Hey Portland, Let’s Give Nature Some Rights and Create A Movement in the Process

[A]t bottom, it seems, it all comes down to a simple but profound truth: that as long as ecological governance remains in the grip of essentially unregulated (liberal or neoliberal) capitalism—a regime responsible for much if not most of the plunder and theft of our ecological wealth in the last, roughly 150 years—there never will be a human right to environment widely recognized and honored across the globe in any formal/official sense, least of all an autonomous one. This truly is another inconvenient truth. ((Burns H. Weston and David A. Bollier, Regenerating the Human Right to a Clean and Healthy Environment in the Commons Renaissance, 25 (2011). Hereinafter cited as “Weston and Bollier”.))

At present, we find ourselves in the midst of a desperate struggle to change the way we treat the planet before we fuck it up so badly that it’s no longer hospitable to human life. Bill McKibben’s article in Rolling Stone last week horrifyingly reaffirms the urgent need to radically change course. In addition to the freaky stuff, McKibben properly observes that despite ever-increasing danger, most nations still aren’t doing a damned thing about it. ((However, as most people reading this likely will understand what we are doing to the environment and what we are risking, I’m going to dedicate the content of this and further writings to what we can do about it at the very local level.))

So, if our national governments won’t do it, we’d better find another way to fix this mess. Burns H. Weston ((The University of Iowa College of Law and Center for Human Rights)) and David Bollier ((Commons Strategy Group)) recently contributed to the struggle for action with a lengthy, two part essay called Regenerating the Human Right to a Clean and Healthy Environment in the Commons Renaissance.

The essay — seriously, read it — calls out the state of international environmental regulation for what it is: embarrassingly inadequate, piecemeal, and desperately lacking legislatures and judiciaries that will take the necessary steps toward creating a better and effective paradigm.  However, unlike many legal scholars who give up at that point to either pretend that the current state of affairs is just some unfortunate misunderstanding or wishfully appeal to the federal government to about-face and start being reasonable, Weston and Bollier state the obvious:

Incredulous though it may seem, many smart and sophisticated people seem incapable of understanding that our formal/official national and international legal orders are structurally organized to contribute to—and not prevent—the deterioration of the natural world. ((Weston and David at 24.))

It’s the state-protected economic system, stupid!

It also marks one of the first instances, of which I’m aware, where legal scholars finally abandon the existing domestic and international state of governance over environmental issues and instead focus on creating up novel approaches, including advocacy of strong local action.

From a legal perspective, we believe that effective and just environmental protection is best secured via the rigorous application of the human right to environment reconceptualized both to facilitate and, together with other essential rights, to function within a new paradigm of ecological governance that actually could promote environmental well-being while meeting everyone’s basic needs. The paradigm we have in mind is commons- and rights-based ecological governance, operational from local to global and administered according to principles rooted in respect for nature and fellow human beings. ((Weston and Bollier at 6.))

Yes!

Rather than continually seeking only hierarchical, top-down solutions to the world’s environmental crises – and feeling defeated when they aren’t magically handed to us – we’ve got to have the courage to speak honestly and do the right thing where we can, even when it’s politically dangerous to do so. Instead of treating decisions not to act from on high as mystical forces of nature and inevitabilities over which we peons have no control, we’ve got to understand that there are human beings hiding behind institutional façades that make these political decisions for very political reasons. Similarly, we’ve got to make our own political decisions and see ourselves as powerful actors in this game. If anything, Occupy, and the international movements that preceded it, let us know just how not alone we really are.

Once you get to the point where you decide you have to do something novel and potentially effective, you’ve got to aim right at the problem. Currently, the most obvious obstacles to effective local environmental regulation come in the form of federal pre-emption or from Commerce Clause challenges. For those unfamiliar, the federal government claims broad constitutional authority to regulate a broadly defined and very abstract area called “interstate commerce”. ((Constitution of the United States, Art. I, § 8 gives Congress the power “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes” and “to make all laws which shall be necessary and proper” to do so.)) So, if a municipality tried to stop coal trains from entering its jurisdiction, for example, and a legal battle ensued, it is extremely likely that the judiciary would find that this violates the law because a city would be standing in the way of a national policy which takes precedent over local decisions ((Especially in the arena of railroad, which is clearly a part of the current conception of the interstate commerce power)). Or, the city could be deemed to be ‘discriminating’ against and interfering with interstate commerce, which violates the so-called dormant commerce clause. Fair enough if we choose to ignore the outside context and get bogged down in just the abstract  and largely disconnected theory that is Supreme Court jurisprudence.

But, if we dig deeper and actually consider context, we run into some very unapetizing brute facts that inform how we should treat this paradigm:  (1) The American system of government has institutionalized obvious bribery and corruption ((See, for example, Lawrence Lessig, Republic Lost (2011).)), the politics of which affect the individuals that make up the federal judiciary and make it glaringly obvious to anyone who bothers to look that this system is not neutral. ((See, generally, Steven L. Winter, A Clearing in the Forest: Life, Law, and Mind (2001) for a compelling deconstruction of the prevailing mythologies about the nature of American law. But, really, why do we even need theory when we know that its our captured legislatures that produce state and federal laws? Why don’t we just state the obvious?)) (2) While the captured federal government will try and prevent local attempts to protect the environment and reject any call for rights for the environment and posterity, they energetically go out of their way to create ridiculous rights for the fictional corporate institutions that pillage the Earth. As Weston and Bollier put it,

In the United States, for further U.S. example, the courts have long resisted constitutionally recognized environmental rights and duties and downgraded citizen suits authorized by key environmental protection statutes while going out of their way to recognize corporations and unions as “persons” with a constitutional free-speech right to advocate independently the election or defeat of candidates for federal office. Similarly, the U.S. Congress has balked at enacting effective climate change legislation while rushing to encourage more offshore drilling even after the Deepwater Horizon oil disaster; the Department of Interior has made a competitive lease-selling of 758 million tons of coal mining land in Wyoming’s Powder River Basin; and the Department of State has, at this writing, given an “initial green light” to a huge pipeline company with a history of major spills to carry oil to the American heartland from the tar sands of Alberta. ((Weston and Bollier at 23 (citations omitted). A similar pro-corporate shift in the law came during the mid to late 1800s when railroads were openly bribing judges and legislatures at the state and federal level to rewrite property law and enclose the commons. For a fantastic summary of the shift, read Eric T. Freyfogle On Private Property (2007).))

(3) The prevailing order is not going to change on its own and the supposed channels for reform have been completely subverted or eliminated entirely. ((See, i.e., Chris Hedges’ The Death of the Liberal Class)) Asking for change (even if you do it really nicely) isn’t going to work. And really, it never has. Every significant change in civil rights in the United States came from the bottom up, with power only conceding after massive conflict and unrest. Of course, power always markets new rights as gifts from the state, and write history that way, but it’s simply untrue. ((Go back and read Howard Zinn’s A People’s History of the United States if you need a quick refresher.))

Instead of avoiding these problems with weak efforts that pay deference to an obviously political judiciary, ((That we ever pretended that the federal judiciary wasn’t a political body makes my head hurt.)) it is my sincere belief that the only way to win is to be intentionally antagonistic to the prevailing order and enact a new local environmental paradigm with the explicit intention of serving as a model for others who would do the same. Instead of giving up before we start, we have go to assert our rights to self-determination, a healthy environment, and essentially to prevent ourselves from being poisoned and dispossessed of the fragile fabric that supports life on Earth.

We are not simply having technical legal disagreements with the federal government. We are having a full-on philosophical dispute over whether we should risk present and future generations’ ability to live on this planet. ((Derek Jensen’s A New Declaration encapsulates this conflict well.))  And, in this dispute, the powers that be are playing the role of the psychopath, driving us off straight off of a cliff. In my mind, the only thing worse than being a psychopath is being the lemming who follows the psychopath out of fear or some misguided sense of duty. We have got to alter the fundamental assumptions inhering in our system and we’ve got to do it on many levels. One approach to winning is to channel our philosophical and legal critiques in the creation of a new local paradigm that serves as the seed to a new moral order (or a bunch of partnering moral orders). At present, there is good reason to proceed into territory where we know there will be resistance. If we want to change the rules in meaningful ways, we’ve got to. Avoidance of conflict and political cowardice is unacceptable.

Essentially, what is needed is the creation (or recreation in the minds of some) of an urban environmental commons ((There’s really no separation of cities or people from the so-called natural environment. We are living in a material world and we’re all material girls… and boys… and every other possible gender. Anyway… the notion of separateness has been with us for a long time and it’s about time we abandoned it)) — a ‘sacred’ ((unfortunately, we don’t have good secular words for something that needs to be set aside and not interfered with, so we’ll borrow from what does exist)) category belonging to all of us that should not be diminished except for really good reasons. The intentional creation of  commons has been referred to as “commoning” ((See, i.e., chapter 3 of David Harvey’s Rebel Cities, “The Creation of the Urban Commons”.))  And, though not a sufficient solution on its own, democratic commoning of resources and physical spaces in cities is a necessary part of what must happen across the world as we begin to scale up toward regional, continental, and global solutions to the environmental crises. Weston and Bollier share this vision:

To be sure, much of the success of commons, ecological and otherwise, has stemmed from their character historically as decentralized, participatory, self-organized systems. It is fair, therefore, to wonder if commons can be the basis for a larger, macro-solution without some new law and policy architecture that can recognize and support the skillful nesting of different types of authority and control at different levels of governance (“subsidiarity”). At the same time, one might plausibly turn the question around: Can any macro-solutions succeed without some genuine engagement with decentralized, participatory, self-organized systems?  ((Weston and Bollier at 9.))

Later in the essay, they continue to speak about environmental commoning going on around the globe. I’ll provide it in full because its germane and inspiring:

Some of the most innovative work in developing ecological commons (and knowledge commons that work in synergy with them) is emerging from local and regional circumstances, particularly municipal governments and activists. The reason is simple: the scale of such commons makes participation more feasible and the rewards more evident. Local commons are also attractive because they provide practical opportunities to reduce consumption and thus the demands on natural systems. Here, we reference some of the more imaginative movements and projects now underway.

Perhaps the most salient projects are part of a burgeoning “re-localization movement” in the U.S. and U.K. that are attempting to bolster local self-sufficiency. As one Bay Area group describes it, re-localization is “the process by which a region, county, city or even neighborhood frees itself from an overdependence on the global economy and invests its own resources to produce a significant portion of the goods, services, food, and energy it consumes from its local endowment of financial, natural, and human capital.”

The Transition Town movement is the most visible and organized re-localization effort, with self-organized groups in more than 300 towns, mostly in the U.K., Ireland, Canada, and the United States. These groups are actively taking steps to mitigate the anticipated disruptions of Peak Oil and climate change. They are attempting to promote permaculture, rebuild local infrastructures with ecological design principles, cultivate local provisioning of food, build renewable fuel sources, and insulate their communities from the vagaries of the global economy and technologies. The movement frankly admits: “We truly don’t know if this will work. Transition is a social experiment on a massive scale. What we are convinced of is this: If we wait for governments, it will be too little, too late. If we act as individuals, it’ll be too little. But if we act as communities, it might just be enough, just in time.”

Local commons are playing significant roles in re-imagining the food production and distribution systems. Community-Supported Agriculture (CSA) farms have grown tremendously over the past twenty years in the U.S. as a way for consumers and farmers to deal directly and share the economic risks and the social pleasures that come from a commons-based market. Part of a larger movement to revamp local food systems and culture, CSAs and their members share a commitment to wholesome, pesticide-free food, and the local landscape, economy, and community. The Slow Food movement is an international movement that “unites the pleasure of food with responsibility, sustainability and harmony with nature,” according to Italian Carlo Petrini, the founder and president of Slow Food International (SFI). This global, grassroots movement has over 100,000 members organized in 1,300 “convivia,” or local chapters, which are committed to “practice small-scale and sustainable production of quality foods.”

Another type of local commons that is surging in visibility is the community forest in which self-organized local groups, sometimes with the participation of local governments, buy and manage large tracts of forest land for the benefit of the community. Commoners share in the management, decision-making, and benefits of the forest, such as recreation, ecosystem protection, nature education, community-building and selective timber-harvests. Forest commons are pervasive in poorer, rural countries. “[I]n the developing world, nearly 145 million hectares are communally administered and an additional 180 million hectares are owned by communities and indigenous groups,” according the India-based publication, Common Voices. Community forests are growing in popularity in developed countries as well, in part because they engage people in everyday stewardship of their local resource and offer an attractive way to re-imagine ecological governance beyond the options available via the State or Market.

Community Environmental Legal Defense Fund (CELDF), previously noted in our discussion of Nature’s rights, is a project that helps local communities assert local, democratic self-control over community resources threatened by large corporations such as big-box retailers and natural gas drillers. Special attention is paid to how to use municipal ordinances, home rule charters and other legal strategies to preserve local governance over things that matter to the community. The Institute for Local Self-Reliance provides a range of innovative strategies and working models for local self-sufficiency. The Foundation for the Economics of Sustainability is a major resource on locally based ecological economics. The City of Linz, Austria, is notable for announcing its intention of becoming the first “regional information commons” by using the Internet to make local information and creative works as open, accessible and shareable as possible. The city government aims to transform city politics, governance and culture by building a vast ecosystem of open-information commons, which would enable new types of commons-based ecological practices. ((Weston and Bollier at 142-44 (citations omitted).))

So, if we agree that things are broken and we’ve got to be brave and turn our city machinery toward good use to create an urban commons to protect the local environment, how do we do it? Clearly, we’re not alone in the effort; we just need to go beyond what anyone else has done thus far. Keep pushing the boundaries.

As mentioned in my last article, we should pass an ordinance against coal trains to get in the swing of being in control of our own health and happiness. This is seriously a no brainer. Portland receives no benefit — except the people who work at Gard Communications, which is a local PR firm that gets money to lie to us about the dangers of coal — while we are expected to allow immediate harm to ourselves and environment in the form of coal dust, acquiesce to a massive contribution to climate change and its harmful effects, ((We were one of the first cities to pass a local climate plan. I’m pretty sure that allowing massive contributions to further climate change goes against the spirit of that action.)) and get future pollution rained down on our local environment when it gets blown back over here from China. So, let’s avoid all that bad stuff and ban it with a binding ordinance.

Here’s the political game plan: (1) Pass an ordinance banning coal trains from Portland. This is not as legally as weak as it seems on its face. For one thing, Portland and every other city has a clear interest in protecting the health and safety of its citizens. Section I of the Oregon Constitution states that our government is instituted to secure the people’s “peace, safety and happiness”. The state Constitution also provides for home-rule in Article 6, Sec. 10. This suggests that cities in Oregon are entitled to local democracy. If the state government can protect peace, safety, and happiness of its citizens, so can the City of Portland. And, really, what the hell are governments for — local, state, or national — if they can’t even do this much? If you want to restore the credibility of government, you’ve actually got to make government fight for what’s right. There’s a never-ending tension between state and federal law in this country and Oregon is no stranger ((Physician assisted suicide and medical marijuana are two major examples)) It is within this context, we should continue to push forward. (2) Turn the lobbying apparatus of the city to the state to urge further action — either a state ban, support for the Portland ban (so we get even more constitutional protection), or at the very least, calls for serious environmental impact studies. (3) Put the call out to other cities and municipalities to pass ordinances against coal. Seattle already passed a resolution against coal trains and municipalities like Eugene are considering it. Let’s set the bar higher and help them go one further. (4) Endure a legal challenge (hopefully with lots of cities and municipalities joined alongside) and fight like hell in the media to popularize the struggle to defend the health of citizens. Again, this issue is such a no-brainer. It’s the all time low-hanging fruit to start the resurgence of a democratic and environmental movement in this country; the perfect jumping off point to something even more audacious.

After banning coal, Portland should seize the momentum to go even further and pass a binding ordinance (or even better, an amendment to the City Charter) that revolutionizes how environmental regulation is done. I’ve got ideas on this that mostly involve a binding declaration that the City of Portland explicitly affirms the existence of a trust obligation over the essential resources of the City and/or an assertion of the rights of nature. The idea is an adaptation of my mentor Mary Wood’s ((Amazing law professor at the University of Oregon)) resurrection of the public trust doctrine and Ecuador’s adoption of language enshrining the rights of nature in their constitution. ((Weston and Bollier also spend a lot of time on the rights of nature and posterity in Part I of the essay.)) In addition, any such ordinance would necessarily oppose the idea of corporate personhood as a defense to strict regulation. Admittedly, the conceptual work behind this idea needs much more work, ((Weston and Bollier contribute a ton to this effort.)) but it’s totally attainable if we dare to dream and fight for it. With these two steps — admittedly no cakewalk — we’d have the beginning of an environmental commons. Then we’d set about making the system work, figuring out the nuts and bolts as in any new regulatory paradigm, and serving as a model city for others to emulate or be inspired by. ((We are already a model city in so many ways, including land use planning and the climate plan.))

In conclusion, we’re knee deep in an era of craziness. The world seems to be bending over backward to destroy itself. We’ve got tons of work to do if we want to alter the destructive paradigm. It will be really hard. But, then again, a future where used this time to sit back and make excuses as to why we’re not capable of doing anything won’t lead to much of a future at all. Why shouldn’t Portland be the city that took the first step to save the planet? We’ve got the culture to do it. What we need now are local leaders who are willing to go against the prevailing political wisdom of the day and take some risks to do something revolutionary, amazing, and ultimately, necessary. And the rest of us need to help  ((In the lots of political pressure sense of the word.)) them to do it.

Nicholas Caleb is an attorney, activist, and professor of government, cultural geography, and public speaking at Concordia University.