Nature’s Trust: a new paradigm for environmental law…and here’s a great quote…

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Nature’s Trust: Environmental Law for a New Ecological Age (click the link for a reference to the book) is my latest discovery on the frontier of research into how we are going to fix our environmental problems. 

What this book shows with authority is how environmental law has failed us, and has no illusions that correcting this will be a tough political battle against the One Percent and the Dark Money network.

But what this book does do with scholarly precision and overwhelming documented research is what an absolute fraud the current pretense is that our regulatory framework is protecting us and the environment.

If I find the time, I would like to examine this book as I am currently doing in my blog Examining Dark Money, because this book is that good…but until then I wanted to share this one description that I found so remarkably accurate about the “Remote Public”, which is one of components of the regulatory framework that is supposedly working.

Some background: the author summarizes the legal basis for how the public is supposed to have input to environmental policy, then describes with uncanny accuracy why this is so unworkable in current times: quoting from pages 113-115:

THE REMOTE PUBLIC

Ultimately, the voting public represents a last bastion against a tyrannical power grab by one branch of government…But daunting logistical hurdles now stand in the way of meaningful citizen involvement. 


Two federal statutes provide processes for public information and citizen input into regulatory decision making. The Administrative Procedure Act (APA) requires all federal agencies to publicize their proposed rules. The National Environmental Policy Act (NEPA) allows the public to comment on federal actions affecting the environment. … One problem involves the tendency of citizens to ignore the prospect of environmental harm until too late in the legal process….


Time presents another significant barrier to citizen participation. Making use of a public process, or lobbying the legislature, or even understanding the issue can devour an enormous amount of personal time….The sheer complexity generated by the agencies through the morass of acronyms and technical jargon…makes this difficult and tedious reading. … 


…As many studies show, personal time in the United States has plummeted since the 1970s (when NEPA was enacted), and economic distress factors force many to work overtime or take on more than one job. This time scarcity sets entirely new game rules in civic involvement….


…On this playing field of [legal] process, industry easily outmatches the public…because the industries have “concentrated” interests in regulation, they devote the resources necessary to gaining favorable permit approvals. They pay lobbyists, consultants, and lawyers to game the process at every turn. Citizens who struggle to squeeze in time from a busy workday to show up at a meeting will often find paid industry representatives already sitting there. 


To imagine that such a system could work well in the face of modern circumstances is little more than a fantasy. Yet [the regulatory] agencies routinely indulge this chimera in a way that prejudices the public. If people fail to show up en masse at a hearing or fail to comment on a proposal, decision makers deem the public silence as an indication of noninterest or general acquiescence on the issue. For all practical purposes, then, the public faces an unspoken default penalty — somewhat like a party to litigation who does not show up at a trial. While public processes remain a vital component of democracy, they scream out for practical reform to reflect these modern pitfalls. 
…
The fact remains that, despite all of these existing public comment processes, nothing forces agencies to heed public opinion. … quite often, agencies pursue their proposed action even in face of substantial public opposition. Fully captured agencies use the public processes set up by environmental statutes as faux-processes to maintain the facade that they care to hear about citizen concerns. 

  

Letter to the Lafayette City Council

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Letter to the Lafayette City Council
January 5, 2018


Re: A community rights legal strategy


Dear Councilors:

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.

Very Sincerely,
Rick Casey
1118 Centaur Circle, apt D
Lafayette, CO


References:


Lafayette Community Rights Act, passed Nov 5, 2013, from municipal code on city website



Nancy MacLean: a powerful voice calling out the Radical Right

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I am listening to Nancy MacLean tonight for the first time, thanks to a broadcast on KGNU, through that great show, Alternative Radio by David Barsamian. 

(By the way, if you’re reading this before January 7, 2018, and live in the Boulder area, David will be speaking at Veterans For Peace this Sunday night, in a small, cozy setting. If you want to go, contact me.)

Nancy MacLean is another powerful voice calling out the Radical Right, and I am glad to discover her own brand of activism, which is well grounded in deep academic knowledge of social movements. She is a history professor at Duke University, and has had a distinguished academic career, specializing in social movements in the US South. 

I admire her courageous talks, and her determination to raise awareness among the public of the danger of the Radical Right’s active hostility to democracy. Though I have only just discovered her, I think she is right on in calling attention to the dangerous ideas behind the Radical Right, which is the dressing up of a savage selfishness by the One Percent, and their self-congratulatory position in dismantling the power of a democratic government to block their selfish ends, in a cloak of pseudo-intellectual  justification of their actions….which I believe describes exactly what has and is happening in the US. 

Here’s a YouTube of one of her talks: 

Origins of the Radical Right & the Crisis of Our Democracy

Her Wikipedia entry, where the section about her latest book, Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America, is particularly informative.

Community Rights: Still Waiting for its Day in Court

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[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.

Reply to Paul Danish regarding civil disobedience in Lafayette

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[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.

What the Colorado Supreme Court does not see…

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[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.