Tuesday, April 16, 2019

Florida’s Springs and Rivers Need Their Own Legal Rights (Part Two of Two)

The source of laws that currently constrain our ability to save Mother Earth is the U.S. Constitution. But our country has another primary founding document, the Declaration of Independence, from which CELDF has drawn inspiration and ideas to build a new democratic movement that empowers citizens to fight for granting rights to living natural systems such as springs and rivers.
This Rights of Nature movement is now gaining traction not only here in the USA, where over 220 communities have embraced it, but also throughout the world in places such as New Zealand, India, Ecuador and Bolivia. Click here to find a timeline of this movement on CELDF’s website.

CELDF’s strategy is modeled on the rights-based struggles to abolish slavery and grant full citizenship rights to people of color, to grant voting rights to women, to grant marriage equality rights to gays and lesbians and, more recently, to grant legal rights to animals.
All of these social movements, including even the American Revolution, began with courageous people who were willing to challenge or even break existing laws in order to change those laws. All these movements started small, grew over time as more people became aware of them, and eventually resulted in widespread social change and changes to our laws.
CELDF believes that same strategy can work to grant legal rights to natural systems. Their staff is actively working to help citizens push their local governments to enact bills of rights for iconic natural features. The strategy recognizes that once the word is out about this movement—which has now accelerated to the point that citizens of Toledo, Ohio, have voted to grant legal rights to Lake Erie, following an incident of severe and widespread drinking water contamination—citizens of more and more communities will decide to get involved. And the more people who get involved, the more people will learn about how our current legal system is failing to protect the living systems that we need to sustain us and many other forms of life.
Is this approach a “magic bullet”? No. CELDF acknowledges that there will be pushback at the beginning of such an effort not only from city and county commissions and their lawyers (because new ideas always meet resistance!) but also from corporations and business organizations in the form of threats of lawsuits and actual lawsuits.
Even when local municipalities are courageous enough to enact Rights of Nature laws, the final legal outcomes of the sure-to-follow lawsuits are far from certain. That’s because this movement is so new and so few cases have made it to court yet. It will be up to the courts to make decisions about how Rights of Nature laws affect current laws, and this will be a long process. The alternative, however, is to keep doing what we’re already doing, and to keep getting the same ineffective results.
I’m thrilled to report that the Rights of Nature movement now seems to be taking off here in Florida. Following the weekend in Apopka with Thomas Linzey, activists in Central Florida have created a project they’re calling WEBOR. That acronym is stands for Wekiva Econlockhatchee Bill of Rights for those two rivers that straddle the Orange and Seminole county line. Early plans call for this to be a citizens’ initiative that will gather petitions to put the Wekiva-Econ Bill of Rights onto the ballot in an upcoming election, so the citizens of Orange and Seminole counties can vote on it.
Other citizens are considering attempts to have the county commissions in home-rule counties (with charters) act directly to put Rights of Nature laws into county charters when those documents are revised.
Is the Rights of Nature movement an effort whose time has finally come in Florida? I’ve been spreading the word about this approach for the last six years, so I certainly hope so!
“We’ll know more later,” as my mom always said.

Florida’s Springs and Rivers Need Their Own Legal Rights (Part One of Two)

Over the weekend of April 13-14, 2019, I attended a gathering of about 20 people in Apopka to hear Thomas Linzey, the executive director of the Community Environmental Legal Defense Fund (CELDF), talk about the work of his organization and explain why so many of us who work so hard on behalf of our springs and rivers have so little to show for that work in regard to actual restoration, preservation and protection of these living systems.
Linzey’s talk was a refresher for me since I had attended one of CELDF’s Democracy School sessions in 2013, when Linzey and Mari Margil were hosted by the Center for Earth Jurisprudence at Barry University’s Law School in Orlando. That event was an “Aha!” moment for me, as Linzey and Margil explained how the USA’s laws were structured for the benefit of business and corporations at the expense of Mother Earth.
The primary culprit that stands behind these laws is the fact that in the USA, “the environment” = “property.” If you own a piece of land, you have the legal right to destroy it, in part or in total. The land/environment itself has no legal rights apart from your ownership of it.
CELDF uses a couple of effective graphics to explain how this legal system works. The first graphic is what they call the “Regulatory Triangle.” Say a group of community citizens identifies a problem:  Some landowners want to start a concentrated animal feeding operation (CAFO) in land along a pristine river somewhere in Florida. Citizens in the surrounding communities hear about this idea and are aghast because they know the “big picture” problems that accompany CAFOs: water pollution, noxious odors, increased heavy truck traffic, decreased land values in surrounding areas, private profits for a few people or a corporation taking precedence over the well-being of the community as a whole.
As citizens mobilize to fight the CAFO, they learn that different units of government and agencies within Florida need to issue “permits” in order for the CAFO to operate. So citizens decide to make calls to get people to respond to their concerns.
The county commission staff replies, “We’re so glad you called! Here is what you are allowed to comment about and here is how you can make comments to the commission.”
The state’s environmental protection agency staff replies, “We’re so glad you called! Here is what you are allowed to comment about and how you can make comments to our agency.”
When citizens learn what they are and are not allowed to comment about—which is always just one or two small parts of the “big picture” they’ve identified—they decide to ask for help from one of the larger environmental organizations in their area.
The organization’s staff replies, “We’re so glad you called! Here is what we are allowed to comment about and here is how we can make those comments.”
The Regulatory Triangle operates to funnel citizen concerns down a chute that leads to citizens’ being able to contest only one or two small parts of the “big picture” problems that they have identified.
Source:  Community Environmental Legal Defense Fund (CELDF)

But what happens if, for example, the county commission decides to do the right thing and deny the necessary permit(s) for the CAFO? The landowners will get their permits anyway, thanks to what CELDF describes as the “Box of Allowable Remedies” (they called this the “Box of Allowable Activism” back when I attended Democracy School and I actually like that title better).
The commission is constrained by four legal principles:  (1) state pre-emption, which means state law trumps local law; (2) Dillon’s Rule, which specifies that the state is the parent and municipalities the children, so municipalities can only do what the state gives them permission to do; (3) corporate commerce rights, embedded in the Commerce Clause of the U.S. Constitution; and (4) corporate personhood constitutional rights, which allow corporations to sue municipalities for damages caused by laws and decisions that affect corporate profits (including estimated future profits), coupled with the idea that “nature” is “property” and interference with the use of that property may constitute a 5th Amendment “taking” of the “property.”

Source:  Community Environmental Legal Defense Fund (CELDF)
 Note that these four constraints are now firmly embedded in our legal system and trace their origins back to one of our two primary founding documents, the U.S. Constitution.
And keep in mind that when municipalities and state agencies issue “permits” for things like CAFOs, natural gas pipelines, phosphate mines, and huge withdrawals of water from the Floridan aquifer, what is actually being “permitted” is damage to those natural systems that sustain us and other sentient beings. A permit grants permission to cause damage. And under current law, we are not “permitted” to stop that damage.
But we keep plodding along, attending meetings, making comments, being good, polite stakeholders. There's a popular saying that "the definition of insanity is doing the same thing over and over again, but expecting different results."
Are we crazy? Isn't there something else we could be doing?
Why, yes. Yes, there is. See Part Two of this essay, coming soon.