Mendocino Measure S FAQ:
Frequently Asked Questions About Community Rights Ordinances That Ban Fracking
Remember: This is about your community’s right to decide!
Q: How do we answer lawyers and critics who say Community Rights Ordinances are “illegal and unconstitutional”?
A: In a democratic republic, it must be possible for the people to change law, especially unjust law. And it must be impossible for the state to abridge or violate rights.
The constitutional rights of slaveowners were once considered by the courts to be superior to the human and civil rights of slaves. Women were once considered to have no personal rights; they were chattel, owned by fathers or husbands. Today, instead of people being treated as property and slave owners being empowered by law to trump their human and civil rights – we have corporate property being treated by the courts as “persons” with constitutional protections used to subordinate the rights of human beings.
No matter what the courts say, it is time to mount a Community Rights Movement to subordinate state-chartered corporations to the governance of the people, and to overcome state laws that make it “illegal” for people to assert their rights and “legal” for corporations to violate them.
In his inaugural address, Abraham Lincoln stated: “the candid citizen must confess that if the policy of the Government is to be irrevocably fixed by the decisions of the Supreme Court...the people will cease to be their own rulers.”
Q. By what authority can we do this?
A. Article 2, Section 1 of the California Constitution states:
“All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.”
Article 1, Section 1. “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”
Article 1, Section 3. (a) “The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.”
The Declaration of Independence, which declares that people are born with “certain unalienable rights” and that governments are instituted among people to secure those rights.
The California Constitution, Article XI, Section 11(a), which declares that “The Legislature may not delegate to a private person or body power to make, control, appropriate, supervise, or interfere with county or municipal corporation improvements, money, or property, or to levy taxes or assessments, or perform municipal functions.”
Our country was founded on the idea that the people are sovereign. That the people are born with rights, and that those rights don't come from any government. Those ideas were recognized in Article 9 of the Bill of Rights when it said: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." And then the original California Constitution of 1849, in Article I, Section 21, stated: "This enumeration of rights shall not be construed to impair or deny others retained by the people." The current California Constitution, in Article I, Section 24 states: "Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution. .... This declaration of rights may not be construed to impair or deny others retained by the people."
Q: Why has the County Council advised our local officials not to adopt a Community Rights Ordinance?
A: Let’s remember who the County Council works for:
not the people. They are hired to advise the officers of the county to avoid lawsuits, not to protect the interests or human and civil rights of the county residents. But they do not have the authority to dictate county policy. They are not elected officials, and have no authority to make a decision not to adopt the ordinance. They do not represent the people, but represent state law at the local level—that’s their job.
If the residents have any hope of being represented in their county government, their elected local officials must take seriously their oath of office: “to protect the health, safety, and welfare” of the county. If they fail to do this and instead accept the legal opinion of the County Council as their only option, then the people will have been abandoned, their rights orphaned, including their right to a representative form of government.
The elected officials are duty-bound to exhibit personal integrity and ethical judgment in service of the health, safety and welfare of the county. Sometimes that means acting against the advise of the County Council.
Q: Shouldn’t we be pursuing change at the state level?
A: The problem is, though government is supposed to be “by and for the people,” we, as citizens, don’t have the same access to power at the state level that corporate and industry lobbyists do. On just about every issue you can think of, the state has policies in place—policies on which communities were not consulted, and policies corporations and industries generally helped to write. When state policies place our communities in harm’s way, we have no choice but to act locally to assert our rights to protect our health, safety and welfare. It makes sense for us to make decisions about the communities in which we live. In our communities, it is we who are the experts.
Q: There are Community Rights Ordinances banning fracking in Pennsylvania, New Mexico, New Hampshire, Maine, but California is different!
A: Whether you live in a Pennsylvania township, a town in New York or Maryland, a county in West Virginia, or a county in California, you have the same fundamental rights, and you face the same obstacles to asserting those rights. (Also see: “The Four Roadblocks To Stopping Fracking: What’s Stopping Us from Just Saying No to the Destruction of Our Communities?”)
Q: Are we setting up our county to get sued if we adopt a Community Rights Ordinance that bans fracking?
A: What has it cost us, our communities, the natural environment and what will it cost future generations if we fail to assert our rights and ban fracking? That is really the question! Challenges to unjust laws don’t come without risk, but consider the alternative. If we don’t pass a Community Rights Ordinance banning fracking, our communities get fracked as our elected officials surrender the rights of county members because a lawyer representing a corporation with more money says we should, or else they might sue us. More often than not, the threat is just that. Corporate attorneys rely on fear to get what they want. Fearmongering around lawsuits works to divert our attention from what is at risk if we fail to assert our rights.
If the natural water sources are ruined, property values will plummet; taxes won’t be collected; landowners will not be able to sell their property since no mortgage company would issue a loan to a buyer; families and children will move away for lack of fresh water. The health costs to residents associated with exposure to toxins cannot be calculated, but cannot be ignored either.
What’s the price of liberty, of our health, of our community? How many thousands of dollars would we sell them for? ... And we’re worried about a lawsuit?
Q: I heard that no California attorney will take a case defending a Community Rights Ordinance. Is that true?
A: The Community Rights Network of Mendocino County, (CRNMC), has a team of attorneys that are willing to defend the Measure S if we have to go to court. Global Exchange has pledged long-term partnership with the residents of Mendocino County by promising California-based pro-bono or low-cost legal support to augment CELDF’s commitment. The Community Environmental Legal Defense Fund, (CELDF), the Pennsylvania organization who is helping communities craft Community Rights ordinances, has pledged free legal support in the form of free consultation, assistance with drafting briefs, assembling arguments and acting in an advisory capacity to Mendocino County's and CRNMC’s chosen counsel if, after adoption of the ordinance, a legal challenge is brought against it and we request such assistance.
As partners, commitments of Global Exchange and CELDF are long-term, including services to be rendered throughout any period of litigation, including appeals.
Q: Doesn’t the state Oil and Gas Act preempt municipalities from adopting laws that regulate fracking?
A: The Community Rights Ordinance does not regulate any activity. It asserts an already existing right to local self-government on issues with direct local impact, and it asserts and protects the unalienable right of the people to water, which is essential to protect the right to life itself. It uses the general legislative powers of the municipality to protect the health, safety and welfare of the community. Because even a marginal threat to the safety of the local aquifers poses too great a danger of depriving the people and environment of healthy potable water, use of water and deposition of wastewater into local water sources may also be prohibited.
To regulate means to allow, under specific conditions. The Community Rights Ordinances do not recognize a corporation as having any rights that can be used to deprive the rights of community residents, and therefore they make no attempt to regulate the fracking activity. Rather they assert and protect the unalienable rights of members of the community.
Q: Isn’t Mendocino County just an administrative subdivision of the state? It has no right to local self-government, does it?
A: That is partially true. The municipality has no rights, nor does the state. The people, however, do. They have the fundamental right to a republican form of government, according to the U.S. Constitution. But municipal residents have no representation in state or federal government for their communities.
Representatives to the legislature do not represent the municipal populations of the state, and yet the State claims the authority to use municipalities to impose State law on the residents of municipalities, without their consent and without representation in the State government. This is a denial of fundamental rights.
Therefore the people legitimately may use the government closest to them to overcome this injustice. To do so, they enact community-level laws that protect and assert their unalienable rights.
Q: State regulatory agencies are the proper venue for protecting the local environment, right?
A: Regulations set the legal level of harm; they do not create impediments to harm. “Permits” issued by the state are licenses to do harm, and they are legal shields that protect the permit holder from liability to the harmed community. The regulations that legalize the harms are too often proposed and written into bills by agents of the regulated industries. It is absurd to pretend that the regulatory scheme of law can be used by citizens to protect their rights and interests. To demand enforcement of the regulations is to admit that the people have no right to prohibit the harm to themselves, their families and communities. It is to admit that the corporate interests lobbying the legislature are the actual governing power in their communities. It is to pretend that administrative agencies of the State have legitimate authority to empower State-chartered corporations to violate the rights of community members. They have no such authority.
Q: Isn’t the State the trustee of natural resources for the people?
A: The State can claim legal responsibility for protecting the common environment, to benefit the greater good. But this has been corruptly interpreted to mean the state can auction off commonwealth forests to the highest bidder, and that it can issue licenses “permitting” profit taking at the expense of the community. The State has, in effect, made resource colonies of its municipalities and doled out franchises for the corporate occupation of our home towns.
Q: Don’t people have an obligation to obey the law? Can they use their municipalities to challenge state law?
A: Those who fought for independence from the British Empire declared the sovereignty of the people as the source of governing authority back in 1776, in the Declaration of Independence. That language persists in the current state constitution, even though the primacy of the community was removed from the original Pennsylvania Constitution by the wealthy elite, while regular citizens were off fighting the British.
The governments we elect owe us certain social obligations that we refer to as Rights. They are the coin of exchange for the social contract we enter into in agreeing to abide by the social rules that we call laws. But any law that deprives rights breaches the contract and nullifies the law. In the absence of laws that protect the Rights of the people, the people themselves have the authority to enact them, using the government closest to them. That is what communities have begun to. Now it’s up to us.
Q: Can the local officials be sued individually if they adopt an ordinance they are told by the Solicitor is “illegal?”
A: Anyone can sue anyone for anything, and attorneys for wealthy corporations frequently threaten lawsuits they know they can’t win, because they think they can intimidate people who have fewer resources. Elected officials are generally protected by sovereign immunity when acting in their official legislative capacity. And so the real question is this: Would the local officials be acting in a manner that puts their community at risk and violates the rights of the members of the community by honoring their oath of office to “protect the health, safety and welfare” of the community, by adopting a Community Rights Ordinance? Can the State legitimately make it “illegal” for them to honor their oaths? And wouldn’t a lawsuit accusing them of “illegally” honoring their oaths be frivolous?
Q: But we need energy—where else are we going to get it if we make a law to ban fracking?
A: This question assumes we have no choice but to continue to live as we have been living. It presumes we cannot change an economy and a structure of law that sees nature and humans as resources (i.e., “natural resources” and “human resources”) to be exploited and used up. It means continuing to live under a structure of law that does not allow us to make decisions about what our communities will look like: Where do we want our energy to come from? How much energy do we actually need? What decisions can we make in this community that will allow us to protect the health, safety and welfare of the community members, both human and nonhuman, from fracking? How can we live differently, in a way that will allow us to create sustainable communities, rather than letting our hometowns be converted into resource colonies and into sacrifice zones?
We can start by asserting our rights, by refusing to surrender them or negotiate them away piecemeal.
Q: What about personal property rights of lease holders? Don’t they count?
A: The right to own and enjoy property and home is part of what a Community Rights Ordinance to ban fracking is all about. Lease holders have exactly the same right to the peaceful enjoyment of their property as each of their neighbors. But no one in the municipality has a “right” to use their property in a way that threatens or harms the rights of their neighbors or the community.
The property rights of lease holders and their neighbors are at risk because of fracking, not because it is banned. Property market values plummet when leases are signed and when drilling occurs. Many lending institutions refuse to issue mortgages to potential buyers of leased land or land adjacent to leased land, and lease holders will find it difficult if not impossible to refinance their property or obtain insurance. Their property rights don’t count without a Community Rights Ordinance banning fracking!
Q: Would passage of the Ordinance violate corporate property rights?
A: This question presumes that corporations – which are property by the way — have rights themselves; that privileges bestowed in the name of the people on chartered corporations must be respected by community majorities above their own rights. The better question is, does the right to own property convey with it the right to do harm? And when we’re comparing rights, isn’t it common sense to say that the rights of people in a community are superior to the Court-bestowed “rights” of a corporate minority to do harm to that community?
Communities across the country are now trying to create majority community rights over the privileges bestowed on corporations and the handful of people who run them. This is a question of fundamental rights, not state regulations and corporate law. The Supreme Court was not elected; its members were appointed – not to make law or grant property equal rights to people, but to ensure the U.S. Constitution is adhered to. It has no authority to amend the Constitution, though in recognizing “corporate rights” it has repeatedly done so.
The people in our municipalities have not surrendered their right to self-government in the communities where they live. We need our local elected representatives to stand with us, and not with those who would subordinate our unalienable rights to the state-chartered and “permitted” privilege of corporate property to accumulate wealth.
Q: Won’t stripping of constitutional protections for corporations hurt small business owners in the municipality?
A: Business owners still maintain all of their legal protections under the state corporate codes and their individual charters. The only time the privileges of any corporation are stripped is when that corporate entity seeks to use their constitutional protections to violate the provisions of the Ordinance that were enacted to protect the health, safety and welfare of residents of Mendocino County.
Corporations have routinely exercised their rights under the law to override community decision making, when those decisions run contrary to their business interests. Despite the fact that many corporate-run activities harm people and the environment, permits from the State protect them from liability for violating the rights of community members. Justice demands a remedy; constitutional protections for corporations used to violate rights perpetuate injustice. The Community Rights Ordinance eliminates constitutional privileges for corporations. It’s the right medicine.