Re: A community rights legal strategy
After attending the important Council meeting on Tuesday, January 2, 2018, I wanted to send you my public input on the issue of retaining CELDF as legal counsel, as I believe some significant facts and insights were omitted from the public comments. I hope you will find my remarks informative and helpful in the future public forum that was allow further public discussion on this matter of grave concern to our community.
First, I want to thank you all for your service in holding this difficult public office, especially at this time. I have only attended a fraction of the meetings that have interest to me, but I can only imagine what patience and fortitude it must take to endure all the meetings and service which you do as part of your job. Though I sometimes disagree with the decisions reached, I do appreciate the hard work you do in reaching them.
To let you know more about the parts of me that is relevant for this message: I was part of the original founding members of East Boulder County United, and was deeply involved in the selection of CELDF in helping us to draft the Lafayette Community Rights Act. I was part of the defendants in the August 22, 2013 hearing in the Council chambers, when COGA’s lawyers attempted to stop EBCU from collecting signatures to get that measure on the Lafayette ballot. I was part of the founding meeting of the Colorado Community Rights Network (COCRN) meeting in Fort Collins in 2014. I have remained in contact with EBCU, and with COCRN as I believe this is a cause worth fighting for, with a deeply democratic purpose to improve our government at all levels, and to protect our environmental quality at the community level. I am speaking to you as an individual, however, not on behalf of any organization.
I hold an MA in Economics from the University of Pennsylvania, and an MS in Telecommunications from the University of Colorado-Boulder. I have taught an online course in environmental economics at Front Range Community College since 2009 as a part-time job; my full time jobs have been in website and database development. I have lived in Lafayette since 2004, and am deeply committed to helping raise awareness of the need for citizen involvement to protect the environment.
What I will share with you in the rest of this message are the compelling reasons why I believe Lafayette should seek CELDF’s help in its legal strategy. This represents not just an opportunity for Lafayette as a community to protect itself from an unwanted and invasive destructive industry, but an opportunity to break new legal ground that is much needed in US environmental law. The most compelling reason is that community rights, as defined in the Lafayette Community Rights Act (which can be read in its entirety on the Lafayette town website) has simply not yet been tried in court, but that is exactly where it needs to go to be truly tested by the judiciary. There were three very significant parts of that Act, namely: (1) we banned oil and gas extraction within the city limits, (2) we gave rights to Nature, and (3) we said that corporations are not people, in the the sense of the infamous Citizens United SCOTUS decision. As you know, Lafayette was promptly sued by COGA, on the very narrow clause of the banning of oil and gas extraction and transport; but they studiously avoided mentioning community rights.
This was clearly the case in the COGA lawsuit, which I discuss in this blog post: Community Rights: Still Waiting for its Day in Court. In a nutshell, the COGA lawsuit simply ignored how the Community Rights Act defines the rights by which it banned oil and gas extraction. If you read the brief by COGA (see the entire brief here) and the judgement issued by the judge (see that judgement here), you will not find community rights mentioned anywhere. Doesn’t that seem strange to you? The Community Rights Act goes to great pains to define these rights, based directly on our constitutional rights, and why the declaration of these rights is necessary. There are nine sections to that act, with eleven subsections under the final section, about a four page document, 1,460 words to be exact, all which was flatly ignored. Since COGA ignored it, the judge in her judgement could ignore it.
This fact — that an important lawsuit against our city does not even mention the basis on which the Act is based — is a huge elephant in the room. It is unconscionable and cries out to be redressed. EBCU tried to appeal that decision, but did not have the resources to do so; and the Lafayette Council at the time decided against making an appeal, unfortunately.
Another compelling reason for the Council to invite CELDF, and force community rights into our legal framework: I strongly suspect that it has been an intentional strategy by COGA to not mention the words “community rights” in a courtroom because they want to avoid this at all costs. Why? Because they are afraid that they will be seen as the aggressors against those rights, which they in fact are, and that the tide of public opinion will begin to shift against them. I would like to see the Lafayette Council challenge COGA to a public debate on the matter, hear their answers, and let the public decide who is right.
Even the decision by the Colorado Supreme Court in May 2016 (such as this article describes, Colorado Supreme Court Rules Against Cities’ Fracking Limits) does not alter my argument here. That case only took up the appeals by Fort Collins and Longmont, but their strategy was not based on community rights such our case in Lafayette. What is really needed is a sincere and open consideration of community rights by the Colorado Supreme Court. The next compelling reason for the Lafayette Council to bring CELDF to the table is that fighting for the environment at the community level is the last hope of the American people to protect their environment. This turnaround in the law must begin at the local levels, because the higher levels of regulatory authorities have all been captured by the industries they regulate — with our own COGCC a poster child in evidence of this.
It may come as a shock to hear me say that the entire edifice of environmental law is a grand facade, a veritable Potemkin village, which has failed to protect the environment from the very day the laws were passed; but these are not my words. This is demonstrably shown in the authoritative work, Nature’s Trust, where Dr Mary Wood demolishes with undeniable and voluminous evidence with all the skill that a judicial scholar can bring to bear on why this is the case. Dr Wood was an invited distinguished lecturer at the CU Law School on September 20, 2017, where I learned about her important work and distinguished career. If you want to see the real plight of US environmental law, I invite you to read her book.
The last compelling reason is global climate change. If we wish to begin to turn our civilization around, and begin the hard work of mitigating and adapting to the changes in our global climate, which are already upon us, then we must start fighting this legal and political fight…here…now. If you would but realize this…that Lafayette has the opportunity to be a real spark of hope in fighting the corporate dominance of our legal system, our regulatory agencies, and indeed of our own communities, forcing their deeds upon us against the will of the people, then take this step: invite CELDF to help us, make this meeting as public as public can be. You will not regret it, and it will make the vast majority of Lafayette citizens, and all US citizens fighting to protect their environment, proud that you did so.
One thought on “Letter to the Lafayette City Council”
Here was a followup letter to a Lafayette city council member, Chelsea Behanna, who contacted me right before the public meeting with CELDF on March 5, 2018:
Thanks for your message. I am glad that you found my letter to the Lafayette Council useful. I recently moved my blog, but you can still find that letter in this blog post.
As far as how best to use the Lafayette Community Rights Act (the correct name, I believe), I think CELDF will be able to advise the Council about that far better than myself.
I have told my own story in that letter, so I have little to add to it. Lafayette has a chance to make history here, and stake a claim for our future environment, not just in Lafayette, but for all the US — and potentially the world. This is not some grandiose claim, but a seriously poised question that the Council needs to ask itself, and fully realize the powerful and positive consequences such a lawsuit could help bring about.
Perhaps I did not make this clear earlier, but what such a lawsuit would try to do is get the judges involved to open the door to a wider interpretation of the jurisprudence surrounding environmental law. We absolutely must expand the awareness of the law to being to include Nature in a very fundamental way. This is what Dr Wood refers to as the public trust doctrine, which does have historical precedent in US law; it has simply been forgotten.
Why is this important? Because the regulatory approach to environment law has failed. We stand in dumb disbelief at the extent to which the US environment continues to be polluted and despoiled on such a large scale, time after time, oil spill after oil spill, in the 21st century, fifty years after passage of laws that should have protected it. The very act of fracking itself would be illegal, if it were not for the “Halliburton Loophole”, a small but highly intentional clause in the 2005 Energy Policy Act that specifically exempts(!) the fracking industry from the Clear Water Act. This egregious abuse of the legal system deserves to widely known and discussed, yet it hardly ever even mentioned anymore. I wrote about this back in 2012 on my blog: Connecting the dots on fracking: the Halliburton Loophole
I wish I could attend the Council meeting with CELDF, but unfortunately my schedule does not permit it. I wish the Council the best, and hope they make the right decision: allow CELDF to advise Lafayette, and have the courage to take this important step in changing the entire debate about not just fracking, but environmental law in general. I think the Council would ignite an immediate and popular reaction in the rest of Boulder County, and the rest of the Front Range, the majority of whom, you can be sure, do not support fracking.