To the good people of Denton, we say “welcome to the party.”
Well, it’s not really a party, actually more like a wake, where communities from across the country are mourning the loss of local control and democracy.
Others in attendance include the people of Lafayette, Colorado, who banned fracking and were promptly sued by the Colorado Oil and Gas Association.
They then watched their state government join other lawsuits on the side of industry, rather than on the side of the people of Colorado. Also in the crowd are the people of Broadview Heights, Ohio, who banned fracking and were sued by oil and gas corporations.
Joining us from the heart of the Marcellus Shale region are the people of Grant and Highland townships in Pennsylvania, who banned frack wastewater injection wells. They were also sued by oil and gas corporations.
As well are the people of Mora County, New Mexico, who banned oil and gas extraction and were then sued by a subsidiary of Royal Dutch Shell.
The people of those communities and Denton join hundreds of thousands of others across the country, who live in communities that have attempted to stop certain harms by passing laws that are then overridden by the very corporations seeking to harm them.
It’s a good gig for the extraction industry corporations and their lawyers.
First, they draft the state oil and gas laws, which govern their own industry. They write into these laws provisions that prohibit communities from “interfering” with oil and gas extraction.
Thus, these laws “pre-empt” communities from doing most anything related to extraction.
Then, when communities act to protect themselves — as did Denton and many others — the corporations go to court to enforce the pre-emption provisions to override the community’s decision making.
Pre-emption is a judicially invented doctrine, which naturally flows from one of the most basic legal principles in this country — that our municipalities are merely “creatures” of the state and therefore, the state can do anything it wants to them.
In fact, if it chose to do so, there is nothing that would legally stop the state of Texas from abolishing a municipality, like the city of Denton.
But just because the principle is a basic one to our existing legal system doesn’t make it democratic.
In fact, pre-emption is about as un-democratic a principle as one could concoct. It gives final decision-making authority to a small number of people far away from where the harms are occurring.
Pre-emption and its counterpart — corporate constitutional “rights” — must go the way of the dodo.
They’re 18th and 19th century legal doctrines that interfere with the democratic self-governance of our communities. They’re doctrines that provide state government and the courts as playthings for the corporations.
Communities in Ohio and in Colorado are fighting back against those doctrines — filing class-action lawsuits (on behalf of all residents of those communities) against oil and gas corporations and the states themselves.
These suits assert that state laws pre-empting community decision making violate the constitutional right of the people to local, community self-government.
Further, in Colorado and Oregon, communities are joining together to qualify citizens’ initiatives to amend their state constitutions, to secure the right to local self-governance and eliminate the authority of state government to override democratic decision of communities, when communities seek to protect the environment and public health.
Perhaps it’s time for the people of Denton to begin that journey as well — rejecting the state’s authority to override them, and re-passing the same local law banning fracking, but this time as a “Community Bill of Rights,” which openly challenges the authority of the state itself.
And when the corporations say “you can’t do that,” the people of Denton should reply “we can, we will and we must.”
Then, as the corporations look to the courts to stop you, it may be time for the Lone Star State to be forced to change its state constitution as well; to finally embody the freedom and liberty that seems to fill the speeches of politicians, but fails to reflect reality on the ground.
Perhaps it’s time for “Don’t Mess with Texas” to evolve into “Don’t Mess with Texans.”
It can’t be too soon.
THOMAS ALAN LINZEY is the executive director and senior attorney for the Community Environmental Legal Defense Fund, a Pennsylvania nonprofit law firm that was created in 1995 to provide free legal services to conservation-oriented community groups. The Legal Defense Fund has assisted close to 200 communities across the United States to adopt local bills of rights that reject both corporate and governmental control over communities, to protect their health, safety and welfare.