Open Letter to Communities Working to Stop Fracking (November 16, 2010)

This morning, the Pittsburgh City Council became the first municipality in the United States to ban natural gas extraction within its boundaries. The ordinance isn’t just a ban – it consists of a new Bill of Rights for Pittsburgh residents (which includes a right to water along with rights for ecosystems and nature), and then proceeds to ban those activities – including natural gas extraction - which would violate those rights. 

But it doesn’t stop there.

The ordinance seeks to undo over a hundred years’ worth of law in the United States which gives corporations greater rights than the communities in which they do business. Those rights come in two primary forms – first are corporate constitutional rights and powers (including court-bestowed constitutional rights of persons, or “personhood” rights), and second, are corporate rights that have been codified by statewide laws (like Pennsylvania’s Oil and Gas Act), which liberate the corporation from local control in individual issue areas.

When a community makes a decision which runs afoul of either of those corporate rights frameworks, corporate decisionmakers use the courts to throw out the community’s decision. If a municipality bans a State-permitted activity, it gets sued for “taking” the corporation’s property as a constitutional violation. If it attempts to legislate in an area in which the State has created a regulatory program which permits the activity, the community then gets sued by the corporation for violating preemptive state law.

And why wouldn’t they? After all, corporate lawyers created the very rights-frameworks that they use the courts to enforce, concocting many of those doctrines precisely to restrict community lawmaking as far back as the late 19^th century.

In fact, those frameworks have been so effective that we rarely even dream about what our communities would look like if we actually called the shots. We even question ourselves as to whether we should have that power or not.

And so we turn away from that grim reality, and instead attempt to use other tools that have been given to us which respect and incorporate those rights-frameworks. We attempt to use zoning laws to ban certain activities and learn that banning through zoning violates corporate constitutional due process rights. Turned back on that front, we then negotiate with the corporation - and beg and plead with state regulators - so that the corporation causes a little less harm to our communities.

As second-class citizens, our rights made secondary to the privileges of corporations, we look for solutions to the ignoble status we’ve been relegated to. Our work plays out within a very small box of “allowable activism” bounded on all sides by rights-frameworks which protect a relatively small number of corporate decisionmakers.

What does this have to do with fracking in the Marcellus shale formation? Everything.

The rationale behind the Pittsburgh ordinance is a simple one. If we respect and comply with those frameworks of law – playing within the sandbox that has been constructed for us - we’ll get drilled. It’s as straightforward as simple arithmetic.

Which brings us to another logical conclusion: if we want to stop the drilling, we must therefore undo those false corporate rights frameworks.

Over a hundred other municipal governments across Pennsylvania have joined Pittsburgh in reaching that revelation – that the only way to stop agribusiness factory farms, sewage sludge dumping, corporate waste disposal, and natural gas extraction is to frontally and directly challenge those layers of corporate law which have removed any vestige of community self-government.

As with the passage of similar ordinances by municipalities in Pennsylvania over the past several years, which have dealt with an array of issues, the Pittsburgh ordinance will result in a lot of hand-wringing by statewide environmental groups, which have made long careers out of not coloring outside of the lines.

As they see it, their job is to work within existing law and do their best to limit environmental damage. That’s why they call for more zoning laws (even though horizontal drilling defeats the purpose of zoning the placement of drilling pads, for example), or a severance tax (which ironically, encourages even more drilling to produce more revenue). It’s why they talk about “responsible” drilling and natural gas as a “bridge” to a sustainable energy future. It’s why they’ve talked themselves into seeing drilling as inevitable, and that the best we can do is simply to endure it. In doing so, they’ve condemned our communities to the same kind of damage that the gas corporations are forcing upon us.

They may be nice people, but they’re not our friends in this mess. They’re too obedient in a situation that demands widespread disobedience.

Stopping the drilling means coming face-to-face with the reality that this country isn’t what we thought it was. That the rights-frameworks claimed by the corporations are not just a tragic mistake, but are the underlying reality demonstrated by our existence in a system in which the legal system serves corporate production but not community democracy.

These local ordinances intend to turn that structure upside down – subordinating corporate “rights” and corporate production to local self-governance and the rights of nature, rather than the other way around.

For that reason, if we truly believe in economic and environmental sustainability, variations of the Pittsburgh ordinance must spread to a thousand other communities in the path of the Marcellus shale drillers.

And then it must spread to a thousand more.

More importantly, perhaps, communities need to jettison corporate lawyers and lobbyists from their municipal meeting rooms. We need to stop listening to environmental lawyers who tell us that there’s nothing that we can do. We need to take a collective stand to reject corporate-imposed energy policies and replace them with local ones of our own making.

We then must be prepared to disobey courts and legislatures who inform us that we can’t have sustainability because it interferes with corporate prerogatives.

It’s time. After all, what’s left? After ripping up our communities, there will be a new scheme to extract something else, and another one after that. It’s time to shut down the machine. It’s time to use our municipalities to engage in collective civil disobedience through community lawmaking.

As Frederick Douglass wrote over a hundred years ago -

If there is no struggle there is no progress. Those who profess to favor freedom and yet depreciate agitation…want crops without plowing up the ground, they want rain without thunder and lightening. They want the ocean without the awful roar of its many waters. . . Power concedes nothing without a demand. It never did and it never will. The limits of tyrants are prescribed by the endurance of those whom they oppress.

It’s time to use our municipal governments to demand an end to all activities and policies that are harmful to our communities and the natural communities upon which our lives depend. It's time to undo a structure of law that authorizes corporate minorities to run roughshod over community majorities.

Isn’t that what democracy is supposed to be about?

From The Staff of the Community Environmental Legal Defense Fund (CELDF.org)