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Coal-Free Bellingham Responds to Michael Lilliquist’s Letter

August 2012

Proposition 2

Coal-Free Bellingham Responds to Michael Lilliquist’s Letter

by Coal Free Bellingham

This letter is Coal-Free Bellingham’s response to Bellingham City Councilmember Michael Lilliquist’s recent email to Coal-Free Bellingham’s Office Manager Michelle Magee. Michael felt compelled to explain why he and the council have chosen to file a lawsuit to try to stop the duly qualified Community Bill of Rights from appearing on the November ballot. (Since this is in response to Michael’s letter, we suggest you read it first — see pages 14 and 15.)

It’s our turn to answer this question: why would our own City Council try to prohibit a citizen-bred initiative which successfully gathered more than enough valid signatures from the very people who helped elect them. How can this be? Why would our leaders challenge the people’s attempt to protect ourselves from the known harms of coal trafficking? And whatever happened to the Washington State Constitution’s declaration that “all political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights?”

Our answer is not a simple one, so please bear with us....

Ultimately, there are profound reasons why we shouldn’t expect our own City Councilmembers to directly challenge the corporations whose proposed coal terminal – and the shipping of coal through our community - threatens the very soul of our community. Given these reasons and the framework of law within which they operate, our council has, indeed, taken an action that is logical… from their perspective!! Therefore, we need to understand these reasons and this framework. They will reveal why the council did what they did, while simultaneously revealing why this city needs a bill of rights so that we, the people, can protect ourselves. And why, in the end, the people of Bellingham govern less in the City of Bellingham than they would like to believe.

Given the system of government which our City Councilmembers have taken their oath to uphold, we believe that they are the last ones we should expect to use the municipal corporation to directly challenge the likes of BNSF, SSA Marine, or Goldman Sachs. As we’ve seen time and time again, once someone is elected, they see themselves as the caretaker of the municipal corporation itself, and they become a steward of all processes of lawmaking within the municipal entity. Boiled down to the nub of it, they take ownership of the municipal corporation itself. They see the ‘City of Bellingham’ municipal corporation as their own — with their primary job being the protection of the city’s finances.

Surely this makes sense; we do want our leaders to pay attention to how they use our dough. This is a good thing! It’s why when private people get elected to office, they are literally sent immediately to school in Olympia to learn what their duties must be, and one of those duties is to serve as a trustee of the city’s finances. It’s no wonder that city lawyers measure their success in terms of how long they’ve avoided liability on behalf of the municipality. Because of that, the municipal corporation isn’t looking for a fight. In fact, the opposite is true – it is looking to do everything possible to avoid one. Simply put, a municipal corporation was never intended to confront the private corporations that have been empowered by the system. There’s really no need here to emphasize the power and control that profit-driven corporations have had in the design and construction of a system that favors commerce over the very people affected by that commerce. In essence, that system places the rights of those corporations over the people of Bellingham by restricting what the municipal corporation can and cannot do, and by making the municipality liable to private corporations who have a different future vision for our community.

What Coal-Free Bellingham is trying to do is mobilize a majority of the people within the City of Bellingham underneath an ordinance vehicle that changes that – it would establish a new structure of law for the City of Bellingham, in which the City comes into direct confrontation with the corporate entities seeking to abuse what is within our community.

For the past two hundred years, municipal corporations have been shaped and sculpted to accept their subordinate role. Simply put: a municipality like our city is designed and built to avoid confronting what is harming us, if stopping those harms sheds light upon the legal doctrines which have built the bars of the prison cage itself. A longer civics lesson would reveal that this municipal role has been well crafted by a Pavlovian mechanism of punishment and reward, and by a resulting state and federal system that finely limits municipal corporations while setting private corporations loose.

In step, the Bellingham municipal officials – even well-meaning elected officials we are so grateful to have - walk into a system of law that automatically disempowers them to do anything about the coal trains. They can make noise and issue resolutions, but the system itself has divested them systematically of any ability to decide whether the coal trains run or not. City Councilmembers like Michael will then make excuses for all of that, but in the end, they are apologists for a system that has been established to override them, especially when they seek to stand in the way of the overriding value of the endless production of more.

It’s no surprise that it happens this way — because of the tight constructions of what the municipal body is allowed to do under the law, honest elected officials end up undermining their own authority when they recognize how the system is truly structured. Because of that, they don’t admit the limitations of the entity, and instead apologize for how the system operates, and then offer up half-hearted ‘solutions’ which fall far short of actually making binding law to stop something that is harming the community.

So you, if you’re a resident of Bellingham, find yourself in a tight fix – you can either accept our existing structure of law, and thereby invest your time and energy into an EIS and other traditional liberal activist stuff; or you can reject the theory that the municipal corporation should be subordinate to private corporate decision makers, and thus, attempt to turn the system on its head.

The first means accepting the status quo, which means that the coal trains will run (perhaps with rail car covers and noise restrictions, and all of the other marginal requirements that come with the regulatory process), but that they will run. And coal will continue to be stripped from the land in Montana and Wyoming, and burnt in the utilities overseas, and we’ll all fry because of it.

It’s still amazing to us that we have a legal and political system that makes it look reasonable to sit back and not take direct action when we’re pulling fossil fuels out of the ground and then killing ourselves with them. That’s about as plain as it gets.

Will there be lawsuits that result from a successful Community Bill of Rights? It’s certainly possible, but in 160 communities around the U.S. that have adopted something similar to our Community Bill of Rights, only five have been legally challenged. In the other communities, their Bills of Rights are still standing, and if their local ordinance sought protection from a specific corporate harm, the community is being protected from that harm.

Will advancing a new legal jurisprudence based on a ‘right to local self-government’ be successful? No one knows for sure, because it hasn’t been tried in over a century. (It did, however, exist for over a hundred years in this country, until an ex-railroad attorney named John Dillon and the Supreme Court replaced it with local governments as ‘creatures of the state’ to be done away with by the whim of state legislatures).

But we do know one thing – turning to conventional remedies that have been carefully provided to us by our corporate caretakers will lead us down one path – holding our breath and wearing sunscreen as the coal trains roll by.

As Frederick Douglass once said, “power concedes nothing without a demand.” Your City Councilmembers have been trained not to use the legislative process to demand anything; because they’ve been ‘educated’ about how the last two hundred years have left them basically meaningless in the bigger process of who makes the decisions about transportation, energy, and agriculture. They know that it’s not them; but in telling you that they’re powerless, this automatically removes the veneer of authority that they so much want to wield.

The other saying that people have brought up around this work is the one that says that failing to directly challenge what is wrong gives something the appearance of being right. The four young African-Americans who sat at the Woolworth counter in Greensboro, North Carolina in February 1960 knew that; even though all of their peers and the older reverends and church apparatus counseled them not to do the sit-in, because it would interfere with the ‘progress’ that was being made on civil rights by negotiating with white elected officials. God bless them, they did it anyway – because they knew that they had a moral responsibility to do so, and because they had faith that others would do the same.

Those of us who want to vote at the ballot box come November on this ground-breaking Community Bill of Rights are those African-American students in the 1960s. We’ve been told that we don’t belong in the diner. We’re being counseled by all of the “important people” to move to the back of the bus, even though you know that the bus is about ready to run into a wall. And, yes, there will be many more such voices… like law professors, judges, etc., everyone learned in the law, who will endlessly expound about how we, as the Bellingham community, lack the legal and political authority to actually determine what will happen in our community; and that that power is held by a handful of corporate decision makers who live thousands of miles away from you.

We all have a choice to make. We can accept our status as living in a place where we have no decision making authority, even though we all know that we’re on our way to ecological and community disaster. Or we can stop listening to the important people who are telling us that we’re crazy, with the understanding that each generation has its own share of ‘important people’ who, generally speaking, are involved with supporting the very system that helped them achieve such status.

We understand that we’re pushing people to take sides. Look at what has already occurred: Coal-Free Bellingham, a group advocating a strong environmental ordinance, is now at odds with one of the most progressive councils in our history? We acknowledge that running the ordinance as an initiative opens up all of this – it cleaves the political/legal stuff down the middle and forces people to choose sides. It is what hasn’t been happening for the last fifty years of ‘progressive’ activism in this country, which has never openly challenged the defining law which keeps us from actually having a functioning democracy.

Our faith is that things have gotten so bad, — and are rapidly getting worse — that people are able to give up their belief that this existing system actually functions for the common good.

Lawsuits? Liability? God forbid. We’ve come so far from our American Revolutionary forebears, who would have welcomed getting sued, rather than getting a bullet in the head and their houses burnt down by the British. There will be lawsuits galore; joined by municipal insurance companies galore who will cry to the heavens that they’re getting shafted … and mount ever more pressure on the municipality to crush everyone like us. You either have to get to a place where you’re okay with that, or accept the fact that everyone that we love and treasure is about to be lit on fire over the next couple of years as we watch our climate quite literally go to hell.

In the end it comes down to how severe you believe the danger is.  Bellingham recently passed a single use plastic bag ordinance that implicates the commerce clause.  Whatcom County has maintained a ban on the manufacture and transportation of nuclear material and components for decades.  Either could be challenged on the same basis as the Bellingham Community Bill of rights, but those government leaders believed the damage outweighs the danger of legal costs. Our hope was that our current leadership would have done the same.

Over 160 U.S. municipalities have now secured their right to decide using ordinances similar to our proposed Community Bill of Rights. These ordinances have emerged from the Community Environmental Legal Defense Fund and their Executive Director, Thomas Linzey. Thomas, who taught the Bellingham Democracy School that Michael Lilliquist attended, had this to say about him:

As for Michael, he certainly struck me in the Democracy School as a reformer, not a revolutionary. Although we’ve worked with over 5,000 municipal officials over the years, I can recall only a handful who actually were willing to move from one category to the other. The City Council is not your friend; the system places them on the same side as the private corporations — which is why the city’s arguments in the lawsuit that they’ve now filed are almost identical to the ones that would be advanced by the railroad corporations. Having been divested of any local authority to stop the trains, from a legal perspective, the city is on the same side as those corporations – arguing that the people of the City of Bellingham lack the legal and political authority to decide what happens in their own city.

And when Michael says that the real enemy isn’t federalism, he’s got it dead wrong. ‘Federalism’ — the concept that transportation decision making should be in the hands of a central authority — is just shorthand for ‘corporatism’; a system that places decisions further away from where their impact is felt, into a smaller number of hands. Corporations have been using the federal system of law for over a century to constrict and restrict our ability and authority to actually make decisions about the places where we live; and to elevate private corporate authority above public democratic, decision making processes.

A successful Community Bill of Rights will take exceptional, courageous people who make very private decisions about what the rest of their lives are going to be about — either watching what we all know is the future unfold; or becoming a part of that future to change it, by openly and directly challenging the system which will continue to strip and extract the last of everything from this planet.

We need revolutionaries, not reformers. At the City Council level; in the boardroom; in the classroom; at the ballot box … between your ears.

“Making decisions for the community where you live is called self-governing. Making decisions for other people where they live is called subjugation or empire. “Free trade” denies self-governance and imposes empire.” — Jane Anne Morris

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