Sunday, August 28, 2011

Can Communities Reclaim the Right to Say "No" to Corporations?

Many communities trying to stop fracking, drilling, or big box stores out are finding they don't have the legal right to say no. So they are trying to change the structure of law.
August 24, 2011 |

It's no wonder that many communities want nothing to do with the natural gas drilling procedure known as hydraulic fracturing, or "fracking."

The practice, which involves pumping chemical-laced water underground at high pressure, results in millions of gallons of frack wastewater that's been found to contain dangerous levels of radioactivity, carcinogenic chemicals, and highly corrosive salts. Last year, 16 cattle died after being exposed to the wastewater; a famous scene in the documentary Gasland shows a resident lighting his tap water on fire.

But communities trying to protect their drinking water from fracking haven't found it at all easy to do.

No Right to Self-Government?

In June, the city council of Morgantown, West Virginia--which draws its drinking water from the Monongahela River, just downstream of a new natural gas well--passed a ban on horizontal drilling and fracking within one mile of city limits. Two days later, a company seeking to drill sued Morgantown, claiming that because drilling is regulated by the state, it wasn't within the city's authority to keep fracking out.

In August, a circuit court agreed, invalidating the city's ordinance. In her decision, Judge Susan Tucker ruled that municipalities are but "creatures of the state" without jurisdiction to legislate on drilling or fracking within their borders. Tucker further wrote that "the State's interest in oil and gas development and production throughout the State...provides for the exclusive control of this area of law to be within the hands" of the state of West Virgina. The environmental concerns of the residents of Morgantown, she determined, were not relevant to her ruling.

Morgantown is far from the only town to have discovered that it doesn't seem to have the legal authority to say "no" to drilling and fracking. When communities try to exercise such authority to protect themselves, they are met with threats of corporate lawsuits and state efforts to override their decisions.

Why is it that cities and towns facing the direct impacts of these and a wide range of other harmful corporate activities do not have the authority to determine whether they should occur? How is it that corporate directors who live hundreds if not thousands of miles away--working hand-in-hand with the state and federal officials that residents often expect to protect them--are able to override local, democratic decision making like Morgantown's?

Since the early part of the 19th Century, the U.S. Supreme Court has granted ever-expanding rights and protections to business corporations under the Commerce and Contracts Clause of the U.S. Constitution, and the First, Fourth, Fifth, Sixth, and Fourteenth Amendments. Corporations use these "rights"--originally intended for actual people--to challenge laws protecting the environment and public health.

At the state level, once an activity is deemed a "legal use," communities are legally prohibited from banning it. Legal uses include everything from drilling and fracking to factory farming and corporate water bottling projects. When state governments legally authorize corporations to conduct fracking, they simultaneously prohibit communities from saying "no" to it.

When a community finds itself facing fracking and drilling, it learns that its municipal powers are very limited, largely confined to influencing site selection by zoning. If it attempts to use zoning to ban drilling or another legal use, it finds itself violating the corporation's "right" under the law.

This is why communities engaged in traditional "site fights"--trying to stop an unwanted corporate project by appealing state-issued regulatory permits that allow corporations to site a new drill well, factory farm, Walmart, or other unwanted activity--are relegated to fighting about limiting traffic, noise, or odor, instead of about whether the activity should be allowed to occur at all.

Communities are therefore left with a choice. They can fight the traditional site fight, or they can decide to take a different approach, one that challenges the fundamental structure of law that allows corporate interests to override the best interests of people, communities, and nature.

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