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Letter on Environmental Rights from Mari Margill, Associate Director, Community Environmental Legal Defense Fund.

I had the pleasure to speak at your 2015 convention in Delray Beach.

A key focus of the convention was global warming and what the League of Women Voters of Florida can do to stop it. Much of this discussion focused on fracking. While shale – or so-called “natural” – gas is touted as a cleaner fuel than oil or coal, fracking for shale gas has been found to be a major global warming polluter.

Florida’s legislature spent time this spring debating a bill to further regulate fracking. Indeed, environmental regulations for fracking sound like a good idea, but what do they actually do? In short, they allow fracking.

When we “regulate” an activity – whether it be fracking or otherwise – it means we’re allowing it, in fact legalizing it. Regulations may put certain conditions on an activity – such as setbacks or noise controls – but as communities across the country are learning, even when we better regulate shale gas drilling, we’re still getting fracked.

How can this be? Because our environmental laws regulate the use of nature.

Thus, under the federal Clean Water Act, coal corporations are authorized to blow the tops off of mountains. The New Hampshire Groundwater Protection Act authorizes corporations to siphon off hundreds of thousands of gallons of water a day from local aquifers to bottle and sell. Similarly, under state oil and gas laws – including Florida’s – corporations are issued permits to drill wells through our aquifers to frack for oil and gas.

Communities and groups across the U.S. are coming to an understanding of how our environmental laws actually work, and further, how these laws are part of our broader legal structure which protects fracking, mining, etc., and the actors who conduct these activities.

This larger structure of law – i.e., our constitutional structure – is aimed at constant growth, extraction, and development, rather than the protection of the environment or sustainability.

To protect that constant growth, the Constitution has been used to clothe corporations in “rights” – to insulate them from anything that may “interfere” with the endless expansion of their operations. As well, our state and federal government have been granted broad “preemption” authority, which similarly is wielded over communities, activists, and groups – to shield the existing system from attempts to change it.

Corporate “rights” – along with preemption and other core legal doctrines – form a structure of law that protects endless growth at the cost of people, communities, and nature. It’s a structure that is inherently unsustainable.

Communities, beginning in Pennsylvania and now in Ohio, New Hampshire, Maine, Oregon, Washington, New Mexico, Colorado, and other states, are recognizing that if we continue working within the current legal framework – which elevates the right of corporations to frack, drill, mine, etc., over the rights of communities and nature to not be fracked, drilled, etc. – we’ll get fracked, drilled, and mined.

That is, if we continue to try to stop individual harms like fracking, and don’t address the basic structure of law which legalizes those harms and ensures the endless extraction and exploitation of nature – then we’ll never be able to protect the environment, stop global warming, or achieve anything close to sustainability.

CELDF has partnered with nearly 200 communities across the country to begin to build a new framework – based on the rights of communities and nature to health and well-being – which necessarily addresses those key legal doctrines that communities and activists confront when they try to stop fracking or other threats – including corporate “rights” and preemption. They are doing this by advancing Community Bills of Rights laws which establish rights of human and natural communities. This includes a community’s right to self-govern, the human right to a healthy environment, and the rights of nature itself to exist and thrive. Fracking and other activities which would violate those rights are prohibited.

Communities are thus putting in place a new legal framework which for the first time legalizes sustainability. Many are advancing this through their local elected bodies, and others through the local citizens’ initiative process (which also exists in many Florida communities).

— Mari Margil, Associate Director, Community Environmental Legal Defense Fund

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