William Byrne, former mayor of Morgantown (WV): "
The state does not protect cities adequately."



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American cities fight back against
big government and corporations

By Tony Favro, USA Editor*

6 February 2012: The Occupy Wall Street movement in the United States has been all but stopped by winter and the police, perhaps to be reinvigorated in the Spring with a new strategy. Regardless of the future of the movement, it gave a voice and a face to widespread public frustration that:
• Financial institutions can nearly bankrupt the nation yet not only survive on public bailouts and legal technicalities but distribute huge bonuses to their managers
• Politicians can legally use their offices to enrich themselves while turning a blind eye to corporate misbehavior
• Journalists chose to abdicate their roles as watchdogs of the public interest
• The wealth gap grew precipitously between the rich and everyone else.


• Corporate individuals
• Cities fight back
• Uncertainties

At the national level, the public resentment has entered the presidential and congressional election campaigns. Candidates in both major political parties attack their opponents’ position in the upper one-percent of earners, while vowing to support the other ninety-nine percent.

Taking the resentment beyond sloganeering to legislation that protects basic rights, however, has become the mission of local governments. Many US cities, that feel that state and federal legal and regulatory systems are biased towards businesses, are passing laws aimed at establishing a more equitable balance between community power and corporate power.

Corporate individuals
While Americans have long harbored a certain mistrust of both big business and big government, a recent Supreme Court decision heightened the suspiciousness. In January 2010, the Supreme Court ruled in Citizens United v. the Federal Election Commission that corporations are persons under the law and can essentially spend unlimited amounts of money to influence the political process. This decision appeared to overturn local laws preventing lobbyists from offering bribes to public officials in the form of gifts, and many cities, most notably New York and Los Angeles, passed resolutions calling for a constitutional amendment to override Citizens United.

In reality, Citizens United was just the latest in a series of court decisions over the past 40 years that bolstered corporations by diluting or invalidating environmental laws, public health legislation, financial oversight regulations, and other measures intended to protect communities and individual consumers.

In June 2011, for example, Morgantown, West Virginia passed an ordinance to ban hydraulic fracturing within one mile of city limits in order to protect its drinking water supply. Hydraulic fracturing is the extraction of natural gas from shale rock by pumping large amounts of pressurized water and chemicals into horizontal drill wells. ‘Hydrofracking’ is controversial because it generates large amounts of fluid wastes and risks contaminating the water bodies on which humans depend.

“We don’t do this with a lot of gusto,” Morgantown’s former Mayor William Byrne said of the ban, “but the state does not protect cities adequately.”

The City of Morgantown was sued immediately by an energy company, and the local ordinance was invalidated by the courts in August. The judge ruled that municipalities are creations of the states and, therefore, subservient to the state. Since hydraulic fracturing is sanctioned by the state of West Virginia, a city has no authority to ban it.

Changes in land use affect people at the local level, yet, in the United States, local governments have limited powers to decide what gets built. Once a state government permits an activity -- mining, big box retailing, nuclear energy generation, industrial farming, for example -- a city may restrict the activity to particular sites and regulate nuisances such as noise, traffic, and odor, but it cannot prohibit the activity entirely.

Citizens United now gives corporations unprecedented ability to spend money to influence political decisions at upper levels of government regarding what can and cannot be done in local communities.

Cities fight back
In November 2011, Pittsburgh, Pennsylvania passed a law, which not only prohibits hydrofracking within city limits, but also invalidates any state or federal permits that violate that prohibition. The law - the first of its type in the United States - essentially eliminates corporations’ legal justifications for overturning local laws that are adopted to protect the environment and public health. The law effectively empowers Pittsburgh residents to defend the purity of its water legally, since the environment can’t do so itself.

Dozens of large and small communities already have taken legal measures similar to Pittsburgh’s to restrict the ability of corporations to act as individuals, and others are considering them. In several communities, the legislation is being challenged by corporations.

Businesses are not the only opponents to local laws. Pittsburgh Mayor Luke Ravenstahl opposed his city’s landmark ordinance, saying that the economic benefits of hydraulic fracturing merited further discussion. The Pittsburgh City Council unanimously passed the ordinance over the Mayor’s objections. Albany, New York, Mayor Jerry Jennings has gone further, promising to veto similar legislation proposed in his city; Jennings is a friend of the state governor. In November, voters in State College, Pennsylvania overwhelmingly approved a Community Bill of Rights in which citizens claimed the right to make their decisions directly, while voters in Spokane, Washington defeated a similar bill. At least 50 cities reportedly are considering some form of a Community Bill of Rights.

Uncertainties
Americans feel aggrieved that they have limited protections to prevent activities from occurring in their communities. They are using their right to self-government to challenge the ability of corporations and states to use laws and legal maneuvers to overrule local decisions.

The prospects for success are uncertain. Corporations are powerful, of course, with or without the added force of Citizens United. They could find ways to circumvent local laws. And movements for local control risk devolving to NIMBYism, once the immediate threat is removed or the economy improves. It’s not hard to imagine local laws designed to protect property values and local control being used to exclude people.

On the other hand, historically, local agitation during tough economic times has led to workers’ protections and an expansion of human rights in the United States. And if local bills are based on sustainability and inclusiveness - decision making with an eye to the future and the common good - then perhaps many of the issues that divide urban America will be addressed.

Economic stress provides space for movements like Occupy Wall Street to form and militate and reinforce in people’s minds the need for social change. The power struggle in America between corporations and communities may turn out to be little more than a way for citizens to vent their frustrations. Or, perhaps, it’s an early signal of a bigger, not-yet-clearly-defined change in the relationship between people, businesses, and government at all levels.


*Tony Favro also maintains the blog Planning and Investing in Cities.

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Luke Ravenstahl, Mayor of Pittsburgh, was overruled by the city council


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