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COMMONS MAGAZINE

Posted
September 16, 2015

It's Time to Take Back the Law

8 legal principles that give the Earth and future generations a chance

The law has been stolen from everyday people making decisions about how we will live together in our communities and on this land.  My Ph.D-holding husband couldn’t understand his own father’s will.  Most people defer to the lawyer in the room to tell them what the law is all about.  Few people will dare step foot in a courtroom or legal proceeding without a lawyer attached to their hip.

Not only has the law been stolen from ordinary people but decisions are made by county boards or little-known administrative agencies that are violations of the most basic common sense and serve corporate interests rather than community well-being.  Why else would public utility commissions, environmental protection agencies and county boards of supervisors permit frack sand mining or turn the other way when a crude oil pipeline crosses their drainage district?  We know that these will pollute the water and the air. The decision-makers know it too.

But the decision-makers have a limited view of what their responsibilities are and what the law should do.  And some agencies are merely doing exactly what they were created to do.  Most think their primary job is to grow the economy and promote jobs.  The economic measure of a political job well-done is the only measure that counts.  This is why we ignore the indisputable facts of environmental issues: pipelines leak, fracking pollutes the air, spills are expensive to clean up, and rarely if ever can the commons be restored.  The legal framework in the United States is designed to get out of the way of economic growth, not protect the environment.

What is law?  Law is simply the rules a community agrees to be bound by. Across the country, people are standing up and saying that they do not agree to be bound by laws that permit mountaintop removal or fracking the life out of the Bakken Oil fields, of siting pipelines across wild rice beds.  

Every region is facing threats –Virginia to Wisconsin, Nebraska and Iowa to California.  Corporations come in and pick off individual landowners and county boards with threats of eminent domain and arguments of national security.  We face unparalleled threats to our water and to climate from tar sands, fracking and mountain top removal.  But these are all allowed, no they are roundly encouraged, because they add to the economy.  The environment be damned.

At the 2014 Women’s Congress that was held in Minneapolis, the rallying cry was “We Withdraw our Consent!”  We withdraw our consent from the legal principles that permitted exploitation of land and people and fail to protect the conditions for life—air, land, water, biodiversity, public health.  They are outdated and outmoded. 

It is time to put in place legal principles that will guide sound policies that will foster ecological and public health. It is time to take back the law and establish rules that we—and our other-than-human community members can agree to be bound by.  As Janine Benyus, the genius biologist has said, humans are “one vote in a parliament of 30 million.”

At the Women’s Congress for Future Generations we recognize some basic legal principles that give future generations a sporting chance at having a livable future.  They are simple and yet have intellectual verve.  The eight political principles can be applied in most policy situations where the environment and public health are at risk. They fit together in a mosaic that establishes responsibility, values, and boundaries.  See what you think.

  

1) The common wealth is the basis of the economy.

The commons include water, air, wildlife, roads, parks, schools and other things that the people of Iowa share. The commons are what provide value to private property. Farms can’t get their grain to market without public roads. Businesses (and their owners, employees and customers) can’t function without clean air and water. We get hunting and fishing licenses to limit the taking of wildlife, so our common heritage can endure.

2) Government has fiduciary and public trust responsibilities to protect the commons for the people.

The primary responsibility of state and local governments is to take care of the common wealth and health of its people. Government’s responsibility is not to make private parties (such as corporations) rich. It is not to steal common assets from the people with one hand and sell them as private property with the other.

Government’s responsibility is to protect the common wealth for all its people. That is the central purpose of government.

3) The precautionary principle is the best decision-­‐making tool for governments to use to fulfill their public trust obligations to the commons.

Most environmental decisions are made balancing the costs and benefits of an activity to the economy. The economy gets the benefit of the doubt rather than people’s health, clean drinking water and breathable air. The precautionary principle stands for the idea that we need to take action to prevent harm in the face of scientific uncertainty. Methods for implementing the principle include heeding early warnings, setting goals, identifying and choosing the best alternatives to harmful activities, reversing the burden of proof and the democratic engagement of affected stakeholders.

4) No eminent domain for private gain!

Eminent domain is the unique power of government to "take" private property (with just compensation) and move it into the commons to create a public good. Eminent domain must not be used to move private property from one private owner to another private owner. Nor should it privilege a private corporation that will destroy any part of the commons.

Using eminent domain to give private property (or public land) to a corporation is an abuse of power by government. A polluting pipeline that enriches its shareholders and damages the commons is not a public good.

5) Citizens have a right and a duty to withdraw consent from government actions that threaten the common wealth, communities or future generations.

In a democracy, the legitimacy of government derives from the consent of the governed. If government does not have the consent of the people then we face either anarchy or dictatorship. Local communities have a right to give or withhold their consent from activities that threaten their future. New mechanisms for giving consent must be implemented. These mechanisms include referendums, ballot measures and town hall meetings.

6) The Polluter Must Pay

The public cannot be stuck paying the bill for spills or other damage to water, land or air. Accordingly, bonds and other mechanisms sufficient to clean up a worst-­‐ case accident must be in place before ever siting a well, a pipeline, a mine or a toxic waste facility. The bond must be in cash, not the stock of the company and not self-­‐ insurance.

7) Tribal nations have sovereignty to protect their land and water.

All treaties must be honored. We stand with tribes who are defending their land, water, people and heritage.

8) Corporations are not people and have no inherent rights. They operate solely at the will of the people.

The recent legal claim that corporations have the right of free speech, and the power to exercise eminent domain, has had disastrous consequences for communities and for future generations. The fiction that corporations are people must end. Anything that doesn't breathe isn't protected by the Bill of Rights.

Our Stand

We stand by these principles because they are pillars of justice. Without justice the rule of law is meaningless.   We withdraw our consent from any law that ignores our responsibility to the Earth and future generations.  We give our consent, the consent of the governed to laws that protect the health, well-being and beauty of our world.

If you are in the Upper MIdweste and would like to learn more about these legal principles and how to apply them in your community organizing, join us for an all day training workshop Saturday September 19th in Minneapolis Minnesota, co-sponsored by On The Commons. Register here!