Fracking Democracy

A look at some of the ways the corporate elite has escaped democratic, local, accountable oversight and control of their actions. The focus of the article is on hydrofracking, but there are many industries where regulatory decision-making takes place far from where the environmental, economic or public health consequences are felt.

by Greg Coleridge. Posted March 7 on OpEd News
Industrial horizontal drilling with massive slick water hydraulic fracturing (known as "fracking") poses tremendous risks to our communities.

The plan to force toxic chemical-laced water at incredibly high pressure through shafts to fracture bedrock hundreds of feet below the ground of our communities to release natural gas threatens human health as well as our water, land and air.

But the threats are more than physical and environmental. They're political.

Industrial drilling for natural gas is fracturing the very bedrock of what's left of our democracy at the local level based on current laws.

Out-of-state gas drilling corporations lobbied the Ohio legislature in 2004 for ripping control from local communities in regulating and prohibiting gas drilling. The result was passage of HB 278. Support for this measure to place regulation under the Ohio Department of Natural Resources (ODNR) came ironically from many legislators who in general are skeptical of big "bureaucracies" and government control over communities and corporations in favor of "local control."

Not in this instance.

Sadly, such maneuvers are typical of corporations who fear communities exercising their democratic, self-governing muscles. Gas drilling corporations don't want to justify industrial drilling in a housing development or in a community before a local zoning board in the presence of angry community residents. Not many zoning boards pressured by an informed and active citizenry would decide to permit industrial drilling in an area zoned exclusively for housing

The alternative for gas drilling corporations was to run to the state, and push for a bill preempting local zoning laws -- promoted often in the name of "modernizing" or "harmonizing" antiquated local laws.  Voilà, no more worries about pesky and arcane local control issues.

Gas drilling corporations escaping democratic controls is not a new corporate phenomenon.

US-based corporations have spent 150 years in this country working to escape any and all forms of public definition and control.  They have sought to gain "liberty" and "freedom" from We the People in many ways.

During the early period of US history, many state laws and constitutions controlled corporations through awarding, conditioning and revoking charters. Corporate charters were privileges, not rights. They granted corporations the privilege to exist for specific purposes and limited time-periods. Profits were limited. Liabilities of stockholders, owners or managers were in some cases limited. Corporations were often prohibited from all types of direct or indirect political influence.

Following the Civil War, many corporations amassed great wealth (which corporations do following all wars). They sought to translate their new economic power into greater political power. They still do so today.

Three historic strategies corporations have used to escape democratic controls are:

1. From a "lower" level of government to a "higher" level -- usually from the state level to the federal level. It's more difficult for ordinary citizens to wield influence the further removed legislators are from local communities. There are also usually many fewer in number federal or state legislators to politically influence than the aggregate number at the state or local level.

2. From legislatures to "regulatory agencies." Agencies like the ODNR provide a convenient shield between, on the one hand, the public and accountable legislators and, on the other hand, corporations -- a political sinkhole where activist energy, time and resources often end up. Regulatory agencies can be stacked with corporate friendly appointees (the new head of ODNR, for example, is a drilling guy). Regulatory agencies, by definition, regulate activities, as opposed to prohibit them -- ensuring that the activity or process occurs in some form. And even if regulatory agencies decide against a corporate action, corporations can always escape this arena and run to the courts, which lead to the next form of escaping.

3. From legislatures to courts. It was much easier to stack a few courts with corporate-friendly judges or bribe a few judges (who at the federal level aren't even elected but appointed for life) than to try to influence an entire group of legislators.

Escaping public control of US corporations in the US was also codependent with another force. That force isn't the policeman's gun or baton. It's the law book.

Corporate attorneys with their colleagues on federal courts have perverted the law at every level. They've won legal decisions making corporations legal "persons" with due process, equal protection, free speech, search and seizure and other protections from the government and the public. This has enabled the corporate invasion of the body politic in Ohio and across our nation -- of our health care, workplace, environment, education, news, food, entertainment and politics -- to continue with constancy and rapidity.

There are currently two general political responses to corporate usurpation of local laws and corporate "personhood."

Locally, communities are asserting their right to decide -- claiming that corporate claims to frack, spew, dump, and subvert local environments and economies violates a local community's basic powers and rights to protect their health, safety and welfare. These basic rights to promote community self-preservation are often enshrined in local governing charters (constitutions). Pittsburgh, Buffalo and other communities on the issue of fracking have passed legally binding bans or prohibitions. Not legal regulations of this risky practice. Not general lacking any teeth resolutions against it. But outright bans. Several Ohio communities are considering such actions. Complementary campaigns are also underway to call for a moratorium on the fracking until complete health and environmental assessments can be completed.

The second response to is calling for the abolition of the bizarre legal notion that corporations possess Bill of Rights and other Constitutional protections that were intended solely for human beings. Move to Amend (http://www.movetoamend.org) is the national organization seeking this sweeping profound change to return corporations to being subordinate to We the People legally and constitutionally. The group is organizing a national campaign calling for a constitutional amendment abolishing all forms of corporate constitutional rights.

Hydraulic fracking needs to be opposed on its own environmental and human health merits. Actually, more like demerits. But the political reasons (its preemption of local control in Ohio and elsewhere by corporations claiming and abusing their political rights) for opposing fracking are just as crucial. The political reasons -- corporations shouldn't have more power than people and communities -- are the same reasons other activists are struggling on other issues in other places.

All of this calls us as socially concerned humans to work simultaneously in two differing but supplementary arenas:
1. To protect and/or promote whatever community, group of people, natural place, alternative structure or condition under assault by corporations and their supporters, and

2. To work at shifting the relationship between citizens and corporations to one where people are in charge, making the rules, deciding their own futures.
 
Greg is the Director of the Economic Justice & Empowerment Program of the Northeast Ohio American Friends Service Committee, a Quaker social action organization (AFSC.net); Steering Committee member of Move to Amend (MovetoAmend.org); and a member of the a member of the Program on Corporations, Law & Democracy (POCLAD), a collective which instigates democratic conversations and actions that contest the authority of corporations to govern (POCLAD.org)