#12 power
Erica Gies

Environmental Justice Activists Take Back the Power

We no longer live in an age of kings; we live in an age of corporations. Corporations are arguably the most powerful entities on Earth, more powerful than governments in that they fund many governments, and above the law in that they often buy their way out of consequences for breaking laws. Certainly that feels true in the United States, home to many global megacorporations. And what feels true becomes true to the extent that people view challenging corporations as futile. But not everyone feels that way, and some people are fighting to reclaim some power for themselves.

These pushbacks usually spring from some local offense, when ordinary people see corporations doing something they don’t like in their backyards.

In Pennsylvania, sludge is spread on farm fields and fracking waste fouls rivers. Beloved institutions like universities and churches invest their money in fossil fuels. In China, manufacturers pollute drinking water.

But challenging business as usual requires David and Goliath fights because corporations are more powerful than individuals. But it wasn’t always this way.

Corporations have been methodically advancing their power for centuries, a tale that has been well told by Jim Hightower in his book There's Nothing in the Middle of the Road but Yellow Stripes and Dead Armadillos [1]; by directors Mark Achbar and Jennifer Abbott in their filmThe Corporation [2]; and elsewhere.

Early corporations were linked to colonialism and imperialism and sponsored by European governments. Initially, the United States followed suit, and the behavior of early corporations was closely monitored by the government. If a corporation’s behavior was judged to be threatening the public good, the government could revoke the charter.

But by the early 19th century, people began to embrace the Industrial Revolution and modernization and the role corporations played in those movements. Government policies softened accordingly, as politicians recognized that giving corporations more leeway could bring more revenue and taxes.

In the mid-19th century, British Parliament passed a law that limited corporate liability. This provision remains important in modern corporate law.

Perhaps even more important in the rise of corporate power is the concept of corporate personhood. Corporations now hold and exercise certain rights previously only available to individuals. In practice, that means that individual employees and shareholders are not legally responsible for the corporation’s debts and damages. Individuals who work at the company are liable for their own crimes on behalf of the corporation but are not liable for the corporation’s actions.

This important distinction can be traced back to an 1886 U.S. Supreme Court case: Santa Clara County v. Southern Pacific Railroad Company. In the introduction to the case, the court reporter wrote that the Supreme Court held that the Fourteenth Amendment equal protection clause – created to protect freed slaves -- granted protections to corporations as well as to individuals.This concept was used as precedent in future cases.

In the 20th century, laws in other countries also moved toward empowering corporations: state-owned corporations have been privatized; deregulation, in which corporate activity is less regulated by governments, became de rigueur; and mergers and conglomerates birthed megacorporations.

Today, corporations are so secure in their power that they seek to control governments.

Today, corporations are so secure in their power that they seek to control governments. In many cases they are succeeding. In a 1976 U.S. Supreme Court case, Buckley v. Valeo, the court ruled that political spending is a form of free speech, protected under the First Amendment. Most current U.S. politicians have accepted contributions from corporations and aren't likely to support proposed laws that would more tightly regulate corporations.

It is widely acknowledged that corporate money has tainted U.S. politics – perhaps fatally. Even well-known conservatives like Sen. John McCain have worked to limit corporate money in elections. McCain sponsored a bipartisan bill with Democrat Russ Feingold in 2002. A version of this bill ultimately became law, but critics argue that it was watered down to the point of being ineffective.

And case law continues to erode such attempts at reform. In 2010, the Supreme Court moved the Buckley v. Valeo ruling even further. In Citizens United v. Federal Election Commission, the court held that corporations, like individuals, have a right to free speech, and therefore corporate (and association and labor union) political spending is protected under the First Amendment.

Opponents of the Citizens United ruling seek a U.S. Constitutional amendment to abolish corporate personhood, which would ultimately allow greater regulation of campaign contributions. However, their efforts seem unlikely to bear fruit anytime soon.

Of course, poor and middle class individuals do not have the deep pockets that corporations do. So if campaign contributions are free speech, then effectively, corporations have more access to free speech than individuals.

Today, this history of case law, coupled with globalization, which takes these companies worldwide, puts them beyond the reach of many governments.

Corporate power often leads to environmental injustice. For example, when corporations pollute the environment, poor neighbors pay -- through higher taxes for externalized clean up costs, via higher health care bills, and with the ultimate cost, sickness and death.

Community Environmental Legal Defense Fund

One legal nonprofit group has decided to counter corporate power not by undercutting corporations directly but by strengthening the rights of those with competing interests: natural ecosystems and local communities.

The Community Environmental Legal Defense Fund, based in Mercersburg, Pennsylvania, writes and promotes new laws that give nature rights. Instead of being regarded as property, CELDF argues that natural communities have the right to exist and flourish, and that local residents have the legal authority to advocate for those rights on behalf of local ecosystems.

One such law was passed in August by the Niles, Ohio, city council. Its Community Bill of Rights Ordinance asserts the rights of city residents and the natural environment to fresh water, freedom from chemical trespass, a sustainable energy future, and local self-governing authority. To protect these rights, the Ordinance also prohibits shale gas and oil operations. The law was in response to a drilling corporation's application to drill a well on the city's Main Street.

CEDLF's broader fight started a decade ago, when a few Pennsylvania towns recognized that they could not prevent the state and federal governments from forcing factory farms into their communities. In response, CEDLF helped the townships adopted community bills of rights that ban such projects as violations of the community's right to a sustainable energy and farming future.

States often support corporate interests because of the tax base they bring.

In the past, such ordinances were viewed as toothless, subservient to state laws or permits. And these efforts aren't going unchallenged. States often support corporate interests because of the tax base they bring, and so these initiatives typically spur a volley of competing court cases. But CEDLF is fighting for these local laws at the state level and is hoping to create strength in numbers.

Today, CELDF is working with 150 communities in eight states, banning fracking for shale gas, factory farming, sludge dumping, large-scale water withdrawals, and industrial-scale energy projects. In its vision of the future, cities and town will be free to make their own decisions about their communities and will be able to build economically and environmentally sustainable industry.

Internationally, Ecuador has taken a similar approach. In 2008 the country passed a constitutional amendment that recognizes the inalienable rights of ecosystems to exist and flourish and gives people the authority to petition on their behalf.

Using this amendment, landowners in Loja, Ecuador, brought a lawsuit in 2011 to stop road construction debris from being dumped in the Vilcabamba River. The court ruled in their favor, stopping the dumping.

Back in Pennsylvania, CEDLF is also seeing some success. Last spring, local newspapers in Pennsylvania sought to unseal the secret agreement between a family who claimed harm from water contamination from fracking and the gas corporation Range Resources, which argued that unsealing the agreement would violate its right to privacy. A Pennsylvania county court declared that corporations are not persons under the Pennsylvania Constitution and therefore cannot elevate their rights above the rights of people.

Still, it's too early to tell whether such victories will ultimately make inroads against corporate power.

Fossil Free International

Another U.S.-based movement is taking a pragmatic approach to hit corporations where it hurts: the bottom line. This is an old idea. For decades there have been socially responsible mutual funds and investment institutions that screen companies so that investors may steer clear of environmental, social, and moral wrongs. Such investors avoid, for example, oil companies, arms manufacturers, and garment manufacturers that treat workers poorly.

But the new Fossil Free movement aims to leverage such concerns beyond the individual investor. Activists concerned about climate change are specifically focused on halting investment in fossil fuels. The Fossil Free International campaign convinces universities, towns, churches, and other institutions to stop investing in the fossil fuel industry.

Echoes of similar efforts can be seen in international lending institutions, such as the World Bank, whose board decided in July to limit the financing of coal-fired power plants to "rare circumstances." The European Bank for Reconstruction and Development (EBRD) is currently under pressure to do something similar. Such agencies' raison détre is to help developing countries grow economically. Now, the argument goes, they must only fund responsible development that won't undermine the country's growth longer term.

There is room for interpretation on what constitutes "responsible" development. For example, campaigns to convince international lending institutions, including the World Bank, not to support large dams succeeded in the mid-1990s but are now stumbling, as the institution is once again arguing that such projects improve local infrastructure and fight climate change.

China, Documentation

Other groups and activists are trying to shame corporations into more responsible action, waging publicity campaigns to convince product consumers to bring pressure to bear on corporations to act right.

One of them is Ma Jun, a Chinese activist who is working to get companies to stop polluting. He won the Goldman Prize for grassroots environmental activism in 2012 for his work as director of an independent research organization, the Institute of Public and Environmental Affairs, in Beijing.

The institute has compiled a database containing tens of thousands of records of air, water, and solid hazardous waste pollution by all kinds of companies operating in China. The database received a big boost in 2008 when China introduced a law requiring public disclosure of government documents on violations. But enforcing corporate accountability for pollution in China is particularly hard due to the multi-tiered supply chains that are the hallmark of globalization.

"Globalization creates a disconnection between manufacturing and the market," Ma told me in 2012.

Despite the fact that the institute has no regulatory authority, the database acts an accountability mechanism for multinational corporations.

The institute focused first on the IT industry, targeting Apple in particular, both because its products are so popular and because it was particularly uncooperative in working with his group. The institute's investigative reports, which identified suppliers and documented environmental violations, ultimately did push Apple to clean up its act.

When Apple finally approached the institute, "It was a meeting of two ends of the world," said attendee Linda Greer, director of a health program at Natural Resources Defense Council, a U.S. environmental nonprofit group. "It's a Chinese activist, who sees one end of this operation, these factories where there's giant environmental damage. And then there's corporate headquarters that are literally not even believing that that is the case."

The institute is targeting textile corporations now.

These groups' efforts -- through law, investments, or public relations -- show that corporate power is not invincible. Still, the power differential between corporations and individuals is dramatic, and the battles are long. These remain David and Goliath fights.

But the rise of social media is enabling small guys to find each other and gain strength in numbers. Even small victories become beacons to others. People who feel powerless when corporations wrong them would do well to remember that David actually won.

Footnotes

[1] Amazon book link to "There's Nothing in the Middle of the Road but Yellow Stripes and Dead Armadillos" http://www.amazon.com/Theres-Nothing-Middle-Stripes-Armadillos/dp/0060929499

[2] Film "The Corporation" by by directors Mark Achbar and Jennifer Abbott http://www.thecorporation.com

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