In 2013, I attended a Democracy
School run by the Community Environmental Legal Defense Fund (CELDF) because I was
fairly certain that our laws needed to change in order for our springs and
rivers to be fully protected.
The folks from CELDF quickly
confirmed that insight. “The only things that environmental laws regulate are
environmentalists,” they said. That quote by anthropologist Jane Anne Morris
got my full attention! The rest of the weekend was just as eye opening.
Those of us who work to protect
North Florida’s springs, rivers and aquifer repeatedly bump up against
arguments about landowners needing to be able to do what they want with their private
property. CELDF explained why we work so hard, yet have so little to show for
that work; that’s because we are stymied by our country’s laws.
The instructors walked us through
a stack of primary historical source materials that explained how our legal
system is based on property law instead of on rights—meaning that since the
time of the U.S. Constitution, our laws have been stacked in favor of business
and commerce. Although subsequent social movements—the struggles for the
abolition of slavery, for women’s voting rights, for gay rights, for animal
rights—led to the granting of broader legal rights for different groups, those
movements never challenged the basic legal primacy of the idea of property.
My notes reveal just how deep
these property-based legal roots go. The early American colonies began as
corporations. Our language has no good word that is the opposite of
“privatization.” We heard that “The more nature you own, the more you can
destroy.” Corporations were recognized as legal “persons” 70 years before
that recognition was granted to women! Corporations can deduct the money they spend
to fight environmental lawsuits as a business expense.
Say you’re a water advocate who
wants to write a law to protect your community’s water supply, which is
threatened by industrial-strength agriculture that uses tons of water and
fertilizer. You are constrained by many laws, including the recognition of
corporate legal rights or “corporate personhood” and the facts that property-based
state and federal laws pre-empt local laws. These constraints prevent you from safeguarding
your water with local laws.
Even worse, you aren’t permitted
to define the problems that you see. If you describe a problem as, “Factory
farms will harm us economically and environmentally,” various state, corporate,
and cultural regulatory systems funnel that objection into regulatory “chutes” toward
a single regulatory point that prevents you from making that argument and
restricts you, instead, to arguments about the amount of environmental harm
that should be permitted. You are not allowed to say “no” or to question the process
or the big picture.
At the time our first property-based
laws were written, the natural resources of North America must have seemed
infinite to European colonists. But over 200 years later, that situation has
changed. North America is inhabited from sea to shining sea and our population
is mushrooming. We now realize that our supply of freshwater is finite.
Industrial-strength agriculture and thirsty Florida lawns demand more water,
more fertilizer, and more pesticides than the homes and family farms of the
past. Long-term trends show a falling aquifer and increasing water pollution.
Our laws have not kept pace with these changes in our society.
If we want to save our water, we
need to start asking some hard questions that must be answered in the legal and
political arenas.
>Should private property
rights take legal precedence over the health of water we all need? We may own
our cars but we don’t do anything we want with them; we agree to abide by
traffic laws so we don’t kill each other. Shouldn’t we also agree not to poison
our springs or wreck our aquifer?
Should natural systems
such as our springs and the Ichetucknee, Santa Fe and Suwannee rivers be
granted legal rights to exist? That would even the playing field in courts of
law and is being done in other parts of the world. The Center for Earth
Jurisprudence at Barry University Law School promotes this idea.
Should we manage our water
conservatively as a public trust, the same way we’d manage a financial trust
fund for our children? Arguments about public trust push the courts to consider
cases on a different basis from property-based laws.
>Should we rely on the
Precautionary Principle for guidance when scientists disagree about what is
affecting our water? Again, other countries are already doing this.
It’s past time to acknowledge
that our water problems are political and legal problems. Science alone won’t
solve them. People working together in good faith might have a chance.
For More Information…
… on the work of Jane Anne Morris:
…on the Community Environmental Legal Defense Fund:
and
(especially page 4)
…on the Center for Earth Jurisprudence:
…on the Precautionary Principle:
This article originally appeared in the September 2016 issue of "The Observer," a free monthly tabloid (circulation 5000 copies) distributed in the High Springs/Alachua/Newberry/Jonesville/Fort White areas of North Florida. Many thanks to publisher Barbara Llewellyn for her kind permission to post it here.
