The Future of Environmental Law

by Richard Grossman

With few exceptions, people come out of law school without having questioned pro-corporate doctrines on property (i.e., future profits are corporate property, the fruits of employees' labor are corporate property, and the right to manage is corporate property). They accept today's giant corporations as inevitable. They don't seem to wonder how it came to pass that corporations became legal persons with free speech and other constitutional rights, while workers on company turf have no Bill of Rights protections.

They do not encourage the rest of us to ask why a sovereign people should permit corporate legal fictions to elect our representatives, write and pass our laws, or lie to the public on vital issues.

Environmental and labor lawyers are trained not to challenge prevailing assumptions about the law, and to accept current legal doctrines. And then they train us.

Corporate lawyers, government lawyers, and environmental lawyers have all been funneling people's time, energy and resources into stacked regulatory and administrative law arenas, where even if we "win," we don't win much. This arena provides few mechanisms to shift rights and powers from corporations to people, communities, and nature.

Movement lawyers should take their cues from the activists on the ground. Local organizers should say to the legal profession: "These investments and operations are destructive, uneconomical, and wrong. But they are protected by law and, therefore, by the government. We will educate and organize to stop these harm-doers. We need public interest lawyers to figure how we can use the law and the courts to help us, or at least not block us. Please don't lecture us about what we can't do. Don't come up with legal strategies which enable corporations to hide behind the privileges and immunities which corporations have taken from the people. And please don't tie our hands."

Environmental law groups, such as NRDC, EDF, and SCLDF, were formed 20 to 30 years ago, mostly by young men just out of law school. When these men were law students, the "Critical Legal Studies" movement was not yet a presence within law schools. The first national conference on Critical Legal Studies was held in 1977. So as students, they were not exposed to even the modest questioning of curriculum and law professor biases, which goes on in many law schools today.

Some of these environmental law groups received immediate support and financial backing from powerful philanthropies like the Ford and Rockefeller foundations, and from law firms that represented large corporations.

Today, these groups define the legal agenda of environmentalism. They drive much of the environmental movement towards permitting and disclosure laws administered by federal regulatory and administrative agencies.

Each wave of environmental activists has had to confront these legal groups eager to transform our struggles from making investment and production decision making a more public process (in other words, decreasing corporate power). Instead, they have sought mechanisms to determine acceptable amounts of corporate poisons and corporate clearcuts, and compensation for corporate harms. They would even have the public give greater profits to corporate leaders to encourage them to act more responsibly.

We've seen campaign after campaign for citizen authority over corporations diverted into regulatory agencies and the courts, where all parties toe the line of managerial prerogative and other claimed corporate property rights.

As an anti-nuclear organizer in 1974 seeking to stop the construction of new nukes and to shut down existing plants (not make them "safer"), and to revise the legal relationship between people and energy corporations, I vividly recall the hostility I encountered in Washington, D.C. when I inquired what help some of these groups would give us. I was astonished at their reaction, and it took some time before I began to understand it.

In fact, most popular struggles - labor, civil rights, environment - have been taken out of the public's hands. Trade unionists allow their rights as organizers to be defined not by the power they wield but by the National Labor Relations Act. Years of protest by civil rights activists led to federal laws such as the Voting Rights Act, which are much less than what people had organized and died for.

Decades ago, the American people accepted the alarms of activists and said: OK, we want clean air, clean water, and wildlands preserved as national parks, forests, and wilderness areas. Our movement's lawyers and corporate lawyers wrote the laws.

What did we get? Laws which legalized the poisoning of the air and water, which legalized clearcutting, which left unchallenged the privileges and immunities which corporations had usurped during the past century, and which concentrated power in the hands of appointed regulators and administrators insulated from our reach.

Today, our regulatory and administrative laws are a stacked deck, granting corporations legal clout while disadvantaging people, communities and nature. The National Environmental Policy Act (NEPA) does not mention corporations, and requires nothing of corporations. The Taft-Hartley Act was written by corporate lawyers. Yet, our environmental and labor lawyers let these laws define our arenas of struggle, our aspirations and our strategies. And we let the lawyers shape what and how we think.

So much hope has been invested in creating, enforcing, and reforming these diversionary laws. So much time, energy, and resources.

Look at the roles of EDF and NRDC and Conservation Law Foundation in the area of energy. Under the banners of "demand side management" and energy efficiency, these groups - with philanthropic assistance and cover - have helped utility corporations get higher rates of return and decrease the powers of state public utility commissions to direct utility corporate executives to act. They have helped utility executives move decision making behind closed doors. All in exchange for some voluntary corporate conservation and efficiency investment.

Utility corporations such as Pacific Gas and Electric and Southern California Edison - regulated monopolies which by law are required to serve the public interest - took their extra profits and set up subsidiary corporations in Mexico and elsewhere to build big new fossil burners. And still, corporate executives flood state capitals and Washington to turn our elected officials against citizens' agendas. They spread their lies, intimidate people, and frame what little semblance of public policy debate we have.

Now they are backing off from their energy efficiency promises because they smell bigger profits from new energy wheeling laws they wrote and enacted.

And environmental law organizations remain these utility corporations' biggest defenders!

Over the past 25 years, environmental lawyers have been assuring the American people that with each new law the air and water and wilderness were being protected, that our children's health was being protected, that we were on our path to using energy efficiently and cleanly. Don't worry, they said. And as a movement, we have not challenged corporations' claimed constitutional rights to make all the important capital and production decisions.

We have not made people's constitutional rights in economic and employment decision making a movement goal. We haven't even placed it on our legal agenda.

No wonder the public is vulnerable to corporate agitators and their Wise Use creatures inciting environmental backlash.

The agenda at the 1995 Land Air Water (LAW) Conference in Eugene, Oregon - organized by the students and professors at this leading environmental law school - reflected and reinforced this history and perspective.

There are scores and scores of workshops and speeches. But where are the sessions on creative legal strategies to stop corporate harms? On the role of lawyers in social movements? On withdrawing privileges and immunities from corporations? On empowering people and communities to design investment, production, and labor transitions?

Who will lead discussions about property and sovereignty? About the legal doctrines which empower corporate executives? About corporate history? About corporate law and what corporate lawyers do? About judge-made law? About citizen efforts in previous eras to define and dismantle corporations, to confront biased courts and legal doctrines which were patently anti-people and anti-life? About revoking corporate charters? About ending corporate personhood?

The LAW conference's closing speaker was Willian Futrell, president of the Environmental Law Institute. In a speech last September, Futrell made the astounding and rather courageous concession that our environmental laws have not worked. He said that: "environmental law is too limited in its ambition . . . has been an afterthought to . . . the deeper bedrock law of the American system - the property, tort, contract, liability, transactional, and constitutional laws."

Futrell recommends that "we should reexamine our property rights principles . . . focus on finding ways to integrate factors into private sector decision making." This is good advice, as far as it goes. But Futrell claims that "the US Constitution has ensured that major decisions concerning the investment in, and development of, natural resources are made in the private - not the public sector." Futrell shouldn't blame the Constitution for this situation, but those who dominated its interpretation over the past century: corporate lawyers, judges (often one and the same), and politicians in the corporate thrall.

Futrell does not refer to the decades before the 1870s, when both law and popular culture reflected that the use of natural resources - of the American commons - was very much a realm of public decisions - until railroad, banking, and land speculator corporations began to steal the public lands and resources in vast amounts, and to change the law. He also does not refer to the era before the Civil War when the law of the land - as decided by the Supreme Court - declared slaves to be property with absolutely no legal rights.

He does not mention corporations in his talk, or the efforts corporations have expended to change legal doctrines and laws. He does not explain the governing roles corporations play today as they tax, direct massive amounts of capital, intimidate whole communities, control jobs, production, trade and technology; poison and destroy; dominate our elections, write and pass our laws; educate our judges in the jurisprudence of corporate protectionism; shape public policy debate.

Futrell does not talk about the influence which corporate wealth and power exert on law schools, law professors, law students - on our educational system and on our culture as a whole.

Futrell suggests that we need new legal doctrines. For what? His answer: "to make the market itself work to guard nature."

Perhaps we can figure out ways to use price mechanisms to achieve certain societal goals. But will the market be up there at Cove/Mallard stopping corporate bulldozers and chainsaws? Will the market save and restore salmon streams? Will the market change forestry practices on public lands, which timber corporations have taken as their private timber reserves? Will the market protect native peoples' sovereignty? Biodiversity?

Will the market get corporations out of our elections, our legislatures, our judges' chambers, our law schools? Will the market change the behavior of the senator [Hatfield] Jeffrey St. Clair calls the Merchant of Menace? Will the market enable people to do work which makes sense and pays a living wage?

Where are people in Futrell's world of law? Why can't we the people create the legal doctrines we need to fulfill the promises and ideals of the American Revolution - so that finally we can govern ourselves . . . so that we can guard nature . . . so that we can decide what work we want and need to do, and that we can control the conditions of our work . . . so that we can guard our health and our communities too?

Why stop so short of saying that we the sovereign people can design any institutions of commerce we want to help us meet our needs . . . that once upon a time in the United States we did, but today our institutions of commerce design us?

Why does Futrell censor himself so?

The classic study of "bedrock" law is by Harvard professor Morton Horwitz. It is called, appropriately, The Transformation of American Law. That is precisely what corporate lawyers succeeded in doing by the end of the 19th Century. Another scholar, Martin Sklar, called it a "corporate reorganization of the production/property system." This is what corporate leaders have been perfecting throughout the 20th Century. It is what we face today.

Environmental lawyers have placed our movement's hopes in regulatory and administrative agencies - and federal appeals courts. In those political arenas, they work hard to limit corporate harms one-by-one or corporation-by-corporation.

But the history of such laws suggests that (starting with the Interstate Commerce Act of 1887 and the Sherman Anti-Trust Act in 1890) they were used to divert human beings from organizing to get power over corporations.

Just at the time when the Supreme Court was bestowing upon corporations legal personhood, corporations were working children to death and using convicts to break strikes. Carnage prevailed in the nation's mines and mills. By the 1890s, railroad corporations were killing 6,000 to 7,000 people per year and injuring over 30,000 people a year - employees, passengers, and just people who happened to get in the way.

The owners of western railroad corporations had walked off with 180 million acres of public land. Federal judges were declaring unions to be criminal conspiracies, and corporate and government troops were bloodying and killing working people who dared to organize for their lives, liberties, and pursuits of happiness.

The working people and small business people who organized Knights of Labor and the farmers, urban workers and intellectuals who built the Populist Movement sought ownership and control of railroads, banks, grain, and telegraph corporations because they realized that federal regulatory laws and agencies would become barriers between corporations and people.

They understood they needed "democratic money," and an end to the crop lien system so they could break the grip of the cotton merchants, of tool and seed suppliers. They sought cooperation, cooperatives, and sufficiency, instead of competition, hierarchy and maximum production of everything.

They struggled but were defeated by the combined might of the state and the corporate class. After their defeat, claims to rights and powers by corporate executives were legitimated by legal doctrine, law, courts, historians, and law schools.

Populists left us important legacies, but the reality of these legacies has been distorted. Regulatory laws were declared great victories for the people. And for the past century, citizen struggles for justice have been channeled into regulatory/administrative law realms and to the marketplace - as if those are the only arenas where a sovereign people is permitted to seek redress of grievances.

We have been playing by the rules of the corporate exploiters and destroyers, as they taught our lawyers, who taught us. Our challenge is to turn the tables, to begin piercing the corporate veil that has diverted and divided our movement. We need to talk about the contradictions between citizen sovereignty and the built-in limits of today's environmental legal strategies.

[Reprinted with permission of the author, and Wild Forest Review, April 1995 edition. Richard Grossman is a former director of Greenpeace and author of Fear at Work. Wild Forest Review is published 10 times a year. Subscriptions are $25. Contact WFR at P.O. Box 86373, Portland, OR 97286, 503-788-1994.]

Copyright Mendocino Environmental Center 1995

Richard Grossman is also co-founder of the
Program on Corporations, Law and Democracy

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