[This is an editoral I submitted March 6, 2017 to local newspapers in time for the Lafayette City Council vote on a Climate Bill of Rights ordinance on the following day.]

With the conservative front pressing its agenda across the country, Broomfield’s city council hesitating to pass their own fracking moratorium and prevent imminent drilling in its residential neighborhoods, and Colorado’s AG suing Boulder Country over its moratorium on fracking, it is high time that the nascent community rights movement raise its head and tell the Colorado judiciary: we are still waiting for our day in court.

I am going to tell a story here, a story about how the oil and gas trade representation group, the Colorado Oil and Gas Association, sought, and succeeded, in stopping a potent legal threat to its ability to control Colorado government at all levels; about how justice was not served in a Boulder court, and how the public was fooled into thinking it was; and about some legal slight of hand was used to keep the status quo from changing, to deceive and coddle the public into thinking that all is well because stability in how the oil and gas industry is regulated has been preserved.  It is a tale that few know, but deserves a spotlight of attention in these dark times.

Our tale begins November 5, 2013, when the Lafayette Community Rights Act passed by over 60 per cent in my town, which gave rights to Nature, said that corporations are not people (in direct conflict with Citizens United, on purpose), and banned oil and gas extraction with the city limits. These bold actions were not based on simple declaration of intent, but on carefully defined community rights. This was explicitly the intent of the authors of the Act, which was East Boulder County United, a nonprofit that was formed with the intent to do something, using the legal strategy of community rights, which has been carefully developed by the Community Environmental Legal Defense Fund (CELDF) based on years of legal research. To find out more about them, see celdf.org.

The Act pointed out where in the Colorado Constitution how the creation of community rights should be allowed with regard to home rule communities. We had worked hard for over a year to make this happen: first, by defining the wording of the Act with CELDF’s assistance, worked with the state and local offices for weeks to get the wording of the ballot measure approved, learned how to mount and implement a petition campaign, recruited dozens of volunteers to help, got the required number of signatures by the deadline, and then, lo and behold, got it on the ballot. Then we campaigned to publicize this fact, and educate the public on this important ballot measure. Then the long-awaited night came…and the crowd that I was with at the Nyland community house that night cheered at this stunning victory when the results of the vote were announced. We had no idea of whether this unprecedented act of legislation had a chance of succeeding, but it did so in decisive fashion. The people of Lafayette had spoken!

Our euphoria was short-lived. Within a month, the city of Lafayette was sued by the Colorado Oil and Gas Association (COGA), on the basis that state law, based on the Colorado Oil & Gas Act, preempts the town’s citizens from regulating oil and gas development. However, if you examine this brief you will not find a single mention of community rights on which the Act was based. The definition of those community rights was carefully defined as based on constitutional rights as guaranteed by the Colorado and United States constitutions; but despite this careful construction of legal argument, the COGA brief fails to mention it. Could it be on purpose, by design, perhaps because…COGA’s lawyers were afraid to mention this?

Then, about six months later, Colorado 20th Judicial District judge D. D. Mallard agreed with COGA’s brief that state law preempted Lafayette from regulating oil and gas. Again, if you read the judge’s decision, there is no mention of community rights. The judge simply repeated previous court cases about statutory state law, i.e. based on statutes passed by the Colorado legislature. But this is what district judges are supposed to do: decide on the merits of a plaintiff’s brief — which, in this case, omitted the most important part of the legislation.

And I would venture to guess that this was the intent of the COGA brief and its legal strategy, and this judge fell into the trap: to completely bypass the community rights section of the Lafayette Community Rights Act, which is based on constitutional rights and would supersede the statutory legal arguments.

There was an attempt to appeal this glaringly wrong decision; but not by the city attorney of Lafayette, David Williamson. No, it was private citizens, members of the non-profit East Boulder County United, who were familiar with the community rights nature of the case who attempted to appeal the decision. And in this appeal, the nature of the constitutional basis of this law was, again, carefully pointed out. Unfortunately, due to lack of resources to continue to fund the appeal, the organization was unable to continue the appeal, and were forced to withdraw in fall of 2014.

Then came the Colorado Supreme Court decision on May 2, 2016 that the attempts by Longmont and Fort Collins to ban fracking were illegal, and preempted by state law. Numerous news stories covered the important decision. These cities did appeal their cases, because their city councils and city attorneys were behind their appeals. Neither of those bans were based on community rights, however, and so the decision by the court was hardly surprising.

And since Lafayette’s council and city attorney chose not to appeal their COGA case, and private citizens had not the means to continue the appeal, the fundamental nature of the Lafayette Community Rights Act, based on our carefully defined community rights, has never had its day in court. But should some day that happen, I would hope the Colorado Supreme Court justices do their duty and consider the entire Act, and give a measured and fully considered legal opinion of how our community’s legal rights were defined, and give Lafayette’s citizens their real day in court — and have justice be truly served.

[An editorial by Paul Danish appeared in the January 19, 2017 issue of the Boulder Weekly, which can be found here. Because his editorial was so biased and one sided, but publicized in Boulder County’s most widely read newspapers, I had to pose this response.]

Paul Danish, age 74, ex-Dem turned Republican, past Boulder Council member and candidate for County Commissioner, has penned an editorial that ridicules civil disobedience, minimizes the accomplishments of the Standing Rock protest, is in favor of allowing fracking on Boulder Open Space, and favors a bill currently before the North Dakota legislature that would legalize murder of oil and gas protestors by automobile if they get run over on a state highway. Charming.

Why the Boulder Weekly allows such an angry, biased, and inaccurate libertarian rant to be published is beyond me. I am only glad to see that they allowed a more balanced news story by Rob Jackson in the same issue about the Lafayette city council meeting where the Climate Bill of Rights was proposed and tabled for a later vote. I suppose Mr Danish’s outlandish editorials still churn enough controversy to justify publishing them; but I hardly think they have wide support.

What Mr. Danish fails to mention, and is apparently completely unaware, is the larger picture, and why the group behind the proposed bill, East Boulder County United (EBCU), has taken the route of proposing civil disobedience at the local level: because all other levels of government have failed us. I worked with EBCU in 2012 and 2013 to get the Lafayette Community Bill of Rights on the ballot, which passed by 60 per cent. The Boulder judge that decided that state law preempted us from doing this six months later did not even address what was stated in that bill: that we created a law based on rights stated in the bill based on our right as a home rule community to do so.

In other words, we went through an arduous, year long legal process, involving significant investment of time, energy and effort by many Lafayette citizens, of passing a valid law based on our community rights and were ignored, based on court precedent alone, which was not an authentic legal analysis of what is in that new and innovative town charter amendement. That new innovation, community rights, was not given a chance to be heard. EBCU and concerned Lafayette citizens did not get their day in court, and an unchallenged legal maneuver supposedly decided the matter; not at all, in our opinion. That decision should have been appealed and heard by the Colorado Supreme Court, where there should have a real discussion of how our community rights were defined, and what that implies. But we lacked the resources to fund such an appeal.

This is not democracy. This is rule by corporations who fund politicians; that is, a plutocracy by the rich who own those corporations, which borders on facism. I hope that anyone reading this realizes this is the kind of government that the oil and gas industry has been creating, out of view of public scrutiny, for decades, primarily at the federal and state level of government. But now the times they are a’changing…

Let me state the matter quite factually: Lafayette’s declared community rights were whitewashed by a judge intimidated by court precedent that has favored the oil and gas industry. Our judiciary and legislative bodes have been intimidated by this industry for decades. To quote Mike Foote, our representative in the state legislature, whom I personally heard state this in a local town meeting, nothing happens in the state legislature without the approval of oil and gas industry.

Does this sound democracy to you? I don’t think so…

EBCU and Lafayette citizens are still waiting for their day in court; and the passage of a Climate Bill of Rights is another attempt to get that. The established law has been stacked in favor of the oil and gas industry for decades; this is an attempt to even the playing field — and they are apparently so terrified of allowing even a semblance of true democracy to emerge in our legal system that they impulsively react with heavy handed, authoritarian force, backed up by the police power of the state.

Which is exactly what happened at Standing Rock. The Native Americans have been waiting for their day in court since the first treaties were broken. All they are asking at Standing Rock is that the oil and gas industry abide by the law and respect a past treaty. And how were they treated? We all saw how they were treated — and they have stood their ground. If Mr Danish was not aware, this was an event covered by international news media, and represents a turning point in a global environmental movement, where native Americans, backed up by thousands of non-Native supporters, stood up to injustice, and the insanity of continuing to invest in an industry that is hell bent on destroying the planet.

I sincerely hope the Lafayette City Council will pass this Climate Bill of Rights, which I feel is what the majority of Boulder County citizens would also support — and not allow fracking into our community. According to the amount of available open land in Boulder Country (see http://www.bouldercounty.org/o…, if 1,800 wells were drilled on county open space, and would be approximately one per 21 acres. If Mr Danish thinks that Boulder County citizens are ok with this, I am afraid he’s going to be disappointed. His views are those of an outdated, backward looking libertarian crank who is out of touch with a progressive movement that is looking to the future, has no illusions about who is pulling the levers of power, or the power of civil, non-violent disobedience to change the established order of things, as history has shown.

[Posted as a comment at coloradopeakpolitics.com on May 3, 2016. It is a blog by a conservative that supports fracking, and was crowing over the announcement today] about the Colorado Supreme Court decision that ruled against the Ft Collins and Longmont earlier bans on fracking.]

What COGA and all its supporters seem not to see in this faulty judgement by the Colorado Supreme Court (on May 2, 2016) is the big picture; namely, global climate change. This global imperative, which is happening whether you choose to acknowledge the scientific evidence or not, should have us all throwing ourselves into the true work to defend the planet, and in the process, creating a permanent, sustainable economy, with permanent jobs that people feel good about because it sustains their communities in the long term.

Continuing to support fracking, from that vantage point, makes about as much sense as putting more rocks in your backpack when you’re trying to climb to the top of a mountain: it holds you back and is furthermore unnecessary. What we need is earnest investment in alternative energy — and DISinvestment in fossil fuels. The technology and the resources for an alternative energy infrastructure to support our entire economy exists; what’s lacking is political will. And that is exactly what the fossil fuel companies try to exploit — because they don’t have a logical leg to stand on…and so they challenge, and seek to confuse, and throw down every legal roadblock they can….because what they cannot offer is a real solution.

And this is what the Colorado Community Rights Act seeks to hasten: forging a blazing legal path forward through all the legal roadblocks that the fossil fuel industry, and other multi-national corporations, have been stealthly been crafting for decades, while the innocent public lay docile. No longer…the Colorado Community Rights campaign should be a clarion call to everyone who is fed up with business as usual, and even if you don’t understand all the details of why community rights should be given legal precendent, or that constitutional rights for corporations is wrong, join us and take a stand! To volunteer to help, and learn more about our cause and volunteer, see  http://www.coloradansforcommunityrights.org

You will not be disappointed. We stand for a true and lasting sustainable world. COGA stands for profits of a dying industry that is poisoning the planet, and deserves to die, in order to make way for a true and living economy.

[The Lafayette City Council heard public comment at their meeting on Sept 16, 2014, about whether they should appeal the court ruling where Judge D.D. Mallard ruled in favor of COGA and against Lafayette Community Rights Act on July 24, 2014. This is the same judge that struck down Longmont’s ban. The Council will make their decison by September 30, 2014, I believe. ]

 [As an online teacher of environmental economics, most of my time is spent talking about pollution, cap and trade, marginal social costs, and the like, with the expected student responses… But every once in a while there is an email exchange that makes it feel good to be a teacher, and influence someone’s life in a positive way: this was one of them. Below is a response I got from a student to a long response where I explained to him where corporate personhood originated and why it is so significant..]

[This was the student’s response: ]
Wonderful explanation, I am looking forward to becoming much more
informed and involved. This class has sparked a potential path for me to
follow in life at a time when I find myself searching as all I do is
plan with beer and I need to be a part of something more fulfilling. I
will check out those books you recommended as well, thanks for the tip.
Cheers,
[from one of my students

This was my answer that inspired the student…


Dear student],

Noble words, and well spoken. I can see that you have taken Mr Hedges words to heart…

But to effect change, communities will need to come together. Given
the way that corporations have so influenced federal politics  — there
is something like 40-60 lobbyists per legislator in the US
Congress, on whom our hapless representatives have become overly
dependent, for both specialized information and campaign funding — that
change will not come from the top down, it must come from the bottom
up, i.e. us. And I really mean that…

And this is what Mr Hedges is also suggesting, and why he so
passionately participated in the Occupy encampment in NYC a few years
ago: to  encourage local people to start doing something….but what exactly? This is where he is not so clear…and where I wish to chime in.

This is where I disagree with Mr Hedges statement that corporation
are “uncontrollable”. Corporations are simply legal entities, and they
can be controlled if they can be legally
controlled…but to be legally controlled it will take great political
change to support changes in the law that governs them — because
corporations have gained their power by dominating the legal processes
of our government. And this where greater public awareness and education
is needed; so here is your 2 minute lecture on how that might happen:

I studied this matter a great deal in the wake of the 2010 Supreme Court decision about the Citizens United
case, which gave corporations First Amendment rights to free speech.
That unfortunate court decision has caused huge amounts of corporate
money (potentially from overseas corporations, though that is difficult
to trace now) to flow into US political campaigns, which many believe
will be the beginning of the end of democracy in the United States. The
reaction against this has been intense..and the next few years, and
decades, will be truly historic in terms of which direction this country
goes: towards corporate tyranny, or if a groundswell of grassroots
democracy that challenges this direction. If you care about your
country, I encourage you to get informed and get involved.

There is grounds for believing corporations can be brought under
control, which is the point where I disagree with Mr Hedges. The key
point is this: corporations’ power is almost entirely based on the legal
doctrine that they are entitled to constitutional rights (vastly different from rights under statutory law). How did corporations get these constitutional rights? Only through the Supreme Court, starting with a key initial court case in 1886, Santa Clara County vs. Southern Pacific Railroad,
where a corporation was mentioned as a “legal person” (but only in the
headnotes), giving them rights under the 14th Amendment, legislation
which was ostensibly passed to free black slaves.
This use of the 14th Amendment by corporations to gain their initial
constitutional rights is a real travesty of justice, for which the
SCOTUS (Supreme Court of the US) must be held responsible: between 1886
and 1910, there were 302 SCOTUS decisions dealing with the 14th
Amendment. Twelve of them were about black men defending their rights;
288 of them were about corporations arguing they were “legal persons”.
(This is documented in the works below.) So, that is where this mess
started…

Ever since then, corporate lawyers have schemed and strategized, and
corporations have pushed and pushed to get judges onto the Supreme Court
that would make decisions in their favor, to the point that
corporations have gained constitutional rights under the 7th, 5th, 4th,
and now in 2010, the 1st Amendment.

How many of your fellow citizens do you think are aware of this, and
its significance? Precious few, I can assure you…yet, this is how
corporations have succeeded in creating a legal coat of armor that has
allowed them to flount statutory law, and escape or outright defeat
regulatory attempts to limit their behavior.

There are two excellent books to read on this topic, should you be
interested, which I’ve included below. If you are interested in this
issue, they are the best references I have found.
To wind up: corporations’ power is based on their legal defenses..but
this legal defense is based on constitutional rights. Where have they
acquired these constitutional rights? Only through the SCOTUS — giving corporations these constitutional rights has never been voted on by the American people, anytime, or anywhere.

And where do the ultimate legal rights reside, according to the
fundamental documents that established the legal foundations of our
country? In the people…NOT in some legal fiction like a corporation!

Well, that’s a pretty long-winded comment…but I mean through this
to communicate to the rest of the class where the real change needs to
come if we are going to save the planet: challenging the legal power of
corporations to come in and trash our local communities. If we can begin
to succeed at the local level, then, and only then, a sine qua non first step (Latin for without which nothing), can we start to challenge them on a global level.

Hope this helps,
–Rick