law, if community members want to sue to stop environmental destruction, they must frame the problem as violating their rights as citizens. It is often more difficult to prove that environmental destruction directly harms humans than it is to prove that an activity harms an ecosystem.
If Nature was recognized as a legal person and communities simply had to prove that an activity violated the rights of Nature, then many destructive activities would become illegal. On the surface this may seem like a great strategy. However, this strategy depends on convincing too many people in power, who directly benefit from the status quo, to embrace and enforce rights of Nature. The powerful derive their power by exploiting Nature. Enforcing Nature’s rights would undermine their power. This is why they react so violently whenever their power is truly threatened. Even if convincing all these people to give up their power is possible, it will likely take decades to change the legal system into one that respects rights of Nature.
In CELDF, we are working hard to reinvent our strategy to reflect the recognition that legal change, by itself, is taking far too long.
Nevertheless, most tactics employed by environmentalists are based on achieving a voluntary transition to a sane and Earth-based culture. But, do we really think this voluntary transition is possible? And, even if we do, don’t we have to admit that this voluntary transition is taking a long time? As time slips away – and so much is destroyed and so many are murdered – shouldn’t we be most concerned with stopping the dominant culture as quickly as possible? When I suggest that we have an open and frank conversation about what it will take to truly stop the destruction, I am often dismissed as being unrealistic and too extreme.
This causes me to despair. When I despair for too long I become depressed and anxious. When I am depressed and anxious I shake, tremble, fidget, and pace. Over the years, I’ve learned that when this happens, my body is telling me to move. Unsurprisingly, one of the best medicines I’ve found for mental illness is exercise. Lately, though, my typical regimen for managing despair hasn’t been working. No matter how much I exercise, no matter how much stress I shed from my day, no matter who I spend time with, the flames of despair keep on licking the edges of my consciousness. The lack of urgency I find reflected around me also causes me to question my perception of reality.
Are things really as bad as I think they are?
It is natural to seek validation from other humans. But, most humans I know would rather not join me in my despair. Psychologist R.D. Laing in The Politics of Experience was correct when he wrote:
“If Jack succeeds in forgetting something, this is of little use if Jill continues to remind him of it. He must induce her not to do so. The safest way would be not just to make her keep quiet about it, but to induce her to forget it also.
Jack may act upon Jill in many ways. He may make her feel guilty for keeping on ‘bringing it up.’ He may invalidate her experience. This can be done more or less radically. He can indicate merely that it is unimportant or trivial, whereas it is important and significant to her. Going further, he can shift the modality of her experience from memory to imagination: ‘It’s all in your imagination.’ Further still, he can invalidate the content: ‘It never happened that way.’ Finally, he can invalidate not only the significance, modality, and content, but her very capacity to remember at all, and make her feel guilty for doing so into the bargain.
This is not unusual. People are doing such things to each other all the time. In order for such transpersonal invalidation to work, however, it is advisable to overlay it with a thick patina of mystification. For instance, by denying that this is what one is doing, and further invalidating any perception that it is being done by ascriptions such as ‘How can you think such a thing?’ ‘You must be paranoid.’ And so on…”
Similarly, it is easy to seek answers from television and computer screens. The internet provides more access to certain forms of information – like graphs, statistics, and written reports – than ever before. However, answers provided by graphs, statistics, and written reports will always be secondhand. I do not want to risk the invalidation of the experience of others that many humans are so adept at. Neither do I want to settle for secondhand answers.
I want to see for myself.
Earth is vast. Ecocide is extensive. I have neither the time nor the resources to rely solely on firsthand knowledge. Fortunately, the Ohio River is vast enough to implicate global reality while remaining small enough for me to witness with my limited budget and finite time. Meanwhile, my body urges me to move. So, why not put that movement to good use? Instead of killing birds, I’ll kill two drones with one stone, by embarking on a journey with the Ohio River. I can write, with eyewitness testimony, about how bad ecocide has become in the Ohio River basin. At the same time, I can ask the Ohio River if her waters can quell this despair burning within me.
I know I am not alone in my despair.
William Styron wrote in his poignant exploration of despair, Darkness Visible: A Memoir of Madness: “The pain of severe depression is quite unimaginable to those who have not suffered it, and it kills in many in stances because its anguish can no longer be borne. The prevention of many suicides will continue to be hindered until there is general awareness of the nature of this pain.”
As I travel with the Ohio River, witnessing her many wounds, I will describe my pain. If she will help me bear that pain, I hope my story will show how a river can save your life.
In this episode of The Green Flame, we speak with Will Falk. Will is a writer, lawyer, environmental activist and former collaborator of Deep Green Resistance News Service. The natural world speaks and Will’s work is how he listens to Nature.
In the fall of 2013, he began traveling to support environmental causes he felt passionate about, endeavor which took him to places such as the Unist’ot’en Camp on the unceded territories of the Unist’ot’en Clan of the Wet’suwet’en First Nation in central British Columbia, to the Big Island of Hawai’i, to pinyon-juniper forests and across the Great Basin among other points of interest.
Passionate about defending the Colorado River in all her length, he believes the ongoing destruction of the natural world is the most pressing issue confronting us today. For Will, writing is a tool to be used in resistance and he periodically takes freelance legal and content writing work to support himself while researching and writing about environmental causes.
Here’s a little excerpt of the interview (minute 18:10):
“One interesting thing when thinking about the threats to the Colorado River is [ … ] most people assume if they stopped watering their lawns in the Colorado River Basin, if they stopped taking showers, if they controlled their use of water better, that this would have a large benefit to the Colorado River and that’s just not true because about 78% of the Colorado River’s water used for agriculture and industry it goes to corporate uses. I think about 10 or 12 percent of the Colorado River’s water is actually used by households and individual humans. That number is comparable to the amount of water that golf courses in the Colorado River Basin use. So even if every human being in the Colorado River Basin just stopped taking showers and watering their lawns forever and we did nothing about the corporations and the industry that uses this water, we still would be having this huge impact on the Colorado River and we might not be able to really alleviate the problems that the Colorado River is facing.”
You can also find some contributions by Will Falk right here on the DGR News Service. Here are a couple of links:
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.
Please contact us if you can help transcribe this podcast, or want to get involved.
Rights of nature is a legal and political concept that advocates for ascribing legal personhood to natural entities. Traditionally, indigenous cultures across the world have worldviews consistent with treating natural entities as persons.
Organizations like Community Environmental Legal Defense Fund (CELDF) and Global Alliance for the Rights of Nature (GARN) have been advocating for Rights of Nature.
Editor’s note: on Thursday news broke that the Environmental Protection Agency in the U.S. is suspending enforcement of regulations due to the coronavirus outbreak.
This comes several weeks after China waived their own environmental regulations in order to re-start their economy as fast as possible, raising fears of a “pollution backlash.”
From a DGR analysis, this is predictable. Within a culture that is dependent on destroying the planet, the needs of the economy—and of the rich—will always be prioritized over the needs of the natural world.
It’s obvious that environmental regulations are failing to protect the planet. That’s partly because, as the Community Environmental Legal Defense Fund (CELDF) often states, regulatory law is written by and for corporations. Nonetheless, regulations do mitigate and slow some of the worst harms. Now, even that flimsy barrier is being dismantled.
We expect this. As Derrick Jensen wrote in Premise 20 of the book Endgame, “Within this culture, economics—not community well-being, not morals, not ethics, not justice, not life itself—drives social decisions.”
Featured image: Public domain photo. Air pollution kills roughly 7 million human beings annually.
‘Holy Crap This Is Insane’: Citing Coronavirus Pandemic, EPA Indefinitely Suspends Environmental Rules
The Environmental Protection Agency, headed by former coal lobbyist Andrew Wheeler, announced on Thursday a sweeping and indefinite suspension of environmental rules amid the worsening coronavirus pandemic, a move green groups warned gives the fossil fuel industry a “green light to pollute with impunity.”
Under the new policy (pdf), which the EPA insisted is temporary while providing no timeframe, big polluters will effectively be trusted to regulate themselves and will not be punished for failing to comply with reporting rules and other requirements. The order—applied retroactively beginning March 13, 2020—requests that companies “act responsibly” to avoid violations.
“EPA is committed to protecting human health and the environment, but recognizes challenges resulting from efforts to protect workers and the public from COVID-19 may directly impact the ability of regulated facilities to meet all federal regulatory requirements,” Wheeler said in a statement. “This temporary policy is designed to provide enforcement discretion under the current, extraordinary conditions, while ensuring facility operations continue to protect human health and the environment.”
Cynthia Giles, former head of the EPA’s Office of Enforcement under the Obama administration, toldThe Hill that the new policy is “essentially a nationwide waiver of environmental rules for the indefinite future.”
“It tells companies across the country that they will not face enforcement even if they emit unlawful air and water pollution in violation of environmental laws, so long as they claim that those failures are in some way ’caused’ by the virus pandemic,” said Giles. “And it allows them an out on monitoring too, so we may never know how bad the violating pollution was.”
Published under the Creative Commons Attribution-Share Alike 3.0 License.
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.
![[The Ohio River Speaks] Can a River Save Your Life?](https://dgrnewsservice.org/wp-content/uploads/sites/18/2020/06/Can-A-River-Save-Your-Life.jpg)
