The Four Roadblocks To Stopping Fracking:
What’s Stopping Us from Just Saying No to the Destruction of Our Communities?
The Regulatory Fallacy
To regulate is to permit harmful corporate behavior in communities, whether the people want it or not, under conditions legalized by the state. Those regulations that have become law typically have been recommended or negotiated for by the regulated industry. They define the amount of harm they anticipate they will inflict, and legalize that amount of harm. Regulatory agencies issue permits that allow corporations to impose harms on human health and the environment, and protect the corporations from liability to the community and individuals for the legalized harms inflicted.
Often, community members testify at regulatory hearings in opposition to issuance of the permits because they suspect that the regulations will not protect them. Ironically, many environmentalists then demand that the regulations be enforced to the fullest, unaware that those laws actually regulate them and make their activism predictable.
Regulations do not protect us, our communities, or the environment. At best, they slow the rate of destruction while making it all perfectly legal. In the case of fracking, those corporations are exempt from the Clean Drinking Water Act, the Clean Air Act, the Superfund Act and other laws. The fracking corporations are above those laws.
Zoning, the most local of regulatory tactics, simply allows a community to decide where the fracking will occur. Zoning cannot prevent fracking – it simply allows a municipality to decide what parts of the community it will surrender to the corporation. Similarly, conditional use ordinances merely create disincentives to the drillers. Like zoning, they amount to little more than terms of surrender – they are not governing decisions.
The regulatory system creates the illusion that we have a democratic process for complaining about corporate assaults on our communities, but it offers no remedies. Instead, it legalizes those assaults. So, the question is, who’s being regulated?
What to do? In this document we provide answers. It’s time to stop accepting regulated rates of corporate destruction and start governing in our communities.
Wondering why your community and its elected officials are challenged at every turn by corporations proposing projects you want to prevent, and whose attorneys argue that, if you do try to stop them, you’re violating the corporation’s rights?
A central aim of the American Revolution was to subordinate private corporations – like the British East India Company – and minority privilege to the sovereignty of the people. They knew they would have to safeguard their local assemblies as organs of community selfgovernance.
Since then, a structure of law has been created to subordinate our local governing authority to profitseeking corporations hiding behind corporate charters with limited liability protections, and the privilege of constitutional rightsbestowed on them by the courts. The result is that we, the people, are precluded from preventing corporate assaults on our communities.
How did his happen? Beginning in the 1840s, in a series of court cases that eventually wound up in the United States Supreme Court, railroad and other corporations sought to insulate their business decisions from community control. By the 1890s, they had succeeded in establishing the structure of law that enables corporations to wield the constitutional rights of living, breathing people. Today, their lawyers assert the rights to freedom of speech, due process, equal protection and property in order to override local community decisions.
The corporate lawyers running the courts laid the foundation for a slew of legal theories designed to protect the concocted corporate constitutional rights. Among those is the requirement that municipalities must allow all legal uses within their communities – thus stripping away their authority to prohibit fracking, factory farms, incinerators, landapplied sewage sludge, waste dumps, or any other type of legalized corporate activities.
And when a community attempts to prohibit corporate activities, corporate attorneys can sue the community, contending that the corporation’s property has been taken – a violation of the corporation’s Fifth Amendment rights.
What to do? Existing, wellsettled law changes only when enough people and communities demand that it be changed. In this document, we propose an appropriate response to the institutional denial of the rights of people in their communities by state and federal governments on behalf of corporations: the assertion of our inherent local selfgoverning authority.
Preemption and Dillon’s Rule
Who has rights? In your community, who decides what is legal and what is not? Is it the people affected by governing decisions, or is it someone else who calls the shots?
Despite our tradition of defending the right to local selfgovernance as asserted in the Declaration of Independence, since the Civil War our local governing authority has been chipped away as more centralized control has been imposed for the purpose of protecting the privileges enjoyed by the corporate minority.
History books largely ignore the concerted attacks on community selfgovernment in America. In the Dartmouth case of 1819, the Supreme Court created a distinction between public municipal and private business corporations, declaring that, while business corporations enjoy contractual equality with the state, municipal corporations do not. Fifty years later, Iowa Supreme Court Justice John Dillon (formerly counsel to railroad corporations), in his opinion on a case between a municipality and a railroad corporation, in which the court ruled in favor of the railroad corporation, opined that municipalities have no rights that are not specifically granted to them by their state legislatures.
Dillon’s opinion was sanctioned by the U.S. Supreme Court in 1907. Today, most states wield what’s now known as Dillon’s Rule against their local governments. On the basis of these judgemade laws, we, the people, are divested of our inherent local governing authority and preempted from adopting laws to protect our communities and environment from corporate assaults permitted by the state.
In 1907, J. Allen Smith wrote in his book, The Spirit of American Government, that “The powerful corporate interests engaged in the exploitation of municipal franchises are securely entrenched behind a series of constitutional and legal checks on the majority which makes it extremely difficult for public opinion to exercise any effective control over them.”
This blatant denial of our right to govern ourselves in the communities where we live, and the elevation of business corporations as the legitimate constituents of legislators, suggests we need to reexamine our strategies for a redress of grievances.
Our biggest obstacle by far is our doubt that we have the duty, the authority and the competence to assert our rights and ban fracking. Those doubts are the result of corporatestate fear tactics intended to shake our resolve and cause us to surrender our communities without a fight. We must shake off those doubts and act in cooperation and solidarity with our friends, neighbors and local governments.
“It’s hard to fight an enemy who has outposts in your head.” – Sally Kempton, feminist and author
From the CELDF document "COMMON SENSE - Banning Fracking at the Local Level"