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Michael Lilliquist Explains His Position on the Proposed City Initiative Prop. 2

August 2012

Proposition 2

Michael Lilliquist Explains His Position on the Proposed City Initiative Prop. 2

by Michael Lilliquist

Michael Lilliquest represents the 6th Ward on the Bellingham City Council.

It’s difficult for me to know where to start in replying to your email and the many similar email letters the City Council has received taking issue with our decision to seek judicial review of the legality and validity of Prop. 2, the Community Bill of Rights. I believe you deserve to know why I supported this course of action. Given the flaws in the initiative, I unhappily felt we had no better choice. Although the decision to seek review was unanimous, the words and ideas that follow are my own, and may or may not be shared by other Council members.

The GPT coal train/shipping terminal is certainly one of the most important and emotional issues for Bellingham now and for the foreseeable future. Last night’s City Council meeting, in particular, was emotionally difficult for me: to be criticized for doing nothing, for denying democracy, for betraying the people who elected me, for serving harmful corporate interests, etc. This is especially upsetting for me, having spent  much of the weekend working on ways to hold the GPT project accountable and to provide the voters of Bellingham with a valid means to cast their vote. Please keep in mind that elected or not, I am an ordinary person such as yourself, no better and hopefully no worse. I am doing my best to protect my community and my daughter’s future.  

Let me begin by saying I share many people’s great concern over the likely impacts of the proposed GPT project -- from the increased rail traffic, noise, pollution, impact on property values, our city’s quality of life and attractiveness to businesses and visitors, the risks of increased ship traffic through the San Juan straights, and the mining and burning of coal itself. The list of possible or likely negative impacts locally, statewide, and globally is pages long and we do not need to go over them here. The economic benefits have been advertised, while the economic costs are only becoming known.

I steadfastly believe that as your elected representative, I need to work night and day to protect the health and welfare of Bellingham, not just today but long into the future. I feel this is my responsibility even when I have no direct “vote” in the matter, such as the Whatcom County Council members have. Quite simply, it’s not our (Bellingham City Council’s) decision to make. Without authority over the decision, we are forced to work by more difficult and circuitous means, to influence others and to improve the process.

My personal position is that unless and until it can be shown convincingly that the consequences of the proposed coal shipping terminal and associated rail and marine traffic are not a threat to the health, safety, prosperity, and future of Bellingham and other communities, it should not be approved. Let the facts and the  truth guide us, and let’s work to ensure that the truth is well known to the public as well as to decision makers in county, state, and federal government.

You may recall that I personally took the initiative early last year to write the City Council’s letter to the county SEPA official and the Corps’ NEPA official, outlining the City’s serious concerns and calling for a broad and thorough environmental review.  What you may not know is that earlier this year, I helped secure a promise from the Mayor that staff time and resources would be available to respond to and watch over the EIS process, and I continue that insistence. I have been steadfastly insisting that the City of Bellingham be prepared to offer a thorough set of comments on the EIS scoping process, to require a full accounting of the impacts that must be prevented. Yesterday, I convinced the other members of  City Council to send an important letter to Whatcom County’s SEPA official, requesting a definitive answer about off-site rail improvements that directly points to the estimated $100 million cost of an unwanted rail siding in Bellingham. I have also been in regular contact with leaders in the Whatcom Docs organization and CommunityWise Bellingham, and I applaud and welcome their important contributions to understanding the issue.

Let me also say that, as a graduate of CELDF’s “democracy school,” I understand the legal, constitutional, and moral critique of corporate and property-based rights as opposed to human and natural-systems rights. Let me also add that as a co-sponsor of the City Council’s recent resolution calling for a constitutional amendment to undo the Supreme Court’s Citizens United  decision, I have shown that I understand the fundamental threat to our democracy when for-profit, fictional persons can and often do wield more influence on our elections and lawmaking than natural human beings.

I say all of this in the hope that you will understand that my objections to Proposition 2 are not motivated by any favoritism of the GPT project, nor any sympathy for coal production and burning, nor by a lack of concern with outside corporate interests undermining our local democracy.

I know many of the leaders in Prop 2 effort personally, and I expressed my concerns about Prop 2 to several of them directly weeks and months ago. This should not be the least bit of a surprise to them. Indeed, I suspect that a legal showdown is exactly what some people were seeking. The problem is, as I see it, Prop 2 creates the wrong conflict between the wrong parties. It puts the City government in harm’s way, and will do little of practical effect to stop the coal train and shipping terminal. I say this for two general reasons. First, the initiative is doomed to being overturned in court; and second, the initiative distracts and weakens the ability of the City of Bellingham to deal effectively with this issue. And finally, it is a tactical and political blunder, by forcing a sympathetic City Council to raise procedural and legal roadblocks, rather than strengthening the Council’s hand to act on your behalf.

In short, in my view, Proposition 2 is legally, practically, tactically, politically, and philosophically flawed. I wish it were otherwise. The time and place for the people of Bellingham and Whatcom County to be heard shall come, but this is not the way. You may not agree, but please understand why I believe so.

In our American democratic system, we declare that government derives its just powers from the consent of the governed. Collectively and through the Constitution we define both the authorities and the limits of government power, in order to create the rule of law and to protect individual rights. The Constitution also reserves certain powers to the federal government, while passing over most all other government powers to the individual states. My point here is that the people’s sovereignty is embodied collectively not separately by the federal and state and local governments.

Every city is not and cannot be sovereign and independent. To believe otherwise would be to undermine the very idea of the rule of common law, common justice, and common purpose. It would undermine the “we” in We the People. It would become, each community for themselves; our way or the highway. Local rejection of federal authority has a long, sordid past, known sometimes as “nullification” and put into service by racist southerners attempting to oppress and discriminate under the cloak of local democracy. Hyper-local democracy is a dangerous and potentially corrupting tool; you don’t want to use a tool which you would not allow others to use. The enlightened arc of history has been to expand our boundaries of shared community and values, not narrow it down city by city. The rule of law should not be thrown out so quickly. The ends do not justify the means.

More importantly in my mind, Prop 2 is practically designed to create a constitutional showdown between local and federal government -- but that’s not what most people are concerned about. The common target of concern is the influence of corporations in our political and legal and regulatory systems. CELDF has done a credible job in outlining how the regulatory system is often a rigged game in which the direct voices of the people or their elected representatives are stymied and thwarted by established legal privileges granted by the courts and federal laws. Well, if this the problem, then we need a healthy showdown between the rights of citizens to protect themselves and the rights of businesses to conduct harmful operations under legal shield of permits. This is a national problem, that calls for a national solution (e.g., pass an constitutional amendment that declares the Bill of Rights protect natural persons only). Prop 2 misses the mark. It’s the wrong fight. It attacks federalism not just corporatism.

Many people, perhaps including yourself, are understandably frustrated -- unable to talk to the decision makers on the Whatcom County Council, and also unable to vote on the issue. There is a feeling that, in all justice we ought to be able to vote to do whatever we feel is right and necessary to protect our interests, our health, our future. I hear you and I get it, but that’s not how the rule of law works, because different issues are dealt with at different levels of government. Under our system, the democratically-elected federal government has sole jurisdiction over some matters, while the democratically-elected state government has authority over others. The state, in turn, delegates certain responsibilities in part or wholly to democratically-elected local governments. In principle, the people are always in charge and sovereign, but we the people govern through different jurisdictions.

The central problem with Prop 2 is that is pits one democratically-elected government against another democratically-elected government; it pits the people’s representatives against the people’s representatives. It creates a constitutional show-down not over the issue of corporate influence or property-based rights, but rather a show-down between federal and local government. This is the wrong constitutional show-down, because a victory will bolster the dangerous states-rights agenda while not directly affecting corporation’s legal status.

The restoration of democracy in America needs to come about not through a weakening of our Constitution, but through a re-assertion of citizen control over federal government. If you want to take back control of our (your!) democracy, begin by understanding which jurisdiction controls what. Then work to change those rules that don’t work, but please do so at the proper level (local, state, national) and by effective means (electoral victories, etc.) that cannot be overturned in court. If passed, this proposition would no doubt be overturned, and where would that get us?

So much for the politics and philosophy, now on to the nitty-gritty of why I voted to seek legal review of Prop 2. (By the way, the City Council does not have the power vote to keep Prop 2 off the ballot, as some have feared; that was never a possibility.)

The city attorney’s office has identified no less than seven fundamental flaws with the initiative -- simple, basic flaws that were known in advance and easily identified, but ignored by supporters. From top to bottom, the proposition is invalid, improper and unconstitutional. It clearly violates the City charter, state law and the state constitution, as well as federal law and the U.S. Constitution. Part of the law for initiatives is that they must contain only one question or issue, so that voters can declare their preferences clearly. Prop 2 contains at least two, probably more proposals. As written, people who may want to vote against the coal train but not in support of the Community Bill of Rights cannot do so.  They have to support or reject both. Courts routinely throw out such dual-issue initiatives.

Contrary to what many people think, citizen initiatives cannot be used to let the people vote on anything just because it is important. The power of the citizen initiative is best understood as direct legislation. Rather than working through our elected legislators, we the people can petition to enact legislation (laws) directly by popular vote. The key point is that citizens have no more power through direct legislation than the elected legislators wield on your behalf. If the City Council has no authority or jurisdiction, then neither do the people when they act through municipal initiative. (The same is true for state initiatives: the people can vote to directly pass state laws but only state laws.)

In other words, the people cannot pass state or federal laws through a municipal (city) ordinance, any more than the City Council can pass state or federal laws. The City is not taking away a legal right, because that legal right does not exist. (I am referring to legal rights, not moral rights.)

The City Council also has no administrative or executive authority: under the city’s founding charter, that’s the mayor’s job. Therefore, citizen initiative cannot enact administrative or executive actions (as clearly stated in our charter). Moreover, when the City is carrying out the orders of a higher authority (e.g., federal law) it is acting in an administrative capacity. We are not passing a local law, but only carrying out a law passed by another level of government. Prop 2 includes administrative acts. Since Prop 2 proposes to do that which the City Council cannot do, even if it wanted to, Prop 2 is likely beyond the permissible scope of initiatives and therefor invalid.

Finally, there is the federal question. The U.S. Constitution clearly states that interstate commerce is the sole jurisdiction of federal government, and Congress has passed numerous laws that clearly exempt interstate rail traffic from local control. Moreover, and regrettably, rail companies were given an exalted and nearly untouchable status in federal law going back to the gilded age of the 19th century; they are in an especially privileged position legally. By claiming to overturn or pre-empt these constitutionally-based federal laws, Prop 2 runs smack into a legal freight train (pun intended). I am not a legal expert, but I am mortally certain that Prop 2 would be overturned on this ground alone if challenged in court. Prop 2 supporters have pointed to examples of other cities that have declared against harmful corporate practices, but none of these cases dealt directly with the Commerce Clause or the considerable position of rail.

Now, you may not care whether it is “legal” or not, but as your elected official I have to care very much about exposing the City to costly and losing lawsuits.  Moreover, under federal code, the city could actually end up paying the other side’s lawyer bill if (when) we lose! Facing the loss of tax-payer dollars to pay the legal bill for both sides, I felt compelled to act. In addition, our legal system requires that court challenges must be made in a timely fashion; as a matter of fairness, one may not be allowed to wait until after the fact. Sometimes failure to act means that you also lose your place in court. These details may not interest you personally, but it may help you to understand the complex motives behind our actions.

Other people have criticized the City Council for being too concerned about avoiding law suits. I assure you this is not the case. As some of you know, the City Council dealt with three major land use/zoning decisions last night, and in all three cases we were threatened with legal action if we did not act in the way that some parties wanted us to act. We will act anyway, I believe, because we feel confident in our positions and justifications. Sadly, the City is sued or threatened with lawsuits all the time. We pick our fights, and defend the public interest. The mere threat of a law suit was not the main issue with Prop 2. It was the un-win-ability of the lawsuit that was persuasive.

There is a common theme to many of the complaints we have received: “don’t take away our right to vote, our right to be heard and to decide.” But there are other means to be heard and to vote, including through an initiative that was written differently. Just as the City Council can pass non-binding statement of belief and intent known as a resolution, so too can a citizen initiative pose a question to the people -- a direct resolution if you will. The outcome of the election does not enact a law (which is why it could not be overturned by outside interests), but it does make a practical, political, and moral commitment that the City would then work to uphold.

Yesterday I formally notified the other members of the City Council that I wanted to work on developing alternative ballot proposals to be put before the people, to address the coal train issues and the Community Bill of Rights in a way that would not be legally challengeable. Several council members quickly said that they would help me to develop those ideas. If the court decides that Prop 2 is invalid, the Council may be able to place alternatives on the ballot if we act quickly. Nothing has been decided or proposed yet, but the Council could choose to place two advisory votes on the ballot, one dealing with the coal train issue and the other dealing with a Community Bill of rights. As advisory votes rather than laws, these cannot be challenged or overturned. On the down side, of course, because they are not laws, they do not actually change the system or enact new legal tools.

At the same time, I will continue to work with the city administration to participate in a robust environmental review by the county, to identify all impacts and to hold the GPT applicants accountable. The permit review process will take months if not years. Please be assured that I will give the matter the attention and time that it deserves.

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