The Opening Salvo: Blaine Township, Washington County Picks a Fight With Coal Corporations in Western Pennsylvania

“Our rights under the Pennsylvania Constitution don’t mean shit if you’re forced to negotiate with the DEP and the courts. In this area, coal is king. Coal is King.”
-Michael Vacca, Vice Chairman, Blaine Township Planning Commission (quoted from Penn Ridge v. Blaine Township, U.S. District Court for the Western District of Pennsylvania).

“Stopping the community from being mined means we must challenge laws and decisions that have stripped away our right to self-government.”
-Scott Weiss, Chairman, Blaine Township Board of Supervisors (quoted from Penn Ridge v. Blaine Township, U.S. District Court for the Western District of Pennsylvania)

    In 2007, after watching other Western Pennsylvanian Townships around them being wrecked by longwall coal mining operations , the Blaine Township Board of Supervisors decided to do what no other Pennsylvania municipality had done before – ban commercial mining operations within the Township. They did so after arriving at the same conclusions drawn by other Townships in Pennsylvania’s coal country - that the damage caused by longwall mining would be irreversible, and that Pennsylvania law and regulations were actually written to assist mining corporations to cause those damages, rather than to help communities stop them from occurring in the first place.

    With the help of the Community Environmental Legal Defense Fund, a nonprofit public interest law firm, and the Legal Defense Fund’s nationally-known two day Democracy School trainings, the Blaine Supervisors learned how corporations use their claimed constitutional “rights” to overturn local, state, and federal laws; and how doctrines like Dillon’s Rule (which declares that a municipality is a “child” to the State’s “parent”), and preemption (which generally declares that a municipality cannot prohibit what a State allows) are routinely used by corporations to stop municipalities from protecting themselves from harmful activities.

In accordance with that understanding, the Blaine Supervisors unanimously adopted three ordinances targeting not just longwall coal mining, but the over one hundred years’ worth of legal doctrines that routinely prevent municipalities like Blaine from having control over what happens in their community. The first ordinance adopted by the Supervisors banned longwall mining and voided all State permits that interfered with that ban; the second ordinance elevated the rights of the community above the mining corporations’ claimed constitutional “rights”; and the third ordinance required corporations doing business within the municipality to disclose their activities to the Supervisors.

    In October of 2008, the coal mining corporations struck back, filing a lawsuit in federal court in Pittsburgh. In it, the corporations claimed that State mining law preempted the ordinance, that the ban violated the corporation’s constitutional “rights,” that Blaine Township had exceeded the authority given to it by the State, and that coal mining was an essential part of the country’s commerce, and thus, the federal government, not the municipality, was the rightful authority to pass mining laws.

    The lawsuit confirmed what the Supervisors already knew – that to stop longwall mining, they’d have to directly challenge - and overturn – century-old legal doctrines that had been carefully crafted by corporations to strip residents of their ability to decide the future of their community.

    Through that lawsuit, the Supervisors came face to face with a system of law that intentionally places the “rights” of a handful of corporate decisionmakers over the self-government rights of community majorities. In talking with other communities, they learned that no matter what issue a community faced, the same legal doctrines were routinely used over and over to supplant local decisionmaking.

    Instead of backing down (or immediately repealing the ordinances in the face of the corporate threat, as many other Township Boards have done), those who lived in the Township “upped the ante” by calling for a Home Rule election - through which the Township would draft its own local constitution which would then ban longwall mining in the municipality. In rapid order, they not only successfully collected enough signatures to qualify the home rule question, they then proceeded to vote to approve the question and elect a Home Rule Commission which began drafting a Home Rule Charter for the municipality. The product, after hundreds of meetings by Blaine residents, was a new local constitution which contained a new Bill of Rights for residents, and a new sustainable energy policy which banned longwall mining while reducing the Township’s reliance on fossil fuel-derived fuel sources.

    Reading the tea leaves as the opening shot in a war over self-government, the mining corporations hit back – first by a frenzy of filings in the federal court further threatening the Township, and second, in the opinion of many in the Township, by covertly funding and supporting a full-blown campaign against the home rule charter – painting the charter as government’s “interference” with private property and the “free market”.

    In October of 2010, a federal judge ruled in favor of the mining corporations – holding that since State law allowed mining, a community could not reject it. On the issue of corporate “rights”, the judge ruled that corporations do, indeed, possess the same constitutional rights as those accorded to “persons”; and that those rights are routinely wielded to overturn laws which violate those “rights.” In addition, the judge said that the only court that could overturn that doctrine was the U.S. Supreme Court, not the lower federal court; and that the issue must be appealed to get to that level.

    Recognizing that a home rule charter adopted by the voters of the Township would be a much stronger vehicle than an ordinance adopted by only three Supervisors – and understanding that the federal court’s ruling would be made moot by the replacement of the ordinances by the home rule charter – the Board of Supervisors opted to repeal the ordinances that they had originally passed and worked towards the passage of the home rule charter.

    Unfortunately, unable to muster the financial resources to go toe-to-toe with the mining corporations on the home rule charter campaign (and thus unable to dispel the false claims made against the charter), the charter failed to be adopted into law. And, since the ordinances has been repealed by the Supervisors, no appeal could be filed by the Township to higher courts.

    Understanding the importance of this battle – and thus, the need to further punish the Township - the mining corporations didn’t stop there; they supported two pro-mining candidates for Township Supervisor, who displaced two of the main advocates for the original ordinances. And those two new Supervisors retained the current Solicitor, a pro-mining voice who had argued against the passage of the ordinances.

    We all talk abstractly of the power wielded by corporations, of “corporate power,” but we often fail to understand how that power is translated directly down to these individual battles. The power of mining corporations is immense – not just because of the size and wealth of them - but due to a structure of law that has been carefully designed by corporate lawyers over the years that creates special laws for the people who run them. As recognized by the Blaine Supervisors, stopping mining, natural gas extraction, factory farms, the land application of sludge, or the thousand other projects forced on communities daily means not only frontally saying “no” to them, but openly challenging and eventually dismantling the legal doctrines which create a corporation’s “right” to impose them on us in the first place. Otherwise, we will never be able to create the communities that we want and need in the face of a structure of law that is almost never on our side.

FAQ’s:

Q: Knowing this story is great, but what good does it do to pass an ordinance that’s already been struck down by a court?

    As Blaine residents understood, the legal doctrines which place our communities on our knees come from an unholy alliance between government and the corporations – and, in fact, most times, they’re the same people in both governmental and corporate positions. Claiming our right to govern our own communities must therefore overhaul that very fabric of the legal structure that’s been built over time.

    Changing that fabric eventually means making state and federal constitutional change, because corporate decisonmakers have clothed themselves in those constitutional powers. Until we make that structural change, we’ll be left holding the bag after a handful of corporate decisionmakers resolve to make our community a resource sacrifice zone.

    Changing that structure isn’t easy. But it certainly isn’t going to happen by begging and pleading state agencies or the State legislature to do something to protect us. A new regulation or new law by the State (even assuming that they have our interests in mind), may establish new rules for how the rape will occur, but they continue to enable the rape to occur in the first place.

    As it turns out, we don’t have to reinvent the wheel. There have been successful movements in the United States that have made constitutional change – abolishing slavery and winning the right to vote for women. Those movements didn’t focus on building a regulatory agency dedicated to regulating the number of lashes for slaves or new rules for how husbands should treat their wives – they focused instead on driving constitutional change by illustrating how the existing system was unjust and immoral. To make that showing, they broke existing law and then forced the system to punish them  - as a clear, explicit, and public illustration of how the system functioned.

    Northern juries violated the law by refusing to send slaves back to their owners, blacks sat at lunch counters in violation of the law, women illegally cast ballots at voting places, and american revolutionaries illegally declared their independence. Each of those actions served to illustrate how the existing system operated and what a new structure might look like. In the process, those actions galvanized people to join together to build a movement that eventually undid the existing system permanently – not through the courts, but through changing the very structure of the existing system.

    Eventually, there will be a thousand lawsuits just like the one in Blaine Township. And then a thousand more. As Frederick Douglass once noted, “power concedes nothing without demand.” We’ve become so obedient that we’ve forgotten how to refuse to submit to a structure of law that is harming us.
Some of those lawsuits may be appealed, and in others, elected officials will sacrifice their communities to maintain the municipal treasury. Some case may win, many will lose – but together, they will give birth to a movement of people that this country hasn’t seen since the late 1800’s – a movement aimed at throwing off the authority of a small number of people to override community decisions dealing with energy, food, waste, and resource sustainability.

    As the Blaine Supervisors discovered, if we believe in self-government and protecting our communities from harm, there may not be any other choice.

Q. Is the Blaine ordinance the same as ordinances being adopted on “fracking?”

A.    No. There are some important differences between the ordinances adopted by Blaine and the ones currently being adopted to deal with “fracking.” The newer ordinances – which incorporate some of the court decisions in the Blaine case – are built around the expansion of rights for people, communities, and nature. Thus, their central feature is an enforceable “Bill of Rights” which augments State and federal constitutional guarantees with a right to clean air and water, a right to self-government, and a right to a sustainable energy future. The new ordinances then ban those activities – like natural gas extraction – that violate the Bill of Rights. Finally, new sections of the ordinances redefine corporate “rights” within the municipality, declare State permits issued in violation of the Bill of Rights null and void within the municipality, and hold State officials liable for violating the ordinance. The new ordinances that say “no” to fracking thus say “yes” to expanded civil rights within the municipality.

    It is this new, rights-based framework that is warily being avoided by the gas corporations – resulting in their decision not to sue the City of Pittsburgh, for example, over the recent ordinance adopted by the City which created a new Bill of Rights and then banned natural gas extraction which would violate those rights. With the passage of that ordinance, the City of Pittsburgh becomes the first major municipality in the United States to adopt a rights-based ordinance.

Q. Is there any chance that these ordinances will be upheld by a court?

A.    Yes. In some ways, the ordinances merely cash our collective check for self-government. History classes and political pundits galore have extolled the belief that we live in a system in which we govern ourselves. In fact, the American Revolution was based primarily on that concept. Court cases like Blaine’s enable communities to make the case that the current system does everything in its power to undermine self-governance and to ensure that a small number of people continue to hold enormous legal and political power under the system. These cases force courts to come face-to-face with that reality – as they did during the Civil Rights era – and decide whether to come down on the side of a corporate minority or a community majority. It is those confrontations that eventually will build a movement focused on elevating community self-government above corporate “rights”. Until then, building sustainable communities will remain merely a dream.

Q.What’s the long-term goal of adopting ordinances?

A.    Constitutional change. Since many of the doctrines – like corporate “rights,” for example, or corporate commerce rights – are wrapped up in the constitution, State legislatures are powerless to change them (even if they wanted to). Thus, long-term, the ordinances aren’t really ordinances at all – they’re mini-constitutions which embody what constitutional change must eventually look like. To achieve that constitutional change, enough communities in enough places must begin to push-back against the structure of law, and then knit themselves together to drive changes to the state constitution, and eventually, to the federal constitution.

    Whether we make it to that place or not is up to folks like those in Blaine Township, who are not willing to submit to a structure that guarantees that they will get drilled, mined, factory-farmed, or dumped on.

Q. Where is the authority to adopt ordinances like Blaine’s?

A.    Us mostly. When we stop looking for authority given to us by others, and instead understand that we need to create it ourselves, we’ll be one step closer to actually governing our own communities. And, of course, there’s plenty of authority – both legal and otherwise – for a system that is actually based on “consent of the governed.” The Declaration of Independence does a fine job of recognizing that when governmental systems no longer protect the rights of the people, that those systems must be abolished and replaced with ones that do. The Pennsylvania Constitution says the same thing, and the 1776 version of that Constitution declares that communities have inalienable rights of their own.