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Community rights vs. states rights vs. federal law

In the last post I talked about Mitt Romney’s Energy Plan, where one point was his interest in increasing states rights over federal rights to regulate.

“States rights” is an issue that has been revived by the Tea Party. See States Rights and the Growing Rebellion to get an idea of where they’re coming from. The Repeal Amendment was introduced to Congress in 2011, stating:

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

The Daily Kos notes that this amendment would be bad news for our country:

The purpose of the amendment is to allow states to veto any federal “law or regulation.” Federal law is not limited to statutes and regulations but also includes treaties and our Constitution. The Supremacy Clause of Article 6 provides that our Constitution, federal statutes and treaties constitute the supreme law of the land. Back in 1819, the U.S. Supreme Court held that this Supremacy Clause is the essence of the balance of powers between the federal government and the states, providing that federal laws supersede conflicting state laws. This means that state action cannot impede the federal government’s valid constitutional exercise of power.

Thus, one purpose of the Repeal Amendment is to change the balance of powers existing between the federal government and our states.

The states rights /Tea Party activists invoke the doctrine of nullification – “the idea that states have the right to unilaterally render void an act of the federal government that they perceive to be contrary to the Constitution.” They point to the writings of Thomas Jefferson, among others, for support. See Jefferson’s Argument for Nullification and Limited Government.

Now, it is interesting to me that this line of reasoning used by Mitt Romney and used by the Tea Party – that local government can supersede federal government – sounds surprisingly similar to the arguments made by the “community rights” pro-environmental organization, the Community Environmental Legal Defense Fund (CELDF). They do not talk about states rights, but rather about “Community Rights,” superseding both state and federal law.

Friends and colleagues of mine have been working on this angle in my neck of the woods, but I have not felt comfortable with this approach. They make this argument (CELDF Mission):

We believe that to attain sustainability, a right to local self-government must be asserted that places decisions affecting communities in the hands of those closest to the impacts. That right to local self-government must enable communities to reject unsustainable economic and environmental policies set by state and federal governments, and must enable communities to construct legal frameworks for charting a future towards sustainable energy production, sustainable land development, and sustainable water use, among others.”

Let me be clear that I’m NOT saying CELDF shares the same interests and motivations as the Romney campaign (or the Tea Party). Far from it, they couldn’t be further apart. One side wants to use local government to overrule environmental regulations they see as too strict and burdensome, and the other side wants to use local government to enact stricter regulations that have more teeth (in fact not so much to regulate, but to actually ban activities such as fracking or coal trains). What troubles me is that if CELDF were to be successful in achieving their goals, the outcome might be different from the original intent. As Michael Lilliquist wrote (see below), “Hyper-local democracy is a dangerous and potentially corrupting tool; you don’t want to use a tool which you would not allow others to use.”

I just don’t see local communities making better choices than those made at the state and federal level. This may happen in isolated pockets, but by the same token you could see vast swaths of places overturning the few gains the environmental movement has achieved on the level of federal and state policies and regulations, which is exactly what the Tea Party wants to do. As Tip Johnson, a long time local activist in my community has stated in another blog comment:

Local governments have an abhorrent record of doing the right thing. They have a long history of abusing their own, especially the poor, but anyone not in favor. If local governments had been willing to do the right thing, federal imposition of civil rights would not have been needed.

I am personally proud of one of my local city council persons, Michael Lilliquist, who has a strong record of supporting sustainability measures, and also spearheaded a local resolution to oppose the Supreme Court “Citizen United” ruling on the rights of corporations. Lilliquist attended the CELDF democracy school, and understands and supports their critique of corporate and property based rights. However, when a local community rights ordinance was proposed, he composed a well-reasoned letter on why he felt compelled to oppose it. Find the full text of his letter here, and the response from Coal Free Bellingham here. He wrote, in part (I’ll post a larger excerpt in the comments below):

“Every city is not and cannot be sovereign and independent. To believe otherwise would be to undermine the very idea of the rule of common law, common justice, and common purpose. It would undermine the “we” in We the People. It would become, each community for themselves; our way or the highway. Local rejection of federal authority has a long, sordid past, known sometimes as “nullification” and put into service by racist southerners attempting to oppress and discriminate under the cloak of local democracy. Hyper-local democracy is a dangerous and potentially corrupting tool; you don’t want to use a tool which you would not allow others to use. The enlightened arc of history has been to expand our boundaries of shared community and values, not narrow it down city by city. The rule of law should not be thrown out so quickly. The ends do not justify the means.

…The central problem with Prop 2 is that it pits one democratically elected government against another democratically-elected government…It creates a constitutional showdown not over the issue of corporate influence or property-based rights, but rather a show-down between federal and local government. This is the wrong constitutional showdown, because a victory will bolster the dangerous states-rights agenda while not directly affecting corporation’s legal status.”

A related concern is that of NIMBYism, where people, for example, continue to use natural gas, but oppose fracking operations in their community, or environmentalists who support alternative technology, but oppose wind turbines being sited in their communities because it might ruin some people’s view, and affect property values. Alternatively, people like Amory Lovins and David Holmgren argue that destruction of the environment should occur in the places where people are using the resource that destroy the environment. If we are made to suffer the consequences locally for our over-dependence on fossil fuels, maybe that would encourage us to actually reduce our consumption. I understand Lovins once suggested, tongue-in-cheek, that if tailpipes of cars were routed so that exhaust was delivered inside the vehicles for people to breathe, only cars with zero-emission pollutants would be sold.

I’m a big believer in relocalization, but I still believe we need to work within the realm of federal laws as well as our continued connection with the world as a whole.

“This will not be an isolationist process of turning our backs on the global community. Rather it will be one of communities and nations meeting each other not from a place of mutual dependency, but of increased resilience.”
- Rob Hopkins, The Transition Handbook

As Jason Bradford wrote, “Relocalization is based on an ethic of protecting the Earth System–or Natural Capital– knowing that despite our cleverness, human well-being is fundamentally derived from the ecological and geological richness of Earth.”

The main feature of Relocalization, however, is not home rule government overriding federal law. It is about building a parallel public infrastructure whose goal is “rebuilding more balanced local economies that emphasize securing basic needs. Local food, energy and water systems are perhaps the most critical to build. In the absence of reliable trade partners, whether from peak oil, natural disaster or political instability, a local economy that at least produces its essential goods will have a true comparative advantage.”

Concluding Thoughts

The Romney plan says “Only government is standing in the way of energy independence.” CELDF says government has been hijacked by corporate interests and are standing in the way of sustainability.

To me it seems clear that CELDF’s analysis is basically correct. A huge barrier to achieving real sustainability is the corporatocracy, and indeed the structure of the entire neoliberal global political economy that exists today.

This must change (and it will change, as this system dependent upon unending economic growth will not survive long in the post carbon civilization it is inadvertently helping to hasten on). How to get there is where I disagree with CELDF.

This post has highlighted one area of disagreement, which is the idea that home rule “community rights” government is an effective strategy for achieving protection of the environment. I have other areas of disagreement as well, which will hopefully be addressed in future posts. However, I also want it to be clear that I applaud CELDF and its sister organizations for the degree of passion with which they stand up for the environment, and for shining a light on the concentrated power held by today’s multinational corporations.

What do you think? Leave a comment below.

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