‘Local Sovereignty’ Assertion Is Challenged

Dear Watchers,

I am writing in response to public policy issues raised in the March 2013 Whatcom Watch article: “Will Whatcom County Be Assimilated?” Although I’ve been an opponent of coal mining and burning for over forty years and of the GST Coal Terminal since I first caught wind of it, I couldn’t support the local coal train initiative (Citizens’ Bill of Rights). I didn’t publically oppose it because of solidarity considerations, but I was disturbed that this initiative was not an appropriate use of the Legal Nullification tactic which I explain below. When I see the tactic behind this Citizens’ Bill of Rights (CBOR) described as local sovereignty in your pages, I need to comment.

An excerpt from the article regarding Coal Free Bellingham’s Initiative reads: “Keeping coal trains out of Bellingham was so important that it overshadowed other important aspects of the Citizens Bill of Rights, which included: establishing the sovereignty of Bellingham Residents…” It is this quasi-legal construct of local sovereignty that I find particularly troublesome. The only real local sovereign entities are our Indian Nations. No city or county can ever be more than a legally limited subset of a larger jurisdiction.

“Nullification” is the concept that a local jurisdiction can over-rule a law enacted by a higher jurisdiction it holds to be unjust or unconstitutional. This doctrine, often called “States’ Rights” has been historically used to justify both evil practices and noble actions. It formed the legal foundation for the secession of the Southern States from the Union in 1862. It was also used in the 1950s and 1960s by those attempting to block racial integration and legal equality.

There are also fine examples of progressive uses of the Nullification tactic. Prior to the Civil War, it was the legal justification for some Northern States to defy the Fugitive Slave Act (requiring citizens in non-slavery states to apprehend and return escaped human chattel). The Michigan State Senate recently passed a law blocking state cooperation with a provision of the National Defense Authorization Act that would provide for unlimited detention of U.S. citizen terrorist suspects without the right of habeas corpus.

So, in what context is it appropriate to use Nullification? I would agree that helping to save the planet from unprecedented environmental disaster is qualified cause. But, to be effective, the tactic of Nullification should lead to court challenges and/or political momentum to change the laws and regulations at appropriate levels. My concern is that this tactic should not be elevated to a fictitious right such as local sovereignty. Our objective should be to pressure the appropriate legislative and regulatory bodies to do their jobs correctly, not to replace them with a hodgepodge of local ordinances and initiatives.

Local sovereignty is the ideology of NIMBYism. Almost any project of great public benefit will be opposed by its immediate neighbors. Local opponents may suffer some perceived or real inconvenience, threat or loss of property value. By emphasizing our local concerns rather than the greater good, this doctrine appeals to the same sort of narrow limited self interest that may be motivating some GST supporters. Projects opposed by NIMBYs include improved public transportation, alternative energy sources and ecological restoration projects. These projects need to be expedited for the greater public good and the survival of the planet. The conditions upon which these projects go forward must be decided on the political level at which the balance between adverse and beneficial impacts can be best appreciated.

Local sovereignty is a sword that can cut both ways. It seems to be the horse that the Whatcom County Council majority rides when it attempts to avoid technical (much less sincere) compliance with the Washington State Growth Management Act. “Who are they to tell us how to run our County?”

Ironically, part of the reason fracking is so difficult to regulate properly is that oil and gas exploitation practices are exempt from most federal environmental regulations. Each state has the liberty to devise its own regulations for these practices and it is easier for the energy companies to control state legislatures and agencies one state at a time.

State and federal environmental regulations, and proper enforcement of them, may indeed be stacked against us in favor of big corporate exploiters. If the laws in question are defective and/or under-enforced, steps must be taken at the appropriate levels to remedy the situation. We must continue to fight the conditions that enable coal extraction, fracking and other eco-destructive practices at local, federal and state levels. .

It is true that the permitting process is intended to move projects forward within conditions rather than stop them. However, a point can come at which the conditions and mitigations imposed on a project and the time it takes to resolve them, make the project economically unfeasible. Creating leverage within the regulatory process to slow down and add expense to the GST pier expansion and BNSF coal transport is our best local chance of stopping it. The more we retard the process, the less economically feasible coal extraction and transport becomes. Legal challenges to permit approval can be a powerful tool in this regard. Distracting energy away from efforts to strengthen and delay permits could be a strategic error.

Cindy Franklin of Coal Free Bellingham is quoted in the article: “The main purpose of the CBOR is to challenge the existing laws that favor profit making ventures of major corporations over the interests of our community.” This statement is a valid argument only in the context of a global community. It will take a national and international struggle to bring corporations and their greed under civic control and re-harness them to the common good. The tribes are our most potent ally in this fight. Let’s honor their sovereignty, complement their efforts, and stop big coal.

Jim Hansen

Bellingham