Challenges to local laws through which communities dare to govern corporations, rather than regulate them, are expected and welcome. The Regulatory System of laws was handily crafted to create the illusion of remedies for injustices imposed by corporations on communities. That illusion is the first veil that must be stripped away. Experience shows that when ordnances are well crafted, they shape the contours of the corporate response, exposing the true nature of Regulatory Law as the antithesis of self-government and the bestowal of privilege on those wielding rights of property against individual and community rights. The first such challenge against an Ordinance drafted by the Legal Defense Fund was made by production contractors for agribusiness corporations against Belfast Township (pop. 1,341), which had adopted an anti-corporate farming ordinance at the same time as neighboring townships in Fulton County.
THE JUDICIAL BACKLASH
Belfast Township had passed a corporate three-strikes-and-you’re-out ordinance, which asserts that if a corporation or parent or subsidiary corporation or any corporate officers or any corporation they were involved in violated the law three times in the prior fifteen years, the corporation is banned from doing business within the township.
Through local surrogates, the agribusiness corporations sued the township and the township supervisors in county court, claiming that Belfast’s anti-corporate farming law was pre-empted by the state’s “right to farm” and nutrient management laws, and that it violated the corporation’s constitutional rights. Funded by the Farm Bureau and acting as a human “front,” five farmers joined the suit. Grounds for the action were anchored in claims that the corporations' right to equal protection and due process had been violated, and the production contractors claimed interference with their “right to contract,” a claim as dubious as the assertion of corporate constitutional rights.
Arnold & Porter, a large Washington, D.C. law firm (pop. 650 attorneys), agreed to take the case pro bono, in part because of its precedent-setting potential. By 2003, parties for agribusiness had spent $250,000 in legal fees. But the suit has been frozen while the industry maneuvers through its surrogates in the Farm Bureau to persuade state lawmakers to pass legislation that will nullify municipal ordinances governing corporations. If such legislation were passed, it would render the case against Belfast moot. The value of this legal challenge to the cause of demoting corporations to their correct status as licensed organizations is in its potential to create coalitions around this common goal.
In September of 2005, the Franklin/Fulton County Court ruled against the corporations’ request for preemptory judgment, finding that Belfast and other Townships are within their authority to pass Ordinances like the three-strikes law.
Rush Township requested information from the Legal Defense Fund about how it could end the surface application of sewage sludge in the township. They were advised that while an ordinance couldn’t ban a legal use (i.e., the action), and sludge had been ruled safe and legal by corporate friendly lawmakers, an ordinance could ban who was allowed to apply the sludge and how (i.e., the actor). Attorneys for the Legal Defense Fund devised a “tipping fee,” with testing and spreading requirements. With this information, Rush Township wrote its own imperfect anti-sludge ordinance.
In 2002, Synagro, a sludge hauling corporation, sued Rush Township and each of the supervisors individually under civil rights law, USC 42 §1983 (originally intended to protect freed slaves from discrimination), which provides for monetary damages and a remedy for violating underlying constitutional rights. Synagro had two claims:
The ordinance violated the corporation’s constitutional rights under the takings clause of the Fifth Amendment
A township ordinance is pre-empted by state law, i.e., the Solid Waste Management Act.
The state court decreed that state law must be applied equally across the state; the federal court said it would not decide any constitutional issues, and at the end of 2003 it ruled in favor of Synagro. As of November 2004, Rush Township agreed to pay $75,000 to resolve the damages part of the lawsuit, Synagro's attorneys’ fees.
Because the Ordinance was not well crafted, and the community was not prepared to rally to its defense, this legal challenge failed as an organizing tool.
Upper Mt. Bethel Township in Northampton County was sued by Hydropress (another sludge hauler) in 2002-03 for its sludge ordinance, which was poorly written. Upper Mt. Bethel won in county court but lost on appeal in state court on the basis of pre-emption by state law.
The Township appealed to the state supreme court, which accepted the case. It is worth noting that Pennsylvania supreme court justices are elected, and consequently may be more responsive to public activism.
The state supreme court issued its ruling, which was divided 3-3-1. Three supported the township’s position, three were opposed, and one stated that the corporation had no standing because it had not yet been issued a permit. The judges supporting the township stated that not only does the solid waste management law not pre-empt the township’s ability to make law, but also it allowed the township to pass any law in what was supposed to be a cooperative relationship between the township and the state.
The legal implications of the ruling are not clear. A more skillfully crafted Ordinance might have created a different outcome in the state supreme court.
THE LEGISLATIVE BACKLASH
Beginning in 2001, a battle to strip rural Township Governments of local law-making powers was launched in the state legislature. The Pennsylvania Farm Bureau, PennAg (association of agricultural corporations), and senators sympathetic to agribusiness attempted to sneak Senate Bill 826 through the State Senate. Standing in their way was a coalition of over 100 township governments, the Pennsylvania Farmers Union, the Pennsylvania Environmental Network, the Sierra Club, labor unions, the Pennsylvania Chapter of the National Farmers’ Organization, and others. With this coalition of grassroots opposition, the bill never made it out of the Agriculture Committee.
They tried again in 2002, this time in the State House. House Bill 1413, like Senate Bill 826, made it unlawful for municipal governments to govern agricultural corporations. The bill was maneuvered into place out of the public eye, and might have come to a vote, but for the intervention of luck and quick organizing. To the dismay of its sponsors and backers, the anti-democratic language of HB 1413 was leaked. The coalition that had rallied to defeat SB 826 assembled again and came to the Capitol with such speed and coordination of effort that it astonished the assembled representatives. The bill was never introduced for a vote.
In 2003 the state legislature again fell under the spell of agribusiness corporations. The stark, democracy-smashing language drawn up for HB 1413 was grafted onto HB 1222 as an amendment. HB 1222, known as “Meagan’s Law,” was an unrelated bill intended to help communities keep track of child molesters. This time, the house and senate passed the ordinance-nullifying language attached to HB 1222.
Activists for popular governance of corporations in rural Pennsylvania seemed to have been dealt a serious blow, but they again mounted opposition to a piece of legislation that had been passed in defiance of the State Constitution’s prohibition against multi-purpose laws, and in contempt of public scrutiny. To the surprise of some, the newly elected Governor vetoed the legislation at the last minute. Governor Ed Rendell had cobbled together an alternate plan that he thought would close the deal for agribusiness’ assault on democracy in rural Pennsylvania, but with a veneer of respectability.
The Farm Bureau published a complaint to its readers, stating that “legislation (House Bill 1222) to discourage township officials from adopting farm ordinances that illegally [sic] exceed existing state and federal laws was passed by the General Assembly, but was vetoed by Governor Rendell, after a campaign by Farm Bureau which spanned nearly four years.”
The Governor’s “ACRE Initiative” had already been in circulation before passage of HB 1222. It proposed to create a five member politically appointed Agriculture Review Board with the power to overturn local laws when disgruntled agribusiness corporations challenge them. Once HB 1222 was vetoed, the Pennsylvania Farm Bureau’s president quickly embraced ACRE, saying “farmers [sic] and township supervisors in Pennsylvania have been engaged in emotional [sic] debate about proposed ordinances that would place restrictions on agriculture. For many farmers [sic] the ordinances block their ability to expand operations - limiting their ability to make a profit.”
It had become commonplace for the Farm Bureau’s public statements to refer to agribusiness corporations as “farmers” and opponents of its agenda as “anti-farming” and their arguments as “emotional.” On close analysis, the Bureau’s statement seems as contrived an argument as saying that Rosa Parks hurt the profitability of a bus company by engaging in an “emotional debate about restrictions on transportation.” The issue of the rights of communities to self-govern, unimpeded by corporate maneuvering, is left to its proponents to bring forward.
The ordinances this legislation seeks to nullify do not restrict agriculture, but corporate control of agriculture (Local Ordinance Drafting for Townships - Anti-Corporate Farming, Sludge, and other Ordinances). Neither have they been found to be illegal. On the other hand, the constitutionality of the ACRE Initiative’s Agricultural Review Board was highly questionable, and in 2005 a coalition including the Pennsylvania Chapter of the Farmer’s Union, the Sierra Club, the Local Control Caucus of Township Supervisors, and the Legal Defense Fund campaigned and were successful in having it stripped from the bill. If it had been established, the Board, made up of five political appointees, would have been empowered to toss-out laws passed by duly elected public officials. Separation of powers and a right to representative governance were at the heart of the opposition’s campaign. The law enacting an amended version of the ACRE initiative became law in August of 2005, vesting the power to overturn local Ordinances with the State Attorney General rather than the Agricultural Review Board.
The affirmation of community rights to govern corporations and their activities must be drawn to the foreground as we oppose constrictions of democracy at the hands of corporate directors. Being channeled into the Regulatory System, where citizens attempt to oppose the corporate privatization of local economies and local government by stopping or limiting the issuance of permits, is the cause of our failure to define sustainable communities, not the remedy for our deteriorating quality of life. It is not enough to “regulate” corporations; we must govern them.
"Behind the visible government there is an invisible government upon the throne that owes the people no loyalty and recognizes no responsibility. To destroy this invisible government, to undo the ungodly union between corrupt business and corrupt politics is the task of a statesman."
--Teddy Roosevelt, the 26th President of the United States, during his 1912 election campaign