LOCAL SELF-GOVERNMENT PROPOSED CONSTITUTIONAL AMENDMENT FAQS
WHAT IS THE PA LOCAL SELF-GOVERNMENT AMENDMENT?
The Local Self-Government Amendment is an amendment being proposed to the Pennsylvania Constitution in order to empower people and their local governments throughout the state with the authority to enact local laws that protect the rights of people, communities, and the natural environment at the local level. The Amendment would specifically recognize the right of local community self-government in the Pennsylvania Constitution's Bill of Rights.
ARE OTHER STATES PROPOSING A LOCAL SELF-GOVERNMENT AMENDMENT?
Yes. Colorado, Oregon, and New Hampshire are all proposing Local Self-Government Amendments to their state constitutions. Ohio is also preparing a Local Self-Government Amendment.
WHY IS A STATE CONSTITUTIONAL AMENDMENT NECESSARY?
Today, the law elevates the rights of private corporations over the rights of people who live in Pennsylvania communities. Private corporations regularly invoke these rights and privileges when their interests conflict with communities' attempts to protect the local environment, economy and workforce, rural aesthetics, and residents' health, safety and welfare. The Local Self-Government Amendment would empower people and their local governments with the authority to enact local laws that protect the rights of people, communities, and their natural environments over the interests of private corporations.
WILL THE PA COMMUNITY RIGHTS AMENDMENT AFFECT ECONOMIC STABILITY?
Corporate domination destroys stable local/regional economics and forces economic instability. The Local Self-Government Amendment places local economic control in the hands of local people, which improves every measure of environmental and human well-being leading to a long-term economic stimulus. When corporate exploitation of individuals, communities and nature lessens, it will create more room for more diverse, localized small business enterprises to take hold in ways that make them directly accountable to the communities they serve, increasing economic welfare, diversity, and sustainability of communities.
WILL THE PA LOCAL SELF-GOVERNMENT AMENDMENT UNDERMINE CURRENT RIGHTS AND PROTECTIONS?
No. The proposed Local Self-Government Amendment includes two provisions that limit its scope in this regard. Local laws enacted under the amendment cannot restrict or weaken the fundamental rights of natural persons, communities, or nature secured by local, state or federal constitutions or international law. These provisions ensure that the floor of rights and protections already established by state or federal governments can be built upon but not eroded.
WILL THE PA LOCAL SELF-GOVERNMENT AMENDMENT BAN ALL CORPORATE PROJECTS?
No. Under existing law, corporations can sue state and federal laws to override a community's attempt to protect themselves from corporate projects within their boundaries regardless of local opposition, or environmental harm. The Local Self-Government Amendment confronts this structure of corporate legal privilege by asserting the community's right of local self- government. Under the Local Self-Government Amendment, a community can create local laws that prohibit such projects without interference from corporations or "preemption" by government. If a community chooses not to use their authority under the Local SelfGovernment Amendment, nothing in its local codes or charters will change.
DOES THE PA LOCAL SELF-GOVERNMENT AMENDMENT CONTRADICT PA OR FEDERAL CONSTITUTIONS?
No. The right of local community self-government recognized by the proposed Local SelfGovernment Amendment can be found within the Declaration of Independence and the United States Constitution. The right is also embedded in the PA Constitution, which states in Article 1, Section II, "All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper." The PA Constitution has powerful language, but does not specify the right of local community self-government free from state and corporate overreach.
WHAT ARE THE EXISTING METHODS FOR CONSTITUTIONAL CHANGE?
In the original 1776 PA constitution, county-based representatives could call for amendments. But that authority was stripped out, leaving citizens with no authority to make changes in the way our government operates. Pennsylvania's current constitution (Article XI) places sole authority for proposing amendments and constitutional conventions in the hands of the legislature. To be clear, citizens have no formal process for submitting issues to the voters to consider. The General Assembly (House and Senate combined) has been given the authority originally belonging to the people.
PA communities are currently living under a system of law that legalizes activities which threaten our health, safety, and welfare; this system is also used to violate our constitutional rights and deny us the ability to make decisions of crucial importance to our communities.
Pennsylvania's first constitution, adopted in September 1776, was widely regarded as one of the most democratic and liberty-protecting constitutions of the Revolutionary Era. Unfortunately, court cases and legislation have, over the decades, rendered some of the most important values in our constitution meaningless, including:
Article I, Section II: "All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper."
Art I Section 25 "To guard against the transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate."
Art I Section 27 "The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people."The proposed amendment to the PA Constitution would help further secure those rights,by explicitly recognizing the right of local community self-government. This right shall include provisions that legally empower our communities to stop unwanted, harmful,corporate activities, free from illegitimate preemptive laws and corporate interference
A whiplash of partial victories and partial defeats in the MidAtlantic pipeline landscape remind that partial pathways through existing regulatory structures will never be enough to truly protect communities and the environment from a system of spotty regulation, eminent domain, and corporate rights functioning as designed.
In the realm of partial victory, on September 10 the Philadelphia federal Third Circuit Court of appeals overturned a lower court ruling, and the ruling of the Federal Energy Regulatory Commission, to halt eminent domain seizures for the PennEast Pipeline through New Jersey. PennEast Pipeline Co. representatives insist they are “committed to moving ahead with the project.” Nonetheless, local groups resisting the pipeline are thrilled to stall it once again. Similarly, in the ongoing fight against the Mariner East pipeline, residents and advocates alike celebrated the Pennsylvania Department of Environmental Protection’s late August assessment of over $319,000 in fines against Sunoco Pipeline LP for failing to follow clean stream, erosion, and other environmental regulations in its construction sites in ten counties.
However, these partial victories, when seen in the context of the broader pipeline landscape, make clear the desperate need for community rights and rights of nature. When local political will is lacking, or when Federal pre-emption is asserted, or when the regulatory apparatus functions as designed, as in the late August Federal Energy Regulatory Commission’s decision that the Constitution Pipeline in New York can move forward, there is little recourse communities can turn to stop these projects. Even in the PennEast Pipeline stall "The appellate court said the pipeline still could proceed with a "workaround," and remanded the case back to the lower court." Battling each individual pipeline in court is a lengthy and expensive process, that can stall, but rarely stop, a project from moving forward.
We can appreciate these short-term victories, and it’s understandable that we try to use existing agencies and courts to protect our communities. But without a constitutional amendment to protect community and environmental rights, these battles will almost always be stop-gaps, rather than lasting protection.
Furthermore, stalling one pipeline in one town does not help other towns fighting pipelines in other places. At some point, we must stop fighting environmental harms one at a time, and instead pursue lasting change.
For lasting change, we need a Constitutional Amendment on Community Rights.
It all started, as most of these things do, with a company’s application for a permit.
In May of 2013, Pennsylvania General Energy (PGE) applied for a permit from the Environmental Protection Agency to convert one of its gas extraction wells in Grant Township, Indiana County, PA, into an injection well. The company wanted to dump frack wastewater from its other wells. According to their own estimates, PGE proposes to dump more than 151 million gallons of frack wastewater into Grant Township over a ten year period — wastewater that the company’s own sampling reveals will contain toxic and radioactive materials such as barium, radium, strontium, and toluene.
The people of Grant Township rely on private wells for drinking water. They decided to stop the project. Working with their elected officials, they adopted a law recognizing the rights of residents to clean air and clean water, and banned frack wastewater injection wells as a violation of those rights. They understood that the corporation could sue the Township for its adoption of the law. Thus, the Township included provisions elevating residents’ rights above the “rights” routinely claimed by corporations.
Predictably, the company sued, claiming that its “rights” had been violated by the Township and that the Town- ship lacked the power to adopt the law in the first place.
In its defense of the Township, CELDF lawyers argued that the people of Grant possess a constitutional right of local community self-government, and that the company’s assertion of its “rights” to override Grant Township constituted an unconstitutional violation of that right of self-government.
Thus, CELDF lawyers contended that it wasn’t the Township that had violated the corporation’s “rights,” but the other way around.
Of course, corporations have long used these types of lawsuits to “chill” communities from interfering with company plans, and from making those arguments in court. Lately, however, that “chilling” effect hasn’t been working. As more and more communities have come into the cross-hairs of corporations proposing pipelines, frack wells, and a variety of other projects, community members are advancing democratic and environmental rights to stop them.
And so the corporations have begun to come after the lawyers, believing that if they can scare the lawyers off, they will deprive the communities of legal representation.
Three years after the company sued Grant Township, it filed a motion for sanctions against CELDF lawyers Thomas Linzey and Elizabeth Dunne, seeking over half a million dollars from the two of them. The company asserted that CELDF’s arguments in the case — that the community has a constitutional right to govern itself, and a right to stop these types of harmful projects — was frivolous. Corporate attorneys asserted that the arguments were advanced solely to harass the company and drive up its litigation costs.
On January 5, 2018, Judge Susan Baxter granted part of PGE’s motion, awarding $52,000 in fees against attorneys Linzey and Dunne. Holding that “settled law opposes [their] arguments” and that the “community rights” doctrine had been “discredited and previously litigated,” she ordered the attorneys to pay part of the company’s original request for sanctions.
Judge Baxter’s ruling is unusual. Attorneys are, and have always been, allowed to argue for good faith changes to the law. In fact, that’s part of how major strides were made in prior people’s movements where rights-based legal arguments were advanced to end segregation, gain women’s right to vote, and gain the right to same sex marriage. It is no coincidence that as people reclaim Community Rights and recognize Rights of Nature, corporate and institutional hostility has escalated. That escalation, while challenging, is evidence of the movement’s success in its own right.
CELDF views the sanctions as part of a new strategy by companies to punish lawyers for representing communities like Grant. In a statement put out by Grant Township, the Board of Supervisors declared that:
“We understand that the system of law that we live under doesn’t recognize the right of the people who live here to stop those projects which will harm us. It doesn’t recognize that we have a democratic right to say “no,” which is why we’ve worked with CELDF to advance arguments that we have a constitutional right to govern our own community, and that companies like PGE shouldn’t have more rights to decide what happens here than we do.
It’s Grant Township’s hope that our attorneys will wear this slap as a badge of courage, just as any front line veteran would wear a scar. This is bigger than just Grant Township, and we want others to join this fight by standing up to protect their communities. We’re not going anywhere.”
Attorneys Linzey and Dunne have appealed the sanctions to the Third Circuit Court of Appeals.
This piece was originally published at https://celdf.org/2018/05/when-good-faith-is-punishable-by-sanctions/.
PACRN is a 501c3 nonprofit dedicated to helping Pennsylvania communities establish local self-governance, social justice,