Small Town Lawyer strips corporations of rights as a person

Bad Company?How small towns are reversing a century of corporate personhood
Seven Days Newspaper, Burlington, Vt ^ | 22-29 Sept, 2004 | Ken Picard

Posted on Thursday, September 30, 2004 4:17:54 PM by Jubal

Porter Township in northwestern Pennsylvania was an unlikely hotbed for an anti-corporate uprising. The tiny rural community about an hour north of Pittsburgh has a population of only 1500 people, many of whom are staunch Republicans with deeply-held conservative values.

But after the Alcosan Corporation, a Pennsylvania sewage-sludge hauler, threatened to sue Porter Township in 2002 for passing a local ordinance regulating the dumping of sludge in their community, town officials decided that their citizens had taken enough crap from corporations. Literally. So on December 9, 2002, Porter became the first municipality in the United States to pass a law denying corporations their rights as “persons” under the law. Weeks later, Licking Township, another rural Pennsylvania community facing a similar lawsuit, passed a more expansive ordinance revoking all constitutional rights of corporations within their jurisdiction.

Since then, dozens of other municipalities across Pennsylvania, some with as few as 1000 residents, have followed suit, reversing nearly 120 years of corporate encroachment on the rights guaranteed to all citizens under the U.S. Constitution. Prompted by the failure of state and federal regulatory agencies to protect citizens’ health, safety and quality of life from large-scale corporate activities, these municipalities took matters into their own hands and reclaimed their right of self-rule. Though the laws fly in the face of more than a century’s worth of legal precedents that say corporations are “persons” protected by the Bill of Rights and the 14th Amendment, thus far these ordinances seem to be working.

Now some Vermonters are looking to follow Pennsylvania’s example and draft similar ordinances here to address environmental and public-health problems stemming from large corporate activities: the influx of big-box stores, the spreading of toxic sludge, even the proposed power increase at the Vermont Yankee nuclear power plant. Proponents of this strategy suggest that these laws may even be used one day to challenge undemocratic principles that were written into the World Trade Organization charter and the North American Free Trade Agreement.

Championing this fight is Tom Linzey, a 35-year-old Alabama-born attorney who is the executive director and co-founder of the Community Environmental Legal Defense Fund. Founded in 1995, the Pennsylvania-based CELDF was initially set up to provide free legal services to small community groups that were fighting big environmental battles: toxic-waste incinerators, landfills, municipal sludge fields and corporate factory farms. Since then, however, the nonprofit law firm has expanded its mission to help municipalities around the country roll back corporate rights through local ordinances. CELDF conducts “democracy schools” — intensive, weekend-long seminars that trace the history of corporate rights and help citizens reframe local issues according to a new paradigm. Once such democracy school was held two weeks ago in Putney for 20 Vermonters from the Brattleboro area.

Linzey, who speaks on September 30 at Vermont Law School, explained in a recent interview how this movement began. In the mid- to late-1990s, large out-of-state agribusinesses began applying for permits to build large-scale hog farms in rural Pennsylvania. Local residents, who overwhelmingly opposed these farming operations, sought the help of state and federal regulatory agencies like the EPA. However, these communities soon realized that waging their battle on the regulatory front wouldn’t stop undesirable businesses from moving into town — it would merely lessen the harm those activities caused.

The proposed factory farms were huge operations — 5000- to 6000-head hog farms — that would dwarf neighboring family farms. Before long, CELDF was inundated with phone calls from local officials across Pennsyl-vania — some 400 townships in all — seeking their help at fending off these corporate farms. So CELDF began researching how this issue had been handled in other states, particularly in the Midwest, where 300,000- to 400,000-head hog farms are common.

This was when Linzey made a startling discovery: Nine Midwestern states have laws banning large corporations from owning or controlling farms.

In fact, Nebraska and South Dakota went so far as to incorporate that ban into their state constitutions. So CELDF copied the South Dakota constitutional amendment and used it as a model for local ordinances. Ten townships and five counties in Pennsylvania have adopted the anti-corporate farming ordinance. To date, only one has been overturned by the courts.

During this same period in the 1990s, CELDF also began receiving calls from community groups and local officials who were trying to stop the permitting of sludge fields. Sludge, the solid-waste byproduct of wastewater treatment plants, is not considered a “hazardous waste” by the federal government. Although it can contain as many as 600,000 different toxic contaminants, the U.S. Environ-mental Protection Agency requires testing for only 11 of those contaminants.

Spreading sludge on farmland, a practice known as “biosolid land application,” was already a controversial issue in rural Pennsylvania because of its impact on human and animal health. In 1995, two youths died after coming into contact with a newly applied sludge field. In an effort to prevent more sludge from being dumped in their communities, 68 Pennsylvania townships passed anti-sludge ordinances.

The corporate waste haulers didn’t take these ordinances lying down. They challenged the laws in court, arguing that townships were denying them their constitutional rights and didn’t have the legal authority to pass these laws. The corporations also tried to hold town officials personally liable for passing these laws. They based their argument on a federal civil rights law that was passed in the aftermath of the Civil War in orders to protect African-Ameri-cans from state-sanctioned discrimination.

Since these corporate sludge haulers had deep pockets, it wasn’t even necessary that they win in court. All they had to do was deplete a town’s financial resources by waging a long and costly legal battle. How did CELDF respond? As Linzey explains, CELDF helped Porter and Licking townships draft a “Corporate Rights Elimination Ordinance,” which effectively stripped the corporation of its right to sue. Though these laws were an unprecedented challenge to corporate empowerment, they remain in effect today and have yet to be challenged in court.

“Corporate rights sometimes get talked about as some academic or abstract concept like something that’s taught in a college political science class,” Linzey says. “Here, what folks have said is that our vision for our community does not include land-applied sludge. It does not include factory farms. And that’s the community we want.”

Critics were quick to label the movement the work of liberal, anti-business activists. But as Linzey points out, about 80 percent of the communities he works with are overwhelmingly conservative and Republican. “Keep in mind, these are rural township officials with the shit-kicker boots and the John Deere hats. These are the guys who clear and salt the roads in the wintertime,” he says. “These are not activists. They are folks who saw a problem and tried to do something about it.”

How effective have the ordinances been? Very, says Linzey. “In the 68 townships that have passed sludge ordinances, not one new teaspoon of sludge has been land-applied,” he says. The same holds true for the ban on corporate hog farms. In the 10 townships that passed anti-corporate farm ordinances, Linzey says, not one new corporate hog farm has been established, even though those areas were targeted for more factory farms.

Vermont is no stranger to the legal perversion of corporate “personhood.” In April 1994, the Vermont Legislature passed the nation’s first law requiring the labeling of dairy products containing the genetically altered growth hormone, rBGH. In response, agribusiness giant Monsanto and a coalition of dairy-industry groups sued the state, asserting that the law was unconstitutional. A federal judge agreed, ruling that the new law violated Monsanto’s First Amendment right “not to speak.”

Several weeks ago, 20 people from southern Vermont spent a weekend at Landmark College in Putney, attending one of CELDF’s democracy schools. Among them was Larry Bloch, a small-business owner from Brat-tleboro who is with Vermonters Restoring Democracy. It’s an umbrella organization of groups that deal with issues ranging from genetically modified organisms to nuclear power to social and economic justice. Though its members come from a variety of political backgrounds, what unites them, Bloch explains, is a desire to combat corporate dominance over local decision-making.

“When a predatory corporation comes in and says, ‘We’re moving in no matter what and we don’t care if we push out your independently owned local businesses,’ that doesn’t affect only progressives or only conservatives,” Bloch says. “To hear the stories from Pennsylvania was inspiring because these were people who had never been activists and weren’t blessed with a lot of free time or money or the inclination to shake things up.”

Representative Sarah Edwards (P-Brattleboro) agrees. Edwards, who also attended the democracy school, says the seminar helped reframe the debate in her mind, especially on the issue of nuclear power. “It’s helping me to know who my adversary is,” Edwards says. “I’m not talking about individuals. I’m talking about the corporations.

“I have friends who work at [Vermont] Yankee. I know management who work at Yankee,” she adds. “This is not about them. This is about the system, the machine of the corporation squeezing out the diversity of voices that is necessary to have a good and healthy democracy.

Democracy schools already have been held in six states. By next year, there will be five permanent “Daniel Pennock Democracy Schools” — named for one of the two boys who died after coming into contact with the toxic sludge. In the past, these schools have largely addressed environmental issues. But that’s charging, Linzey notes. Activists in Roxbury, Massachusetts, for example, hope the Pennsylvania model can be used to challenge the pharmaceutical industry on its policies pertaining to AIDS drugs.

Others see the approach as a way to counter international agreements like NAFTA. John Berkowitz is executive director of Southern Vermonters for a Fair Economy and Environmental Protection. He points to a law passed in Massachusetts 10 years ago that prohibited municipalities from signing contracts with companies that do business with Burma — a country with an abysmal human rights record. After Japan and the European Union filed a complaint about the law with the WTO, in 1997 the U.S. Supreme Court struck down the Massachusetts laws as unconstitutional.

“Wait a minute. Who’s deciding what’s best for a community?” Berkowitz asks. “Is it absentee corporations and people working for trade organizations like the WTO? We’re finding that people’s local decision-making abilities are being trumped by trade agreements that basically say, ‘You can’t decide that at the local level.’”

But as Linzey reminds people who attend CELDF’s democracy schools, local communities can reclaim the power of self-rule. Like hurricanes that feed off warmer waters, the anti-corporate movement draws strength through legal provocation. Says Linzey, “This is about shifting the paradigm to let people understand that the courts do step in to defend community rights over corporate rights.”