ESSAY: Challenge the law to save the environment

By Jan Ellen Rein & Mark Dempsey

Environmental law needs a democratic makeover. Nationwide and locally, Move to Amend is mobilizing support for constitutional amendments to curb unregulated campaign spending and eliminate corporate personhood. While striking at the root of systemic corruption, these amendments let communities curb polluters in ways they now cannot.

Far from stopping eco-devastating practices, traditional regulatory management permits them and merely tinkers at the margins. After more than four decades of environmental activism, the environment is in far worse shape. To quote Thomas Linzey of the Community Environmental Legal Defense Fund, “Sustainability is illegal.”

According to CELDF, in the U.S. alone, industry produces two million tons of toxic chemicals annually, including 36,000 tons of known carcinogens. Annually, U.S. waterways and farmland receive one billion tons of industrial farm waste, laced with antibiotics, hormones and chemicals. And one fifth of all plant and animal species are on the verge of extinction.

Our ineffective regulatory approach forces environmentalists into a system that, by definition, permits devastation while minimizing and trivializing citizen input. Apart from regulations, often designed by and for industrial polluters, some pernicious legal doctrines protect bad environmental behavior. For example:

  • After nearly 200 years of judicial fiction, corporations are virtual people with constitutional rights, allowing them to demand compensation from communities that dare to prohibit eco-devastating practices.

  • The law treats nature and ecosystems as exploitable private property that owners can damage and destroy.

A new strategy is available to environmentalists: Help change the constitution. At the grass roots level, use municipal ordinances and ballot initiatives to model a system that legalizes sustainability. Aided by CELDF, many communities are banning noxious practices and abolishing corporate constitutional rights within their borders.

Instead of defining the issue as corporate bullies would frame it, brave communities in Colorado, Utah, Pennsylvania and elsewhere redefined the issue as one of democratic self-governance rather than how many toxic parts per million regulators will allow polluters to release. This approach prevents corporations from hiding behind the fig leaf of self-serving environmental regulation. If corporate polluters sue, they must assert that the constitution gives them the right to overrule communities and natural human beings.

These effective strategies awaken citizens to the need to change the legal system so it responds to democracy, not plutocracy.

Jan Ellen Rein is a retired law professor. Mark Dempsey is a technical writer. Both are members of Sacramento’s Move to Amend organization. Visit for more information.

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