Then this came though... in the context of conversations on certain lists, I found this very timely and impactful. IMO, the CELDF approach is the correct one for the long term. It's getting to the root of the problem, not putting Band-ades over symptoms. -- BH
Linzey: To stop pipeline, force local governments to pick a fight
Posted: Sunday, December 14, 2014 2:00 am
By Thomas Alan Linzey
Kudos to The Roanoke Times for telling it like it is ("Friendly advice for pipeline opponents," — Nov. 23 editorial). In a nutshell: The law protects energy corporations, not pipeline opponents.
It's been manufactured that way, of course, to make sure that energy corporations are shielded from community efforts to stop them. Corporations use agencies like the Federal Energy Regulatory Commission to provide an additional layer of insulation and control between communities and those corporations "regulated" by the agency; and corporations routinely use state legislatures to roll over trespass and other property laws.
It's an unwelcome fact, but corporations have privatized our governments. In Virginia, people trying to stop intermodal transportation projects, pipelines, boondoggle smart roads, uranium mines and a slew of other projects are thus forced to fight not only the corporations proposing the projects, but their own state and federal governments.
We end up trying to convince state and federal agencies to deny permits in hearings where communities are lucky if the microphones are even connected; or fighting lengthy battles that aren't even about whether the project happens or not — only whether more compensation will be paid as it happens.
Virginia wasn't always this way, of course. With their Massachusetts counterparts, Virginians spearheaded the American Revolution, and were the first people in the country to adopt a declaration of rights in their constitution — the content of which was copied by every other state in the country.
That declaration of rights established that the role of government is to protect our civil and political rights, and that governments are legitimate only if they are controlled by the people who live under them. If they don't do either, it is our right — indeed, our duty — to replace those governments with ones that will.
Our forebears wouldn't recognize the system we currently have, which miserably fails both of those tests. Our local governments are forcibly prevented from protecting our civil and political rights due to a variety of accepted legal doctrines — like pre-emption, corporate rights, and the Dillon Rule.
As for the actual people living within each county, while the system "sees" municipal corporations like county governments, it doesn't "see" the people who live in those municipalities as having any authority whatsoever.
Realizing that, communities in Pennsylvania are now using their local governments to adopt bills of rights that ban pipelines, frack injection wells,and fracking itself. In New Hampshire, communities have joined together to adopt community bills of rights that ban new powerline projects and the pumping of their water by multinational corporations. In New Mexico and California, people acting through their county governments have banned all fracking.
Want to stop the newest pipeline that's been proposed? Stop fighting under the corporate script that's been written for you. Turn your back on FERC and the state legislature. Make them irrelevant.
Force the county boards of supervisors to enact a law that bans certain major eminent domain takings unless approved by a referendum of county voters. Force them to enact a law that refuses to recognize parts of the state law legalizing trespass. Force them to enact a law that forces energy corporations to make their case for public necessity at the county level prior to filing eminent domain actions.
Will the corporation and the state argue that the county doesn't have the power to take these actions? Of course. But without forcing a confrontation between the state and the local, and between the corporation and we the people of each county, silence is considered consent.
Forcing the corporation to sue the community to vindicate corporate rights over the community's right to decide dispels the persistent myth that we have a democratic system.
Because you don't have a pipeline problem, Virginia, you have a democracy problem.
Since the corporations have the system locked up, stopping the pipeline inevitably means engaging in this kind of collective municipal civil disobedience; and it will probably also require doing the traditional kind — physically stopping the surveyors and bulldozers in nonviolent actions in community after community.
While that's happening, it may even mean building a community-based movement to change the Virginia constitution to elevate people's rights above the rights of corporations. Communities in eight states are doing that now, and a National Community Rights Network had its first meeting in October.
It's a tall order. But then again, Virginians have risen before to cleanse the system, by building a new one outside of it.
Just ask the 1776 crowd.
Thomas Alan Linzey is the Executive Director and Chief Counsel of the Community Environmental Legal Defense Fund, a nonprofit law firm that has provided legal services to over five hundred local governments and community groups across the United States. He was raised in southwestern Virginia and served as the attorney leading legal opposition to the "smart" road near Blacksburg.