James Paulding, attorney and graduate of the Colleges of Law’s J.D. program, offers a discussion about the Community Rights Movement and its place among other movements spreading across America today.
How much power does a local government wield to ban activities it deems as harmful to the community?
This is precisely the struggle of the Community Rights movement. Initiated by the Community Environmental Legal Defense Fund (CELDF) in Pennsylvania in 1995, the movement seeks to shift more power to local governments to pass laws banning harmful activities. In representing over 200 local governments across the country, CELDF assists communities that want to ban threats to the local environment or economy such as fracking, factory farming, big-box stores, hazardous waste incinerators, and other perceived threats. And CELDF is fighting an uphill battle. One of the most challenging obstacles CELDF has encountered is that many of the local ordinances they have drafted for local governments have been deemed preempted by state or federal law. As CELDF explains in their online Democracy School outreach program, the preempting legislation passed at the state or federal level is often largely a result of successful lobbying efforts by industry and often as a reaction to local level ordinances and ensuing litigation. CELDF makes the argument that our current system of law prevents local environmental and economic sustainability.
The Community Rights movement seeks to elevate the environmental, social, and economic rights of the community over the rights of armchair quarterbacking legislators, who are too frequently in the pockets of industry. On CELDF’s website, they explain how “Corporate Rights,” the Rights of Nature, and Community Rights all intertwine to create the Community Rights movement. Essentially, CELDF argues that since corporations have personhood under the law, they have availed themselves of various constitutional law doctrines such as equal protection and due process to render local laws unconstitutional for discriminating against corporations. Based on a review of the depository of information on CELDF’s website, it becomes apparent that the myriad corporate victories on these grounds coupled with state and federal preemption creates quite a battleground for local governments across the United States. Noteworthy is the fact that communities attempting to ban threats are located in red and blue states—and many of the issues traverse the political two-party ideological divide.
What does it all mean?
The Community Rights movement represents a societal reevaluation point of our current system of law, which hopefully leads to a societal pivot point in the right direction. CELDF is certainly leading the charge. CELDF has recently started (at least within the last few years) advocating that local governments draft and implement a “Community Bill of Rights.” An example is Mendocino County, California’s Community Bill of Rights Fracking and Water Use Initiative, which was approved by voters on the November 4, 2014 election ballot. This measure established the legal rights to: natural- and chemical-free communities and ecosystems, a clean environment, and self-government by the people—without manipulation and overwhelming influence from corporations. As a means of attaining these rights, the initiative banned fracking and all related activity, imposing harsh criminal penalties for any violations. Some of the language in the measure is excerpted below:
(a) Right to community self-government. All residents of Mendocino County possess the right to a form of governance where they live, which recognizes that all power is inherent in the people and that all free governments are founded on the people’s consent. Use of the Mendocino County government by the sovereign people to make law and policy shall not be deemed, by any authority, to eliminate or reduce that self-governing authority.
(b) Right to clean water, air, and soil. All residents, natural communities, and ecosystems in Mendocino County possess the right to water, air, and soil that is untainted by toxins, carcinogens, particulates, nucleotides, and hydrocarbons introduced into the environment through the unconventional extraction of hydrocarbons.
(c) Rights of natural communities and ecosystems. Natural communities and ecosystems possess rights to exist and flourish within Mendocino County without harm resulting from the unconventional extraction of hydrocarbons.
(d) Right to be free from chemical trespass. All residents, natural communities and ecosystems in Mendocino County possess the right to be free from chemical trespass resulting from the unconventional extraction of hydrocarbons.
(e) Rights as self-executing, fundamental, and unalienable. All rights delineated and secured by this ordinance are inherent, fundamental, and unalienable; and shall be self-executing and enforceable against both private and public actors.
From this language, my initial thoughts are:
2) but this is doubtful constitutional
3) that’s not a game changer for the Community Rights movement.
The language in Mendocino County’s Bill of Rights above is arguably unconstitutional because of the fact that local governments are merely subdivisions of the state and only wield that power, which has been granted to them by the state. This concept is known as Dillon’s Rule, which was adopted by the U.S. Supreme Court in Hunter v. Pittsburgh, 207 U.S. 161 (1907), a landmark case in establishing the supreme sovereignty of a state over its municipalities. Thus, unfortunately, “All residents of Mendocino County [do not] possess the right to a form of governance where they live which recognizes that all power is inherent in the people and that all free governments are founded on the people’s consent.” The form of governance available to the residents of Mendocino County is that form of governance authorized by the California State Constitution, which gives home rule “flexibility” to those cities that are charter cities and only over matters that are “municipal affairs,” not matters of “statewide concern.” If none of that made sense, it is because this is a complicated issue, which implicates the alternative theory to the Dillon’s Rule.
In contrast to Dillon’s Rule, the Cooley Doctrine (or the doctrine of “home rule) is founded on the theory of an inherent right to local self-determination. In a concurring opinion, Michigan Supreme Court Judge Thomas M. Cooley in 1871 stated, “Local government is a matter of absolute right; and the state cannot take it away.” Home rule is not new. Here’s an article on a Maui, Hawaii, ban on GMO crops that was struck down as unconstitutional on preemption grounds. Interestingly, infamous environmental activist and food rights author Vandana Shiva chose to call her tour in Hawaii on GMO crops the “Home Rule Tour.” The objective of the tour was to “join community leaders from across Hawaii on Oahu and Maui to share stories from the frontlines of the global movement to empower community food systems. From Hawaii to India, these stories capture the importance of home rule in the future of food.” According to Shiva at a presentation she gave to residents of Mendocino County in support of their local democracy efforts, “We forget that the term ‘Home Rule’ was the term used everywhere in the world to resist the empire.”
However, as stated earlier, this is not law in the United States. Today, states are governed by the holding of Hunter v. Pittsburgh, which gives them the option to grant more authority to local government if they so desire. This interesting read provides a history of municipal home rule in California. Based on a review of case law on what constitutes a “municipal affair,” it appears that a challenge to Mendocino’s Bill of Rights may be an issue of first impression for California courts, but it is highly likely the courts would find that the language above implicates matters of “statewide concern” and would likely be preempted. But this is mere conjecture; please do not mistake this as legal advice.
3. Unconstitutionality not a game changer
Albeit likely unconstitutional, the tenacity and boldness demonstrated by Mendocino County and many other local governments that have passed these community “bill of rights” is just another indicator of a growing trend that the desires of the people are not being addressed by upper levels of government. In terms of trends, Ballotpedia.org tracks, among many things, preemption conflicts between state and local governments. Their page on preemption conflicts includes links to hot button preemption conflicts over GMOs, labor and wages, fracking, firearms, sanctuary cities, and a host of other issues. The introduction on the page reads:
A tug-of-war between cities and state governments has developed behind the scenes of the 21st century’s biggest policy debates. Interest groups advancing policy reforms, ranging from bans on fracking to higher minimum wages, have led local and state officials to tussle over appropriate responses. Mayors, city councils, and community activists are approving ordinances and initiatives on wages, gun regulation, and LGBT issues in order to fill gaps perceived in existing law. Governors and state legislators have pushed back against these local responses, citing their interests in creating uniform policies across all local governments in their states.
It seems that now more than ever things are “heating up.” Perhaps the Community Rights movement has its place in the imminent next milestone of the American History revolutionary cycle. Or perhaps it is the catalyst that has yet to be mainstreamed. After all, the grassroots level is where positive change is actually occurring all over America today. I’m sold. Let’s flood the courts with litigation. Let’s force the judicial system to reevaluate our system of law and the rights of a community to protect its health, safety, and welfare. Mother nature knows the legislative and executive branches aren’t doing it.
For those interested in advocating for Community Rights (maybe law students—by the way, CELDF was started by law students), I offer the following additional ammunition for the movement:
Why should cities and counties have so much power over land use affairs, yet be preempted when it comes to regulating other areas of health and safety such as banning GMO foods or fracking from their regions? The Tenth Amendment in the U.S. Constitution states that the federal government has only the powers specifically delegated to it by the Constitution while other powers are reserved to the states, or to the people. Included in a state’s Tenth Amendment power is the state’s “police power,” which has been regarded as the power a state has to protect the health, safety, welfare, and good morals of its citizens. Interestingly, the scope and limits of this power have been broadly defined in terms of a state municipality’s land use authority, specifically, to take land for public use under the Takings Clause of the Fifth Amendment (e.g., see the U.S. Supreme Court’s 5-4 controversial holding in Kelo v. City of New London, which permitted a city to seize and demolish private homes through eminent domain, then turn the land over to developers to build something more lucrative, with justification that the takings of the particular properties at issue were “reasonably necessary” to achieve the City’s intended public use). The courts have held a community’s control over land use as “supreme” when it comes to economic development. But when it comes to protecting the environment and the people, it is a different standard?
Why can states give more rights to criminals and not communities? Finally, sound logic for why communities should be able to grant greater rights to their citizens than state or federal government provides exists in the doctrines pertaining to Constitutional Criminal Procedure. For example, when it comes to criminal due process, the U.S. Supreme Court has interpreted the U.S. Constitution to permit states to give more rights to criminals than required by the U.S. Constitution. In essence, the Constitution sets the floor of rights available to criminal defendants, but states can grant them greater rights if they so choose. Why can’t a local government grant its citizens more rights when it comes to protecting their health, safety, and welfare?