Wednesday, June 29, 2011

How Greed Destroys America

How Greed Destroys America

Exclusive: New studies show that America’s corporate chieftains are living like kings while the middle class stagnates and shrivels. Yet, the Tea Party and other anti-tax forces remain determined to protect the historically low tax rates of the rich and push the burden of reducing the federal debt onto the rest of society, a curious approach explored by Robert Parry.By Robert Parry

June 28, 2011"Consortium News" -- If the “free-market” theories of Ayn Rand and Milton Friedman were correct, the United States of the last three decades should have experienced a golden age in which the lavish rewards flowing to the titans of industry would have transformed the society into a vibrant force for beneficial progress.

After all, it has been faith in “free-market economics” as a kind of secular religion that has driven U.S. government policies – from the emergence of Ronald Reagan through the neo-liberalism of Bill Clinton into the brave new world of House Republican budget chairman Paul Ryan.
By slashing income tax rates to historically low levels – and only slightly boosting them under President Clinton before dropping them again under George W. Bush – the U.S. government essentially incentivized greed or what Ayn Rand liked to call “the virtue of selfishness.”

Further, by encouraging global “free trade” and removing regulations like the New Deal’s Glass-Steagall separation of commercial and investment banks, the government also got out of the way of “progress,” even if that “progress” has had crushing results for many middle-class Americans.
True, not all the extreme concepts of author/philosopher Ayn Rand and economist Milton Friedman have been implemented – there are still programs like Social Security and Medicare to get rid of – but their “magic of the market” should be glowing by now.

We should be able to assess whether laissez-faire capitalism is superior to the mixed public-private economy that dominated much of the 20th Century.

The old notion was that a relatively affluent middle class would contribute to the creation of profitable businesses because average people could afford to buy consumer goods, own their own homes and take an annual vacation with the kids. That “middle-class system,” however, required intervention by the government as the representative of the everyman.

Beyond building a strong infrastructure for growth – highways, airports, schools, research programs, a safe banking system, a common defense, etc. – the government imposed a progressive tax structure that helped pay for these priorities and also discouraged the accumulation of massive wealth.
After all, the threat to a healthy democracy from concentrated wealth had been known to American leaders for generations.

A century ago, it was Republican President Theodore Roosevelt who advocated for a progressive income tax and an estate tax. In the 1930s, it was Democratic President Franklin Roosevelt, who dealt with the economic and societal carnage that under-regulated financial markets inflicted on the nation during the Great Depression.

With those hard lessons learned, the federal government acted on behalf of the common citizen to limit Wall Street’s freewheeling ways and to impose high tax rates on excessive wealth.

So, during Dwight Eisenhower’s presidency of the 1950s, the marginal tax rate on the top tranche of earnings for the richest Americans was about 90 percent. When Ronald Reagan took office in 1981, the top rate was still around 70 percent.

Discouraging Greed
Greed was not simply frowned upon; it was discouraged.

Put differently, government policy was to maintain some degree of egalitarianism within the U.S. political-economic system. And to a remarkable degree, the strategy worked.

The American middle class became the envy of the world, with otherwise average folk earning enough money to support their families comfortably and enjoy some pleasures of life that historically had been reserved only for the rich.

Without doubt, there were serious flaws in the U.S. system, especially due to the legacies of racism and sexism. And it was when the federal government responded to powerful social movements that demanded those injustices be addressed in the 1960s and 1970s, that an opening was created for right-wing politicians to exploit resentments among white men, particularly in the South.
By posing as populists hostile to “government social engineering,” the Right succeeded in duping large numbers of middle-class Americans into seeing their own interests – and their “freedom” – as in line with corporate titans who also decried federal regulations, including those meant to protect average citizens, like requiring seat belts in cars and discouraging cigarette smoking.

Amid the sluggish economy of the 1970s, the door swung open wider for the transformation of American society that had been favored by the likes of Ayn Rand and Milton Friedman, putting the supermen of industry over the everyman of democracy.

Friedman tested out his “free-market” theories in the socio-economic laboratories of brutal military dictatorships in Latin America, most famously collaborating with Chile’s Gen. Augusto Pinochet who crushed political opponents with torture and assassinations.

Ayn Rand became the darling of the American Right with her books, such as Atlas Shrugged, promoting the elitist notion that brilliant individuals represented the engine of society and that government efforts to lessen social inequality or help the average citizen were unjust and unwise.

The Pied Piper
Yet, while Rand and Friedman gave some intellectual heft to “free-market” theories, Ronald Reagan proved to be the perfect pied piper for guiding millions of working Americans in a happy dance toward their own serfdom.

In his first inaugural address, Reagan declared that “government is the problem” – and many middle-class whites cheered.

However, what Reagan’s policies meant in practice was a sustained assault on the middle class: the busting of unions, the export of millions of decent-paying jobs, and the transfer of enormous wealth to the already rich. The tax rates for the wealthiest were slashed about in half. Greed was incentivized.

Ironically, the Reagan era came just as technology – much of it created by government-funded research – was on the cusp of creating extraordinary wealth that could have been shared with average Americans. Those benefits instead accrued to the top one or two percent.

The rich also benefited from the off-shoring of jobs, exploiting cheap foreign labor and maximizing profits. The only viable way for the super-profits of “free trade” to be shared with the broader U.S. population was through taxes on the rich. However, Reagan and his anti-government true-believers made sure that those taxes were kept at historically low levels.

The Ayn Rand/Milton Friedman theories may have purported to believe that the “free market” would somehow generate benefits for the society as a whole, but their ideas really represented a moralistic frame which held that it was somehow right that the wealth of the society should go to its “most productive” members and that the rest of us were essentially “parasites.”

Apparently, special people like Rand also didn’t need to be encumbered by philosophical consistency. Though a fierce opponent of the welfare state, Rand secretly accepted the benefits of Medicare after she was diagnosed with lung cancer, according to one of her assistants.

She connived to have Evva Pryor, an employee of Rand’s law firm, arrange Social Security and Medicare benefits for Ann O’Connor, Ayn Rand using an altered spelling of her first name and her husband’s last name.

In 100 Voices: An Oral History of Ayn Rand, Scott McConnell, founder of the Ayn Rand Institute’s media department, quoted Pryor as justifying Rand’s move by saying: “Doctors cost a lot more money than books earn and she could be totally wiped out.” Yet, it didn’t seem to matter much if “average” Americans were wiped out.

Essentially, the Right was promoting the Social Darwinism of the 19th Century, albeit in chic new clothes. The Gilded Age from a century ago was being recreated behind Reagan’s crooked smile, Clinton’s good-ole-boy charm and George W. Bush’s Texas twang.

Whenever the political descendants of Theodore and Franklin Roosevelt tried to steer the nation back toward programs that would benefit the middle class and demand greater sacrifice from the super-rich, the wheel was grabbed again by politicians and pundits shouting the epithet, “tax-and-spend.”

Many average Americans were pacified by reminders of how Reagan made them feel good with his rhetoric about “the shining city on the hill.”

The Rand/Friedman elitism also remains alive with today’s arguments from Republicans who protest the idea of raising taxes on businessmen and entrepreneurs because they are the ones who “create the jobs,” even if there is little evidence that they are actually creating American jobs.
Rep. Paul Ryan, R-Wisconsin, who is leading the fight to replace Medicare with a voucher system that envisions senior citizens buying health insurance from profit-making companies, cites Ayn Rand as his political inspiration.

A Land for Billionaires
The consequences of several decades of Reaganism and its related ideas are now apparent. Wealth has been concentrated at the top with billionaires living extravagant lives that not even monarchs could have envisioned, while the middle class shrinks and struggles, with one everyman after another being shoved down into the lower classes and into poverty.

Millions of Americans forego needed medical care because they can’t afford health insurance; millions of young people, burdened by college loans, crowd back in with their parents; millions of trained workers settle for low-paying jobs; millions of families skip vacations and other simple pleasures of life.

Beyond the unfairness, there is the macro-economic problem which comes from massive income disparity. A healthy economy is one where the vast majority people can buy products, which can then be manufactured more cheaply, creating a positive cycle of profits and prosperity.

With Americans unable to afford the new car or the new refrigerator, American corporations see their domestic profit margins squeezed. So they are compensating for the struggling U.S. economy by expanding their businesses abroad in developing markets, but they also keep their profits there.
There are now economic studies that confirm what Americans have been sensing in their own lives, though the mainstream U.S. news media tends to attribute these trends to cultural changes, rather than political choices.

For instance, the Washington Post published a lengthy front-page article on June 19, describing the findings of researchers who gained access to economic data from the Internal Revenue Service which revealed which categories of taxpayers were making the high incomes.

To the surprise of some observers, the big bucks were not flowing primarily to athletes or actors or even stock market speculators. America’s new super-rich were mostly corporate chieftains.
As the Post’s Peter Whoriskey framed the story, U.S. business underwent a cultural transformation from the 1970s when chief executives believed more in sharing the wealth than they do today.
The article cites a U.S. dairy company CEO from the 1970s, Kenneth J. Douglas, who earned the equivalent of about $1 million a year. He lived comfortably but not ostentatiously. Douglas had an office on the second floor of a milk distribution center, and he turned down raises because he felt it would hurt morale at the plant, Whoriskey reported.

However, just a few decades later, Gregg L. Engles, the current CEO of the same company, Dean Foods, averages about 10 times what Douglas made. Engles works in a glittering high-rise office building in Dallas; owns a vacation estate in Vail, Colorado; belongs to four golf clubs; and travels in a $10 million corporate jet. He apparently has little concern about what his workers think.
“The evolution of executive grandeur – from very comfortable to jet-setting – reflects one of the primary reasons that the gap between those with the highest incomes and everyone else is widening,” Whoriskey reported.

“For years, statistics have depicted growing income disparity in the United States, and it has reached levels not seen since the Great Depression. In 2008, the last year for which data are available, for example, the top 0.1 percent of earners took in more than 10 percent of the personal income in the United States, including capital gains, and the top 1 percent took in more than 20 percent.
“But economists had little idea who these people were. How many were Wall Street financiers? Sports stars? Entrepreneurs? Economists could only speculate, and debates over what is fair stalled. Now a mounting body of economic research indicates that the rise in pay for company executives is a critical feature in the widening income gap.”

Jet-Setting Execs
The Post article continued: “The largest single chunk of the highest-income earners, it turns out, are executives and other managers in firms, according to a landmark analysis of tax returns by economists Jon Bakija, Adam Cole and Bradley T. Heim. These are not just executives from Wall Street, either, but from companies in even relatively mundane fields such as the milk business.
“The top 0.1 percent of earners make about $1.7 million or more, including capital gains. Of those, 41 percent were executives, managers and supervisors at non-financial companies, according to the analysis, with nearly half of them deriving most of their income from their ownership in privately-held firms.

“An additional 18 percent were managers at financial firms or financial professionals at any sort of firm. In all, nearly 60 percent fell into one of those two categories. Other recent research, moreover, indicates that executive compensation at the nation’s largest firms has roughly quadrupled in real terms since the 1970s, even as pay for 90 percent of America has stalled.”

While these new statistics are striking – suggesting a broader problem with high-level greed than might have been believed – the Post ducked any political analysis that would have laid blame on Ronald Reagan and various right-wing economic theories.

In a follow-up editorial on June 26, the Post lamented the nation’s growing income inequality but shied away from proposing higher marginal tax rates on the rich or faulting the past several decades of low tax rates. Instead, the Post suggested perhaps going after deductions on employer-provided health insurance and mortgage interest, tax breaks that also help middle-class families.

It appears that in Official Washington and inside the major U.S. news media the idea of learning from past presidents, including the Roosevelts and Dwight Eisenhower, is a non-starter. Instead there’s an unapologetic embrace of the theories of Ayn Rand and Milton Friedman, an affection that can pop out at unusual moments.

Addressing a CNBC “Fast Money” panel last year, movie director Oliver Stone was taken aback when one CNBC talking head gushed how Stone’s “Wall Street” character Gordon Gecko had been an inspiration, known for his famous comment, “Greed is good.” A perplexed Stone responded that Gecko, who made money by breaking up companies and eliminating jobs, was meant to be a villain.
However, the smug attitude of the CNBC stock picker represented a typical tribute to Ronald Reagan’s legacy. After all, greed did not simply evolve from some vague shift in societal attitudes, as the Post suggests. Rather, it was stimulated – and rewarded – by Reagan’s tax policies.
Reagan’s continued popularity also makes it easier for today’s “no-tax-increase” crowd to demand only spending cuts as a route to reducing the federal debt, an ocean of red ink largely created by the tax cuts of Ronald Reagan and George W. Bush.

Tea Partiers, in demanding even more cuts in government help for average citizens and even more tax cuts for the rich, represent only the most deluded part of middle-class America. A recent poll of Americans rated Reagan the greatest U.S. president ever, further enshrining his anti-government message in the minds of many Americans, even those in the battered middle class.

When a majority of Americans voted for Republicans in Election 2010 – and with early polls pointing toward a likely GOP victory in the presidential race of 2012 – it’s obvious that large swaths of the population have no sense of what’s in store for them as they position their own necks under the boots of corporate masters.

The only answer to this American crisis would seem to be a reenergized and democratized federal government fighting for average citizens and against the greedy elites. But – after several decades of Reaganism, with the “free market” religion the new gospel of the political/media classes – that seems a difficult outcome to achieve. 

[For more on these topics, see Robert Parry’s Secrecy & Privilege and Neck Deep, now available in a two-book set for the discount price of only $19. For details, click here.]
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & ‘Project Truth’ are also available there.

Wreck Havoc on the World

The Painful Collapse of Empire:
How the "American Dream" and American Exceptionalism Wreck Havoc on the World
We must tell the truth about the domination that is at the heart of the American Dream so that we may face the brokenness of our world.

By Robert Jensen

June 29, 2011 "Information Clearing House" -- Whether celebrated or condemned, the American Dream endures, though always ambiguously. We are forever describing and defining, analyzing and assessing the concept, and with each attempt to clarify, the idea of an American Dream grows more incoherent yet more entrenched.
The literature of this dream analysis is virtually endless, as writers undertake the task of achieving, saving, chasing, restoring, protecting, confronting, pursuing, reviving, shaping, renewing, and challenging the American Dream. Other writers are busy devouring, recapturing, fulfilling, chasing, liberating, advertising, redesigning, rescuing, spreading, updating, inventing, reevaluating, financing, redefining, remembering, and expanding the American Dream. And let’s not forget those who are deepening, building, debating, burying, destroying, ruining, promoting, tracking, betraying, remaking, living, regulating, undermining, marketing, downsizing, and revitalizing the American Dream.

We are exhorted to awaken from, and face up to, the dream, as we explore the myths behind, crisis of, cracks in, decline of, and quest for the American Dream.
My favorite book title on the subject has to be Andy Kaufman: Wrestling with the American Dream, which explores the comedian’s career “within a broader discussion of the ideology of the American Dream.” According to the book’s publisher, the author “brilliantly decodes Kaufman in a way that makes it possible to grasp his radical agenda beyond avant-garde theories of transgression. As an entertainer, Kaufman submerged his identity beneath a multiplicity of personas, enacting the American belief that the self can and should be endlessly remade for the sake of happiness and success. He did this so rigorously and consistently that he exposed the internal contradictions of America’s ideology of self-invention.” 
As we can see, writers are eager to dive deep into the American Dream to find strikingly original insights, bold new interpretations, previously unexplored nuances. I will take a different approach: I want to skate on the surface and state the obvious. It’s a strategy seldom employed, I believe, because such a reckoning with our past leaves us uneasy about the present and terrified of the future. That strategy leaves us in anguish.
I believe that to be fully alive today is to live with anguish, not for one’s own condition in the world but for the condition of a broken world. My anguish flows not from the realization that it is getting harder for people to live the American Dream, but from the recognition that the American Dream has made it harder to hold together the living world.
So, our task is to tell the truth about the domination that is at the heart of the American Dream so that we may face the brokenness of our world. Only then can we embrace the anguish of the American Dream and confront honestly our moment in history.
The epic dream
James Truslow Adams appears to have been the first to have used the phrase “the American Dream” in print, in his 1931 book The Epic of America. This stockbroker turned historian defined it as “that dream of a land in which life should be better and richer and fuller for everyone.” But he didn’t reduce the dream to materialism and emphasized U.S. social mobility in contrast with a more rigid European class system:
“It is not a dream of motor cars and high wages merely, but a dream of social order in which each man and each woman shall be able to attain to the fullest stature of which they are innately capable, and be recognized by others for what they are, regardless of the fortuitous circumstances of birth or position.”
Adams was, in fact, concerned about the growing materialism of U.S. life, and he wondered about “the ugly scars which have also been left on us by our three centuries of exploitation and conquest of the continent.” He was writing at the beginning of the Great Depression, coming off the go-go years of the 1920s. So, not surprisingly, his list of those problems will sound familiar to us:
“how it was that we came to insist upon business and money-making and material improvement as good in themselves; how they took on the aspects of moral virtues; how we came to consider an unthinking optimism essential; how we refused to look on the seamy and sordid realities of any situation in which we found ourselves; how we regarded criticism as obstructive and dangerous for our new communities; how we came to think manners undemocratic, and a cultivated mind a hindrance to success, a sign of inefficient effeminacy; how size and statistics of material development came to be more important in our eyes than quality and spiritual values; how in the ever-shifting advance of the frontier we came to lose sight of the past in hopes for the future; how we forgot to live,in the struggle to ‘make a living’; how our education tended to become utilitarian or aimless; and how other unfortunate traits only too notable today were developed.”
Yet for all his concerns, Adams believed that the United States could overcome these problems as long as the dream endured, and that led him into the dead end of clichés: “If we are to make the dream come true we must all work together, no longer to build bigger, but to build better.” For Adams, as the book’s title makes clear, the story of America is an epic, and “The epic loses all its glory without the dream.”
But dreams of glory are bound to betray us, and 80 years later the question is whether the story of the United States is an epic or a tragedy. More on that later.
The dream and domination
Adams’ definition of the dream as the belief that “life should be better and richer and fuller for everyone” is rather abstract. One historian’s “short history” of the concept highlights the dreams of religious freedom, political independence, racial equality, upward mobility, home ownership, and personal fulfillment that run through U.S. history, but a concept used by so many people for so many different purposes can’t be easily defined. Rather than try to organize the complexity, I want to focus on what has made the American Dream possible. That much is simple: The American Dream is born of, and maintained by, domination.
By this claim, I don’t mean that the American Dream is to dominate (though many who claim to be living the American Dream revel in their ability to dominate), but rather that whatever the specific articulation of the American Dream, it is built on domination. This is the obvious truth on the surface, the reality that most dreamers want to leave out, perhaps because it leads to a painful question: How deeply woven into the fabric of U.S. society is the domination/subordination dynamic on which this country’s wealth and freedom are based?
First, the American part: The United States of America can dream only because of one of the most extensive acts of genocide in recorded human history. When Europeans landed in the region that was eventually to include the United States, there were people here. Population estimates vary, but a conservative estimate is 12 million north of the Rio Grande, perhaps 2 million in what is now Canada and the rest in what is now the continental United States. By the end of the so-called Indian Wars, the 1900 census recorded 237,000 indigenous people in the United States. That’s an extermination rate of 95 to 99 percent. That is to say, the European colonists and their heirs successfully eliminated almost the entire indigenous population -- or the “merciless Indian Savages” as they are labeled in the Declaration of Independence, one of the most famous articulations of the American Dream. Almost every Indian died in the course of the European invasion to create the United States so that we may dream our dreams. Millions of people died for the crime of being inconveniently located on land desired by Europeans who believed in their right to dominate.
Second, the dream part: Adams pointed out that while this is always about more than money, the idea of getting one’s share of the American bounty is at the core of the American Dream. That bounty did not, of course, drop out of the sky. It was ripped out of the ground and drawn from the water in a fashion that has left the continent ravaged, a dismemberment of nature that is an unavoidable consequence of a worldview that glorifies domination. “From [Europeans’] first arrival we have behaved as though nature must be either subdued or ignored,” writes the scientist and philosopher Wes Jackson, one of the leading thinkers in the sustainable agriculture movement. As Jackson points out, our economy has always been extractive, even before the industrial revolution dramatically accelerated the assault in the 19th century and the petrochemical revolution began poisoning the world more intensively in the 20th. From the start, we mined the forests, soil, and aquifers, just as we eventually mined minerals and fossil fuels, leaving ecosystems ragged and in ruin, perhaps beyond recovery in any human timeframe. All that was done by people who believed in their right to dominate.
This analysis helps us critique the naïve notions of opportunity and bounty in the American Dream. The notion of endless opportunity for all in the American Dream is routinely invoked by those who are unconcerned about the inherent inequality in capitalism or ignore the deeply embedded white supremacy that expresses itself in institutional and unconscious racism, which constrains indigenous, black, and Latino people in the United States. The notion of endless bounty in the American Dream leads people to believe that because such bounty has always been available that it will continue to be available through the alleged magic of technology. In America, the dreamers want to believe that the domination of people to clear the frontier was acceptable, and with the frontier gone, that the evermore intense domination of nature to keep the bounty flowing is acceptable.
Of course the United States is not the only place where greed has combined with fantasies of superiority to produce horrific crimes, nor is the only place where humans have relentlessly degraded ecosystems. But the United States is the wealthiest and most powerful country in the history of the world, and the country that claims for itself a unique place in history, “the city upon a hill” that serves as “the beacon to the world of the way life should be,” in the words of one of Texas’ U.S. senators. The American Dream is put forward as a dream for all the world to adopt, but it clearly can’t be so. Some of the people of the world have had to be sacrificed for the dream, as has the living world. Dreams based on domination are, by definition, limited.
Jackson reminds us how these two forms of domination come together in the United States when he asserts, “We are still more the cultural descendants of Columbus and Coronado than we are of the natives we replaced.” Citing the writer Wendell Berry, he points out “that as we came across the continent, cutting the forests and plowing the prairies, we never knew what we were doing because we have never known what we were undoing.”
Dreams based on domination by people over the non-human world are dreams only for the short-term. Dreams based on domination by some people over others are dreams only for the privileged. As Malcolm X put it, “I see America through the eyes of the victim. I don’t see any American dream; I see an American nightmare.”
Justice and sustainability
A world based on domination/subordination is a profoundly unjust world and a fundamentally unsustainable world.
The state of our unjust world: A third of the people on the planet live on less than $2 per day, while half live on less than $2.50 a day. That means at least half the people in this world cannot meet basic expenditures for the food, clothing, shelter, health, and education necessary for a minimally decent life. Concern about this is not confined to radical idealists. Consider the judgment of James Wolfensohn near the end of his term as president of the World Bank:
It is time to take a cold, hard look at the future. Our planet is not balanced. Too few control too much, and many have too little to hope for. Too much turmoil, too many wars, too much suffering. The demographics of the future speak to a growing imbalance of people, resources, and the environment. If we act together now, we can change the world for the better. If we do not, we shall leave greater and more intractable problems for our children.[11]
The state of our unsustainable world: Every measure of the health of the continent -- groundwater depletion, topsoil loss, chemical contamination, increased toxicity in our own bodies, the number and size of “dead zones” in the surrounding oceans, accelerating extinction of species and reduction of bio-diversity -- suggests we may be past the point of restoration. This warning comes from 1,700 of the world’s leading scientists:
Human beings and the natural world are on a collision course. Human activities inflict harsh and often irreversible damage on the environment and on critical resources. If not checked, many of our current practices put at serious risk the future that we wish for human society and the plant and animal kingdoms, and may so alter the living world that it will be unable to sustain life in the manner that we know. Fundamental changes are urgent if we are to avoid the collision our present course will bring about.
That statement was issued in 1992, and in the past two decades we have yet to change course.
These days when someone seeks my support for an idea, project, or institution, I ask whether it makes some contribution to the struggle for justice and sustainability. No one idea, project, or institution can solve our problems, of course, and perhaps even no combination can save us. But I am convinced we must ask this question in all aspects of our lives.
I have concluded that the American Dream is inconsistent with social justice and ecological sustainability. So, I’m against the American Dream. I don’t want to rescue, redefine, or renew the American Dream. I want us all to recognize the need to transcend the domination/subordination dynamic at the heart of the American Dream. If we could manage that, the dream would fade -- as dreams do -- when we awake and come into consciousness.
That’s my principled argument. Now let’s consider two questions about political and rhetorical strategy.
Strategic considerations I: A radical core
A few years ago, sometime around the U.S. invasion of Iraq in 2003, I got a call from a New York Times reporter who was writing a piece about the anti-war movement’s attempt to rally folks around the idea that “peace is patriotic.” I told him I never used that phrase and routinely argued against patriotism -- instead of trying to redefine patriotism, I wanted to abandon the concept as intellectually, politically, and morally indefensible. He was intrigued and asked me to explain. Realize, this was the first, and so far the only, time I have been interviewed by a Times reporter, and so even though I know that newspaper to be a tool of the ruling class, I wanted to make a good impression. First, I pointed out that critiques of patriotism have been made by radicals in the past and that there was nothing all that new in what I had to say. After I explained my argument, he said he couldn’t see a hole in the reasoning but that it didn’t really matter. “No one is ever going to accept that,” he said, and so my position -- no matter how compelling -- didn’t end up in his story.
Perhaps I can take some solace in knowing that he thought my argument was right. But it’s not enough just to be right, of course -- we want to be effective. Is an argument irrelevant if it can’t be communicated widely in the mainstream? Is that the fate of an assault on the idea of an American Dream?
It’s certainly true that the American Dream is a deeply rooted part of the ideology of superiority of the dominant culture, and there is evidence all around us that this ideology is more deeply entrenched than ever, perhaps because the decline of American power and wealth is so obvious, and people are scrambling. But that doesn’t automatically mean that we should avoid radical critiques and play to the mainstream. I believe those critiques are more important than ever.
This conclusion stems from an assessment of the political terrain on which we operate today. This is not a mass-movement moment, not a time in which large numbers of Americans are likely to engage in political activity that challenges basic systems of power and wealth. I believe we are in a period in which the most important work is creating the organizations and networks that will be important in the future, when the political conditions change, for better or worse. Whatever is coming, we need sharper analysis, stronger vehicles for action, and more resilient connections among people. In short, this is a cadre-building moment.
Although for some people the phrase “cadre-building” may invoke the worst of the left’s revolutionary dogmatism, I have something different in mind. For me, “cadre” doesn’t mean “vanguard” or “self-appointed bearers of truth.” It signals commitment, but with an openness to rethinking theory and practice. I see this kind of organizing in some groups in Austin, TX, where I live. Not surprisingly, they are groups led by younger people who are drawing on longstanding radical ideas, updating as needed to fit a changing world. These organizers reject the ideology that comforts the culture. The old folks -- which I define as anyone my age, 52, and older -- who are useful in these endeavors also are willing to leave behind these chauvinistic stories about national greatness.
To openly challenge the American Dream is to signal that we are not afraid to (1) tell the truth and (2) keep working in the face of significant impediments. This kind of challenge speaks to those who are hungry for honest talk about the depth of our problems and are yearning to be part of a community that perseveres without illusions. That isn’t a majority, maybe not yet a significant minority, but those people have the resolve that we will need.
Back to the patriotism critique: Despite the popularity of the “peace is patriotic” bumper stickers, I have continued to offer my argument against the concept of patriotism, and whenever I speak about it in a lecture, people tell me that it was helpful to hear the position articulated in public. Over and over, on this and other issues, I hear people saying that they have had such thoughts but felt isolated and that hearing the critique in public shores up their sense that they are not crazy. Perhaps these kinds of more radical analyses don’t change the course of existing movements, but they help bolster those who are at the core of the more radical movements we need, and they help us identify each other.
Strategic considerations II: Engagement
Although a radical critique of the American Dream isn’t likely to land in the New York Times, we shouldn’t ignore the ways we can use such arguments for outreach to liberal, and even conservative, communities. Once again, an example about patriotism: I have had conversations with conservative Christians, who typically are among the most hyper-patriotic Americans, in which I challenged them to square that patriotism with their Christian faith. Isn’t patriotism a form of idolatry? I can’t claim to have converted large numbers to an anti-empire/anti-capitalist politics. But as the evangelicals say, we sometimes make progress one by one, from within. Framing questions in a way that forces people to see that conventional politics is at odds with their most deeply held moral principles is a potentially effective strategy. It doesn’t always work -- we humans are known for our ability to hold contradictory ideas -- but it is one resource in the organizers’ toolkit.
So, we might consider critiquing the American Dream by contrasting it with another widely embraced idea, the Golden Rule or the ethic of reciprocity, which says we should treat others as we would like to be treated. That principle shows up in virtually all religious teachings and secular philosophy. In Christianity, Jesus phrased it this way in the Sermon on the Mount:
[12] So whatever you wish that someone would do to you, do so to them; for this is the law and the prophets.
[Matt. 7:12]
One of the best-known stories about the great Jewish scholar Hillel from the first century BCE concerns a man who challenged him to “teach me the whole Torah while I stand on one foot.” Hillel’s response: “What is hateful to you, do not do to your neighbor. That is the whole Torah, while the rest is the commentary thereof; go and learn it.”
This is echoed in the repeated biblical command, in the Hebrew Bible as well as the New Testament, to “love thy neighbor as thyself.” [Lev. 19:18] In Islam, one of the Prophet Muhammad’s central teachings was, “None of you truly believes until he loves for his brother what he loves for himself.” In secular Western philosophy, Kant’s categorical imperative is a touchstone: “Act only according to that maxim whereby you can at the same time will that it should become a universal law.”
On the surface, the American Dream of success for all appears to be an articulation of the Golden Rule, of equal opportunity for all. When I suggest that the two ideas are, in fact, in opposition, it gives me a chance to make the case that the Dream is based on domination and, therefore, a violation of that core principle. How can we reconcile our commitment to an ethic of reciprocity while endorsing a vision of society that leads to an unjust and unsustainable world? How can we face the least among us today, and our descendants tomorrow, knowing we turned away from the moral commitments we claim to be most dear to us? A critique of the American Dream can open up that conversation.
Telling the tale: Epic or tragic hero?
The American Dream typically is illustrated with stories of heroes who live the dream. But the larger story of American Dream casts the United States itself as the hero on a global stage. The question we might ask, uncomfortably: Is the United States an epic hero or a tragic one?
Literature scholars argue over the definition of the terms “epic” and “tragedy,” but in common usage an epic celebrates the deeds of a hero who is favored by, and perhaps descended from, the gods. These heroes overcome adversity to do great things in the service of great causes. Epic heroes win. 
A tragic hero loses, but typically not because of an external force. The essence of tragedy is what Aristotle called “hamartia,” an error in judgment made because of some character flaw, such as hubris. That excessive pride of the protagonist becomes his downfall. Although some traditions talk about the sin of pride, most of us understand that taking some pride in ourselves is psychologically healthy. The problem is excessive pride, when we elevate ourselves and lose a sense of the equal value of others.
This distinction is crucial in dealing with the American Dream, which people often understand in the context of their own hard work and sacrifice. People justifiably take pride, for example, in having worked to start a small business, making it possible for their children to get a college education, which is one common articulation of the American Dream. I can tell you a story about a grandfather who emigrated from Denmark and worked hard his whole life as a blacksmith and metal worker, about parents who came from modest circumstances and worked hard their whole lives, about my own story of working hard. That story is true, but also true is the story of domination that created the landscape on which my grandfather, my parents, and I have worked. Pride in work turns to hubris when one believes one is special for having worked, as if our work is somehow more ennobling than that of others, as if we worked on a level playing field.
When we fall into hubris individually, the consequences can be disastrous for us and those around us. When we fall into that hubris as a nation -- when we ignore the domination on which our dreams are based -- the consequences are more dramatic. And when that nation is the wealthiest and most powerful in the world, at a time in history when the high-energy/high-technology society is unraveling the fabric of the living world, the consequences are life-threatening globally.
Not to worry, some say: After all, other empires have come and gone, other species have come and gone, but the world endures. That flippant response glosses over two important considerations. First, empires cause immense suffering as they are built and as they decline. Second, the level of human intervention into the larger world has never been on this scale, so that the collapse of an empire poses new risks. To toss off these questions is to abandon one’s humanity.
To face this honestly, we need to recognize just how inadequate are our existing ideas, projects, and institutions. Quoting the late geographer Dan Luten, Jackson reminds us:
“[Most Europeans] came as a poor people to a seemingly empty land that was rich in resources. We built our institutions with that perception of reality. Our political institutions, our educational institutions, our economic institutions -- all built on that perception of reality. In our time we have become rich people in an increasingly poor land that is filling up, and the institutions don’t hold.”
Developing new institutions is never easy. But it will be easier if we can abandon our epic dreams and start dealing the tragic nature of circumstances.
The end of the epic, for us all
To conclude I want to return to the words of our first American Dreamer, James Truslow Adams: “The epic loses all its glory without the dream.”
Glory is about distinction, about claiming a special place. The American Dream asserts such a place in history for the United States, and from that vantage point U.S. domination seems justified. The future -- if there is to be a future -- depends on us being able to give up the illusion of being special and abandon the epic story of the United States.
It is tempting to end there, with those of us who critique the domination/subordination dynamic lecturing the American Dreamers about how they must change. But I think we critics have dreams to give up as well. We have our epics of resistance, our heroes who persevere against injustice in our counter-narratives. Our rejection of the idea of the American Dream is absorbed into the Dream itself, no matter how much we object. How do we live in America and not Dream?
In other words, how do we persevere in a nightmare? Can we stay committed to radical politics without much hope for a happy ending? What if we were to succeed in our epic struggle to transcend the American Dream but then find that the American Dream is just one small part of the larger tragedy of the modern human? What if the task is not simply to give up the dream of the United States as special but the dream of the human species as special? And what if the global forces set in motion during the high-energy/high-technology era are beyond the point of no return?
Surrounded by the big majestic buildings and tiny sophisticated electronic gadgets created through human cleverness, it’s easy for us to believe we are smart enough to run a complex world. But cleverness is not wisdom, and the ability to create does not guarantee we can control the destruction we have unleashed. It may be that no matter what the fate of the American Dream, there is no way to rewrite this larger epic, that too much of the tragedy has already been played out.
But here’s the good news: While tragic heroes meet an unhappy fate, a community can learn from the protagonist’s fall. Even tragic heroes can, at the end, celebrate the dignity of the human spirit in their failure. That may be the task of Americans, to recognize that we can’t reverse course in time to prevent our ultimate failure, but that in the time remaining we can recognize our hamartia, name our hubris, and do what we can to undo the damage.
That may be the one chance for the United States to be truly heroic, for us to learn to leave the stage gracefully.
[A version of this essay was delivered at MonkeyWrench Books in Austin, TX, on February 10, 2011.
Robert Jensen is a journalism professor at the University of Texas at Austin and board member of the Third Coast Activist Resource Center. His latest book is 'All My Bones Shake: Radical Politics in the Prophetic Voice' (Soft Skull Press). He is also the author of 'Getting Off: Pornography and the End of Masculinity' (South End Press)

Western Hypocrisy

A World Overwhelmed By Western Hypocrisy

By Paul Craig Roberts

June 29, 2011
"
Information Clearing House" -- -- -- - Western institutions have become caricatures of hypocrisy.  

The International Monetary Fund and the European Central Bank are violating their charters in order to bail out French, German, and Dutch private banks. The IMF is only empowered to make balance of payments loans, but is lending to the Greek government for prohibited budgetary reasons in order that the Greek government can pay the banks. The ECB is prohibited from bailing out member country governments, but is doing so anyway in order that the banks can be paid.  The German parliament approved the bailout, which violates provisions of the European Treaty and Germany’s own Basic Law. The case is in the German Constitutional Court, a fact unreported in the US media.

US president George W. Bush appointed an immigrant, who is not impressed with the US Constitution and the separation of powers, to the Justice (sic) Department in order to get a ruling that the president has “unitary powers” that elevate him above statutory US law, treaties, and international law.  According to this immigrant’s legal decisions, the “unitary executive” can violate with impunity the Foreign Intelligence Surveillance Act, which prevents spying on Americans without warrants obtained from the FISA Court. The immigrant also ruled that Bush could violate with impunity the statutory US laws against torture as well as the Geneva Conventions. In other words, the fictional “unitary powers” make the president into a Caesar.

Constitutional protections, such as habeas corpus, which prohibit government from holding people indefinitely without presenting charges and evidence to a court, and which prohibit government from denying detained people due process of law and access to an attorney, were thrown out the window by the US Department of Justice (sic), and the federal courts went along with most of it.

As did Congress, “the people’s representatives”.  Congress even enacted the Military Tribunals Commissions Act of 2006, signed by the White House Brownshirt on October 17.

This act allows anyone alleged to be an “unlawful enemy combatant” to be sentenced to death on the basis of secret and hearsay evidence not presented in the kangaroo military court placed out of reach of US federal courts.  The crazed nazis in Congress who supported this total destruction of Anglo-American law masqueraded as “patriots in the war against terrorism.”

The act designates anyone accused by the US, without evidence being presented,  as being part of the Taliban, al-Qaeda, or “associated forces” to be an “unlawful enemy combatant,” which strips the person of the protection of law. Not even George Orwell could have conceived of such a formulation.

The Taliban consists of indigenous Afghan peoples, who, prior to the US military  intervention, were fighting to unify the country.  The Taliban are Islamist, and the US government fears another Islamist government, like the one in Iran that was blowback from US intervention in Iran’s internal affairs. The “freedom and democracy” Americans overthrew an elected Iranian leader and imposed a tyrant. American-Iranian relations have never recovered from the tyranny that Washington imposed on Iranians.

Washington is opposed to any government whose leaders cannot be purchased to perform as Washington’s puppets. This is why George W. Bush’s regime invaded Afghanistan, why Washington overthrew Saddam Hussein, and why Washington wants to overthrow Libya, Syria, and Iran.

America’s First Black (or half white) President inherited the Afghan war, which has lasted longer than World War II with no victory in sight.  Instead of keeping with his election promises and ending the fruitless war, Obama intensified it with a “surge,”

The war is now ten years old, and the Taliban control more of the country than does the US and its NATO puppets. Frustrated by their failure, the Americans and their NATO puppets increasingly murder women, children, village elders, Afghan police, and aid workers.

A video taken by a US helicopter gunship, leaked to Wikileaks and released, shows American forces, as if they were playing video games, slaughtering civilians, including camera men for a prominent news service, as they are walking down a peaceful street. A father with small children, who stopped to help the dying victims of American soldiers’ fun and games, was also blown away, as were his children. The American voices on the video blame the children’s demise on the father for bringing kids into a “war zone.” It was no war zone, just a quiet city street with civilians walking along.

The video documents American crimes against humanity as powerfully as any evidence used against the Nazis in the aftermath of World War II at the Nuremberg Trials.

Perhaps the height of lawlessness was attained when the Obama regime announced that it had a list of American citizens who would be assassinated without due process of law.

One would think that if law any longer had any meaning in Western civilization, George W. Bush, Dick Cheney, indeed, the entire Bush/Cheney regime, as well as Tony Blair and Bush’s other co-conspirators, would be standing before the International Criminal Court.

Yet it is Gadaffi for whom the International Criminal Court has issued arrest warrants. Western powers are using the International Criminal Court, which is supposed to serve justice, for self-interested reasons that are unjust.

What is Gadaffi’s crime?  His crime is that he is attempting to prevent Libya from being overthrown by a US-supported, and perhaps organized, armed uprising in Eastern Libya that is being used to evict China from its oil investments in Eastern Libya.

Libya is the first armed revolt in the so-called “Arab Spring.” Reports have made it clear that there is nothing “democratic” about the revolt.  http://www.english.rfi.fr/print/95867?print=now 

The West managed to push a “no-fly” resolution through its puppet organization, the United Nations. The resolution was limited to neutralizing Gadaffi’s air force.  However, Washington, and its French puppet, Sarkozy,  quickly made an “expansive interpretation” of the UN resolution and turned it into authorization to become directly involved in the war.

Gadaffi has resisted the armed rebellion against the state of Libya, which is the normal response of a government to rebellion. The US would respond the same as would the UK and France.  But by trying to prevent the overthrow of his country and his country from becoming another American puppet state, Gadaffi has been indicted. The International Criminal Court knows that it cannot indict the real perpetrators of crimes against humanity--Bush, Blair, Obama, and Sarkozy--but the court needs cases and accepts the victims that the West succeeds in demonizing.

In our post-Orwellian times, everyone who resists or even criticizes the US is a    criminal. For example, Washington considers Julian Assange and Bradley Manning to be criminals, because they made information available that exposed crimes committed by the US government. Anyone who even disagrees with Washington, is considered to be a “threat,” and Obama can have such “threats” assassinated or arrested as a “terrorist suspect” or as someone “providing aid and comfort to terrorists.”  American conservatives and liberals, who once supported the US Constitution, are all in favor of shredding the Constitution in the interest of being “safe from terrorists.” They even accept such intrusions as porno-scans and sexual groping in order to be “safe” on air flights.

The collapse of law is across the board. The Supreme Court decided that it is “free speech” for America to be ruled by corporations, not by law and certainly not by the people. On June 27, the US Supreme Court advanced the fascist state that the “conservative” court is creating with the ruling that Arizona cannot publicly fund election candidates in order to level the playing field currently unbalanced by corporate money. The “conservative” US Supreme Court considers public funding of candidates to be unconstitutional, but not the “free speech” funding by business interests who purchase the government in order to rule the country. The US Supreme Court has become a corporate functionary and legitimizes rule by corporations.  Mussolini called this rule, imposed on Americans by the US Supreme Court, fascism.

The Supreme Court also ruled on June 27 that California violated the US Constitution by banning the sale of violent video games to kids, despite evidence that the violent games trained the young to violent behavior.  It is fine with the Supreme Court for soldiers, whose lives are on the line, to be prohibited under penalty of law from drinking beer before they are 21, but the idiot Court supports inculcating kids to be murderers, as long as it is in the interest of corporate profits, in the name of “free speech.”

Amazing, isn’t it, that a court so concerned with ‘free speech”  has not protected American war protesters from unconstitutional searches and arrests, or protected protesters from being attacked by police or herded into fenced-in areas distant from the object of protest.

As the second decade of the 21st century opens, those who oppose US hegemony and the evil that emanates from Washington risk being declared to be  “terrorists.” If they are American citizens, they can be assassinated.  If they are foreign leaders, their country can be invaded.  When captured, they can be executed, like Saddam Hussein, or sent off to the ICC, like the hapless Serbs, who tried to defend their country from being dismantled by the Americans.

And the American sheeple think that they have “freedom and democracy.”

Washington relies on fear to coverup its crimes. A majority of Americans now fear and hate Muslims, peoples about whom Americans know nothing but the racist propaganda which encourages Americans to believe that Muslims are hiding under their beds in order to murder them in their sleep.

The neoconservatives, of course, are the purveyors of fear.  The more fearful the sheeple, the more they seek safety in the neocon police state and the more they overlook Washington’s crimes of aggression against Muslims.

Safety uber alles. That has become the motto of a once free and independent American people, who once were admired but today are despised.

In America lawlessness is now complete.  Women can have abortions, but if they have stillbirths, they are arrested for murder. http://www.guardian.co.uk/world/2011/jun/24/america-pregnant-women-murder-charges 

Americans are such a terrified and abused people that a 95-year old woman dying from leukemia traveling to a last reunion with family members was forced to remove her adult diaper in order to clear airport security. http://www.nwfdailynews.com/news/mother-41324-search-adult.html   Only a population totally cowed would permit such abuses of human dignity. 
In a June 27 interview on National Public Radio, Ban Ki-moon, Washington’s South Korean puppet installed as the Secretary General of the United Nations, was unable to answer why the UN and the US tolerate the slaughter of unarmed civilians in Bahrain, but support the International Criminal Court’s indictment of Gadaffi for defending Libya against armed rebellion. Gadaffi has killed far fewer people than the US, UK, or the Saudis in Bahrain. Indeed, NATO and the Americans have killed more Libyans than has Gadaffi. The difference is that the US has a naval base in Bahrain, but not in Libya.

There is nothing left of the American character. Only a people who have lost their soul could tolerate the evil that emanates from Washington.

Sunday, June 26, 2011

Home Rule: How Communities Can Stand Up to Polluting Industries and Decide the Future of Their Towns


If you think that nothing can be done on the local level to combat big polluters like gas fracking companies, think again.

June 24, 2011


Helen Slottje at the podium, Eldred HS in Highland, NY.Photo Credit: John Back LIKE THIS ARTICLE ?

Join our mailing list:

Sign up to stay up to date on the latest headlines via email.



grab this widget
start a petition
by Care2

The following is from Sabrina Artel's Trailer Talk: The Frack Talk Marcellus Shale Water Project.



In New York the debate about whether or not to allow gas drilling rages. Many strategies for controlling if, how, when and where this will happen is occurring throughout the state. In Sullivan County New York in the Catskill and Delaware River Valley Region, town boards and councils are brainstorming, debating and taking control of their municipalities. The Highland and Lumberland Committees on Energy and the Environment formed last year to decide the fate of their towns. They sponsored a forum on February 19th that was held at the Eldred High School to talk about the options that municipalities have to protect themselves from being industrialized and how the power of Home Rule can be preserved. The speakers were Helen Slottje, an attorney with the Community Environmental Defense Council based in Ithaca, NY and Ben Price, the Projects Director from the Community Environmental Legal Defense Fund located in Chambersburg, PA.



A gas drilling moratorium was passed in the town of Highland on May 10th. The towns of Lumberland and Tusten are in the same Delaware River Region and are working together to inform themselves, resulting in the town boards revision of their comprehensive plans, including the revision of zoning ordinances that would state that it is inappropriate to have High Impact Land Use. The Moratorium Bill has just passed in the New York State Assembly and it's currently in the New York State Senate awaiting their decision, along with that of governor Cuomo.



Carol Roig, a 14 year resident of Highland and one of the organizers of the Highland Concerned Citizens group, said, "We've been hearing that there's nothing we could do on the local level because the state had approved natural gas drilling for all zones but we started to find out that there are many legal opinions including from the New York Association of Towns that said, in fact, the Environmental Conservation Plan that governs gas drilling does not preclude towns from using their land use powers to decide whether or not they want gas drilling or any high impact industrial use on their towns."



This is a story of individuals speaking up when the gas corporations are attempting to control their hometowns and of individual becoming increasingly involved in their local government, collaborating with each other as they face drilling throughout the area

.

The following is from Helen Slottje speaking to those in attendance at the forum on February 19th in Eldred, NY.





Sabrina Artel: We're exploring the impact of natural gas drilling on New York's water resources and the issues being debated in our neighborhoods throughout the country and globally. What is guiding people's decisions about whether or not to lease their land for gas drilling? And at what point do the rights of the individual diminish in the face of the health of an entire area? What impact is this having not only on the communities in the shale regions, but also on the national dialogue and policy-making decisions around energy extraction?



What defines the American Dream, and how does it impact the decisions being made in our communities? Local culture, generations of history, and beloved homes can be lost when the oil and gas companies, intent on fossil fuel extraction, move into a new region. We're facing a complete shift in our region as the largest-ever concentration of gas lies in wait beneath our feet.



The Highland and Lumberland Concerned Citizen groups hosted a forum about the legal rights municipalities have in regulating drilling for natural gas. A couple hundred people were at the forum on February 19, which was held at the Eldred High School, and this audio is from Helen Slottje, who is the managing attorney of the Community Environmental Defense Council in Ithaca. She was followed by Ben Price, who is the Project Director of the Community Environmental Legal Defense Fun in Carlisle, Pennsylvania, so representatives from both New York and Pennsylvania shared what communities can do to regulate what happens in their community looking at home rule.



The forum was moderated by John Conway, who is the Sullivan County, New York, historian since 1993.



John Conway: Our first speaker is Helen Slottje, the managing attorney of Community Environmental Defense Council, a pro bono public interest law firm based in Ithaca, New York. The CEDC works with citizen groups and municipalities that want to retain their rural character in the face of threatened industrialization, especially that from gas drilling. The CEDC recently prepared a local law for a gas drilling task force in a town in Tompkins County in upstate New York that prohibits high-impact industrial uses. It is my honor this morning to introduce to you Helen Slottje.



Helen Slottje: So, hello. Thank you all for coming out here this morning. And many thanks for the organizers, Highland Concerned Citizens and their collaborators from across this region.



We're based in Ithaca, where my husband and I live, and where we want to be able to continue to live in peace and quiet and clean air, and that's why many of us are here today. We made specific choices to live in upstate New York, whether along the banks of the Delaware River, or on an organic farm, or in a cabin the middle of the woods. And the truth is that we want it to stay that way; that's why we came to live here.



And so, we're often accused of being NIMBYs, but the fact of the matter is, we don't want this in anyone's back yard -- not here, not in PA, not out west, and not in other countries. We believe, as I'm sure many of you do, too, that methane gas is a bridge to a very ugly future, and to a climate that's even more out of balance as we pump methane gas that's tens of times more potent than CO2 into the atmosphere.



I was recently on a panel with Sandra Steingraber and she had the most vivid description of the situation we're in that I have heard. And what she said went something like this -- with apologies to Sandra -- she's a much better poet than I am.



Imagine you have a family member who's addicted to alcohol. They've gone through all the beer, all the wine, and all the liquor, and they've even gone through the cough syrup and everything else they can find. Then they learn that buried under the foundation of the family home, stashed away during Prohibition, is a stash of alcohol, and that family member sets about buying explosives and dynamite, and they're going to blow up the floor of the house. Do you ask this person, "Pretty please," to try to slow down and maybe not wreck the house? Do you say, "Well, let's come up with some regulations and try to regulate the blowing up of the foundation of the house?" Or, do you say, "No. We're going to bar the stairs to the basement and you cannot blow up our home."



And so, that's why we're all here today -- to try to call this crazy plan off. So, we're looking for ways to cut off our addiction to fossil fuel, and so, in the absence of this addiction to fossil fuel, clearly this hare-brained scheme of methane gas extraction would be seen for what it is. But how do we go about saying "no"? What can we do?



I'm a New York lawyer, and I'm here today to talk about local land use law in the State of New York, and how we can use local laws to just say "no."



We're fortunate here in New York to have much stronger home rule protections than many other states, including Pennsylvania. And unlike Pennsylvania, we here in New York have the power to say "no" to a wide variety of land uses. But before I begin to bore you with the answers to all the legal questions that you had about land use planning in New York but were afraid to ask, let me address one other question: "What are we going to do if we don't focus on extracting methane gas?"



First, the answer to fossil fuel addiction is not to continue the extraction of fossil fuels. Only when we take some of the fossil fuel options off the table will we get serious about alternative energy sources, and not just wind or solar, but biomethane, district heating, geothermal, and options that we haven't even invented yet, because we keep subsidizing the oil and gas industry, convinced that we can't get along with out them. But in fact, they can't get along if they don't have something to sell us.



So, they're the ones scrambling to find more things that they can control and sell us, and they have no incentive to try to find energy that they cannot use to control the world economies and governments. And this choice they offer us of jobs or the environment -- often framed as the economy or the environment -- is a false choice. Healthy environments provide tremendous economic benefits, and a healthy environment leads to economic growth.



Degraded, polluted environments are not a pathway to economic prosperity -- in fact, the opposite. Poverty is the highest in the most polluted states, and research shows that the poor just didn't happen to wind up there; the poverty comes after the environmental devastation. We can look to PA and West Virginia and out west and see whether or not resource extraction has made those communities rich, or the corporations rich and the communities poor.



Which brings us back to the question that got us all out of bed and not doing the things we prefer to do, and instead focused on becoming educated activists and community leaders -- "What can we do?" So now, for the legal lecture.



So, in New York, localities derive their power from the State Constitution, and it's implementing legislation, the Municipal Home Rule Law, and the town, village or city law as appropriate. The New York State Constitution empowers local governments to adopt, amend and repeal zoning regulations, the power to perform comprehensive or other planning work, and the power to enact laws relating to the government, protection, order, health, safety and wellbeing of persons or property within their municipality. I've asked to be here this morning to talk about a land use approach that our law firm has developed that we believe will allow communities to preserve their rural character and local agriculture, tourism and sustainable economies in the face of threatened industrialization.



First, let me explain that I've spent the past two years working on gas drilling issues. When I went to my first gas drilling meeting, I had no particular opinion one way or the other about gas drilling. I certainly wasn't an environmentalist. But thousands of hours of research later, I must tell you that now I don't think that gas drilling is being done safely in our country at this time. You might have already guessed that. But, when I think about the most negative impacts from this looming industrialization, I think of the truck traffic and the associated destruction of our roads, of our enjoyment of our homes, and the negative impacts from all this diesel exhaust. And this is the impact that can most change our region, and has an impact that occurs even when everything goes right.



So, as you listen to me here today -- and just as importantly, when you listen to other advocates including those for the gas drilling companies, the regulatory partners, and landowner coalitions -- you need to know what is motivating that person. Our motivation and bias is that we are looking into this issue not from the perspective of, what can we do to help localities accommodate industry? What can we do to make sure that we don't pass a road use ordinance that industry says is too onerous? Or, what federal or state funding we might be able to find so we can build infrastructure or train our school children to take some of the most dangerous jobs that are out there?



Our firm is looking at this issue from, what can we do to say "no"? So, that's my bias -- our bias as a firm.



In fact, I'm proud of this bias, because given the way lawyers and law firms and corporations work, usually lawyers are only out looking for clients who can pay them. But how can an eagle, the night sky, or the Delaware River pay a lawyer's bill? So, with the help of grants and donations from regular people, we seek to give a voice to the environment and individual citizens who would not otherwise have the funds to work with a lawyer on environmental causes.



As we've investigated and researched the problems with industrialization and truck traffic and the toxic waste that the industry conveniently calls "brine" -- and we didn't just accept what industry and their regulatory partners and the landowner coalitions and all of their lawyers had to say as a starting point. When we simply started at the beginning and asked the question so many of you have asked, "Can they really just come into our town and do whatever they want -- put a drilling rig right next to my house or on a farmer's field, and just dump exploration and production waste in our county landfill? Haul toxic fluids in for recycling? Bang pipes next door all night long? Coat our homes with silica dust?"



We concluded that if a town used zoning to prohibit the land-based and community-based negative impacts of such activities, the answer was "no," they can't do that, at least not if the town has the political will to say "no" and follow certain procedures and a process in getting there.



"But surely, this can't be true," you might say. "We've been told for so long and by so many that there's nothing we can do." So, let's run through the objections that we hear when we talk about the proposal that towns can draft a zoning ordinance that protects the health, safety and welfare of its residents through the prohibition of high-impact industrial uses.



And when I talk today about our proposed law, I am speaking of this draft law that we prepared for a town gas drilling task force in Tompkins County, although a similar law can be drafted for other municipalities that's tailored to that community's comprehensive plan and community goals.



So first, some people have asked, "Does the town have the right to exclude or ban an industrial use -- any industrial us?" -- not just, say, gas drilling. These people have heard that towns are restricted from prohibiting certain uses, such as adult entertainment or housing for people with very limited means. And so, they wonder, do the use restrictions apply to banning industrial uses? They do not. Those restrictions are very limited and very specific in nature. They have to do with the protection of constitutional rights, specifically First Amendment rights such as free speech. But there is no question that exclusion of a specified industrial use is a proper and legitimate use of land use laws.



There's no dispute. It's what lawyers call "black letter law." In a 1974 case known as The Village of Belle Terre, a case which, by the way, involved a New York State zoning ordinance, the United States Supreme Court specifically stated the town had wide latitude to use its zoning laws to protect the public welfare. The court held, and I quote, "The concept of public welfare is broad and inclusive. The values that it represents are spiritual as well as aesthetic. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled ... a quiet place where yards are wide, people are few, and motor vehicles restricted, are legitimate guidelines in a land use project. This goal is a permissible one. The police power is ample to lay out zones for family values, use values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people."



And the New York Board of Appeals, the highest court in the state of New York, reached the same conclusion in a case called Gernatt Asphalt. And in Gernatt, a town had used zoning to ban mining, and the people who wanted to mine challenged the ban, saying it was unconstitutional, exclusionary zoning. The court -- again, the highest court in New York -- rejected this challenge. The court said, "We have never held that the exclusionary zoning test, which is intended to prevent a municipality from improperly keeping people out, also applies to prevent the exclusion of industrial uses. A municipality is not obliged to permit the exploitation of any or all of its natural resources within the town as a permitted use if limiting that use is a reasonable exercise of police power to prevent damage to the rights of others, and to promote the rights of the community as a whole." That's the holding of the New York Board of Appeals, again, the highest court in the state of New York.



Okay. Well then, isn't such a ban inconsistent with state or federal policy? And yes, the state and federal government have indicated broad support for natural gas extraction, buying industry's promotion of this fossil fuel as somehow green, and have gotten even the national environmental groups so desperate to stop the pillage of mountaintop removal that they're willing to make the sacrifices that methane gas entails. But I digress.



We are not a nation or state of a single policy. Let us not ignore there are many articulated state and federal policies that support the prohibition of high-impact industrial uses in rural areas. I'm only going to talk about two state policies.



Let's start with, say, the State Constitution. Our constitution provides, "The policy of the state shall be to conserve and protect its natural resources and scenic beauty, and encourage the development and improvement of its agricultural lands for the production of food and other agricultural products.



"The legislature, in implementing this policy, shall include adequate provision for the abatement of air and water pollution, and of excessive and unnecessary noise, the protection of agricultural lands, wetlands and shorelines, and the development and regulation of water resources."



So, the proposed law would seem to be consistent with that.



Next, why don't we look at the Environmental Conservation Law, the very law that contains the article on oil, gas and solution mining. The policy of that entire law, and not just the section on gas drilling, provides, "The quality of our environment is fundamental to our concern for the quality of life. It is hereby declared to be the policy of the state of New York to conserve, improve and protect its natural resources and the environment, and to prevent, abate and control water, land and air pollution in order to enhance the health, safety and welfare of the people of the state, and their overall economic and social well-being.



"It shall further be the policy of this state to develop and manage the basic resources of water, land and air to the end that the state may fulfill its responsibility as trustee of the environment for present and future generations." Again, another policy that our proposed law is consistent with.



But one principle of preemption analysis, which is what we're really talking about when we discuss whether this local law would be against federal or state policy, is that when one is trying to determine whether a federal or state law or policy preempts, supersedes or -- put another way -- invalidates a local law, is that you don't go looking for implied preemption when the extent of the preemption is set forth expressly in the statute. And that makes sense. If the legislature has taken the time to tell us what is preempted and what isn't, we don't need to go hunting around looking for more insight into their intentions.



And if you go back to the Gernatt Asphalt case, the court there said exactly that.



And in another case in 2008, the Court of Appeals held that, interpreting an express preemption clause, it is unnecessary to consider the doctrines of implied or conflict preemption. Instead, the resolution turned solely upon the proper interpretation of the statutory language.



So, the Court of Appeals has gone on to say that, "The inconsistency of a local zoning law with a state law general applicability is, of course, insufficient to trigger preemption power, for if that were so the supersession authority granted by the Municipal Home Law Rule would be meaningless." So, that's all good news for us.



What does happen when local zoning law intersects with state law? In New York State, statutes that affect the zoning powers of local governments fall into three broad categories: cases where the local government gets no say. The state decides where it wants to put a particular use, and that's it; cases where the local government can say "yes" or "no" to the use, but once you say "yes," that's it; and situations where you can say, "yes, "no," or, "yes with these conditions."



And the legislature's pretty good about making it clear which category a law falls into. So, when they want to site facilities for the mentally disabled, they expressly withdraw the zoning power of the local government. And then there are ones such as laws regulating solid waste where the statutes specifically contemplate municipal zoning and regulation.



And then there are laws like the Mining Law, the Alcohol Beverage Control Law, and the Oil, Gas and Solution Mining Law, that allow a municipality to say "yes" or "no" to a use, but once you say "yes" you're prohibited from regulating the operation of process of the use. So, part of our proposed law deals with solid waste, and there's no issue with that under the state law, because municipalities are free to zone and regulate solid waste.



But other parts of our proposed law would pick up methane gas exploration and the disposal of their waste because of the high externalities that that industry currently inflicts on the communities around it. So, does this run afoul of the prohibitions in environmental conservation law? We don't think so. What that law says is that, "The provisions of this article shall supersede ..." ... okay, there's our express supersession language, so in this case we don't need to go around searching for more conflicts that put it out there. "The provisions of this article shall supersede all local laws or ordinances relating to the regulation of the Oil, Gas and Solution Mining industries;" ... and then there's an exemption clause, an exception to that prohibition against regulation. And that reads, "but shall not supersede local government jurisdiction, overlook roads, or the rights of local governments under the Real Property Law."



So, a local law may regulate the Oil, Gas and Solution Mining industries if it's a law that regulates the roads or real property taxation and is otherwise within the power of the municipality.



The statute reads again, "The provisions of this article shall supersede all local laws or ordinances relating to the regulation of the Oil, Gas and Solution Mining industries, but shall not supersede local government jurisdiction over local roads or the rights of local government under the Real Property Law."



Tthe question is, what does "relating to the regulation of the Oil, Gas and Solution Mining industries" mean? When does a local law relate to the regulation of this industry?



In answering this question, we can turn to our court, and in fact the New York courts have had occasion to interpret similar phrases, including in the Mining Statute, which previously read much like the Oil, Gas and Solution Mining Statute reads now.



So, what did the court decide? The Court of Appeals held that regulating an industry meant regulating its operations and processes, and did not mean local zoning aimed at limiting the externalities of a land use. And if you look at the legislative history of the statute to try to get some idea of what the intent of the legislature was, there's barely a mention of this particular section because, in fact, this was part of a larger bill that was aimed at increasing permitting fees so that the DEC could hire more regulators. I guess some things really never do change.



We don't think that this interpretation of the statute ... that the statute says what it means -- localities cannot regulate industry -- but that doesn't mean that they can't apply their local land use laws is particularly bold, visionary, clever, or creative ... sometimes I'd like to think so.



This is not a situation where we're trying to create new law attempting to overturn a law that we don't agree with, or even trying to distinguish a lower court holding that goes against what we're saying. It's a fact that there's not one single published New York State case that says municipalities cannot do what we suggest they can do -- to ban high-impact industrial uses.



So, what's the next objection? Okay, well, won't the landowners and the landowner coalitions, or their lessees, sue the town if we pass such an ordinance? Well, of course, anyone can sue anyone for practically anything, and in the land use context it's not unheard of for disgruntled landowners to sue a town when a town passes a zoning ordinance that they don't like, alleging that the law constitutes a taking of their property. But, in the first place, we don't believe that a prohibition on high-impact industrial uses is a compensable regulatory taking.



Certainly, when the government physically invades your property, or takes it and subjects it to its own use, the government is required to compensate you. But enacting regulations that limit a use only results in a compensable taking when the regulations so diminish the value of property that the owner is left with no or virtually no permitted use of the property -- no economic value.



In this case, the owner of the property is left with whatever the use of the property is now, which is presumably something other than high-impact industrial use. Maybe it's a residence; maybe it's a farm; but presumably it has value.



Furthermore, to the extent that the gas drilling industry -- at least as it's currently executed -- falls into this definition of high-impact industrial use, and would thus be prohibited, in New York the only right that's impaired is the right to explore, because in New York no one owns methane gas until it's been brought to the surface and captured. So, you don't own the gas in the first place. And furthermore, gas drilling is not completely excluded under the terms of this proposed ordinance. The only reason gas drilling falls into the definition of high-impact uses is the externalities that result on the community and surrounding properties given how industry currently operates. Property owners remain free to drill for oil and gas to the extent they can do so without imposing major traffic congestion on everyone else; produce deleterious substances that have to be disposed of elsewhere; and have other negative impacts on their neighbors.



Well, we like to think, "It's my property and I can do whatever I want." That's only true if you can do what you want without negatively impacting other property owners because, after all, they have the right to enjoy their property as well. No one has the right to conduct a nuisance. It's not a property right enjoyed by industry, so nothing's been taken. But still, you might say, "Well, even so, the town can get sued and would have to defend the lawsuit."



So, we built into the proposed law a requirement that an administrative challenge be brought before the town as a condition before bringing any lawsuit alleging any sort of taking. So, if a landowner were to claim, "This is an unconstitutional deprivation of my property rights, substantive due process, or equal protection," they have to bring a claim in front of the town. And both federal and state courts require that administrative remedies be exhausted prior to filing for judicial relief.



So, a town would not be in a position where it was blindsided by a court case seeking damages. A town would be in a position to evaluate the merits of a claimant's case and to pursue an appropriate course in advance of a court filing. In other words, a town would be in a position to control its own destiny as to whether to stand its ground or retreat. If it retreats at the administrative remedy stage, then there's no court case, and of course no damages.



In conclusion, we don't believe the legal strategy that we have outlined is particularly novel or out of the box. It doesn't involve challenging the holding of any published judicial decision, and there's absolutely no reported New York case at any level that says that what we're suggesting cannot or should not be done. Well, of course, no one can guarantee that a lawsuit will not be filed. We believe it is much more likely than not that a town would prevail in a lawsuit if one were brought challenging the law, and moreover there's this Administrative Remedy provision which should act to place a town in control of its own liability destiny should any real risk of a damage award arise.



I hope that we have addressed the concerns and questions that you may have about whether or not a proposed law that would prohibit high-impact industrial uses is a worthwhile approach in the first place, and that we can next turn to a discussion of what such a law would actually look like in towns like yours. Thank you very much.



Sabrina Artel is the creator and host of Trailer Talk, stories from America's kitchen table. Her weekly radio show explores community engagement through conversations about culture, politics, the arts and the environment. To find out more about Trailer Talk's Frack Talk Marcellus Shale Water Project please visit Trailer Talk.