Thursday, May 12, 2016

From Civil Disobedience to Compulsory Obedience: How the Community Environmental Legal Defense Fund Exploits Communities

Photo Wendy Lynne Lee
In "Community Rights or Game of Thrones? Response to Thomas Linzey," I argued that while the Community Rights Legal Defense Fund--CELDF--certainly makes a persuasive-sounding case for the rights of communities to self-governance, there remain a number of crucial questions not only about what constitutes a "community," but to what communities have a moral obligation to recognize as rights-bearing. 


Here I would like to return to these questions--but with two significant additions. First, I'd like to entertain a claim Linzey made at a presentation he gave at the Bloomsburg Town Firehall, April 1st as part of his series, Time for a Pennsylvania Revolt ( Pressed for a definition of what counted as an "ecosystem" by restoration ecologist Kevin Heatley, Linzey responded that it was whatever the community says it is. 


Second, I'd like to consider a recent CELDF article entitled "Pennsylvania Township Legalizes Civil Disobedience."

I. What counts as a Community? Who Decides?

First, then, let's return to the original August 2015 piece where I set up a number of clearly crucial questions any organization like CELDF must be able to answer--and for which neither Linzey nor anyone else among the CELDF leadership to date has offered any response:

·      What bars me from defining "community" as the economic bastion of the wealthy--at the expense of the less well-to-do? 

·      What prevents "community rights" from simply deteriorating into a version of NIMBY-ism (Not-In-My-Back-Yard) for those who can afford the lawyers?

·      What in Linzey's argument prevents a community from adopting grossly unjust statutes such as one that condones slavery or one that effectively dispossesses women or sanctions child labor? What about a community that bars Jews? Muslims? Christians? Hindus? That disallows the gas drilling operation—but welcomes the factory farm? That requires every household to be armed? That requires all first-born children be sons?

Linzey might respond that we’ve grown beyond these kinds of bigoted and self-defeating laws, or that because such statutes are intrinsically inconsistent with the concept of equality and justice, they'd never pass muster within any legitimate constitution. But neither of these responses can be adequate since:

·      CELDF already effectively accedes to economic/class divisions by omission, and like Ancient Greece, it is entirely within the self-accorded rights of a community to determine what counts as a "member." 

·      What, in other words, prevents a community from defining membership in terms of, say, sex, ethnicity, religion, sexual orientation/identity--or class? 

·      What, in fact decides even whether "community" needs be geographically bounded? (in which case, all bets are off with respect to any democratic principles governing membership).

Linzey simply fails to articulate in what intra-community protections would consist:

·      What prevents a community from adopting grossly unjust statutes governing, for example, speech or other forms of expression? 

·      Could a community whose majority members want, say, a fracking ban vote to silence or exile opposing members? 

·      Do communities have the right to censor their membership if that member's speech is perceived as a threat to the integrity or cohesion of the community? 

·      Who's authorized to make these determinations in particular cases?

·      Who decides what counts as free expression in art? Music?

Linzey also fails to define what is the legitimate place of the state or federal government with respect to its relationship to communities. And this is a mater of vital importance since a confederation of loosely knit but entirely independent communities is not a "united states,” much less a “country.” And this sets us up for a whole other round of crucially important questions:

·      What happens when the action of one community poses potential harm to another? 

·      For example, do communities really have the right to decide against vaccines? 

·      Do they really have the right to erect barriers to keep out "strangers"? 

·      Should every community be responsible for its own militia? Should we abolish the federal-level armed services?

·      What about a community who wants as many frack pads and pipelines as they can squeeze in--at the direct cost of water contamination for their neighbors? 

·      What of the community who wants to build a flood-wall--and makes their poorer neighbors the victims of the next hurricane? 

·      What about a community that determines it's in their best interest to make a communal living off puppy mills? 

·      How about rare-earth mineral extraction? 

·      Can communities impose a religion on their members? 

·      Can communities impose any variety of qualification for membership? 

I think it telling that the CELDF response to criticism--even to questions--is non-response. Indeed, Linzey's refusal to address any of these questions--the apparent code of silence of the CELDF leadership--offers us an important clue at least to what "community" means within the CELDF ranks: circle the wagons. I'm not suggesting that CELDF board of director members have been expressly discouraged from speaking to my questions--much less that censorship is CELDF's official intra-community policy. But I am suggesting that any organization that cannot or will not rise to the occasion to address its critics plainly does not exemplify the democratic principles it espouses. 

II. What is an "Ecosystem"? 
"Whatever a Community Says"

During the question and answer at the April 1st "Time for a Pennsylvania Revolt" presentation in Bloomsburg, Linzey was pressed to answer the question "What, exactly, is an ecosystem?" To what, in other words, do we assign rights when we refer to things like the rights of nature? Clearly baffled by this question Linzey responded that an ecosystem was "whatever a community says it is." "Really?" responded Kevin Heatley. 

This, of course, is far more than a non-answer. It opens a Pandora's box of possibilities wholly consistent with a number of the unanswered questions above. In fact, even the most fracked, climate change devastated, disease saturated ecosystem is an ecosystem. Even the arid gas-soaked tundra of Mad Max or the post-Apocalyptic wasteland of Cormac McCarthy's The Road are ecosystems. 

They're just really really shitty ones where no one wants to live--and Linzey leaves it wide open for a community to adopt The Road as its utopia if it wants to.  If an ecosystem is "whatever a community says," then while one township may decide to take up aggressive nonviolent protest to protect itself from a deep injection well, another may decide that what benefits its ecosystem the most is the cash flow made available (for a little while, for a few) through welcoming the next big round of natural gas extraction or tire burner or Walmart. 

If an ecosystem is whatever the community says--and the community leaders just really like their bacon--then what's to stop that township from permitting a ginormous industrial animal agricultural operation to raise pigs? 

Answer: nothing. CAFOs are ecosystems. Trees are ecosystems. Dead human bodies are ecosystems. Ebola is an ecosystem. The community called "the planet" seems hell-bent on regarding all of its existential resources as endless. Or better: the folks who call the shots are more than happy to let the rest of us starve and burn and die. They're a "community" too--just one protected by the banks of the Panama Papers. Upshot: CELDF can talk a good game about clean air and water, but if their leaders cannot define an ecosystem in accord with some realistic principle and the science to defend it, then its claim to defend the "rights of nature" is just vacuous gobbledygook that the nice folks at PGE are going to crush.  

Actually--it's even worse: "whatever the community says" opens the door not only to defining ecosystems in whatever way the most powerful in that community decide, it also "justifies" whatever these folks decide to count as "rights"--and to whom and what rights apply. "Whatever the community says" is, in other words, open license for those who appear to exercise power to impose their vision of what the community must be. 

And if Linzey's response is that such imposition flies in the face of all that's sacred about the democratic, I say this: we celebrate the Ancient Greeks as a model of democracy--and they were slavers who held both foreigners and women to be a deviation from the mean of what constitutes a human being. There's nothing to prevent that from happening in any community when "what the community says" just means "what it's loudest and most powerful demand."

III. Pennsylvania Township Legalizes Civil Disobedience

Recently Grant Township supervisors "passed a first-in-the-nation law that legalizes direct action to stop frack wastewater injection wells within the Township."

If a court does not uphold the people’s right to stop corporate activities threatening the well-being of the community, the ordinance codifies that, “any natural person may then enforce the rights and prohibitions of the charter through direct action.” Further, the ordinance states that any nonviolent direct action to enforce their Charter is protected, “prohibit[ing] any private or public actor from bringing criminal charges or filing any civil or other criminal action against those participating in nonviolent direct action.” 
The community of Grant Township, in other words, has the right to participate in nonviolent acts of civil disobedience/direct action in the effort to prevent the construction of a PGE deep injection well (or whatever) that's inconsistent with the township charter that ostensibly protects its members' right to clean water. Moreover, criminal charges cannot be brought because these would be inconsistent with the township charter.

This sounds great--in principle. Grant Township is to be applauded for taking this principled stand. But the law also illustrates the extent to which CELDF is obviously willing to go in advancing their vision of a "Pennsylvania Revolt" by using--exploiting--townships in the pursuit of that larger agenda. Fact is, Grant Township does not need a "not-really disobedience" law, and CELDF's assistance in drafting it just makes Grant Township more beholden to CELDF--all the while CELDF gets to claim another victory.

The principle here is simple: the ends do not and cannot justify the means when the means--bankrupting a township and subjecting its citizens to genuine hardship--create very real and very great harm

Grant Township supervisor Stacy Long claims that she'll "do whatever it takes to provide our residents with the tools and protections they need to nonviolently resist aggression like those being proposed by PGE." I respect this principled position, and I applaud Long for it. But there are serious logical and practical problems with the direct action law--and Long has a right to know this before she puts her body on the line.

First, to legalize civil disobedience is to make that particular variety of action--say, blocking a backhoe--precisely not disobedient. This might seem like mere semantics--but it's not. In fact, if blocking a backhoe is a right I have under my community charter, and I am bound by that charter to protect the community's right to clean water, what stops that action from becoming a responsibility

In other words, the potential effect of this law is to transform civil disobedience into civil obedience because rights--as all civil libertarians know in their bone marrow--create responsibilities. And a law that allegedly liberates me from being prosecuted for civil disobedience is a short step from erecting a law that compels me to obedience in the defense of my community, in this case, putting my body in front of a backhoe. 

A right to protect my community where there is no penalty for not doing so confers a responsibility to protect my community. Linzey might point out that the explicit language of the law reads "may then enforce the rights," not must. But this has little logical or practical force since what the community charter protects is the right to something essential to the existential conditions of living things: clean water. How could any morally thinking citizen--freed from the prospect of prosecution--not feel it as a duty to engage in direct action in blocking that backhoe? 

Linzey, of course, knows all this, and he knows better on at least two counts:

First, Linzey knows that unless a compelling number of other communities join forces with Grant Township, this law will have less than zero force--it will simply expose courageous Grant Township citizens like Stacy Long to arrest and prosecution. While CELDF may be there to defend her in court, that will be cold comfort the next time she makes, say, a job application. The only community members in a position to take the real risk of standing up to PGE are those with little to lose when they're arrested--and that won't be many. 

Second, Linzey knows that if this experiment fails, he can still refer to it as a CELDF victory for having drafted the charter and the law defending it. The harm, after all, isn't to CELDF. And when CELDF leaves, the harm to Grant Township will still be there--right along with the deep injection well.

To be very clear: 

I am absolutely not advocating against civil disobedience. 
I am apprising Grant Township members of the very real risk that 
no new ordinance is going to protect them from.

It is a lie to tell brave community members anything else.

CELDF is selling community members a bill of 
deceptive goods by leading them 
to believe that there will not be very real consequences 
that follow on direct action.

There will be, and if there weren't, civil disobedience would have no real force.

I stand with Tim DeChristopher, co-founder of the Climate Disobedience Center, who says he's "encouraged to see an entire community and its elected officials asserting their rights to defend their community from the assaults of the fossil fuel industry," and that he knows "there are plenty of folks in the climate movement ready to stand with Grant Township.” I hope he's right.

But that's just the point: what makes direct action 
powerful and valuable is that it is disobedient.

With CELDF's help, Grant Township has gutted its most powerful tool. I hope they'll reconsider.

Wendy Lynne Lee