Large-Scale Water Extraction in Maine

(The following is extracted from a flyer produced by Protect Our Water and Wildlife Resources [POWWR])

Here’s why we think it’s a bad idea:

• It turns a substance necessary for all life into a commodity sold for profit by a few.
• The amounts proposed for extraction are unprecedented. Science can’t yet prove, therefore, that such extraction will not do irreversible harm to Maine’s environment.
• Water-bottling, given the adequacy of private and public water-supply systems in this country, is almost totally unnecessary. It therefore wastes energy at the same time that it becomes, itself, a source of pollution.

If you agree with us and want to prohibit large-scale water extraction in your community, here is a key fact you should know:

Traditional town ordinances* only REGULATE large-scale water extraction. Under current interpretation of the law, they’re NOT PERMITTED TO FORBID IT.

And that’s because U.S. court decisions, accumulating over the years, have established as “law” the idea that corporations shall be viewed as “persons”  who must not be denied their Constitutional rights to “life, liberty and the pursuit of happiness.”

* Town ordinances are locally-written rules that have the power of law.  Some Maine towns already have regulatory ordinances pertaining to large-scale water extraction in their communities; some have none.

But what happens when the goals of corporations conflict with those of real people?

And when those goals threaten real people with the potential for real harm?

And when – as in the water-extraction issue in Maine right now -- the contest has become hugely lopsided because the corporations have become big, international, moneyed, and thus powerful almost beyond imagination?

Shouldn’t the PEOPLE’S RIGHTS trump those of corporations?

We think the answer to that question should be a loud, resounding YES!

HOW DO WE GET THERE ??

THROUGH RIGHTS-BASED AND LOCAL SELF-GOVERNANCE ORDINANCES.

Rights-based and local self-governance ordinances reject the concept of corporation “personhood” and all the regulatory law that’s been built upon it. Their legality is firmly grounded, instead, in constitutional law, which is actually older and more basic than regulatory law. Such law, both federal and state, clearly views “the people” as the source of legal authority. That view is almost nowhere more clearly stated than in Article I, Section 2, of The Constitution of the State of Maine. It reads:

All power is inherent in the people; all free governments are founded in their authority and instituted for their benefit; they have therefore an unalienable and indefeasible right to institute government, and to alter, reform, or totally change the same, when their safety and happiness require it.

A rights-based and local self-governance large-scale water extraction ordinance voted into law in your town will use precisely that authority to strip a potential corporate extractor of its “personhood” powers and thereby:

• offer voters a clear-cut choice, through a Yes or No vote, on whether or not (not how) they want an extractor operating  in their town;
• allow voters to make that choice themselves, unfiltered by selectmen or other officials.

In so doing, the rights-based ordinance restores to citizens their democratic right to participate in the vital decision-making that shapes the character of their own communities, and it restores that balance of power between corporation and citizenry that is critical to the operation of a democracy.

The small towns of Shapleigh and Newfield, following the lead of towns in New Hampshire and multiple other states, have just led the way in Maine (early in 2009) in adopting rights-based ordinances. From their experience come these answers to some frequently-asked questions.

Q  If our town has a regulatory ordinance that’s very strict, won’t that be sufficient to prevent an extractor from wanting to come -- and to protect us even if one does come?

A   No, because once all the terms of a regulatory ordinance have been met, extraction MUST be allowed. And when extractors with deep pockets are thwarted, either before or after instituting extraction, their pattern is to take a town to court. Moreover, if denied a permit to operate, extractors can sue for “loss of future profits.” The result: a town in debt – and a corporation that gets to claim legal fees as the tax-deductible cost of doing business. Rights-based ordinances deny extractors all of those options.

Q  Doesn’t the adoption of a rights-based ordinance guarantee that a town will end up in court?

A  Because rights-based ordinances are new to the law, their legality  will probably eventually be tried in court. That hasn’t happened yet, perhaps because the corporations involved don’t want to be seen as blatantly opposing the people’s will. By contrast, lawsuits launched by corporations to challenge regulatory-law ordinances are very probable, and their defense is likely to be more costly because the issues involved are multiple and more complicated.

Q  Doesn’t Maine’s Department of Environmental Protection provide us protection in these matters?

A  No, because its role is also ultimately to facilitate the permitting process relative to DEP terms.

Q Can’t we protect ourselves by diligent monitoring of the extraction process?

A No, not in Maine, because Maine permits extractors to self-regulate: extractors themselves do all the data collecting, and write and submit their own reports.

Q Do local rights-based ordinances prohibit ALL corporations in a community from functioning as corporations there?

A  Not at all. While rights-based ordinances do strip all local corporations of their accrued “constitutional,” or civil, rights (those in which they ask to be treated the same as “persons”), all other privileges of the corporate status – like limited liability – remain intact. Local corporations are thus free to conduct business as usual.   In the case of local water rights and self-governance ordinances already enacted, they apply only to a corporation proposing the extraction of water in the town for sale outside of the town. They contain exclusions to allow for such activities as farming and firefighting, and otherwise have nothing whatsoever to do with other local businesses conducting welcome and standard business operations.

Q What’s this about granting “rights” to “a tree”?

A  Under regulatory ordinances, our environment has been systematically degraded because trees, soils, water and other components of the natural world have been viewed as privately-owned property. Under that system, an owner may pollute, clearcut or dewater at will, regardless of destruction to nature-at-large, and regardless of the action’s impact on neighboring communities. Rights-based ordinances assert that nature (not individual trees, but “whole ecosystems”) “has [have] the right to exist and flourish”.  Municipalities then have standing in court to prevent single property owners from benefiting from environmental degradation harmful to whole communities’ health, safety, and welfare.

Q  Why don’t we tackle this issue at the state level instead of wrestling with it town by town?

A  We are, and with some success. But influential extractors have big money, and they use it not only to finance lawsuits, but to hire lobbyists, contribute to political campaigns, and purchase advertising. These tactics throw roadblocks on our route to progressive state legislation. Rights-based ordinances, enacted in town after town all over Maine, will give our legislators a message about what’s desirable in a true democracy.

Who’s in charge of our future?
WE ARE!

A water rights and self-governance ordinance says so, and gives every citizen

THE RIGHT TO SAY “YES” OR “NO!”

Get involved. Take a stand in your community.

To learn more, go to www.defendingwaterinmaine.org, and click on the “P.O.W.W.R.” link.

This flyer brought to you by:
Protect Our Water and Wildlife Resources
P.O.W.W.R., 185 Hooper Rd., Shapleigh, ME 04076