Communities Take Power

The Citizens of Barnstead, New Hampshire, Used Local Law to Keep Corporate Giants Out of Their Water


Gail Darrell, Gordon Preston and Jack O'Neil, citizens of Barnstead, NH. Photo by Channing Johnson.
Gail Darrell, center, and other Barnstead, New Hampshire, residents pressed for a law to counter the “tyranny and usurpation” of the people's right to govern themselves, especially with regard to water. Gordon Preston, left, and Jack O'Neil were two of five selectmen who supported the ordinance.
Photo by Channing Johnson for YES!

In 1819, the Supreme Court declared for the first time that corporations are entitled to protection under the Constitution. That case started in New Hampshire. Since then, corporations have been granted virtually all the rights constitutionally guaranteed to human beings. They use those rights to site polluting feedlots, dump toxic sludge, build big-box stores, and take municipal water to sell, all whether citizens want them to or not.

Now, New Hampshire townspeople are fighting to turn that around and put people, not corporations, in charge. What manner of revolutionaries are these? The kind you should expect in the United States: laborers, mothers, farmers, businessmen, and other ordinary citizens. They are people like Gail Darrell, a New Hampshire native who, 25 years ago, moved with her husband to the little town of Barnstead to raise their children in a rural environment. They are people like Barnstead Select Board member Jack O'Neil, a Vietnam veteran and George Bush voter.

What's These People's Problem?
Barnstead is located just south of New Hampshire's lakes region. The Suncook River runs through town, and four lakes are within the town limits. It's a water-rich community sitting on a big aquifer.

Which puts it in the crosshairs of corporate water miners. As bottled water has become a “must have” commodity generating nearly $10 billion a year in consumer spending, corporations have descended on communities like Barnstead and set up pumping operations. They extract hundreds of thousands of gallons of water a day, bottle it, and ship it out for profit. Taking that much water raises the specter of lowered water tables and dry wells, infiltration of pollutants or saltwater, and damage to wetlands. The townspeople lose control of one of the necessities of life.

Barnstead residents watched as nearby Barrington and Nottingham fought to block multinational corporation USA Springs from taking their water. They saw those communities work through the state regulatory system and, after years of labor and hundreds of thousands of dollars in costs, find themselves without a remedy. Corporations, they were told, have constitutional rights that limit what regulators can do with zoning or other land-use controls.

Gail Darrell and Diane St. Germaine, another Barnstead resident, didn't want their town to face the same expensive battle. They already had experience with the regulatory system, having worked to get the town to ban local dumping of Class A sewage sludge. Once that ban was in place, the corporations shipping the sludge simply got it reclassified as Class B biosolids, and the town was back to square one.

“That was my first introduction to the regulatory process which actually does not allow citizens to say ‘No' to anything,” Darrell says. “All corporations have to do is change a word and they get their way.”

The Trouble with Site Fights
One-at-a-time regulatory battles over a single project—whether sludge dumping, a Wal-Mart, or a nuclear power plant—are called “site fights.” They are sometimes successful, although only about one time in 10. Even then, defeated corporations are free to try again, as Wal-Mart frequently does when citizens defeat its siting plans.

The problem is that the system isn't set up to protect the rights or interests of the average human. Rick Smith of the Association of Community Organizations for Reform Now (ACORN) says that when people realize that corporate rights override community rights it's “shocking to them.”

That the rights of a legal fiction, the corporation, trump the rights of human beings is the result of years of work by corporations to bend legislation and court rulings in their favor. Since the Supreme Court first cracked the constitutional door in 1819, it has steadily opened it wider, giving corporations virtually every protection in the Bill of Rights.

The Court, for instance, held that corporations have First Amendment rights to free speech and, in a later case, said that free speech includes spending money on political campaigns. Corporations have acquired full due process rights, a right to Fifth Amendment compensation for governmental “takings,” and a right to require search warrants, even for OSHA safety inspections. (See Historical Scorecard)

Those rights come in handy in fighting governmental regulation. As long ago as the 1920s, the Supreme Court ruled that Pennsylvania could not require coal mines to leave enough coal in the ground to support the earth overhead, even if that meant that people's houses might be damaged or destroyed. Making corporations sacrifice that coal, the court said, would be an unconstitutional “taking” of property.

If corporations don't get the results they want in court, they can take the more direct approach of tailoring their own legislation. In a world where politicians depend on money to get elected, having a constitutional right to write big checks gains valuable access. Having a say in federal legislation is particularly useful since the Commerce Clause of the Constitution says that federal law trumps state law on matters of interstate commerce.

Stefan Mackowski and sisters Sarah and Shannon swim at Halfmoon Lake, Barnstead, NH. Photo by Channing Johnson.
Stefan Mackowski, 3, flanked by sisters Sarah and Shannon, enjoys the water on Halfmoon Lake in Barnstead, N.H.
Photo by Channing Johnson for YES!

Beyond Site Fights
With the deck stacked against local control, what are citizens to do to step outside the regulatory game and take back power? Some bold communities have banned specific corporate operations, not based on regulation, but on a declaration that human beings have the right to control their local resources, and that corporations are not people and not entitled to rights the Constitution grants to humans.

That happened first in Pennsylvania when farmers and small-town residents tried to resist the encroachment of corporate feedlots and the dumping of sewage sludge from other states.

Ruth Caplan, of the Alliance for Democracy's “Defending Water for Life” program, tells how a Pennsylvania coalition including the Sierra Club, the Farm Bureau, unions, and the Democratic governor responded by getting legislation passed limiting pollution from corporate feedlots.

“The farmers in rural Pennsylvania were furious,” about the new law, Caplan says, “because they didn't want less pollution. They didn't want those corporate farms in their area. Period.”

Lawyer Thomas Linzey, founder of the Community Environmental Legal Defense Fund (CELDF), started getting calls from those outraged farmers. Linzey, Caplan says, had been working within the regulatory system, but he and the Pennsylvania farmers realized that they needed a new strategy. Linzey drafted model ordinances asserting community rights to self-governance and banning corporations from damaging operations in townships. More than 100 Pennsylvania townships have adopted those ordinances.

Linzey and CELDF began offering “Democracy Schools,” intensive weekend programs presenting the history of corporate power in the United States, and the history of successful movements, such as the abolitionists and suffragists, to overturn settled law. Caplan attended one of those schools. It was “a real wake-up call for me,” she says, “because most of the work we've done has been through the regulatory system, with some success. But it's not leading toward a fundamental change between corporations and the rights of people and nature.”

Caplan took her newfound knowledge to a U.S.-Canadian meeting on the problem of bottled water. There she met activists from New Hampshire who subsequently introduced her to Darrell and St. Germaine. Caplan told them of CELDF's work, and offered to work with them and the people of Barnstead on the water issue.

Darrell and St. Germaine made presentations to the town's Select Board, which had earlier passed a “Warrant Article” declaring the town's intention to protect its water. Ultimately, they invited CELDF to make a presentation to the Board. At the end of that presentation, the Board asked Linzey to draft an ordinance similar to the ones in Pennsylvania. Linzey told the group that they needed to understand that they would be taking on settled law, Caplan says.“Well, Mr. Linzey, we understand that, and we're ready to walk point for you,” Jack O'Neil replied, using a Vietnam-era term for being out front on patrol.

Reclaiming Rights
CELDF's model ordinances go beyond zoning or other efforts to control corporate behavior. They ban corporations from specific operations altogether, citing the Declaration of Independence, international law, state law conferring rights on citizens, and the general rights of human beings to govern themselves and take care of their own communities.

Darrell says that she and St. Germaine spent the next year educating Barnstead residents about the proposed ordinance. “We talked to people about water rights everywhere we met them—at the dump, in parks. We told them why we needed to have this ordinance be unanimous and in place before corporations came to town.”

People were receptive to the idea but curious why the ordinance needed to cite such a broad range of law. “There was a lot of education about why we needed to deny corporate personhood,” Darrell says, “People don't understand how we've gotten to this point and how corporations have gotten so much power.” Darrell credits CELDF's Democracy Schools with giving her the information she needed to provide that education.

In March 2006, the ordinance came before the town meeting. After final discussion, Barnstead took its vote: 136-1 in favor. The one “No” vote, Darrell says, was not in general opposition to the measure, but was cast by a person who felt declaring that corporations are not persons went too far.

Now Barnstead is walking point, the first town in the nation to ban corporate water mining within its limits.

the bumper of Gail Darrell's car. Photo by Channing Johnson.
The bumper of Gail Darrell's car.
Photo by Channing Johnson for YES!

One Town at a Time
The fight to take back power from corporations continues. Across the country in Humboldt County, California, the people passed a referendum banning outside corporations from participating in elections and declared that corporations are not recognized as people there. Blaine Township, in southwestern Pennsylvania, outlawed the destructive practice of longwall coal mining. People in Montgomery County in rural Virginia are fighting the taking of farmland to build a giant railway terminal.

These are admittedly radical steps, although, as Ruth Caplan points out, they are being carried forward by people who are not radicals. “These are not liberals, not progressives, not activists. But they don't want corporations to tell them how they should run their community.”

The courts have not yet ruled on these measures. If they are challenged, no one knows what the outcome will be. But these new activists point to the abolitionist and women's suffrage movements. They were radical. They challenged well-settled law. They lost repeatedly, until the public saw the truth of their position, and the law changed.

Darrell and her fellow townsfolk are working on amendments to strengthen their ordinance if a challenge does come. If they're defeated in court, she will continue to work to make humans more important than corporations. She's in it, she says, “to have a clear conscience. I did what I could after I got educated. I can tell that to my kids. It's my duty. I'll take that charge and do the best I can.”

Photo of Doug Pibel


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