Sludge Watch ==> When is a sewage sludge corporation like a freed slave?

[Maureen Reilly]

Sludgewatch Admin:  This is about curbing the power of corporations to 
protect the public interest.
Using constitutional arguments to protect communities from sewage sludge.

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http://www.motherjones.com/news/feature/2006/11/when_is_a_corporation_like_a_freed_slave.html



When Is a Corporation Like a Freed Slave?


News: In rural Pennsylvania, township supervisors battling sewage sludge and 
hog manure stumble up against one of the biggest mysteries in constitutional 
law.

* By Barry Yeoman*

November/December 2006 Issue 
<http://www.motherjones.com/toc/2006/11/index.html>



Licking Township, Pennsylvania, is a rolling swath of soybean fields and 
pastures in Clarion County, two hours northeast of Pittsburgh, with 500 
residents and quite a few more cattle. Drive past the township hall, a 
converted one-room schoolhouse, and you might see a horse-drawn buggy parked 
in front, with an Amish family clustered around the pay phone outside. 
Farther down the road, you’ll notice a rusty coal dragline tucked into the 
woods, stranded like the hull of an old freighter, a souvenir of the 
township’s 20th-century mining boom. Among Clarion County’s biggest events 
are the annual Horsethief Days, featuring bed and lawn mower races. In these 
parts, Republicans outpoll Democrats 2-to-1. "If you could picture the heart 
of Bush country north of the Mason-Dixon Line, this is it," says Mik 
Robertson, a produce farmer and one of the township’s three elected 
supervisors.

Four years ago, Robertson and the other supervisors were debating an 
ordinance to restrict the spreading of toxics-laden sewage sludge on local 
fields--a major issue in an area that has become a destination for waste 
from Pittsburgh. The supervisors knew that messing with big business could 
come at a price: Three years earlier, another Pennsylvania township had 
passed an anti-sludge ordinance, only to be sued by a sludge hauler called 
Synagro, which argued that the township had infringed on its rights under 
the 14th Amendment, passed after the Civil War to guarantee "equal 
protection" to all. Synagro could make that argument because since the late 
19th century, the Supreme Court has defined corporations as legal "persons," 
conferring on them many of the same rights that belong to flesh-and-blood 
citizens. And so, Licking’s supervisors did something that has been 
variously described as creative, futile, or out-and-out revolutionary: They 
passed an ordinance declaring that henceforth, in their township, 
"Corporations shall not be considered to be ‘persons’ protected by the 
Constitution of the United States."

The measure was the brainchild of a brash 37-year-old attorney named Thomas 
Linzey, who has made a name for himself around the country taking on the 
principle of corporate personhood--an idea and legal precedent that 
undergirds much of the past century’s rise in corporate power. The director 
of the Pennsylvania-based Community Environmental Legal Defense Fund, Linzey 
sees Licking Township’s action as one of the opening shots of a movement 
that will redefine American democracy. "It’s about going on the offensive," 
he says. "The dream is that 30 years out--and my heart sinks, because I 
don’t know if we even have 30 years from an environmental perspective--other 
places will join hands as well, and lead to a rewrite of the U.S. 
Constitution."

Linzey was fresh out of law school in 1995 when he set up the Defense Fund, 
a group that worked mainly with African American communities battling 
incinerators and waste dumps. The activists would scour a company’s permit 
application for technical errors, often persuading authorities to reject the 
facility. "We’d have a victory party," Linzey says. "Everybody would pat 
themselves on the back. Well, what would happen three months later? The 
corporate boys would be back, and they’d say to us, ‘Thank you very much.’ 
We were actually identifying the gaps in their applications."

Clean-cut, stocky, and blue-eyed, Linzey comes across as temperate, perhaps 
a little standoffish. But in front of a crowd, his voice takes on a 
preacher’s timbre. His favorite verb is "drive" in its most aggressive 
sense--as in, "True people’s movements seek to drive rights into the 
Constitution."

As Linzey kept racking up defeats through the ’90s, he concluded that the 
regulatory system was a distraction, or worse. "We were working off a script 
that we hadn’t written. After billions of hours spent by community groups 
around the nation"--and here his face reddens and his hand slams the 
table--"nothing was better. Nothing." Activists, he believed, were being 
channeled into an unwinnable process "like cattle through a chute": As long 
as the law placed the same value on corporate rights as it did on those of 
individuals, corporations would always triumph.

Though corporate personhood is now thoroughly ingrained in U.S. 
constitutional law, it would have been a foreign notion to the founders. For 
much of the nation’s first century, corporations were seen as a means to an 
end, not unlike associations. They were "chartered," or called into 
existence, by the states, and their charters could be revoked at any time (a 
legal possibility now back in vogue among activists in several states); they 
were not considered "persons" until after the Civil War, when business 
magnates began to avail themselves of the 14th Amendment’s 
antidiscrimination protections. In the landmark 1886 Supreme Court case 
Santa Clara v. Southern Pacific, a railroad company refused to pay a special 
county tax in California, arguing (much as sludge hauler Synagro would do in 
Pennsylvania more than a century later) that to treat it differently from 
everyone else violated its constitutional rights. Speaking from the bench, 
Chief Justice Morrison Waite announced, "The court does not wish to hear 
argument on the question whether the provision in the 14th 
Amendment...applies to these corporations. We are all of the opinion that it 
does."

After Santa Clara, federal judges began granting more and more rights to 
nonliving "persons." In 1922, the Supreme Court ruled that the Pennsylvania 
Coal Co. was entitled to "just compensation" under the Fifth Amendment 
because a state law, designed to keep houses from collapsing as mining 
companies tunneled under them, limited how much coal it could extract. In 
1967 and 1978, businesses prevailed in Supreme Court cases citing the 
search-and-seizure provisions of the Fourth Amendment as protection against 
fire and workplace safety inspections.

Corporate lawyers have also taken a shine to the First Amendment. In 1978, 
the Supreme Court agreed with corporations claiming that the state could not 
limit their political spending in an antitax campaign. Almost two decades 
later, a federal appellate court struck down a Vermont law requiring that 
milk from cows treated with bovine growth hormone be so labeled. Dairy 
producers had a First Amendment right "not to speak," the court said. In 
California, Nike invoked the First Amendment to fight a lawsuit arguing that 
the company’s public relations materials misrepresented sweatshop labor 
conditions.

Most recently, the Retail Industry Leaders Association has relied on the 
14th Amendment’s equal protection clause to fight Maryland’s Wal-Mart law, 
designed to force the company to expand its spending on employee health 
care. The retail group has also sued Suffolk County, New York, which last 
fall passed a similar ordinance aimed at nonunionized supermarkets.

Defenders of corporate rights argue that while the concept may be 
counterintuitive, the alternative is worse: "If for-profits didn’t have 
First Amendment rights, then Congress could pass a law requiring every 
retailer to fly an American flag out front," notes Kent Greenfield, a law 
professor at Boston College who has written extensively on corporate 
accountability. Ditto for the Fourth Amendment: "Would we really think it’s 
a good thing for the fbi to go into any establishment without a search 
warrant?"

Yet given corporations’ enormous resources, "equal rights" for industry can 
mean huge advantages--especially in the political arena. Last year, for 
example, Wal-Mart poured almost $400,000 into a ballot initiative to 
overturn a ban on certain big-box stores in Flagstaff, Arizona. Included in 
the media campaign was a newspaper ad comparing Wal-Mart’s opponents to Nazi 
book burners. The retailer apologized but prevailed nonetheless, by 365 
votes out of more than 17,000 cast. "What you’ve seen is the subsuming of 
the political process to the corporate agenda," says Thom Hartmann, author 
of Unequal Protections, a book about corporate personhood.

By the late 1990s, fear and anger over sludge application in rural 
Pennsylvania--fueled by the deaths of an 11-year-old who got sick after 
riding his dirt bike through a sludge-treated field, and a 17-year-old who 
fell ill after exposure to sludge at a farm--was running high. Thomas Linzey 
found himself fielding calls from local officials desperate for ways to 
battle the "biosolids" applicators, as well as the corporate hog farms whose 
stench sickened people for miles around. Municipalities had been used to 
keeping those nuisances at bay with their own waste ordinances; but in 1997, 
in response to agribusiness lobbying, the state began enforcing a law that 
invalidated the local rules. Residents packed schools and fire stations to 
air their grievances. "These are the people with the shitkickers and the 
John Deere hats," Linzey says. "These are the people who salt the roads in 
the wintertime and fix the roads in the summertime. We had rural farmers 
coming to community meetings with the Declaration of Independence in their 
back pockets."

To help the townships, Linzey wrote model ordinance after model ordinance. 
One banned corporations from owning farmland, an idea found on the books in 
nine states; 12 local governments in Pennsylvania passed it. Another banned 
companies with previous environmental violations from doing business in a 
township; 5 municipalities adopted that one. An ordinance requiring 
companies to do extra testing of sludge for health dangers has passed in 
more than 70 townships.

Business took note. The Pennsylvania Chamber of Business and Industry’s 
newsletter editorialized against a "stronger force than evil space invaders: 
the radical agenda of militant environmen­talists that seems to have taken 
possession of the township supervisors." One corporation sued, claiming that 
the township’s restrictions violated its rights with regard to "equal 
protection, due process, taking without just compensation, and rights 
guaranteed under the commerce clause." Last year, agribusiness took the 
fight to the state Legislature, supporting a law under which the state 
attorney general could sue any local government for passing an ordinance 
that "prohibits or limits a normal agricultural operation." (The first four 
such lawsuits were filed this past June.) During debate on the measure, says 
Linzey, "the suits were out in full force. It was about the heaviest type of 
lobbying we had ever seen."

Into this fray stepped Supervisor Robertson, a former Peace Corps volunteer 
who had moved back to Licking Township in 1999 with his wife to grow 
tomatoes, berries, and garlic on a 95-acre farm fertilized with llama and 
goat droppings. In Licking Township, the chief qualification for supervisor 
is the ability to drive a road grader--elected officials do the 
pothole-filling themselves--and 42-year-old Robertson was appointed to fill 
a vacancy on the board. He’s run twice since then, unopposed. "You don’t 
have people beating down the doors to do this kind of stuff," he says wryly.

In 2002, Robertson learned that several farmers in Licking Township were 
planning to spread sludge on their fields, and he called Linzey. They 
discussed tightening local waste regulations, and then Linzey mentioned a 
model ordinance he’d written to strip corporations of personhood. "The more 
I looked at that ordinance, the more I liked it," says Robertson, "and the 
more I realized that it had implications well beyond sewage sludge. This is 
an issue that is really fundamental to American government." The measure 
passed unanimously, making Licking the second Pennsylvania township to take 
such a stance. Somewhat to Linzey’s disappointment, no one sued.

People fighting corporate personhood like to think of themselves as heirs to 
the American Revolution. "The colonists realized they needed to tear up the 
very roots of colonialism, including corporate rule," says Jeff Milchen, 
director of the Montana-based ReclaimDemocracy.org, a fledgling group 
focused on corporate power. Indeed, the Revolution was partly an 
insurrection against entities like the East India Co., whose monopolistic 
tactics triggered the Boston Tea Party in 1773. The ordinances passed by the 
Pennsylvania townships, Milchen and others believe, are the modern-day 
version of such a backlash.

Linzey has his revolution all mapped out. First, local governments will keep 
passing anti-personhood measures until one of them triggers a lawsuit in the 
federal courts. This, in turn, will force the judiciary to reconsider the 
constitutional principles involved. Linzey doesn’t expect to win such a 
case: "People are colonized to think we can turn to the courts for remedy," 
he says, "and that the judge will hit himself on the forehead and say, ‘Oh 
my God, 200 years of corporate rights are wrong.’" Rather, Linzey expects a 
ruling in favor of corporations to "rip away the veil of disbelief," 
prompting even more grassroots organizing and local lawmaking. "You treat 
the courts as a means to building an army," he says--one that will 
eventually lead to overhauls of state constitutions, and finally the federal 
one. The U.S. Constitution, he says, simply focuses too much on "property 
and commerce," and eventually pressure will build on Congress to call a 
convention and start from scratch.

For now, though, the campaign remains stuck at Step One. "I’m not eady to 
say we have a movement," confesses Milchen. "We’re not quite there yet." 
Notes Richard Grossman, who together with Linzey has taught a series of 
activist seminars around the country dubbed Democracy Schools: "The 
Populists had 40,000 lecturers organizing people across the U.S. We have 
five." Both Grossman and Linzey refuse to speak to journalists who haven’t 
undergone their three-day training session; I was the first, to their 
knowledge, to abide by that rule and attend the seminar, at which a dozen 
earnest activists underwent a combination of people’s history lessons and 
political shock therapy.

Last year, Linzey lost his biggest battle thus far: In a case involving a 
Pennsylvania developer, a federal judge called his personhood arguments 
"tortured" and "illogical" and said she had come "very close" to 
disciplining him for filing a frivolous lawsuit.

Lawrence Mitchell, a law professor at George Washington University and 
author of Corporate Irresponsibility, warns that Linzey’s strategy is 
draining energy from more important battles. "I work with a lot of activist 
groups, and I sit at meetings banging my head on the table," he says. "This 
is deeply embedded constitutional law that no one’s going to reverse." 
Mitchell believes activists’ energy would be better spent on reforming state 
laws to make corporations more accountable.?

And yet, Linzey, Grossman, and company keep drawing converts. The Democratic 
parties of Maine, New Hampshire, and Washington?state have passed 
resolutions opposing corporate personhood and the ?constitutional rights it 
confers. Last March, the 4,600 residents of ?Barnstead, New Hampshire, 
approved an ordinance--designed to ?shield the town’s water supply from 
commercial bottlers--that voids corporate personhood. And in California’s 
Humboldt County, where the timber giant Maxxam and its contractors spent 
more than $350,000 to recall a crusading district attorney, voters this year 
approved a ballot measure banning campaign spending by nonlocal businesses, 
and specifying that "No corporation shall be entitled to claim corporate 
constitutional rights or protections in an effort to overturn this law."

Linzey knows that his undertaking appears quixotic but--perhaps 
fittingly--betrays not a hint of uncertainty. "The abolitionists did not 
seek to create a Slavery Protection Agency, or to make conditions for slaves 
a little better," he says. "They understood the Constitution left them 
remediless, and the only thing they could do was to change it."