Will Whatcom County Be Assimilated?

Mary Ann Kae, a CELDF Democracy School alumna, was a board member of the Stillaguamish Citizens’ Alliance and a founding board member of the Hazel Wolf Environmental Film Festival. She worked for many years in Seattle’s maritime community on the research ships of the National Oceanic & Atmospheric Administration, and at Foss Maritime.

Coal, Community Rights and Corporations

Remember the Borg, those creepy, cybernetic villains from “Star Trek: the Next Generation?” They always seemed scarier than Klingons or Romulans, with their single-minded, robot-like purpose:

“We are the Borg. Lower your shields and surrender your ships. Resistance is futile. You will be assimilated.”

No species was safe. Like viruses, they’d adapt to undermine your defenses. Worse than parasites, they transformed your brain. The “assimilated” functioned as mindless drones, slaves to the Borg’s hive-mind:

“Your culture will adapt to service us…We will add your biological and technological distinctiveness to our own.”

“Resistance is futile.”

Does this sound like something you recognize in real life?

Maybe Goldman-Sachs, the now-infamous “vampire squid” of Wall Street, or the more visible devourer of community largesse, Walmart?

The extreme dominance of our democratic institutions by corporate interests is certainly reminiscent of the Borg modus operandi. Some estimates put the number of lobbyists in Washington, D.C. between twelve and thirteen thousand, and those are just the registered ones. 1, 2

For consolidating control over what happens in our communities, and their ability to minimize consequences to themselves for harms done, it would be hard to beat the fossil-fuel industries. Think Prince William Sound. Gulf of Mexico. West Virginia. The fracking and coal mining operations that now blanket the east coast and front range of the Rockies (see illustration on page 7).

http://earthjustice.org/features/campaigns/fracking-across-the-united-states

American judges have even ruled that it’s OK for a foreign corporation to take private land, by Eminent Domain if necessary, to run bitumen pipelines from Alberta’s tar sands through the Midwest.3

Closer to home, Washington faces the prospect of becoming a huge storage facility and shipment conduit for the massive quantities of coal now being extracted in the Midwest and mountain states.

We the People vs. “The Borg”

Approximately 10,000 people signed an initiative for a Citizens’ Bill of Rights, at least 4,990 of whom were Bellingham voters.

In doing so, they joined other Americans in over a hundred towns in seven states who have initiated citizens’ rights legislation to secure more local control over what happens in their communities.

Most towns that have passed community rights ordinances are in eastern states which have borne the brunt of environmental contamination from the fracking industry. Others have legislated against sewage-sludge dumping, high-voltage power lines and factory hog-farms — many with full cooperation from their municipal councils, most notably the city of Pittsburgh, Pa.

If you didn’t attend one of the many “Democracy School” workshops in Bellingham last year run by the Pennsylvania-based Community Environmental Legal Defense Fund (CELDF), you may not have realized that Coal-Free Bellingham was deploying a well-crafted strategy – which is ongoing. More about that later.

Proposition 2 – A Recap of What Happened

Coal-Free Bellingham launched a Citizens’ Bill of Rights (CBOR) Initiative in March of 2012, collecting signatures to qualify it for placement on last November’s ballot. Community enthusiasm was high.

Keeping coal trains out of Bellingham was so important to petition-signers that it overshadowed other important aspects of the CBOR, which included: establishing the sovereignty of Bellingham residents, the rights of natural communities, the right to a sustainable energy future and a healthy climate, and the denial of legal personhood and constitutional rights to corporate violators of these rights.

“Protecting” the City

The City Council sued to keep the initiative off the ballot and got a judge to agree with them. Coal-Free Bellingham challenged that decision, which was upheld in appeals court.

It’s unclear why the court ruled this way, since there are several precedents in Washington court rulings barring pre-election challenges. One example, Coppernoll v. Reed (2005) affirmed the “longstanding rule of our jurisprudence that we refrain from inquiring into the validity of a proposed law, including an initiative or referendum, before it has been enacted.” By the time of the appeals court ruling, the clock had run out for Proposition 2 to meet the ballot-printing deadline.

The City Council reasoned that it would be subject to inevitable lawsuits (presumably from BNSF) if Prop 2 had passed. “The city is not your enemy here,” asserted one councilmember, citing his concern over wasting scarce city resources on legal costs to defend the initiative, had it passed.

So the council decided to protect the city corporation from a lawsuit by suing its constituents, Bellingham residents instead, with Coal-Free Bellingham’s PAC and its representative officer (as proxy for initiative signatories) the named defendants.4

Think about that for a minute: thousands of citizens had their civil right to vote on a duly qualified initiative obstructed by their municipal representatives. Acting on advice of counsel, the city argued that it had no legal authority to enforce the ordinance. Justification enough, apparently, to deny the voters’ right to be heard.

But as Cindy Franklin explained on Coal-Free Bellingham’s website,

“The main purpose of the Bellingham Community Bill of Rights is to challenge the existing laws that favor the profit-making ventures of major corporations over the interests of our community.”5

City Council knew, or should have known, that they could circumvent any future corporate lawsuits by agreeing not to enforce the ordinance. Either way, what’s demonstrated is that the structure of existing laws put the city on the same side as the corporations.

Coal-Free Bellingham’s detailed response to a letter from Councilmember Lilliquist about the council actions can be read here.6

The Regulatory Process: Not in Our Best Interests

Whether 18 coal trains per day eventually roll through Whatcom County may ultimately depend on the outcome of the regulatory process for the Cherry Point/Gateway Pacific Terminal permit applications. As widely reported, citizen response to the U.S. Army Corps of Engineers’ scoping process hearings was unprecedented.

There’s been an avalanche of information disseminated in public meetings and articles on the health hazards, environmental degradation, even “net-negative” economic impacts of coal stockpiling and transport. Most coal terminal opponents probably believe (or hope) that the mitigations to be proposed in forthcoming Environmental Impact Studies (EIS) will be found inadequate, and that these findings, plus overwhelmingly negative public opinion, will stop the project.

The regulatory requirements of scoping and Environmental Impact Studies (EIS) arise from and are embedded in a corporate-dominated legal structure. One view might portray the regulatory proceedings more like political theater designed to distract and exhaust us — Borgian conditioning for assimilation, to use an analogy. Only those who have never experienced the full trajectory of the regulatory process could believe that the coal terminal will be stopped this way.

A Snohomish County Lesson

I have some past experience with the regulatory environment and industrial project permitting.

Some years ago I served on the board of an activist group which worked for seven years against a proposal for a gravel mine adjacent to a wetland and salmon-spawning river. We filed multiple “successful” critiques of the project’s EIS which were adjudicated by a county hearing examiner. We held fundraisers and received grants to defray our legal expenses. Appealed for donations. Hired boatloads of consultants, technical experts and lawyers.

Finally tiring of the delays, the county council intervened: they removed authority for the final EIS review from the hearing examiner, approved it themselves and then granted the permits. We appealed and the subsequent court proceedings lasted less than an hour. The judge held up one of the giant binders holding the EIS and said,

“No one can say this project hasn’t been studied enough. The purpose of an EIS is not to stop a project, but to provide enough information so that a reasonable person can make an informed decision as to whether the project should be allowed.”

I’ve never forgotten those words. Shortly after the court ruling, the county council informed our group that if we appealed the court decision and lost, they would sue us for expenses, as would the mining company. That put me off environmental activism for over 10 years.

CELDF and the Citizens’ Rights Movement

“Sustainability is illegal under our system of law.”

That’s the opinion of Thomas Linzey, founder and Executive Director of The Community Environmental Legal Defense Fund (CELDF).

Such was his conclusion after decades of work as an environmental attorney. Linzey’s descriptions of legal wrestling with the regulatory system mirrored my own experiences: you can win a lot of battles but you’ll lose the war.

His solution to the failure of environmental litigation to adequately protect his clients was to abandon such work. His new prescription for what ails us: community civil rights organizing — taking literally the declaration in many of our government documents that “all power is vested in the people.”

The problem with the regulatory process is that it was designed to allow harmful activities, not stop them. Incremental degradation, the death by a thousand cuts, is permitted; you’ll hardly notice it!

“Your culture will adapt to service us.”

You can be sure Exxon/Mobil filed huge environmental impact statements for their offshore drilling permits in the Gulf of Mexico, with comprehensive mitigation plans.

In CELDF’s history-rich Democracy School workshops, participants are taught how to drive change from the bottom up, through local citizens’ rights initiatives. Six Democracy School workshops have been held in Bellingham so far, as well as Mt. Vernon, Seattle and Spokane. One will likely be coming soon to Port Townsend.

As more communities embrace this type of activism, their collective voice will drive change at the state level. Linzey describes the process as “collective nonviolent civil disobedience through municipal lawmaking.”

What’s Next for Bellingham and Whatcom County?

Coal-Free Bellingham organizers understood, even if the majority of the voters did not, that advancing a community bill of rights wouldn’t be a fast, one-shot process.

The Citizens’ Bill of Rights crafted by Envision Spokane two years ago survived a county council pre-election challenge but was defeated at the ballot. They sought more community input and re-crafted their CBOR. The second time, vote margins narrowed to 1,000. They’re going for a third attempt this year.

It was unfortunate for Bellingham voters that the city council intervened to deny them the opportunity to have their voices heard on the coal trains and embed other community rights into the city charter. Coal-Free Bellingham’s organizers and some new volunteers have regrouped, and will be making announcements soon.

For more information on the community rights movement, read the excellent article Rebel Towns in the February 2013 issue of The Nation at http://www.thenation.com/article/172266/rebel-towns

CELDF’s website is http://www.celdf.org

Notes

1. see Lobbying in the United States, Wikipedia. http://en.wikipedia.org/wiki/Lobbying_in_the_United_States

2. So Much Money, So Few Lobbyists in D.C. How does that math work? Peter Grier, Christian Science Monitor, Feb. 24, 2012. http://www.csmonitor.com/USA/DC-Decoder/Decoder-Wire/2012/0224/So-much-money-so-few-lobbyists-in-D.C.-How-does-that-math-work

3. Keystone Pipeline Clears a Hurdle, Steven Mufson, The Washington Post, August 23, 2012. http://articles.washingtonpost.com/2012-08-23/business/35490797_1_eminent-domain-julia-trigg-crawford-keystone-xl

4. http://blogs.bellinghamherald.com/politics/politics/bellingham-files-lawsuit-to-block-anti-coal-train-initiative

5. Coal-Free Bellingham press release, July 5, 2012.

6. http://coal-free-bellingham.org/response-to-michael-lilliquists-letter