Freelance author and environmental analyst, David Kupfer provides an in depth interview with Mari Margil of Community Environmental Legal Defense Fund (CELDF) on the Rights of Nature.
David Kupfer: just how significant was Ecuador’s Constitutional assembly decision to place ecosystem writes the rights of nature directly into the new Ecuadorian Constitution?
Mari Margil: It was pioneering. Ecuador is the first country in the world to put into their constitution ecosystem rights and they’re really pioneering this work, laying the path for other countries to follow. It’s amazing, groundbreaking and it’s driving other organizing forward.
DK: How and why did you become involved in this?
MM: We got involved because we’ve been working with communities in the US for the past several years, communities facing some sort of direct threat like coal mining or uranium mining or factory farm coming in, or their water being privatized. Things that they don’t want to have happen to have a great impact upon their environment as well as economic and other guys at impact is related to quality of life. We work with communities to help them draft and adopt laws which do a couple of things. More recently what they have done is they’ve done things including like for communities facing the privatization of their water, help them draft and adopt ordinances, organizing their communities through public education which banned corporations from certain activity like privatizing water, like coal mining. About a dozen communities in addition to that have recognized that that is not enough just to say that corporations can’t do that here because they understand that corporations have constitutional rights in this country as well as many others, in which they can use those rights to overturn those ordinances or local laws and so about a dozen communities in the US have not only adopted laws which say no corporations can set up factory farms here but in addition, strip corporations of a constitutional protections which they could use to override that law which says no factory farms.
These laws have evolved so now they do the first thing banning certain activities of eliminating corporate protections within that jurisdiction and then a third piece of it, which about a dozen communities have adopted which is recognizing that is not enough to empower the people in the community they also need to recognize rights for ecosystems in the community as well. This means that ecosystems, nature has no rights there’s nothing to defend when we try to defend the wetland that disappeared because it itself doesn’t have rights. Much like slaves didn’t have rights. These communities recognizing that these ecosystems themselves is not enough to ban something, you actually have to infuse rights as well, and have recognizable legally enforced rights for ecosystems. The stories of those communities were told with some folks in Ecuador through the Patchamama Alliance, a nonprofit that has offices in San Francisco as well as Ecuador and they do a variety of work including environmental work and invite us to come to Ecuador back in 2007 -2008 when Ecuador was writing a new constitution so that’s how we got there, in essence they hosted us to come down and they arranged meetings for us with elected delegates in the Constitution assembly and we just told stories about the places that we been working with and why communities in the United States have begun to adopt laws recognizing ecosystem rights or rights of nature. Through the course of a number of these meetings with different delegates they asked us to draft language for them for the new constitution and they took that language and in essence turned it into their own and expanded it a has different five or six different points to it and then they adopted it into the new constitution last year, in September 2008.
DK: What inspired this action?
MM: What inspired this was when we met with them we were asked where had it already happened and there were a number of elected delegates who represented indigenous communities within Ecuador and they said thinks like that they saw several years prior indigenous peoples within Ecuador had their collective rights as indigenous people had been recognized and they told us that they saw this concept of putting ecosystem rights into the law as an expansion of their collective rights as indigenous peoples, so is was very natural step for them. I think in addition delegates across the country had seen their country be exploited by outsiders for centuries and they wanted to see that stopped. We were asked a lot about things such as what about oil we have a lot that people want to take out of ground can this help stop oil drilling which is devastating the Amazon? They understood that they need to do something fundamentally different in order to protect these fragile ecosystems within Ecuador that were just being trampled. A lot of the inspiration was we need to protect his place, we don’t have the tools to do that now and they needed to do something fundamentally different from what they had been doing within their structure of law.
DK: What do you think the cultural impact is going to be or has been in Ecuador?
MM: It’s difficult for me to say but I think what we see is that our work looks back at a lot of past peoples movements such as the abolitionist movement and we see law and culture, one driving the other coming at it conflict with one another as well and I think we’re seeing something similarly happening in Ecuador right now. They adopted this new constitution over a year ago and now you have indigenous peoples as well as communities within Ecuador beginning to use those rights of nature provisions to try to stop things like gold mining. You have them beginning to use this law and is creating not only legal tension because of lawsuits but also it forces cultural change. Much as for example when the 13th,14th, and 15th were driven into the Constitution, outlawing slavery and recognizing rights for the freed slaves. Suddenly you had legal change being driven forward, but then we found cultural change being driven in reaction, we ended up with Jim Crow for example. I think we’re seeing a similar push and pull going on in Ecuador, which is not surprising. I think all movements go through that. I think that’s what’s beginning to happen now. But what is I think really exciting about what’s happening in Ecuador is not only are people beginning to use the new law to try to protect the places, which is obviously what it is intended to do but we are also seeing what Ecuador did, inspire other places which is something we were hoping it would do.
How did you personally fall into this line of work?
MM: I’ve done a lot of environmental advocacy, a lot of political campaigns, ballot initiatives, that sort of stuff. I worked for labor union for a while. Prior to joining the Community Environmental Legal Defense Fund I had focused a lot of my concerns for labor and environmental issues on other issues by working with corporate ethics international where we ran corporate campaigns, one in particular focused on big box industry specifically Wal-Mart. We were targeting companies for their labor and environmental practices to try to change those and in the course of that became familiar with the Legal Defense Fund. What I thought was so important about the work of the legal defense fund is that it was standing it’s not about electing the right people. It’s not about begging and pleading with corporations to change their behavior. The system itself is broken. It’s not even broken is actually working exactly how it was intended to work but the problem is it doesn’t work the way we need it to work. I think we see that now in the environment in particular in almost every measurement the environment is in worse condition than when the clean water act or the clean water act or the Endangered Species Act were adopted. Something clearly is not working. The work of the Legal Defense Fund is focused on changing things around in that system. I became familiar with their work and feel fortunate to be able to be working with them.
DK: Some people might say that system is working very well, exactly as it should can benefit those who designed it.
MM: And I would agree with that. That is the paradox.
DK: What was the reaction from the corporate sector to the Ecuadorian Constitution do you help design? Or the public reaction was the official duty in the sense as to
MM: A couple months ago I got a call from a investment financial advisor type person who was asking me about what had happened in Ecuador in terms of the new constitution and he asked me should I be advising my clients against investing in the mining corporations who are looking to mine in Ecuador? I said I would. In the spring the first lawsuits were filed under the new constitution to stop gold-mining from happening because you have President Rafael Correa of Ecuador trying to still move these extraction industries forward. You have indigenous peoples protesting right now in Ecuador against water private privatization. There are corporations, there is government, there are these forces that will try to stop change. The people of Ecuador voted for this Constitution, they approved it by a wide margin which included the rights of nature and still we see people pushing back against it. I think that push is going to push and come back against it and that is the history of movements, that back-and-forth.
DK: Are there other nations following the example of this Ecuadorian constitution?
MM: We have talked to people in other nations. In Nepal a new constitution is being written and we’ve talked with people there and provided some information to an NGO there that’s engaged with the drafting process. We’ve talked with folks in South Africa and Australia. This month Australia is having the first earth jurisprudence, so we have put together some papers for them. We have talked with people in other places communities such as in Canada. I think what Ecuador has done has definitely penetrated in the global sense people’s consciousness. And it’s interesting people that in Ecuador that people who were part of the constitutional drafting asked us where else has this happened and we talked about these communities in the US. So the work in the US helped the people in Ecuador and now the work in Ecuador is helping drive further the work in the United States. In a couple weeks on election Day November 3 the City of Spokane Washington will be voting among other things on recognizing the rights of nature. If it’s adopted Spokane will become the first city in the US to adopt a legally enforceable rights of nature. So we are seeing this movement go from place to place and it’s really kind of astonishing.
DK: Are there other US cities pursuing this sort of initiative?
MM: In New England and in Pennsylvania where our work started it is continuing and more and more there are laws that we are working with on in communities that we are helping to draft and to adopt include the rights of nature provisions within them, recognizing help strengthen the laws and help strengthen the protection for those communities.
DK: What was that Pennsylvania case?
MM: We have worked with over 100 communities in Pennsylvania to draft and adopt laws. Close to 10 of those include the rights of nature provisions and our work there continues to grow. There is a community there called the Lane Township in western Pennsylvania which is coal country. We have assisted them to draft a home rule municipal charter, which is like a local constitution for a municipality. They have constitutionalized this concept of legally enforceable rights of nature at the local level. They will also be voting on that on November 3, and if they do it will be the first time that we’ve worked with the community to put it into to help them draft a home rule charter and actually put the rights of nature right into it. We’ve worked with about 110 communities to draft and adopt laws in New Hampshire Maine Pennsylvania and Virginia.
DK: How is it communities don’t have the right to say no when corporations come in to exploit natural resources or create factories?
MM: The first reason is that corporations are able to use corporate constitutional rights such as the first, fourth amendment Fifth Amendment,14th amendment, and they use them to override community lawmaking. They override state lawmaking. They use them to intimidate communities from even attempting to try to stop a factory from coming in, or to try to threaten lawsuits to prevent, or scare communities from adopting laws which prevent a corporation from coming in. There is a whole body of corporate constitutional rights that are standing in the way of a community. In addition to that is something called state or federal preemption which is when the federal or state government determines that something is legal such as coal mining, a community is legally prohibited from sending no to it because the state or the feds override communities. Part of that is something called Dylan’s rule which is a legal doctrine which drafted by a railroad lawyer who sat on the Iowa Supreme Court back in the 1880s. It has been adopted at the Supreme Court level. What it says is that the relationship between the state and the municipality is that of the parent to the child. The municipality can only as the child only do what the parent tells it. It can only do what the state tells it to do. As a result in essence say that a community can’t ban factory farming, can’t stop coal mining. The state will tell it this because that’s how the structure of law works in this country. The state government and the federal government as well as the corporate constitutional rights are all forcing themselves down on these municipalitys to prevent them from protecting their environment. The communities that we work with recognize that the structure work hand-in-hand. These are not mutually exclusive. They work very closely together to push the communities down. And so recognizing this the communities that we work with are pushing back to turn that structure of law on its head, to say that we have local self-governing authority, we are going to determine what happens here because we are going to protect the environment here.
DK: Sovereign rights?
MM: Exactly, it is for them to decide the most fundamental decisions. The people in these communities are saying these most fundamental local decisions, we should be making them.
DK: When corporate constitutional rights and privileges are used against communities, what is the impact that has on communities and community activists?
MM: We talk about corporate power and the power that corporations have. That power is wielded in very specific ways through those rights and privileges that corporations enjoy under the Constitution and through our statutes. But also they do things like wield the commerce clause against us. They do everything they can, not to mention the fact that they have tremendously deep pockets. They have the legal, they have the wealth and they have the culture. It’s kind of extraordinary what they can do. What happens when a community is facing some sort of threat is you’ll see a couple of ways a corporation will try to stop the community from trying to get organized to stop the corporation from coming in. You’ll see a corporation do things like threatened to sue the local elected supervisors for example. You’ll see them threaten to sue them personally as well as in their government capacity. That is incredibly terrifying. You have them not only threatening this, but then saying not only are we going to sue to overturn these local laws if you take such action but we will also sue you to pay for our attorneys and future lost profits. If you’re going to sue us from taking that coal out of the ground and then we are going to sue you for the profit that we were going to make it from that coal. We are talking about hundreds of millions of dollars. Local governments are threatened with going bankrupt. Just the concept of being sued is frightening. Whether a community has adopted a law or not, they can be terrified. It is a very frightening situation to be put in. There is a community in western Pennsylvania coal country that we work with, Dautical township who we worked with to help draft a law banning corporations from mining of the coal. They were very quickly sued by several coal corporations. The results was that the communities’ supervisors, who understood that the system needs to be fundamentally changed, rescinded the ordinance, and now the community is going to get mined. It is as simple as that. All of those things happen and it is an incredibly powerful thing. It is enough for a corporation to mention the word lawsuit that a community can just shut down its organizing.
DK: This is commonplace?
MM: Every day every single day. It’s like a deep freeze.
DK: And how does this impact the activist community? Can’t they be held equally liable?
MM: Anybody can be sued. We’ve worked with places like the people in St. Thomas Township in Pennsylvania that was facing a quarry coming in. The activist group itself was faced with lawsuits. You have people having to make very difficult decisions doing things like trying to move their personal assets to others so they won’t lose their home if they are sued. Imagine we are it we are trying to be activists conducting grassroots campaigns and organizing to educate our neighbors, our community and we can be sued for that. And we can lose everything because of that. Something has got to be fundamentally wrong with that system of law that allows this to take place.
DK: This is very similar to the SLAPP lawsuits which came about during the Reagan era.
MM: It makes people not active it just them up it causes people to not be able to protect places where they live. You see people either move away or just shut up and go home. And then they get mined or the factory hog farm. That is not how we should be able to protect our communities. Why should a corporation headquartered thousands of miles away should be able to decide what happens in my community? We work with communities who say something seems very wrong with that, something about that needs to be changed.
DK: All of our major laws in the United States the Clean Air Act, the Clean Water Act, in similar state laws treat nature as property under the law and these laws legalize environmental horrors by regulating how much pollution or destruction of nature can occur rather than preventing pollution or environmental destruction these laws are codifying it. How can this be changed?
MM: Ecuador adopted the rights of nature into their constitution. That is not going to happen here. Our Congress is not about to propose a fundamental restructuring of our laws. The way we see that changing here is to the work that we are doing at the grassroots level. We believe it absolutely must start there it is the place where see that threat coming right up to their front door step that they start to take action. In building a network of grassroots movements among these communities who have taken on this work to join hands and joined forces to drive change on the state level and potentially on the federal level.
DK: Since the regulatory structure seems not to benefit communities and the solution be found then in local laws banning corporations?
MM: The work that we do is banning corporations from certain activities. It’s not been a corporation its banning them from conducting activities that are in environmentally destructive, destructive to the local environment, to local agriculture, quality-of-life. The communities that we work with recognize that trying to regulate coal mining better is no solution. Because you’re still getting the coal mining, you’re still getting all the impacts from it, you are just getting more setbacks or something, you’re still having all the same problems associated with coal mining or uranium mining. They’re saying regulating it better? That’s not going to do it because that’s still allowing the thing to come in. We are saying absolutely no.
DK: Can you tell me about the ecosystem rights movement?
MM: It’s a movement right at its beginning. We see Ecuador having taken a huge step forward in putting it into its constitution. In this country the action is all at the local level where it is just beginning where you have communities that have either adopted local laws, recognizing ecosystem rights or are beginning to talk about it or are in the process of organizing to do so. There are places around the world that are beginning to have conversations about it, and I think that’s how these things start to gel. I think is at the beginning stages of a movement that is starting to move forward.
DK: Can you project where this is going?
MM: We are seeing that more more communities are contacting us recognizing that the way our environmental laws are run now, the way we are treating nature does not work. Fundamentally needs to change. The work that we are assisting these communities to do is creating a movement for nature’s rights, much like the abolitionists. They did not want to regulate slavery better. They understood that the system itself fundamentally needed to be changed. It took them 40 plus years to make a change in our Constitution. This similarly could be a multi-generation movement but the time to get it going is now, so that’s the work these communities are doing and we are assisting them to do.
DK: Then there’s really no competition, you’re the only game in town?
MM: The competition is our culture and our law in this country and around the world which is trying to shut it down which as you said, this is a culture and a structure of law which is working very well for some people. They are going to do everything within their power to make sure that they can maintained it. The work of these communities are doing driving right at that to challenge and change that, they’re going to do everything they can to try and stop them.
DK: Have you or has your organization been threatened or received veiled threats from corporate entities who would suffer from these citizen movements?
MM: When we work with the community we conduct grass-roots organizing, we teach Democracy Schools and we also provide communities with free and affordable legal services. When they adopt one of our laws if they get challenged for example Blane Township in western Pennsylvania, they adopted laws to ban corporations from mining, recognizing the enforceable rights of nature, stripping corporations of constitutional rights. They did that through two different ordinances. They have been sued by two coal corporations to overturn those ordinances. The corporations, arguing that the community does not have the legal authority to ban mining, and that the ordinances violate their corporate constitutional rights.
We were asked to represent them in the community as their lawyers. Not only did the corporations file for sanctions against the community but us as well as an organization for trying to defend a law on the books. Meaning that they were saying this is frivolous what you are doing trying to defend this law. A law that a community of people have adopted that is on the books, that is being enforced. They tried to sanction us, which is thousands and thousands of dollars. That is the sort of thing that they can do. They have a huge bucket of tools and the wealth to animate it. It is incredibly difficult work that is going on, and every day there are new challenges.
DK: Are we coming to an end of the corporations setting the rules and influencing communities in such a massive way?
MM: I think it is a long time before that’s going to happen. I think it takes decades to make fundamental change. That is what the lessons of the past people’s movements have been, the suffragettes, the abolitionists, the civil rights movement. It takes a long time for real change to take place and real systematic change is what were aiming at. I think we’ll have some victories to celebrate in the short term but it’s a long, long term movement that this is aimed at.
DK: Ultimately, this movement will get us to the point where trees and forests have rights.
MM: That is the goal.
DK: Is that nothing in history that replicates this notion for nature rights?
MM: No that’s why we look to other movements to gain the lesson and to understand how they did what they did. We look at women, we look at slaves all of which were treated just like we treat nature today, just as property. It took very long-term movements to derive rights for those, at property into law. Slaves went from being property to being rights bearing people and women went from being the property of their husbands or their father to being rights bearing people. This is similarly aimed at moving nature from being property under the law to being infused and recognized to have rights.
DK: While some corporate greening seems misleading, some corporations have truly made some dramatic stance in terms of social and environmental accountability. How can the public discern the difference between sincere efforts and greenwashing when it comes to social and environment accountability, for example of Wal-Mart makes environmental commitments yet contributes to congress people’s who favor anti-environmental legislation.
MM: It’s very difficult isn’t it. We have to get to the place where it’s not going to be enough for us to buy organic shampoo, or recycle. It’s not enough for us to be conscious consumers. That is not going to make the kind of change that we need to be making. We can try to discern what a corporation does behavior is and whether we want to support that are not. But we’re not going to buy our way out of our environmental problems.
DK: You mean green shopping won’t be our savior? If we purchase all the right products won’t that bring us to Ecotopia?
MM: Frankly that’s part of the problem. We’ve been convinced by the corporations that that will solve the problems, and we have the tendency to want to believe them because would not that be grand? But that is not going to get us where we need to go.
DK: But are you seeing progress, any significant changes in the manner in which they are conducting themselves when it comes to social and environmental corporate practices?
MM: Isn’t it amazing that we see companies like BP and Shell and others announcing that there has been a bit of tide change with respect to environmental consciousness if you want to call it that, so now they are using it in all of their advertising. I don’t think that accomplishes a whole lot. We are still stuck with the same problems that we had before. We are still stuck with a system of law which has put us in this place where we have nature without rights, we have an environment and ecosystems which are collapsing. I don’t think it changes anything.
DK: What is the Business Ethics Network?
MM: It is a group made up of corporate campaigners who are focusing a on changing the practices of corporations, focusing on environmental, health, labor practices, sourcing. I worked for corporate ethics international which ones the business ethics network prior to joining the Community Environmental Legal Defense Fund. We just won a Benny award for our work with Ecuador assisting them with the writing of their new constitution. The network are groups that focus on things like corporate constitutional rights, groups that focus on changing corporate practices with respect to sourcing of products, supply chains, groups that focus on protecting different parts of the environment, whether its water quality, oceans or forests, as well as focus on labor practices. When I was working with them we were focusing on the big-box industry in particular Wal-Mart and the legal defense fund was working with communities that were facing Wal-Mart’s coming in. Communities all over the country have fought these things recall site fights, they’re trying to stop Wal-Mart from coming in and there are any number of reasons why you would want to stop a Wal-Mart from coming in communities are concerned about things like traffic. Studies have shown what communities are faced with when Wal-Mart comes to town you see clothing, apparel, hardware stores go out of business shoe stores go out of business grocery stores go out of business. Wal-Mart has a terrible effect on local economies you see will wait wages drop, you see local job loss. For all promises that you see a company like Wal-Mart and other companies make for how many jobs they are going to bring in, this is like a job killer is a wage killer.
When I was working with Corporate Ethics International, the BEN network began talking with the Legal Defense Fund about what they were doing to try to stop Wal-Mart from coming in which is how I learned about this work focusing on not trying to not run campaigns against the company itself, but working within a community to recognize how the structure of law works, why does it allow Wal-Mart to be so powerful? Why does it allow other companies to be so powerful that we actually end up having to run campaigns to try to protect places from their impacts? I learned about how corporate constitutional rights are wielded by corporations. For example you saw Wal-Mart run a ballot initiative in California. A company running a ballot initiative. Why should that be able to happen? In any case I worked closely with the Legal Defense Fund to learn about this and how they were doing their work differently which is not running a site fight against not corporation but recognizing that within that structure of law in which they had to fight that fight that gave the corporation the ability to come in and set up shop one may did not want them coming in. To empower communities to be self governing such that they are able to adopt laws which say we don’t want that kind of thing here. We want to protect our local economy, we want to protect our local environment we want to protect local jobs. We are asserting and seizing our local self-governing authority so that we decide what happens in our community, not someone based in Bentonville, Arkansas.
DK: It seems we are really at a turning point.
MM: With the business ethics network we are also invited last year to their annual conference to teach a Democracy School and we had activists from around the country who sat together with us for two days to talk about how the structure of law works, who does it work for, and how can we begin doing our work differently to challenge and change the structure of law.
DK: What is Democracy School?
MM: Democracy schools is generally a weekend long workshop seminar hosted by or within a community in which we work with members of the community to examine how our structure of law works, who does it work for, and why does it work that way. We look at what other people did about that structure of law when they encountered it like the abolitionists and the suffragists and what our communities who are facing structure of law when they doing now. Taking the lessons of those past peoples movements to understand what we need to do now. We go through about 1000 years of history very quickly to understand how we ended up with the structure of law that doesn’t seem to allow us to decide what happens in our communities with the environment, with our local economies and it seems other people, a minority of people who are in positions of power whether with corporations or in elected positions, are able to make fundamental decisions about how you and I live. And then taking a look at what our other communities doing about that and then for the people of the community in which the school is being hosted, what can we do with that community to try to change that. We work with communities in the course of democracy schools to begin to strategize about what would grassroots campaign look like in their own community.
We’ve held 200 Democracy Schools now and around the country and in Canada. We’ve had lawyers and local elected officials go through, local activists and a lot of first-time activists, which I think is one of the most inspiring things to me which is you have people in the community people who would not call themselves activists were even for that matter environmentalists, who are going to Democracy School because they see something happening in the community happen in their community and they say that’s not right. I want understand why that’s happening and what we can do to stop that. People who just been going about their life and now understand that there’s a threat are coming and recognizing that they wanted do something about that so they go to a Democracy School, it is the first time that they are really becoming what we call activist or quote unquote political and it’s really extraordinary what happens when you see someone try to go through that process of becoming active for the very first time. It’s really rather inspiring in seeing them make other people in the community active. It’s kind of extraordinary to see that happen right in front of you.
DK: Can you give some examples or success stories?
MM: One of our staff people is an extraordinary organizer, Gail Darrow. She’s based in New Hampshire. She’s our New England organizer and she first went to Democracy School because she lives in the town of Barnstead. When a threat came in to Barnstead in which corporations wanted to come in to privatized their water, people in Barnstead became aware of this and recognized that wasn’t going to be too long between before Nestles or USA Springs or another corporation came along and want to take their water. Gale became very active she went to Democracy School, she learned about examining how our structure of law works and she spent a year working with people in her community going to every door in every house to talk about what is happening about how our structure of law works, talk about what is going to happen if a corporation comes in and is able to stick a giant straw in our aquifer and take our water. She organized her community and worked with us to draft an ordinance and have her community adopt a law and they became the very first community in the nation to adopt a law banning corporations from taking their water. She was a first-time activist. She organized her community and now it’s not enough for her to say okay my community is done, she can’t stop there so now she’s our staff. She’s a full-time organizer and it’s really an extraordinary thing to see that happen.
DK: Democracy schools are then really turnkey to inspiring and motivating people and empowering people with the tools and techniques to fight back.
MM: They are often the launching pad for new community grassroots campaigns.
DK: Do to you envision an expansion of community environment policy rights activists?
MM: Yes I do. I think we are at this place where we have 110 communities that have adopted these laws in four different states and we are beginning to see them start to come together. In Pennsylvania where work began we have over 100 communities who have adopted laws banning things like factory farms, banning sludging, banning coal mining. These communities are beginning to connect up with one another. The conversation is beginning about how we’ve done this at the local level and we are continuing to work with more communities but now let’s start talking about how do we move this to a different level, that is the state level and begin a conversation about the Pennsylvania State Count Constitution and what should we be doing to try to take the changes that we brought about on the local level to bring it up to the state level. In that conversation is beginning. It’s very exciting.
DK: Do you have an opinion about Robert Hinckley’s idea for a code of corporate citizenship?
MM: The words corporate citizenship right there are problematic. This work isn’t about making corporations better citizens and the fact that we even use that word is representative of just how fundamentally down the wrong path that we have gone, this idea that corporations are persons. We are not even considered citizens anymore we’re consumers. That is how we are treated. This is sort of the extraordinary that when you read about what is democracy so often the way it is described is that democracy is the ability to suffrage that is its voting. You live in a democracy if you’re allowed to vote. I think that just scratches the surface but it doesn’t begin to mean that we are actually making the decisions that are most fundamental to our lives just because we are able to vote every two or four years. It’s about I think it is about something fundamentally different. It’s about making corporations better actors. That is good, But I think in some ways it distracts us from doing the things that we ought to be doing which is fundamentally changing our structure of law works. Yes, it’s a good thing for a corporation to be a better, to recycle or to sell products that have less impact upon the environment, of course that is a better thing, but that doesn’t go even close to far enough to where we need to be going. We need to be fundamentally changing who gets to make decisions in this country and elsewhere if we are going to protect us place that we call home this planet.
DK: Was there one point in the evolution of these rights that was a turning point that allowed for this expansion of corporate rights where we made a wrong turn in terms of the policies that were set forth granting rights to corporations?
MM: In the democracy schools we look at a lot of history. We take a lot of time looking at our Constitution looking at the declaration of independence looking at the articles of Confederation which are our first constitution. And we look at the debate happened in Philadelphia in Constitutional Hall. The actual notes that James Madison took, the so-called architect of the Constitution, James Madison. We look at the discussion that occurred within that hall and what they were talking about and what they were trying to draft which became our Constitution, what the goals were what they were thinking about and what they were talking about. It’s really extraordinary if you read these notes. Because not only did Madison take very detailed notes, verbatim transcriptions of the things that were said. It’s telling that he didn’t release those notes for over 50 years until every single other person that was in Constitutional Hall had died. There’s a really good reason why that is because he understood that the discussion that was had within Constitutional Hall was really quite different than what we think it is and what we revere our founding fathers to have discussed. Those notes show things like discussions about a monarchy is really the best form of government. Do we need to protect the minority from the majority and democracy. They use words like that a democracy is really mob rule. There was no there was no real love for democracy by our founding fathers. That conversation was had by people writing our most fundamental governing document the U.S. Constitution.
Howard Zinn says we are inculcated from birth to believe that our founding fathers and that our Constitution are these bastions of democracy. But when you look at the discussions that the founding fathers, these drafters of the Constitution had it was saying that democracy is a problem. We have an excess of democracy. We need to get rid of that. The best form of government is a monarchy. And in some ways what we did we essentially replicated that here. We have a president. When the Constitution was written, and this is still the case today, we don’t have direct election of the President. We didn’t have direct election members of the US Senate. That didn’t change until the early 1900s. The only body that was popularly elected was the US House of Representatives but even then the people who were considered people at the time were just white men of wealth and property. A vast majority of people who were governed by the U.S. Constitution not only were not able to vote for their representatives but they were not even recognized within it. It is an extraordinarily undemocratic document and it is something that we talk a lot about in Democracy School and it requires you to be able to bust some myths because I never learned about this in my history or American government classes. No one ever talks about things like that constitution is undemocratic. We think of it as most Democratic document in the world. But it’s really quite undemocratic.
Your question, is there a place where we went wrong? No I don’t think there was a place where we went wrong. What happened was when our country formed a continuation of the same occurred. We broke away from England because the way that they were governing us and then we created a structure of law which was all not all that much different from what England had. That has only just continued. The way that things are working now is exactly the way it was were intended to work. But it’s not working for the vast majority of us, and it’s certainly not working for the environment.
DK: Other other countries whose constitutions you have studied that are more evolved and more serving the interests of the citizens versus the corporate state?
MM: It’s funny because when we were invited to Ecuador, we were not experts in Ecuadorian law. There are similarities which cross international lines meeting there like here corporations have rights. There like here nature is treated like property under the law and that is pretty much the way it is. The Iraqi constitution which the US government helped draft corporations are given rights, it is right into the Constitution. These are the things that are replicated all around the world. There are major environmental laws replicated all around the world and we are seeing where that has led us. Unfortunately this isn’t just about a movement within the United States, this is about the movement all around the world.
DK: What sort of support and does CEDLF get from the world of philanthropy?
MM: We have individual donors and we also get foundation grants to do the work. It’s about half and half. We have been very fortunate to have that support to enable us to do this work.
DK: Do you have plans to broaden your audience by working with law schools or and introduce your programs to the world of higher education?
MM: In 2007 we did what we called a rights of nature tour in which we had our executive director Thomas Linzey and an attorney for South Africa Cormac Cullinan who wrote a really important book called Wild Law. They did a speaking tour of about 12 law schools across the United States to begin to talk with not only law school students but law professors and faculty about this work. We’re thinking about doing something similar and possibly having an attorney that we work with in Ecuador using videoconferencing to do something similar with law schools and programs to have that kind of conversation. We’ve also had the opportunity to talk with different people in higher education, in high schools about how do we bring this to schools and can we created curriculum for college or high schools.
We did work in Spokane assisting the community, local labor unions and Sierra Club and local neighborhood coalitions to draft a community bill of rights that they voted on in November. During the course of that campaigning we talked with kids in law schools and students in elementary schools. We had an opportunity to bring this work is really extraordinaryto these kids are able to cut through a lot of the issues faster than we can as adults somehow. We talked about the rights of nature with these kids in Spokane Valley in Washington state who are able to understand the rights of nature super quickly and get their heads around it. It was really an extraordinary conversation to be having with 10, 11, and12 year old kids.
DK: Have used other media to educate people about your work?
MM: In December of 2008 we for the first time did what we call Democracy School on the radio on KYRS the nonprofit radio station in Spokane Washington where we have been working for two years with the citizens helping them draft a community bill of rights which they successfully qualified for the November 2009 ballot. Over the course of four mornings we did what we called the drive time from seven to 8 AM in Spokane in which we took what we consider to be the highlights of Democracy School and over the course of four hours taught the Democracy School on the radio and we had call ins. We’re now going to be putting together a three to four hour video about the Democracy School that will eventually available online because not everybody can go through a three-day workshop so we now offer one day to three-day workshops.
DK: What is the origin of the concept of the rights of nature?
MM: It dates back a long time, this concept of giving rights to things considered rights-less like slaves and women. Some abolitionists like William Wilber Force and Harriet Beecher Stowe and others turned their attention to nature after abolition. Roderick Nash a professor of history wrote a book about the rights of nature. He said evidently relieving the oppression of just one group like the slaves doesn’t end oppression, there are others like women and nature who are oppressed and need to be granted rights. I think some we’ve seen as things evolved like for example anti-vivisection for animals, individual animal rights. I think some of that is the origins for some of this and I think just movements in general which have recognized rights for living things. In the past few years we have seen a big jump in is because it is moving from the discussion in the writing about it to actually putting in place laws in local communities and now in the country of Ecuador to actually recognized legally enforceable rights of nature. It’s now moving into the very practical ways of recognizing the rights of nature.
DK: What is this concept of standing?
MM: Standing is a legal requirement that you have to prove injury or harm to the environment somehow directly injures you. For example often with the pollution of a river that somebody who fishes on the river for their income or as property next to that river, so there is a direct harm, meaning that just pollution of the air is if you not living right next to the plant somehow the courts to recognize that that perhaps you get injured by that you have to prove direct harm which means you spend a lot of time trying to prove that, and meanwhile the ecosystems are being harmed and destroyed. It’s very difficult to prove. We have to go through all of that before we are able to talk about the ecosystem itself and what needs to happen to protect the ecosystem.
DK: Can you give an example of how your efforts have helped local activists succeed in their campaigns?
Michael Vaca is a construction worker, he pours concrete for a living and he became very active in his community to try to stop a massive coal scheme because he had seen what happens to communities in the region which had been so devastated when the mining comes in. Longwall coal mining it takes up all this coal from underground, miles and miles from coal underground which causes the land above to cave in and land is no longer irrigable and schools, buildings and homes fall in. He didn’t want to see this happen his community. He gave us a call and over the course of a series of months he brought us out to Blain township and we met with the local elected supervisors, we held a Democracy School there, we met with other citizens in the community and help them examine how the structure of law works and why they could just simply say no to the mining. Through the course of that they asked us to help them draft some ordinances which we did and at the end of 2006 they adopted those ordinances unanimously banning corporations from mining, recognizing ecosystem rights, and importantly stripping court corporations from their constitutional rights. When several coal corporations sued Blain Township in fall of 2008, they asked us to represent them in the court to help them defend the ordinances from the onslaught of the coal corporations which we did and that’s underway right now.
Other places in New England communities across New England are being targeted for their water and we’ve worked with communities in New Hampshire and Maine to help them draft and adopt ordinances banning corporations from taking their water and recognizing ecosystem rights and stripping corporations of constitutional rights. Five communities in New Hampshire and Maine have now adopted these ordinances. That work involves sitting down with communities, local elected officials, citizens, activist groups and helping them to really get a handle on how the structure of law works, why does it work that way, how did it come to be and what they can do about it. We are now actually working closely with people particularly in Chapilly and Newfield in Maine who have adopted these ordinances through their town meetings. Working with them to help people in other communities in the region about why they took this route in terms of trying to protect their community and protect their water. It is incredibly inspiring and it’s what needs to happen which is people in their community talking to their other neighbors in nearby communities all facing the same problems and talking about how they went about it and did something fundamentally different, understanding that they can’t protect their water under the existing regulatory legal structure.
DK: Are these water grabs increasingly common?
MM: It seems so because this issue has leapfrogged around the country and the work that we’ve done in New England, folks in Northern California’s Siskiyou and Shasta counties along the McCloud River are facing Nestle coming in, learned about our work in New England and we had our organizer from New England work with folks there and we are working with folks at Global Exchange who are organizing Northern California. The work in New England has transferred across the country. The same problems and same companies.
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David Kupfer has contributed more than 55 interviews and dozens of articles related to the environment and agriculture to a variety of publications eg: The Sun Magazine, Progressive, Whole Earth, Earth Island Journal, Bay Nature, AdBusters, Reuters, Rodale Press, Talking Leaves, Hope, Yes, Backpacker, Spirituality and Health, Diva, Common Ground, San Francisco Bay Guardian, LA Reader, Eugene Weekly, Sacramento News and Review, Flim/Video, New Farm. Contributing Editor for quarterly publication, Annals of Earth, produced by Nancy Jack Todd.
An Environmental Analyst and Consultant, David is the producer of San Francisco Green Map. and an organic farmer.