Northern Pass Foes Eye New Tactic: Attacking Corporate Power

Feb 9, 2012

Town meetings begin next month.

One issue some towns are looking at is a radical new tactic ultimately designed to challenge the legal power of corporations.

Opponents of the Northern Pass hydroelectric project are at the forefront of the move.

NHPR’s Chris Jensen reports.


Northern Pass opponents have won what they see they see as a victory in their fight against the huge hydro-electric project.

The legislature has now passed a bill that makes it hard if not impossible for Northern Pass to use eminent domain to take the land it needs for its transmission towers.

But some opponents aren’t stopping there.

“We really need to take care of our beautiful state and so we are just going to seek every way we can to do it and winning today on eminent domain does not mean that we are going to stop.”

That’s Dolly McPhaul of Sugar Hill, which continuing the fight.

“As it is right now if a corporation gets a permit from the state they can do anything they want to our town.”

Sugar Hill is among a handful of North Country towns considering what’s called a rights-based ordinance.

Such an ordinance declares that people have the right to say “no” to big corporations.

However, that’s a challenge to the U.S. Supreme Court’s acceptance of the idea - traced to 1886 -that under the 14thamendment corporations are people and guaranteed equal protection under the law.

“So, whether it is factory farms or Nestle Corporation taking water out from places in Maine and New Hampshire, whether it is fracking taking place in the Northeast and other places. It doesn’t matter what the issue is. What you have been is systematically divested of any authority at the local level to actually control the future of your own community.”

That’s attorney Thomas Linzey of the Community Environmental Legal Defense Fund.

The organization is helping small communities fight big corporations.

Linzey met recently with about 150 North Country residents to talk about adoption of a rights-based ordinance.

Towns such as Sugar Hill and Lancaster are considering it.

The Sugar Hill article is multi-pronged, with all of the points seemingly aimed at Northern Pass.

One part declares corporations do not have the same rights as people.

Another says state and federal officials can no longer overrule the wishes of the town’s residents.

One of those wishes includes the right to preserve the values of the town ranging from energy policy to “unspoiled vistas” needed for the tourism that sustains local businesses.

Typically town lawyers warn that such ordinances won’t succeed.

Linzey admits those communities challenging the system may wind up in court.

“Now going outside the box carries significant risk of being punished by the system that has been built over the last 100 years. This system has been concocted very carefully over the last 100 years to keep you in a subordinate position to the folks that want to use your community for something.”

But he says the upside is that those fights draw more attention to the issue.

And it is not unusual for Linzey and his colleagues to defend towns for free.

Linzey says about 130 towns nationwide have passed rights-based ordinances.

Corporations facing such laws typically argue they are unconstitutional, preempted by state laws and an impermissible exercise of a town’s authority.

A mining company involved in such a case in Pennsylvania told a federal judge that the law amounted to “an abuse of official power which shocks the conscience.”

The judge later ruled in favor of the mining company.

She noted the town’s law was, indeed, at odds with the decisions of the U.S. Supreme Court and she was bound by the high court.

Getting around the Supreme Court is the focus of Linzey’s overall campaign.

He says enough towns and people must become so upset that they demand changes in state and federal constitutions. That could over-rule the courts and end what he sees as corporate supremacy.

Linzey admits that’s a big deal, maybe the biggest of deals.

“So, what we’re talking about is a revolt in all sense of the word.”

Jules Lobel is a law professor at the University of Pittsburgh who worked with Linzey on one case.

He says he thinks much of what Linzey is doing is “directed not simply towards the court but towards changing public awareness and public consciousness.”

Lobel says rights-based ordinances are seen by some – such as Linzey - as a kind of civil-rights battle with community rights facing off against corporate rights.

“Right now it is an uphill battle in the courts,” he said. “That is not to say it can’t be won. But many of the rights we now have started as uphill battles.”

Back in Sugar Hill Dolly McPhaul acknowledges if the ordinance passes there could be a legal challenge.

“But are we going to sit back and let them destroy our land? As I said the constitution has said that the government is to take care of us and if they’re not doing it is our job to change it.”

The towns will vote on these proposals early in March.

Advocates say in some cases such a law can dissuade a corporation from locating there simply by posing an additional hurdle.

The bigger question is not just will they pass but whether they can be more than a nuisance for the Northern Pass project.

A Northern Pass spokesman said he was not familiar enough with the ordinances to comment.

For NHPR News this is Chris Jensen