This month, Nottingham received a request to pay over $40,000 in attorney’s fees after a town resident’s corporation filed a lawsuit against a local climate protection law adopted by residents in 2019.
The Freedom From Chemical Trespass Rights-Based Ordinance asserted residents’ rights to a healthy climate and banned corporate activities that would interfere with those rights, punishable by a fine of up to $1,000 per day.
A superior court judge overturned the ordinance in February after the corporation, G&F Goods, held solely by town resident Brent Tweed, sued the town.
Tweed said G&F Goods is an online business where he sells miscellaneous items on Amazon in an interview with NHPR. He filed the lawsuit against the ordinance soon after it was passed in Nottingham, saying the law was unconstitutional and overly vague.
“In just about any daily activity, whether it’s a business or just a person, you release toxic chemicals to the environment. There’s no way that humans can exist without releasing some finite amount of toxic chemicals,” he said.
Peter White, treasurer of the Nottingham Water Alliance, says his group advocated for the ordinance out of growing concern for their town’s groundwater.
“There’s a lot of commercial activities that pollute the groundwater. And once your groundwater’s polluted, it’s hard to get it out,” he said. “The ordinance was to prevent any commercial or industrial or government activities that could threaten our groundwater, any hazardous waste or chemical trespass.”
After the ordinance was overturned, Tweed said the town should pay the $40,281.50 in attorney’s fees, because his lawsuit may be of “substantial public benefit,” by allowing corporations to conduct business without fear of private actors enforcing the law.
Under the ordinance, residents would have been allowed to enforce its stipulations through non-violent direct action, if the town failed to defend the law.
According to court documents, the town objected to paying the attorney’s fees, arguing that it did not defend the ordinance in the lawsuit. The town’s attorneys suggested that fees should be assessed against the citizen’s group that introduced the ordinance.
Town officials declined to comment on the issue.
The law’s supporters argued that the town did not do enough to defend it in court. The Nottingham Water Alliance was not allowed to intervene in the case but filed an amicus brief, a filing that allowed the organization to provide input on the case.
In the amicus filing, the group said that the ordinance was crafted so that it would not interfere with constitutionally-protected conduct, and that its provisions for non-violent direct action fit provisions for self-protection in New Hampshire state law.
In that filing, the group’s attorney said that applying the ordinance to the scale of activity Tweed took issue with — pollution created by driving a truck, for example — “would be laughable.”
“Our town refused to defend a town-passed ordinance, which in my opinion is gross negligence,” said Peter White, of the Nottingham Water Alliance. “Like every other ordinance in town, when a town has passed an ordinance, that is town law, and the selectmen are sworn to uphold town law.”
The first rights-based-ordinance in New Hampshire was developed in 2006, and there are currently about 15 in place in the state.
Michelle Sanborn, a community organizer with the Community Environmental Legal Defense Fund, said the Nottingham lawsuit was the first legal challenge of a rights-based ordinance in New Hampshire.
“This case, in particular, brings to light the need for a state constitutional amendment to level the playing field between individuals, their communities, and corporations when faced with a judicial system that sides with corporate interests over health, safety, and welfare at the local level,” Sanborn said.
The New Hampshire Community Rights Network has introduced a state constitutional amendment that would recognize the right to local self-government and give more towns agency to pass the ordinances.
