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CITY V. STATE: How state law prevents towns from keeping out corporations

A new kind of revolution is taking place in cities and towns across America. It’s happening in courtrooms and in town hall meetings. It’s happening door-to-door, and across the partisan aisle, in rural towns and large cities alike. This revolution is called home rule: when a town votes on and adopts their own Bill of Rights and charter that asserts their right to self-govern.

CITY V. STATE

We often hear about Sate’s Rights, historical clashes with Federal law that have often taken the social temperature of the country around issues like abortion, marijuana, and gun control. We hear less, however, about the parallel battle between city and state.

Just as Federal law often supersedes State law, State law prevails over local law. This is called preemption – when state law invalidates local law. As The Atlantic puts it, “the Constitution doesn’t mention cities at all, and since the late 19th century, courts have accepted that cities are creatures of the state.”

When a town votes to stop a business from conducting what they consider to be harmful behavior (i.e. fracking or dumping waste from factory farms), they can be told by their state that they cannot say no. This is preemption in action.

Other examples of local legislation that has been blocked by state government include sick-leave or bans on plastic bags. Both frustrate business groups and retailers, which the state does not desire. Santa Monica was forced to lift their ban of ATM fees when they were sued by Wells Fargo and other banks. In addition, “some states have prohibited cities from enacting firearm regulations, frustrating leaders who say cities have different gun problems than do rural areas” (The Atlantic).

Social reform is another example of when states enact preemption. Several municipalities that have declared themselves Sanctuary Cities have been targeted by their state government to cooperate with federal immigration officials, including Alabama, Arizona, and North Carolina. When Charlotte, NC passed an ordinance protecting LGBT people from discrimination, the North Carolina state government overturned it. But that wasn’t all: a state law, HB2, was also passed that “barred every city in the state from passing nondiscrimination regulations” (The Atlantic). This outraged many people across the country and North Carolina felt the blowback of public opinion in the form of millions of dollars in lost revenue, including the NBA All-Star game pulling out. However, most stories like these go unnoticed, or they at least don’t go viral on social media. Preemption is a common occurrence and many court battles go on in rural towns of populations of less than a thousand.

RURAL IMPACT

Many rural municipalities are finding they cannot prevent corporations from conducting business. Often a state decision to preempt local law is based on the argument that the state will lose revenue or scare off businesses. The impacted communities have argued in turn that they don’t end up seeing that revenue going back in their own schools and roads. (A pipeline might only return $12 in royalties, which doesn’t help an individual either, they argue.) These towns believe that public health concerns should outweigh the bottom line.

But the burden is on the town to prove why a corporation is harmful to the public health of a community. The townspeople are also responsible for attorney fees, while the corporation they’re fighting can write off these expenses. A corporation might sue a small town for lost revenue and legal fees, driving the town to bankruptcy.

The first step many towns take is turning to the EPA or their state Department of Environmental Protection to stop a permit—but they often don’t get far. They might hire an environmental lawyer to find a loophole in the permit granted by the EPA, but then that permit can be reapproved at a later date, the corporation having learned from that court case how to avoid falling into that loophole again.

REGULATORY AGENCIES REGULATE HARM

—But they don’t prevent harm. Regulatory agencies like the FDA and the EPA are seemingly in place to protect us from harm and pollution. However, “by their very definition, regulatory agencies regulate the amount of harm that takes place” (CELDF). But they don’t allow a city to say “no” to that harm in the first place. For instance, zoning laws allow people to choose where in their community an oil rig might be built, but these laws do not prevent it—the oil rig will still be built.

Grant Township, PA, a sleepy rural town with a population of 741, is a hotbed for this debate. When Pennsylvania General Energy Company (PGE) sought a permit there to build an injection well for fracking wastewater, residents of Grant Township asked the EPA to not grant the permit. They were worried about cancer-causing chemicals leaking into their drinking water, as well as earthquakes that have been linked to other injection wells like this one. Their requests to the EPA went unheeded.

As Rolling Stone describes it, “The federal government rarely blocks projects outright. Battles tend to unfold within the regulatory system once a project gets the green light – a community marks out a certain threshold for pollution and tries to ensure the polluting industry stays below that mark.”

A NEW BILL OF RIGHTS

Grant Township decided it didn’t want to regulate the potential contamination of their water; they wanted to stop it before it started. A community group (called the Hellbenders, named after a local Salamander) and the elected supervisors of Grant Township came together to draft an ordinance. They worked with the Community Environmental Legal Defense Fund and went door-to-door gaining the support of the entire community, across partisan lines. And on June 3, 2014, despite the presence of PGE lawyers attempting to sway the townspeople, the town “voted unanimously to adopt a Community Bill of Rights Ordinance prohibiting the disposal of oil and gas extraction waste material into injection wells.” They voted for the rights “to local self-governance, and clean air and water, by banning injection wells as a violation of those rights.”

In response, PGE sued Grant Township two months later, with the help of Pennsylvania Independent Oil and Gas Association, claiming the right to inject wastewater. The suit read, “Grant Township’s conduct is deliberate, arbitrary, irrational, exceeds the limits of governmental authority, amounts to an abuse of official power and shocks the conscience” (Rolling Stone). Additionally, PGE argued that the Bill of Rights was “unconstitutional because it violates the corporate ‘person’s’ civil rights under the 1st and 14th amendments, as well as the Commerce and Supremacy Clauses of the U.S. Constitution” (CELF). The Supremacy clauses referred to is another way of calling for preemption. PGE wanted Grant Township to pay damages for this civil rights violation and for attorney fees.

Grant Township’s response was two-fold: they stood by their ordinance to protect the health and safety of their community; and their ecosystem, Little Mahoning Watershed, “filed a motion to intervene in the lawsuit.” This means, remarkably, a watershed filed a lawsuit against a corporation.

RIGHTS OF NATURE

Aside from the right to say no to harmful activities like oil drills near schools, and the right for humans to enjoy clean air and water, communities have been creating Bill of Rights Ordinances that include the Rights of Nature. If a corporation can be considered a person under the law, perhaps nature could be as well. Rather than being regarded solely as property and resource for humans, nature could be legally seen as having the intrinsic right to exist. Extraction or waste dumping may become a violation of those rights. The argument is that if we can recognize, in law, the rights of nature, maybe we can curb human impact on the environment.

Many towns in the US and around the world are beginning to adopt this, but Ecuador was the first country to include the Rights of Nature in their constitution, aided by the CELDF. Courts in Ecuador have upheld the rights of nature since this new chapter in their constitution was written, but in the United States, the filing by the Little Mahoning Watershed “represents the first time an ecosystem has sought to defend its legally enforceable rights to exist and flourish” (CELDF).

PREEMPTION V. THE HOME-RULE CHARTER

However, Judge Baxter of the U.S. District Court for the Western District of Pennsylvania decided in favor of PGE and oil and gas development, striking down both the Bill of Rights Ordinance and the attempt of the watershed to intervene. This decision was based on preemption of state law over local law.

So, in November 2015, Grant Township decided to pass a Home Rule Charter, again rendering the injecting wastewater illegal and reasserting the rights of nature. Ad the CELF defines Home Rule, “municipalities take themselves out from under Dillon’s Rule – the prevailing legal doctrine which states that municipalities only have the powers given to them explicitly by the state – and instead allows them to create a form and structure of governance of their choosing, so long as they do not conflict with state or federal law.”

But a month later, PGE began construction of the injection well anyway. They see home rule as anarchy and could “charge Grant Township supervisors under a crime called official oppression,” meaning “when government officials exceed their authority… [This] carries a fine of up to $5,000 and a possible two-year prison sentence” (Rolling Stone). The Pennsylvania Department of Environmental Protection reapproved PGE’s injection well permit in March 2017, but with new regulations, PGE challenged the legality of. The DEP has additionally sued Grant Township, “claiming that certain sections of their home-rule charters unlawfully interfere with state oil-and-gas policies. Grant has filed a countersuit, defending the charter’s legality.” PGE continues to bring lawsuits against Grant Township, which has the potential to bankrupt the town. Recently, PGE attempted to sanction Grant Township’s attorneys and “to recover more than $100,000 from the Township in attorney’s fees” (CELDF).

WHAT DOES THE FUTURE HOLD?

The home rule charter still stands in Grant Township and residents are making preparations to fight for it. They passed an ordinance to protect their right to enforce their Bill of Rights through direct action and protest, legalizing civil disobedience. If they must stand in front of an oil truck in protest (and they will if PGE continues to build), they will be shielded from arrest.

Over 200 communities in the United States have created their own Bill of Rights Ordinances to protect their air, water, and land, and to establish their right say “no” to business activities they didn’t vote for. Several are moving towards Home Rule. The Rights of Nature is a movement that is sounding less silly to many rural towns, across partisan lines, offering a way to protect their land for future generations. The idea has taken hold on the federal level in countries like Ecuador, India, and New Zealand.

It is hard to say what the future will look like, and these court battles are many-years-long, but this revolution is growing. Communities are educating themselves about standing up against laws they deem illegitimate or harmful and creating new laws they see as just.

Carmiel Banasky is a writer, teacher, editor, and the author of the novel, The Suicide of Claire Bishop. carmielbanasky.com

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