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Rights-Based Law

Defending Water for Life works with the Community Environmental Legal Defense Fund (CELDF) to increase awareness of rights-based law to communities that want to protect their water.  The following resources will help you understand why rights-based law is the most effective way to protect our water, and demand democracy in our communities.
Background, Existing Environmental Laws Treat Nature as Property  and,
Moving from a Property, to a Rights Framework to Protect Nature:
Rights of Nature FAQ’s:
Newfield Water Rights and Self-Government Warrant Article:
Anatomy of the Newfield Water Rights Ordinance:
What Is Municipal Home Rule?

Maine Talking Points for Town Meeting

Q: What is a sustainable energy system?

According to the definition of “unsustainable infrastructure” in the ordinance, the criteria for a “sustainable” infrastructure system is one that is does not threaten rights and is under COMMUNITY CONTROL.

Town residents – not permitting agencies – will choose which projects are acceptable.

Q: What is the prohibition?

Land acquisition for the purpose of siting and constructing the E/W within the town is illegal.

Corporations in violation of the ordinance cannot use their constitutional protections to override the rights and protections guaranteed to real people within the town.

The state cannot preempt the ordinance unless to provide greater rights protections to people.

Q: Is the ordinance “legal”?

The RBO recognizes a higher law – one of RIGHTS.

Lower law is regulatory law.

The definition of “self-government” – According to the Maine State Constitution, Article 1 Section 2. Power inherent in people. All power is inherent in the people; all free governments are founded in their authority and instituted for their benefit; they have therefore an unalienable and indefeasible right to institute government, and to alter, reform, or totally change the same, when their safety and happiness require it.

Article I Section 24. Other rights not impaired. The enumeration of certain rights shall not impair nor deny others retained by the people.

So, if we believe we govern by consent, then the RBO is legitimate law-making that marks the beginning of a new civil rights movement.

It is our duty to correct government that denies rights and change it to protect rights.

Law is not meant to be static, it adapts to societal views.

At one time people were considered property under the Law ” (civil rights movement/suffragists).

What’s “legal” is not always “legitimate.

Q: Will the town get sued?

Anyone can sue anyone for anything. The ordinance does nothing to change that.

What the ordinance does change is the political relationship between the town and corporations who operate within the town. If a commercial interest attempts to exercise power over local decision-making, the ordinance recognizes that kind of power as “illegitimate and illegal”.

Q: Does the state preempt all decisions about energy and transportation – in fact, aren’t those federal issues?

Congress controls commerce – energy and transportation are part of federal policy, regulated at the federal and state levels.

State regulatory agencies (DOT, DEP) control the permitting process at the state level to implement federal policy.

Once a corporation fills out a permit application that is accepted by regulatory agencies as “administratively complete”, the decision is non-discretionary and the permit issues BY RIGHT.

If the Town does not want 135 foot towers on ridgelines, or a highway running over 400 year old farms, too bad.

According to regulatory law: What the state permits, the municipality cannot prohibit.

Would the state and federal government come in on behalf of corporations to control what happens in our town? Yes, the way the legal structure currently operates, corporations, backed up by the state through the chartering process, have more decision-making authority in the town about whether or not the E/W gets to site here, than we do.

Q: Will the selectmen be liable for an ordinance passed at town meeting?

It is common practice for corporations in charge of siting commercial and industrial projects that harm the health and safety of residents and damage the environment to threaten elected officials. They do this because they are hoping the elected officials will crumble out of fear of being sued and surrender any local control to decide what happens to the townspeople, abandoning the very people who elected them and surrendering their rights even before the case is brought to court. Surrendering in fear eliminates the trouble of preparing arguments that might portray the corporation in a bad light when their lawyers make the argument that “of course corporations have more power in your community than you do- it’s the Law”

The selectmen have indemnification protection. Insurance for actions taken while in office.

Selectmen also have the support of the community behind them. This demonstrates service and responsibility to the people, not the opposite.

Q: The state has our best interests at heart, surely they would not issue a permit for a project that would hurt residents, would they? Regulatory agencies protect us, right?

All regulatory agencies serve the same purpose – to facilitate the permitting of business and industry.

Q: How much will a legal battle cost, if we try to say “no” to the E/W?

No one can predict the cost of a lawsuit. In general, comparing a lawsuit brought using a regulatory argument and one that reframes the argument to one of rights, the latter argument is not as costly to defend.

Q: Why pass an ordinance that the lawyer says is illegal?

Law is not meant to be static – it has to change when it denies rights.

The town lawyer’s job is protecting the financial interests of the municipal corporation (our town) not protecting the people who live here.

The RBO challenges the idea that corporations, supported by the state, can harm the community without liability. Permits legalize rape, in other words.

Current law protects corporations – municipal corporations and private corporations – not the people and certainly not the environment.

The Community Bill of Rights Ordinance drives rights of real people – the residents of the town – into Law.

Educational pamphlet for more information contact: Gail Darrell CELDF gail(at)celdf(dot)org 603.269.8542

What the Rights Based Ordinance Does

The ordinance makes a fundamental change in the way our town handles state and federal regulatory procedures. It involves the claim that we have the right to a final say over what corporate infrastructure projects are located here. It is a very logical argument.

The way it is now

• Regulatory procedure does not recognize the town’s existing codes, policies, zoning rules and other local ordinances. This is called the doctrine of “preemption.”

• Preemption allows permits given by state or federal authorities to override local control.

• Example: Our town has a land use ordinance. All of us who live here have to respect it when we build, or try for a variance from our local Zoning Board if we want to get a variance. A corporation such as Cianbro does not have to respect our local land use ordinances once they receive a state permit.

The RBO does three major things to change the way it is now• It claims the right of the citizens of our town to community self-government, based on the Maine Constitution’s guarantee of consent of the governed. In this way it challenges the doctrine of preemption because we assert our legal standing in regulatory matters. If we do not claim this right, we cannot challenge preemption.

• It declares that corporations shall not have the rights of persons under either the US or the Maine Constitution, and removes corporations’ power to use state or federal preemptive law, including eminent domain, in our town without our consent.

• It claims the right of the citizens of our town to determine our own future, rather than sacrificing parts of our town to infrastructure projects forced upon us by someone else.

How the ordinance works

• Declares a bill of rights including self-governance, the right to sustainable infrastructure projects, the right to use and enjoy land, the right to preserve the aesthetic values and environment of our town.

• It is based on the argument we reject the (Plunder Road/East-West Trespass/ E/W ______) project and any other future infrastructure projects that we expect will come along, on the basis of being unsustainable (unsupported by and unsupportive of the town) which is why sustainability is a focus of the ordinance.

• The way that our town works toward a more sustainable future is left for us to determine, through our own decision-making, to be approved by popular vote. The ordinance offers a sweeping definition of what can be considered “unsustainable.” It leaves it to us to determine what we will permit or not as we move toward a more sustainable future. For example, we could exclude roadways, pipelines and power lines that damage our natural beauty, which is included in the definition of unsustainable infrastructure systems in the ordinance.

 

• The key point here: THIS IS UP TO US, not an outside permitting authority.