Root Simple: Our Rocket Stove

Root Simple: Our Rocket Stove: Tuesday, November 20, 2007
Our Rocket Stove Video: http://www.aprovecho.org/web-content/media/rocket/rocket.htm

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Staring at the bricks we had scavenged to build the base of cob oven, we realized that we could re-purpose them for a permanent backyard rocket stove that we would actually use. Furthermore we realized that our rocket stove could burn some of the palm fronds that regularly tumble down from the iconic palm trees that line our old L.A. street.

Here's the materials we used:

36 bricks
4-inch aluminum stove pipe elbow
4-inch stove pipe
ash (scavenged from park BBQs)
1 tin can
50 pound bag of premixed concrete for the base
mortar mix
grill (scavenged)

The first step was to make a small foundation for the rocket stove. We fashioned a 18 by 18-inch by 4-inch slab with 2 x 4 lumber and a bag of premixed cement. Folks in cold places will need to make a deeper foundation to avoid frost heave.

Next we built a brick cube, leaving a small hole for the bottom of the stovepipe. For advice on how to build with brick we recommend taking a look at this. As you can see our masonry could use some more practice, but the results are not too bad--we like to think of our stove as being a bit "rustic". You can avoid the hassle of brickwork by making a simpler rocket stove--check out these two instructional videos, one for a metal model, and another version using bricks. We chose brick largely for aesthetic reasons and we're satisfied with the results.

Drawing from Capturing Heat

The next step is to put the pipe together fitting the elbow up into the longer pipe, and sized so that the top of the pipe is just below the bottom of the grill. Check out our earlier post for a video that can help with this part of the assembly. Serendipitously, on a bike ride, we found a grill in the middle of Sunset Boulevard that fit the opening in our brick rocket stove exactly.

You pour the ash into the completed brick cube to fill the space between the pipe and the inside wall. The ash acts as insulation to increase the efficiency of the stove. You could also use vermiculite but note that sand or soil will not work. Insulation works because of small pockets of air between particles, hence the need for ash or vermiculite, which are also non-combustible. We used a piece of scrap sheet metal with a 4-inch circular hole cut in it to keep the ash from spilling out the gap between the pipe and the squarish opening at the bottom.

Lastly you use a tin can sliced down the side and flattened out to form a shelf which you insert into the elbow at the bottom of the stove. Note the drawing above for the shape of the shelf. You put your twigs and kindling on this shelf and start the stove up with newspaper underneath the shelf. As the twigs burn you push them in over the edge to keep the fire going.

Our first test run of the stove was very successful--we boiled a pot of water and cooked some eggs in a a pan. The fire burned cleanly with little smoke except during start up. For more info on rocket stoves check out the Aprovecho Research Center.

8 Reasons Young Americans Don't Fight Back: How the US Crushed Youth Resistance | | AlterNet

8 Reasons Young Americans Don't Fight Back: How the US Crushed Youth Resistance | | AlterNet: "

8 Reasons Young Americans Don't Fight Back: How the US Crushed Youth Resistance

The ruling elite has created social institutions that have subdued young Americans and broken their spirit of resistance.

July 31, 2011 |

Traditionally, young people have energized democratic movements. So it is a major coup for the ruling elite to have created societal institutions that have subdued young Americans and broken their spirit of resistance to domination.

Young Americans—even more so than older Americans—appear to have acquiesced to the idea that the corporatocracy can completely screw them and that they are helpless to do anything about it. A 2010 Gallup poll asked Americans “Do you think the Social Security system will be able to pay you a benefit when you retire?” Among 18- to 34-years-olds, 76 percent of them said no. Yet despite their lack of confidence in the availability of Social Security for them, few have demanded it be shored up by more fairly payroll-taxing the wealthy; most appear resigned to having more money deducted from their paychecks for Social Security, even though they don’t believe it will be around to benefit them.

How exactly has American society subdued young Americans?

1. Student-Loan Debt. Large debt—and the fear it creates—is a pacifying force. There was no tuition at the City University of New York when I attended one of its colleges in the 1970s, a time when tuition at many U.S. public universities was so affordable that it was easy to get a B.A. and even a graduate degree without accruing any student-loan debt. While those days are gone in the United States, public universities continue to be free in the Arab world and are either free or with very low fees in many countries throughout the world. The millions of young Iranians who risked getting shot to protest their disputed 2009 presidential election, the millions of young Egyptians who risked their lives earlier this year to eliminate Mubarak, and the millions of young Americans who demonstrated against the Vietnam War all had in common the absence of pacifying huge student-loan debt.

Today in the United States, two-thirds of graduating seniors at four-year colleges have student-loan debt, including over 62 percent of public university graduates. While average undergraduate debt is close to $25,000, I increasingly talk to college graduates with closer to $100,000 in student-loan debt. During the time in one’s life when it should be easiest to resist authority because one does not yet have family responsibilities, many young people worry about the cost of bucking authority, losing their job, and being unable to pay an ever-increasing debt. In a vicious cycle, student debt has a subduing effect on activism, and political passivity makes it more likely that students will accept such debt as a natural part of life.

2. Psychopathologizing and Medicating Noncompliance. In 1955, Erich Fromm, the then widely respected anti-authoritarian leftist psychoanalyst, wrote, “Today the function of psychiatry, psychology and psychoanalysis threatens to become the tool in the manipulation of man.” Fromm died in 1980, the same year that an increasingly authoritarian America elected Ronald Reagan president, and an increasingly authoritarian American Psychiatric Association added to their diagnostic bible (then the DSM-III) disruptive mental disorders for children and teenagers such as the increasingly popular “oppositional defiant disorder” (ODD). The official symptoms of ODD include “often actively defies or refuses to comply with adult requests or rules,” “often argues with adults,” and “often deliberately does things to annoy other people.”

Many of America’s greatest activists including Saul Alinsky (1909–1972), the legendary organizer and author of Reveille for Radicals and Rules for Radicals, would today certainly be diagnosed with ODD and other disruptive disorders. Recalling his childhood, Alinsky said, “I never thought of walking on the grass until I saw a sign saying ‘Keep off the grass.’ Then I would stomp all over it.” Heavily tranquilizing antipsychotic drugs (e.g. Zyprexa and Risperdal) are now the highest grossing class of medication in the United States ($16 billion in 2010); a major reason for this, according to theJournal of the American Medical Association in 2010, is that many children receiving antipsychotic drugs have nonpsychotic diagnoses such as ODD or some other disruptive disorder (this especially true of Medicaid-covered pediatric patients).

3. Schools That Educate for Compliance and Not for Democracy. Upon accepting the New York City Teacher of the Year Award on January 31, 1990, John Taylor Gatto upset many in attendance by stating: “The truth is that schools don’t really teach anything except how to obey orders. This is a great mystery to me because thousands of humane, caring people work in schools as teachers and aides and administrators, but the abstract logic of the institution overwhelms their individual contributions.” A generation ago, the problem of compulsory schooling as a vehicle for an authoritarian society was widely discussed, but as this problem has gotten worse, it is seldom discussed.

The nature of most classrooms, regardless of the subject matter, socializes students to be passive and directed by others, to follow orders, to take seriously the rewards and punishments of authorities, to pretend to care about things they don’t care about, and that they are impotent to affect their situation. A teacher can lecture about democracy, but schools are essentially undemocratic places, and so democracy is not what is instilled in students. Jonathan Kozol in The Night Is Dark and I Am Far from Home focused on how school breaks us from courageous actions. Kozol explains how our schools teach us a kind of “inert concern” in which “caring”—in and of itself and without risking the consequences of actual action—is considered “ethical.” School teaches us that we are “moral and mature” if we politely assert our concerns, but the essence of school—its demand for compliance—teaches us not to act in a friction-causing manner.

4. “No Child Left Behind” and “Race to the Top.” The corporatocracy has figured out a way to make our already authoritarian schools even more authoritarian. Democrat-Republican bipartisanship has resulted in wars in Afghanistan and Iraq, NAFTA, the PATRIOT Act, the War on Drugs, the Wall Street bailout, and educational policies such as “No Child Left Behind” and “Race to the Top.” These policies are essentially standardized-testing tyranny that creates fear, which is antithetical to education for a democratic society. Fear forces students and teachers to constantly focus on the demands of test creators; it crushes curiosity, critical thinking, questioning authority, and challenging and resisting illegitimate authority. In a more democratic and less authoritarian society, one would evaluate the effectiveness of a teacher not by corporatocracy-sanctioned standardized tests but by asking students, parents, and a community if a teacher is inspiring students to be more curious, to read more, to learn independently, to enjoy thinking critically, to question authorities, and to challenge illegitimate authorities.

5. Shaming Young People Who Take Education—But Not Their Schooling—Seriously. In a 2006 survey in the United States, it was found that 40 percent of children between first and third grade read every day, but by fourth grade, that rate declined to 29 percent. Despite the anti-educational impact of standard schools, children and their parents are increasingly propagandized to believe that disliking school means disliking learning. That was not always the case in the United States. Mark Twain famously said, “I never let my schooling get in the way of my education.” Toward the end of Twain’s life in 1900, only 6 percent of Americans graduated high school. Today, approximately 85 percent of Americans graduate high school, but this is good enough for Barack Obama who told us in 2009, “And dropping out of high school is no longer an option. It’s not just quitting on yourself, it’s quitting on your country.”

The more schooling Americans get, however, the more politically ignorant they are of America’s ongoing class war, and the more incapable they are of challenging the ruling class. In the 1880s and 1890s, American farmers with little or no schooling created a Populist movement that organized America’s largest-scale working people’s cooperative, formed a People’s Party that received 8 percent of the vote in 1892 presidential election, designed a “subtreasury” plan (that had it been implemented would have allowed easier credit for farmers and broke the power of large banks) and sent 40,000 lecturers across America to articulate it, and evidenced all kinds of sophisticated political ideas, strategies and tactics absent today from America’s well-schooled population. Today, Americans who lack college degrees are increasingly shamed as “losers”; however, Gore Vidal and George Carlin, two of America’s most astute and articulate critics of the corporatocracy, never went to college, and Carlin dropped out of school in the ninth grade.

6. The Normalization of Surveillance. The fear of being surveilled makes a population easier to control. While the National Security Agency (NSA) has received publicity for monitoring American citizen’s email and phone conversations, and while employer surveillance has become increasingly common in the United States, young Americans have become increasingly acquiescent to corporatocracy surveillance because, beginning at a young age, surveillance is routine in their lives. Parents routinely check Web sites for their kid’s latest test grades and completed assignments, and just like employers, are monitoring their children’s computers and Facebook pages. Some parents use the GPS in their children’s cell phones to track their whereabouts, and other parents have video cameras in their homes. Increasingly, I talk with young people who lack the confidence that they can even pull off a party when their parents are out of town, and so how much confidence are they going to have about pulling off a democratic movement below the radar of authorities?

7. Television. In 2009, the Nielsen Company reported that TV viewing in the United States is at an all-time high if one includes the following “three screens”: a television set, a laptop/personal computer, and a cell phone. American children average eight hours a day on TV, video games, movies, the Internet, cell phones, iPods, and other technologies (not including school-related use). Many progressives are concerned about the concentrated control of content by the corporate media, but the mere act of watching TV—regardless of the programming—is the primary pacifying agent (private-enterprise prisons have recognized that providing inmates with cable television can be a more economical method to keep them quiet and subdued than it would be to hire more guards).

Television is a dream come true for an authoritarian society: those with the most money own most of what people see; fear-based television programming makes people more afraid and distrustful of one another, which is good for the ruling elite who depend on a “divide and conquer” strategy; TV isolates people so they are not joining together to create resistance to authorities; and regardless of the programming, TV viewers’ brainwaves slow down, transforming them closer to a hypnotic state that makes it difficult to think critically. While playing a video games is not as zombifying as passively viewing TV, such games have become for many boys and young men their only experience of potency, and this “virtual potency” is certainly no threat to the ruling elite.

8. Fundamentalist Religion and Fundamentalist Consumerism. American culture offers young Americans the “choices” of fundamentalist religion and fundamentalist consumerism. All varieties of fundamentalism narrow one’s focus and inhibit critical thinking. While some progressives are fond of calling fundamentalist religion the “opiate of the masses,” they too often neglect the pacifying nature of America’s other major fundamentalism. Fundamentalist consumerism pacifies young Americans in a variety of ways. Fundamentalist consumerism destroys self-reliance, creating people who feel completely dependent on others and who are thus more likely to turn over decision-making power to authorities, the precise mind-set that the ruling elite loves to see. A fundamentalist consumer culture legitimizes advertising, propaganda, and all kinds of manipulations, including lies; and when a society gives legitimacy to lies and manipulativeness, it destroys the capacity of people to trust one another and form democratic movements. Fundamentalist consumerism also promotes self-absorption, which makes it difficult for the solidarity necessary for democratic movements.

These are not the only aspects of our culture that are subduing young Americans and crushing their resistance to domination. The food-industrial complex has helped create an epidemic of childhood obesity, depression, and passivity. The prison-industrial complex keeps young anti-authoritarians “in line” (now by the fear that they may come before judges such as the two Pennsylvania ones who took $2.6 million from private-industry prisons to ensure that juveniles were incarcerated). As Ralph Waldo Emerson observed: “All our things are right and wrong together. The wave of evil washes all our institutions alike.”

Bruce E. Levine is a clinical psychologist. His Web site is www.brucelevine.net.

Traditionally, young people have energized democratic movements. So it is a major coup for the ruling elite to have created societal institutions that have subdued young Americans and broken their spirit of resistance to domination

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Banning Corporate Personhood: How Communities Are Taking the Law Back from Big Companies | | AlterNet

Banning Corporate Personhood: How Communities Are Taking the Law Back from Big Companies | | AlterNet:

Banning Corporate Personhood: How Communities Are Taking the Law Back from Big Companies

Ben Price of the Community Environmental Legal Defense Fund explains how communities can fight corporate power with a new legal weapon.

July 14, 2011 |

These last few days for gas drilling news in New York as been critical and a new level of urgency has been reached as the country watches how New York defines and decides its fate, the future of its famous unfiltered water supply, and communities in the directly impacted regions, whether for or against drilling are forging ahead to determine their immediate future and that for future generations.

It's coming down to Home Rule and self-determination as a way to protect municipalities from fracking. As the Department of Environmental Conservation (DEC) releases New Recommendations for Drilling in New York explained in the Supplemental Generic Environmental Impact Statement (SGEIS) released a few days ago, environmental groups, like Catskill Mountainkeeper are calling for a statewide ban and municipalities organize to decide the fate of their towns.

One of the important and positive points in the otherwise very problematic and potentially dangerous draft, combined with a governor apparently wanting to surge forward with gas extraction is this: "Local Land Use & Zoning: Applicant must certify that a proposed activity is consistent with local land use and zoning laws. Failure to certify or a challenge by a locality would trigger additional DEC review before a permit could be issued." These words in the SGEIS give further power to Home Rule.

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 (CELDF) located in Chambersburg, PA. Ben Price has been advising residents about stopping fracking in their communities acting on the premise that they already have the right to say no. He states, "...You have the right to protect your community, your families, your kids, your property values, your drinking water. These are fundamental rights..."

More towns in upstate New York are re-writing their plans and residents are becoming involved in their town politics whether organizing educational meetings, deciding to run for office and reaching out for advice. One such person is Narrowsburg resident Andrea Reynosa, an artist and farmer who lives with her family on a homestead that has been farmed since 1841. Their farm includes river frontage on the East Ten Mile River and sits in the Delaware River Valley, an area under urgent threat from drilling as its neighbor Pennsylvania sits across the Delaware with drill pads in the watershed waiting for approval.

Andrea says, "In November of 2010, we created a local chapter of Concerned Citizens, Tusten Concerned Citizens, whose primary focus is initiating and establishing stringent Land Use laws into our municipal zoning ordinances that address Heavy Industrial Use, i.e. gas drilling, to protect the health, safety and welfare of the citizens of the Town of Tusten. The Town of Tusten is working with Helen and David Slottje and the Tusten Concerned Citizens along with its First Saturday of the Month SkyDog Supper Club will be hosting a Democracy School led by Ben Price later this year." In addition to organizing the town hall meeting supper club as a place for community engagement, Andrea and her partner Kevin Vertrees have been organizing collaborative art events, Flow Projects that are celebrations of pure water as their community is threatened by drilling and hydraulic fracturing.

This is the continuation of the 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 Ben Price of the Community Environmental Legal Defense Fund speaking to residents of the Sullivan County Catskills in Eldred, New York. You can read (or hear) Helen Slottje’s part of the talk here. The event was moderated by John Conway.

John Conway: Ben Price, will talk about a little bit different approach. And Ben's approach involves an outright ban, passing a local law that would provide an outright ban on drilling.

Ben Price is the Projects Director of the Community Environmental Legal Defense Fund. Ben coordinates community organizing across Pennsylvania, where over 100 communities have already adopted Legal Defense Fund-drafted laws. He has served as consultant to the Pittsburgh City Council; assisted in drafting Pittsburgh's Protection from Natural Gas Drilling Ordinance; and is working with other communities in both Pennsylvania and New York, as well as Maryland and Ohio, to adopt community rights ordinances that assert the authority of municipalities to protect their community health, safety, welfare, quality of life, and the natural environment by banning industrial activities such as gas extraction. As Projects Director, Ben offers communities free organizing assistance and training for municipal officials and residents for the adoption of local laws.

He also assists with strategic organizing in New England and northern California, and is the First Chair Democracy School lecturer. Ladies and gentlemen, Ben Price.

Ben Price: Thank you, John, and thanks to everybody for being here this morning. I'll tell a little bit more about the Legal Defense Fund in just a second, but before I begin I wanted to say something maybe you may not expect, but I agree with everything that Helen said. I do. That is where we are right now. And I actually do believe that given the state of affairs with New York law, that land use laws are a viable tool in order to actually keep the drilling out. I think that makes sense as a starting point.

I'm here, I guess in a way, to offer a cautionary tale. I think that it behooves you and your communities to engage in precautionary measures in anticipation of what has happened in other states. The Legal Defense Fund opened its doors in 1995, and the plan was to offer free legal services to municipalities and community groups in order to assist them to protect their quality of life, their health, safety and welfare, their environments, because in general it's those small municipalities and towns -- it's the community groups -- that don't have the financial wherewithal to fight the large corporations when they come in and they say, "Here's what we're going to do whether you like it or not." And whether you like it not, sometimes -- as everyone has heard already -- you can sue anybody for anything with one small caveat -- if you've got the cash. And the industries have the money, and in general the municipalities and the people do not.

Our experience early on back in '95 when the Legal Defense Fund opened their doors was pretty typical. We engaged in rather traditional community organizing, which is to say that we assisted community groups and individuals to challenge permits from being issued, to review the applications for permits that would allow for some legal activity -- and by the way, gas drilling in Pennsylvania and in New York, and Ohio and West Virginia and Maryland is legal. It's legal. And it's regulated -- we know that, too.

But the permits are the license to engage in the activity.

What we found was that the state more and more -- the state legislature -- adopted laws wherein they occupied the field of regulation and stripped local governments of the opportunity to regulate industry and the activities they engage in locally. And just to give you an example, the Legal Defense Fund didn't start working with communities on the gas drilling issue. That's become a huge issue. Everywhere I go, the crowds get larger and larger. When we go to municipal meetings and talk to folks, the crowds are getting huge. People are just energized about this issue.

But that's not where we started working. Frankly, we began working in rural communities in Pennsylvania on issues generally having to do with agriculture -- communities that were concerned about the establishment of factory farms as the new way of engaging in agriculture in Pennsylvania. That wasn't seemingly such a big problem back before the mid-1990s. We had about 400 communities -- municipalities in Pennsylvania at the time -- that had ordinances in place -- legal ordinances -- not challenging any existing law, that said that factory farms essentially were excluded. They wanted to support independent family farming.

Unfortunately -- and this is part of the precautionary tale I want to tell -- is that just because you have what looked like strong local authority under your home rule provisions of your constitution doesn't mean they're permanent. And I don't mean that just to scare you. As a Pennsylvanian, I envy your Home Rule law. I think it's great as it stands. It really does afford a degree of local control that the folks in Pennsylvania -- 12-1/2 million of them in over 1,200 municipalities -- wish they could have back.

We have experienced, though, that when industry wants to make it easier to get what they want, they change the laws for us. That's what we experienced. That's why we changed our strategy in terms of what to do in order to combat the industrialization of our communities, and really ... you'll hear me talk about corporations -- I'm not anti-corporation; I actually work for one. It's a nonprofit, but I actually work for one. They're good tools; they're good legal tools. They can also be used in a negative way, just like a lot of legal things can be.

What we experienced beginning in the early 2000s was a transformation of state law that stripped local communities of the authority to say "no" to the industrialization of agriculture ... by the way, to say "no" to mining. We had land use laws under the Municipalities Planning Code -- that's the state code of land use law -- that did not prohibit communities from zoning out mining, and did not prohibit them from zoning out agriculture that was industrialized. The Municipalities Planning Code was amended any number of times, and it's a litany of surrender of local control and Home Rule authority to industry, where the Municipalities Planning Code was amended to disallow local municipal control or regulation of the timber industry, of mining, of water withdrawals, of agriculture, one after another after another, to the point where what we have left in terms of our ability to deal with an industry like gas drilling is, we can regulate the roads and impact on roads. We can attempt to impose conditions in terms of putting up fences and what color paint is used on the drilling rigs so that they blend in with the background.

Doesn't mean we have no local control over gas drilling in Pennsylvania. We can say where they can drill, but not whether or not they can drill -- the idea of zoning being that we still retain the authority to segregate incompatible uses of land, to try to keep the drill rigs away from the swings and the monkey bars in the kids' playground. We can try to do that.

You can separate incompatible uses of land, but you're not allowed to say "no" to a legal use of land. That's where we are in Pennsylvania. I don't want that to be where you come to in New York.

When it comes to what authority and what power we have to protect our health, safety and welfare at the local level, we're up against three main obstacles. The first one is state preemption, which I just talked about briefly, which is where the state decides to adopt state laws, or to amend existing laws that strip that local authority. In New York, as well as in other states, general laws of the state apply to all communities, and if a general law specifically preempts -- in other words, it strips the authority of the municipality -- to say "no" to a particular legal use of land -- and how do we know it's a legal use of land? Well, permits are issued for it. Permits are issued for gas drilling by the State of New York. You have not yet been preempted to adopt local land use laws that have the effect of excluding gas drilling. And I do agree with Helen -- that's a tool you should use. You have it, you should use it. You should, in fact.

Preemption is one of the main obstacles we have to overcome if it's in place. Right now, you don't have preemption of land use in place, but you do have preemption in terms of regulating the industry. State law essentially says, yes, you can in effect preempt it through your land use decisions, but you can't say anything about the process of the extraction. You can't regulate the industrial activity itself. The state has occupied the field of regulation there, and that is to say you are preempted.

But those laws in existence today in New York that say you can stop it through land use are not immutable, and they're not perpetual.

There's another obstacle to local control called "Dylan's Rule," and it's a theory of law that says -- by the way, it's not in the U.S. Constitution; it's not really even in the state constitution -- but it's a tradition of and a theory of law that says municipalities essentially have the same relationship to the state -- the state legislature -- as a child has to a parent -- which is to say that the municipality has no authority of its own and no agency of its own unless the state delegates that power and that authority ... which also means that at any given time the state can withdraw that power or that authority. That's the experience I've been relating to that we've had in Pennsylvania on lots of issues.

By the way, it's also the experience they have in Ohio. In 2005, the state legislature adopted a law dealing with the regulation of oil and gas, and they stripped municipalities of the authority to regulate -- to do anything at the local level that applies to those industries.

We're used to hearing about that horrible term, the "Halliburton loophole." Most of you have heard that, right? It's that horrible thing that they did at the federal level that said this gas industry is exempt from a host of federal laws that purport to protect our environment and our communities -- you know, the Clean Drinking Water Act; the Clean Air Act; the Superfund Act -- things like that.

We don't generally think about the fact that in many states -- and by the way, in New York as well, the industry is also exempt from local control, local regulation in New York, fortunately, as Helen pointed out, except in terms of land use.

But in terms of industrial activities themselves, they are exempt from local laws. I'd just like to question, what does that word "exempt" mean? It means you don't have to obey laws that everybody else does. It means you're above those laws. It means you're exceptional and you have privileges that no one else in the community, the state or the land has. And that's the position of the gas industry in terms of those ostensibly protective laws. Why would they have to be exempt from them? Maybe it's because they couldn't live up to them; maybe it's because they couldn't actually obey them and actually continue to engage in the industrial activities that they want to be involved in.

So, I mentioned preemption and Dylan's Rule, and what I'm getting at now, too, is a third obstacle that we have to actually creating the kinds of communities that we want to live in, and that is corporate supremacy. As individuals, we don't get exemptions from laws that the rest of our neighbors have to obey. That's not a privilege that we as human beings have. But corporations do, and corporations have been recognized by the courts to share protections of the Bill of Rights of the United States Constitution as though they were living human beings. Again, I'm not against corporations -- I think they're actually very useful tools.

Folks who benefit from private for-profit corporations benefit also from the fact that they often have limited liability; that the individuals who benefit from those corporations that engage in activities that in general community majorities find to be harmful -- that those individuals benefitting from those harmful activities are not responsible for the harm. That's the joy of a limited liability.

On top of that, they get an extra scoop of rights to come in to your community as a corporation. As individuals, every member of the board of directors of a corporations has individual constitutional protections. As individuals, every investor in a corporation retains those rights -- not the responsibilities for the harms they inflict using that legal tool of the corporation when they enter your community. They hold on to their rights and they aren't responsible for the actions.

Now, I know you're at a good spot here where you can potentially adopt land use laws to actually prohibit ... keep out the drilling for now. You can't use other types of laws because you have been preempted from doing so. In Pennsylvania and Ohio, in Maryland and West Virginia, communities there have no such comparable Home Rule power through land use laws. So, what do they do and what have they begun to do?

Well, in Pittsburg, which is probably the one community that you may have heard of dealing with it in this way, in a community rights forum ... What they've done is, they adopted a law -- and I'll just describe it in general terms. It's not simply an outright prohibition on gas drilling, although it does prohibit gas drilling. That's not where it starts. We refer to them as "community rights laws" because it starts with a local bill of rights that enumerate rights such as the right to local self-government on issues with direct impact on the community -- the assertion that the state does not have the authority to license corporations to engage in activities that actually violate the rights of the members of the community.

We actually are self-governing people with rights that we retain and have not surrendered, and we're going to act on that premise, and if the state believes we do not have the right to protect our health, safety, welfare, quality of life, natural environment, they'll need to come and take away our rights 'cause we're not going to sit on our hands and act as though we do not have those rights. That's a pretty profound and provocative thing for them to do, I admit it. And they didn't do it lightly. And we don't engage ... The Legal Defense Fund does not engage in the kind of community organizing that we do lightly either.

But when the consent of the governed is denied, and when private interests are licensed to engage in activities against the consent of the governed, we're left with a question of what to do about it, and I think maybe there's about three choices that we can select from, and I mean it sincerely -- it's not up to me to decide for any given community. I have a voice in my own, but not in yours or anyone else's. Which choice your community takes is up to you and your community, and I'm not being sarcastic about it when I go through these three choices, the first one being, you can decide to do nothing.

And even with the strength of your land use laws in New York, the ability to use them to stop the drilling, there will be communities, I dare say, that will decide to do nothing -- they won't pursue that. They may not be convinced. And Helen, I hope you do convince them because I think it would behoove them all to do it, if at minimum to do that. Absolutely.

But some won't do it, and they'll have arguments to say -- and I don't mean ... again, this isn't meant in any judgmental way -- "Well, we're too busy; we're not really that concerned about it." Whatever the reasons are, that is a valid choice. But we're the adults in the room and we're responsible for the outcomes of our decisions, and if we decide to do nothing, and the outcome of our decision is that our communities are destroyed for future generations to live in them and enjoy their natural environment, their drinking water and the rest of it, we are responsible to that choice; we in our communities are responsible for those choices.

The second of three possible decisions we might make is to attempt to use existing structure of law to create the outcomes that we want. We don't want drilling; let's try to use the laws we have, and that means use your land use laws to try and stop the drilling. But you can't use other types of laws; you don't have regulatory authority over the industry in your municipality, so you don't have that option.

What we can try to do is regulate it. In general, that's what we're given. What does it mean to regulate? It doesn't mean to disallow. It means to allow under certain conditions. And so, a community might say, "Well, we're not really going to impose land use laws that have the effect of eliminating the drilling; we're going to allow it in certain places," which means we're going to decide which parts of our municipality to surrender to the industry -- that's a choice. I think doing nothing and using existing law, you have a very strong possibility of getting fracked -- a very strong possibility.

The third option is the one that the Legal Defense Fund has been pursing and advising communities on, and it has to do with acting on the premise that you already have the right to say "no," that you already have the right to protect your community, your families, your kids, your property values, your drinking water -- that those are fundamental rights. It's a crazy thing -- in Pennsylvania we actually have it. It says it right in the Constitution, Article 1, Section 27, that we have a right to clean air, clean water, clean soil, and that the state has the responsibility to protect the resources of the state and to be the steward of those resources for all of Pennsylvania for generations to come. And then the Supreme Court of the state says things like, "However, Article 1, Declaration of Rights -- those rights are actually non-self-executing." I'm not a lawyer, if I didn't mention that, but sometimes they say silly things like that, which is to say, "These rights -- long list of rights -- they're not self-executing."

What does that mean? It means that the state has not created explicit statutory law to tell us how we're allowed to enjoy those rights. I know I'm speaking colloquially; I'm not being precise in my legal language. I engage in community organizing around these issues, and I think it's important for people to understand what it is -- what does it really mean?

And what we're being told is, the right to clean air, clean water and the rest of it -- well, that's protected by the Department of Environmental Protection. The laws and the regulations of the state through that agency -- that's how we can enjoy those rights. And then we look to see what those agencies actually do. They issue permits to industry to engage in activities that the people in our communities are told they have no authority to say "no" to -- and that's how our rights get protected.

What can we do in anticipation of New York going the way of Pennsylvania and Ohio and Maryland and West Virginia? There really are differences among the states in terms of Home Rule authority. About 46 states have some form of Home Rule at the municipal level. Some of it is statutory; some of it's constitutional; some of it is a mix.

In Pennsylvania, in 1968, they amended the state constitution to allow for municipal home rule. Well, we've got quite a few municipalities in Pennsylvania; 67 of them have decided to go Home Rule. Why so few? Because the state legislature has been very busy since 1968 adopting laws that newly preempt Home Rule authority. So, we had statutory municipalities before, and they were being preempted; and now we have Home Rule communities and their local Home Rule authority is being whittled away one after another.

How does that happen? Our experience is that industry has the ear of our legislators. And, for instance, when the DEP talks about their clients, they're talking about the industries that they're charged with assisting to engage in the activities that they permit. It's kind of an upside-down view of what an environmental agency might do.

So, by the way, is the regulatory system of most states, including New York, where when it comes to preemptive power, what they say is, "Here is the maximum amount of protection legally that a municipality will be offered -- that the members of a municipality will be offered by the state." And you would be acting beyond your authority to adopt laws that regulate that industry any more strictly and offer more protection to your community. If we had legislatures who considered the human beings in the state to be their constituents, we might see a regulatory regime that said, "Here is the minimum amount of protection every community must offer its members, and if they so decide, they can impose more strict regulations to protect the health, safety and welfare of their communities." Just the opposite is the case.

What we're suggesting is that communities take seriously their rights -- and members of the communities take seriously the rights. When Pittsburgh adopted their ordinance, they were not the first in Pennsylvania or the first in other states ... By the way, we have worked in communities in New Hampshire, in Maine, in Virginia and elsewhere where local laws have been adopted that stand in the face of state preemption and challenge those laws and say, "The state is acting beyond its authority to deprive the rights of the members of this community by licensing state-chartered corporations to engage in activities that threaten our rights." The ordinances do a couple of other interesting things. They recognize the inalienable rights of natural communities and ecosystems to exist and flourish -- what does that mean? And does it mean that the communities that adopted these ordinances have all gone "enviro," or turned into Druids or something? No, it doesn't mean that.

Most of the communities that have adopted rights-of-nature provisions have been what I would describe as rather conservative, but they understand the real pragmatic reason for doing so. When it comes to protecting your environment -- and yes, we can litigate over anything we want to ... But if you want to sue a corporation for engaging in a harmful activity in your community and you go to court, one of the first things they're going to ask is, "Well, what's your interest in this?" to explore to see if you have standing. Are you actually going to be materially harmed, or have you been materially harmed by this corporate activity? In other words, do you own the land that's been harmed? Has your property value been damaged? Something along those lines. And if the answer is "No, I live on the other side of town but I just didn't want to see our environment destroyed," your case is dismissed.

What if, in your bill of rights, in a community rights ordinance you include a recognition of the rights of ecosystems to exist and flourish, and you further recognize that every member of the community has legal standing to advocate for those rights in a court of law? And then the legal relationship in terms of property is not the relevant question. The question is, "Have these rights been violated?"

One other provision, which is a key one ... Sometimes we're told what we're really interested in is just getting rid of corporate rights, and there's bill of rights protections that corporations have been granted.

We have a provision in the ordinance that says corporations that would violate the prohibitions of this law will not be recognized to have the legal protections of the Bill of Rights and similar protections of state law. Why would we do that? It's not just because we want to be nasty. It's because people in our communities are at disadvantages when lawyers for corporations come in and they say, "We're suing; we're bringing a Section 1983 lawsuit, which is a civil rights lawsuit, on behalf of the civil rights of the corporation that are being violated." It's that "takings" thing. "Takings" means that your Fifth Amendment protections of government not to take private property for public use without just compensation are being violated. And a corporation lawyer comes in and claims, "That's exactly what your municipality's doing to us by adopting a local law that says we can't access our minerals, or we can't exercise the lease, or the permit." That's the type of argument we get.

Nullifying that claim is not about stripping rights from corporations; it's about making sure that the rights of the members of the community are understood to be superior to the privileges of state-chartered corporations -- chartered corporations, and they are chartered by the state legislature in the name of the people. The state cannot turn around, not legitimately, and issue permits to them in a way that would have the effect of violating the rights of the very people who chartered the corporation. It's a Frankenstein model. It makes no sense to allow that to stand, and so we do challenge that.

This is very provocative stuff. We know it. We understand that this isn't for everybody, because it takes a lot to explain it, and I, with 30 minutes quite frankly, have really but scratched the surface.

What would we suggest in terms of New York and where you are? And again, it's back to the cautionary tale, and I think the precautionary measures that I would suggest, we would suggest, which is to say, put in place your land use laws to eliminate the use of land for gas extraction, combined with community rights provisions that recognize that you're doing so not only because you acknowledge the authority of the state which has devolved these powers to you, but also because you understand and embrace the rights of the community to adopt laws and have the effect of governing state-chartered corporations in the name of the people. This is about, I believe, putting in place local laws that anticipate the possibility of losing the one tool you do have right now. I wish you had more tools, because in a self-governing democracy, the people wouldn't simply be allowed one last shot at self-governance through land use; it would actually be a broad spectrum of authority understood and recognized by the state.

There's a lot to this, and if you have further questions, I'm happy to answer them. Thanks.

Conway: Thank you, Ben.

Ben, our first question: "What role, or what impact, if any, would a public health officer in a town or the county or public health law have on gas drilling?" Can public health issues be used in a town ordinance to prohibit gas drilling?

Price: I'm not going to presume to speak on New York law specifically. I'm not an attorney to begin with, but New York law -- I'm familiar with it to the degree I am.

When we talk about a bill of rights and these local ordinances, they're not limited in scope. I mean, if it's a matter of retained rights of the people being enumerated locally, and prohibitions being put in place as Pittsburgh did, the prohibition on gas drilling is not simply a free-floating prohibition. It's put in place, and specifically the language of the law says, "This prohibition is intended to protect the rights enumerated in this ordinance." And so, a right to health and not to have health damaged would seem to be a legitimate jumping-off point for prohibition on drilling.

Conway: Ben, you mentioned the Pennsylvania State Constitution. I'm not sure if you can address this, but, "Does New York have the same right to clean water, land, soil, in our state constitution, and can we enact a ban or a bill of rights at the same time? And once a ban or a bill of rights is enacted, can it be overturned once it's passed?"

Price: To my knowledge, the New York Constitution isn't quite as explicit as Pennsylvania's, but it's not based on Pennsylvania's constitution that these ordinances are being drawn up the way they are. We're not claiming that we get our authority or our rights from Article 1, Section 27 of the Pennsylvania Constitution. That right preexists the Pennsylvania Constitution.

The theory of government, in this country at least, going all the way back to the Declaration of Independence -- it declares that governments are instituted -- what for? -- by the people to defend and protect their rights. And when governments no longer act in that manner, then it is not only the right, but it says the duty of people to alter or abolish it.

So, the rights precede the constitution, and it doesn't matter whether you have that language in the New York Constitution. That's not the question to ask on whether or not you can institute local bills of rights that recognize those rights. Retained rights -- I mean, if you want to look for a place, the Ninth Amendment of the U.S. Constitution talks about unenumerated rights being retained by the people. Unenumerated -- just because there's 10 amendments to the Constitution early on doesn't mean that the listing of those rights is exhaustive. Unenumerated rights are retained by the people. Let's enumerate them and protect them.

Conway: Ben, if corporations are considered a person, as has become prevalent of late, do they have the same protections as a person might expect?

Price: Well, the same and more. And there are specific examples I could give. There are particular amendments to the Constitution that corporate attorneys will claim belong to corporations now. The 14th Amendment was the first one, and it guaranteed equal protection of the law and due process of law. The 14th Amendment was adopted after the Civil War. The 13th Amendment ended slavery, and the 14th Amendment -- at least as I read it, and many folks read it -- was intended to guarantee equal protection of the law and due process of the law to those freed slaves -- and, by the way, to everyone, 'cause it didn't mention that it was just freed slaves.

The courts looked at the word "person" and the second clause of that amendment, and determined in 1886 that the word "person" also referred to corporations as well, and in that particular case, the Santa Clara case, decided that corporations had the 14th Amendment protection of equal protection of the law, which was the foot in the door, and now we see that corporations are recognized to have First Amendment free speech protections -- that was first decided in the Bilotti case of 1978; it wasn't the Citizens United case that actually opened that can of worms; that was just the cherry on top.

You know, Fifth Amendment protections -- wonderful stuff. In 1922, Pennsylvania had a state law on the books that said corporations must leave columns of coal under the ground. They couldn't just strip out all of the coal with the effect of the surface collapsing in, subsidence, destroying surface properties and ponds and having streams disappear, and the rest of it.

Well, Pennsylvania Coal Company went to court and they got a nice decision from the Supreme Court that said, "You know, that's a violation of the Fifth Amendment protections of that corporation under the 'Takings' clause, because making them leave their coal underground -- those pillars of coal -- that's their property. It's stuff they could have harvested and made a profit selling on the market. And so, you can't make them ... Pennsylvania ... you can't make them leave that there." And the state law was overturned.

It's a bizarre thing. Do corporations have the same rights as people? I don't know. I think that in that case, and in many similar cases, in fact the people living on the surface lost their rights and the corporations gained them.

And by the way, it wasn't just the Pennsylvania Coal Company that gained that Fifth Amendment "Takings" protection. It was every corporation in the country. Every time that the U.S. Supreme Court decides to find, to discover, corporations in the U.S. Constitution, the word doesn't appear there, by the way. Every time they discover corporations in the Constitution, that's a discovery for every corporation, not just for the one that goes to court. We don't get such benefits when we get a court decision in general.

And by the way, future lost profits as a property right belonging to corporations -- can you imagine? I'm going to exaggerate a little bit here, but what if you went down to a nearby business, filled out a job application, and said, "I'd like this job," and you got turned down? Imagine trying to sue for the future profits you could have made if they'd have only hired you. Well, it sounds absurd, I know. I think it's absurd that a corporation could, under any guise, say that the gas they have plans to retrieve is something that they can claim a vested property right in under any guise.

Conway: Okay, we're going to call this the last question, and I'm combining a bunch here, Ben, so I'd ask you to try to address this in its entirety as quickly as possible. A number of people expressed kind of a helplessness here. "Are there any actions that citizen groups can take if their townships are all pro-drilling? How does a resident stop a test well from becoming a production well now, and, based on your experience, what is the timeframe it would take to put your community rights provisions into effect?"

Price: The work we do really is not so much about making sure that we stop drilling, just to be honest with you. Our job is to make sure that we attempt to empower community majorities to establish local control to the greatest degree possible.

Having said that, if you have a community majority that is against gas drilling, how long would it take to get an ordinance in place? In general, the process I'm used to in Pennsylvania and elsewhere -- there's usually ... there's a legal process you have to go through of advertising a proposed ordinance at one meeting, and then as soon as possible would be to have a hearing, and then maybe a vote on it at that very meeting. So, a couple of months. But that's a couple of months after you've persuaded your community, "This is the way to go"; after you've secured and persuaded your local officials to vote in the affirmative, assuming you don't have initiative and referendum; and also, assuming that you've got the language in place. We don't simply hand communities, "Here's the finished product," and say, "There it is; go with it."

We engage in a real dialogue with people in the community; find out what it is precisely they want to do. We have some communities, all they want to do is ban drilling -- that's it. Someone'll say, "We want to ban drilling. We also want to ban them from depositing the frack water anywhere in our community. We want to ban them from withdrawing water and using that for the drilling process, even if they don't do it in our community." There are a number of things that we can discuss about what outcome you're looking for -- what the law's going to look for. Length of process -- it varies. The shortest would be a couple of months. That would be real fast, I think.

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.

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 ?

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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.

Seeds of Hope: How Sustainable Activism Transformed Detroit

After the death throes of urban decay, what the Motor City can teach us about vision, community, and the power of movements.

June 22, 2011  |  

In 1988, we in Detroit were at one of the great turning points in history. Detroit’s deindustrialization, devastation, and depopulation had turned the city into a wasteland, but it had also created the space and place where there was not only the necessity but also the possibility of creating a city based not on expanding production but on new values of sustainability and community. Instead of investing our hopes in GM, Ford, and Chrysler and becoming increasingly alienated from each other and the Earth, we needed to invest in, work with, and rely on each other.

Through no fault of our own, we had been granted an opportunity to begin a new chapter in the evolution of the human race, a chapter that global warming and corporate globalization had made increasingly necessary. In its dying, Detroit could also be the birthplace of a new kind of city.

As Detroiters, we were very conscious of our city as a movement city. Out of the ashes of industrialization we decided to seize the opportunity to create a twenty-first-century city, a city both rural and urban, which attracts people from all over the world because it understands the fundamental need of human beings at this stage in our evolution to relate more responsibly to one another and to the Earth.

In pursuit of this vision, we organized a People’s Festival of community organizations in November 1991, describing it as “a Multi-Generational, Multi-Cultural celebration of Detroiters, putting our hearts, minds, hands and imaginations together to redefine and recreate a city of Community, Compassion, Cooperation, Participation and Enterprise in harmony with the Earth.” A few months later, to engage young people in the movement to create this new kind of city, we founded Detroit Summer and described it as a multicultural, intergenerational youth program/movement to rebuild, redefine, and respirit Detroit from the ground up.
Through Detroit Summer, urban youth of a lost post-1960s generation, whom many adults had come to shun, fear, and ultimately blame for so many ills, became a part of the solution to Detroit’s problems. Recalling how the Freedom Schools of Mississippi Freedom Summer had engaged children in the civil rights movement, we asked Detroiters to just imagine how much safer and livelier our neighborhoods would be almost overnight if we reorganized education along the lines of Detroit Summer; if instead of trying to keep our children isolated in classrooms for twelve years and more, we engaged them in community-building activities with the same audacity with which the civil rights movement engaged them in desegregation activities forty years ago: planting community gardens, recycling waste, organizing neighborhood arts and health festivals, rehabbing houses, and painting public murals.

By giving our children and young people a better reason to learn than just the individualistic one of getting a job or making more money, by encouraging them to make a difference in their neighborhoods, we would get their cognitive juices flowing.

Learning would come from practice, which has always been the best way to learn. In Detroit Summer we combine physical forms of work with workshops and intergenerational dialogues on how to rebuild Detroit, thus further expanding the minds and imaginations of the young, old, and in-between. Instead of coercing young people to conform to the factory model of education, the time had come, we said, to see their rebellion as a cry for another kind of education that values them as human beings and gives them opportunities to exercise their Soul Power.

Detroit Summer began in 1992 and has since been an ongoing and developing program for more than fifteen years. Since 2005 it has been organized by a multiracial collective of twentysomething young people, many of whom have been a part of our past summer programs. With this younger generation now at the helm of leadership of the Detroit Summer Collective, the organization continues to tap the creative energies of urban youth.

Some skeptics question whether a program such as Detroit Summer can make much of a difference, given the magnitude of the city’s problems. They doubt that a program, which at its greatest capacity involved sixty youth, could have an appreciable effect in stemming the crises of school dropouts, violence, and incarceration that are stealing lives by the thousands. They ask how tending to a handful of gardens, painting one or two murals a year, and fixing up a house or vacant lot here and there can address the blight that has taken over much of the urban landscape. And they lament that small dialogues—between youth and elders, between neighbors, between people of different backgrounds, and between activists from various cultural and political traditions—cannot match the force of large demonstrations involving tens of thousands.

What they don’t understand is that our goal in creating Detroit Summer was to create a new kind of organization. We never intended for it to be a traditional left-wing organization agitating masses of youth to protest and demonstrate. Nor did we intend that it become a large nonprofit corporation of the sort that raises millions of dollars from government, corporations, and foundations to provide employment and services to large populations.

Both of these forms of organizing can be readily found in Detroit and all major cities in the United States, but the system continues to function because neither carries the potential to transform society. By contrast, our hope was that Detroit Summer would bring about a new vision and model of community activism—one that was particularly responsive to the new challenges posed by the conditions of life and struggle in the postindustrial city. We did not feel this could be accomplished if control of our activities was ceded to the dictates of government or the private sector, even though this meant that we would be working on a small scale. However, by working on this scale, we could pay much closer and greater attention to the relationships we were building among ourselves and with communities in Detroit and beyond.

The result has been that we have been able to develop the type of critical connections—of both ideas and people—that are the essential ingredients of building a movement. The best metaphor Detroit Summer has come up with to characterize itself is “planting seeds of Hope.”

What has developed through both conscious organizing drives and the actions of many individual residents is a significant urban agricultural movement in Detroit. All over the city there are now thousands of family gardens, more than two hundred community gardens, and dozens of school gardens. All over the city there are garden cluster centers that build relationships between gardeners living in the same area by organizing garden workdays and community meetings where participants share information on resources and how to preserve and market their produce.

When I think of this incredible movement that is already in motion, I feel our connection to women in a village in India who sparked the Chipko movement by hugging the trees to keep them from being cut down by private contractors. I also feel our kinship with the Zapatistas in Chiapas, who announced to the world on January 1, 1994, that their development was going to be grounded in their own culture and not stunted by NAFTA’s free market. And I think about how Detroiters can draw inspiration from these global struggles and how—just as we were in the ages of the CIO unions and the Motown sound—our city can also serve as a beacon of Hope.

Living at the margins of the postindustrial capitalist order, we in Detroit are faced with a stark choice of how to devote ourselves to struggle. Should we strain to squeeze the last drops of life out of a failing, deteriorating, and unjust system? Or should we instead devote our creative and collective energies toward envisioning and building a radically different form of living?

That is what revolutions are about. They are about creating a new society in the places and spaces left vacant by the disintegration of the old; about evolving to a higher Humanity, not higher buildings; about Love of one another and of the Earth, not Hate; about Hope, not Despair; about saying YES to Life and NO to War; about becoming the change we want to see in the world.
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This article was adapted for YES! Magazine, a national, nonprofit media organization that fuses powerful ideas with practical actions, from The Next American Revolution: Sustainable Activism for the Twenty-First Century by Grace Lee Boggs with Scott Kurashige.

Grace Lee Boggs has been an activist for more than 60 years and blogs for YES! Magazine. She is the author of the autobiography Living for Change.Scott Kurashige is director of the Asian/Pacific Islander American Studies Program at the University of Michigan and the author of The Shifting Grounds of Race: Black and Japanese Americans in the Making of Multiethnic Los Angeles.