Ecosystem rights move forward in Washington County

By Mike Cronin
TRIBUNE-REVIEW
Tuesday, June 19, 2007

Slavery once was constitutional. So was prohibiting women from voting.

Absurd, right?

Some Pennsylvanians hope people have the same reaction years from now when they realize trees, streams and soil did not have constitutional rights in 2007.

An environmental group in Chambersburg is working with towns throughout the country to grant legal standing to ecosystems. That strategy, hatched by Thomas Linzey, executive director of the Community Environmental Defense Fund, asserts municipalities' powers of local control.

Linzey's nonprofit helps communities draft ordinances to enforce their own decisions. Four Pennsylvania towns have passed laws granting rights to Mother Nature since September.

Tamaqua in Schuylkill County was the first in the state -- and the nation. Its leaders decided to prohibit corporations from dumping waste in the borough. Blaine Township, near Taylorstown in Washington County, became the third in October and the first municipality in the United States to try to ban mining.

"We have a complex ecological treasure here," said Michael Vacca, 48, the vice chair of Blaine's planning commission. "So the logical step was to pass ordinances to preserve what we have."

Blaine's three township supervisors refused comment or did not return phone calls for this story.

But Vacca and Linzey face a behemoth. Against them are federal and state laws and centuries of legal precedent.

"It's pretty well established that townships don't have this authority," said Tom Hoffman, spokesman for Upper St. Clair-based Consol Energy, which owns coal reserves in Blaine.

Even Dan Surra, an Elk County Democrat who enjoys consistent support from environmental groups, and founded one himself, believes property rights trump local ordinances.

"I see some real constitutional problems with (those township ordinances)," he said. "A better way to do this would be the community purchasing the ground and putting a permanent easement on it."

Ben Price, projects director for the Chambersburg group, argues that's wrong. He and Linzey are challenging the American legal system's reliance on property ownership -- which has its roots in centuries-old English law -- to convey legitimacy. They seek to expose those laws as bogus.

"Right now, property rights of a corporation are superior to health and welfare rights, quality-of-life rights," Price said. "No community has the ability to stop any destruction of the environment."

Today's regulatory system legalizes the orderly destruction of ecosystems, Linzey said.

"For example, if a stream becomes polluted, there's no remedy for (cleaning up) the stream under the existing structure of law," Linzey said. "Instead, the law is for people, like fishermen, who use the stream. They can sue for monetary damages.

"What we're advocating is a wholesale paradigm change: that Nature is not just property. We're saying natural communities have an inherent right to exist and flourish."

Price acknowledges the environmentalists face a daunting task. But it took decades before abolitionists celebrated the end of slavery in 1865 with the 13th Amendment, he said. And women could not vote until 1920, when Congress enacted the 19th Amendment.

In both cases, activists claimed the laws authorized at the time by the Constitution were illegitimate, Price said.

"Abolitionists didn't form a slavery protection agency like the Environmental Protection Agency," Price said. "They challenged the unjust structure of the law."

Transforming U.S. legal culture can be done, said Jeff Kerr, legal counsel for the People for the Ethical Treatment of Animals, based in Virginia. But it's a process, he said. Kerr and his colleagues are fighting a similar battle, attempting to secure animal rights -- and often stage radical events to get their message across.

"The similarity we share is an overcoming of prejudice," Kerr said. "It's why we start at the grassroots level. We put information out there so people will change their attitudes and behavior. The laws will follow."

But George Ellis, president of the Pennsylvania Coal Association, a Harrisburg organization that lobbies for the state's coal industry, called Blaine's ordinance requiring companies to sell their coal rights "ludicrous."

"That's an unconstitutional taking of property," he said.

About 20 years ago, the association defeated another effort to enforce local control in court, Ellis said. Conemaugh in Cambria County imposed mining regulations that were more stringent than state standards.

"You can't have one municipality enacting one set of rules, then another enacting a different set," Ellis said. "State mining law preempts local regulation of mining."

Nils Frederiksen, the Pennsylvania attorney general's spokesman, wanted to know: "If (the Community Environmental Legal Defense Fund) is going to encourage municipalities to violate state and federal laws, who's going to pay for that?"

Even Washington County Commissioner Larry Maggi, 56, a former sheriff who has lived in or next to Blaine his entire life, has doubts about the success of the township's local-control ordinances.

"I certainly applaud their efforts and the reasons behind them," Maggi said. "But there's no question they're going to be challenged by the coal-mining companies. I'm somewhat concerned that they won't hold up in court."

Mike Cronin can be reached at mcronin@tribweb.com or 412-320-7884.

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