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VOL 4 NO 4

Playing By Whose Rules?
A Challenge To Environmental,
Civil Rights And Other Activists

by Richard Grossman

          With few exceptions' people come out of law school without having questioned pro-corporate doctrines on property (i.e, future profits are corporate property, the fruits of employees' labor are corporate property, the right to manage is corporate property . . . ). They accept today's giant corporations as inevitable. They don't seem to wonder how it came to pass that corporations became legal persons with free speech and other constitutional rights . . . while workers on company turf have no Bill of Rights protections.

          They do not encourage the rest of us to ask why a sovereign people should permit corporate legal fictions to elect our representatives, write/pass our laws, or lie to the public on vital issues.

          Environmental and labor lawyers are trained not to challenge prevailing assumptions about the law, and to accept current legal doctrines. And then they train us.

          Corporate lawyers, government lawyers, environmental lawyers -- all have been funnelling people's time, energy and resources into stacked deck regulatory and administrative law arenas . . . where even if we "win," we don't win much, and where there are few mechanisms we can use to shift rights and powers from corporations to people, communities and nature.

          Movement lawyers should take their cues from activists on the ground. Local organizers should say "Such-and-such investment and production are destructive, uneconomical and wrong, but are protected by law and therefore by government. We will educate and organize to stop these harm doers. We need you lawyers to figure out how we can use the law and the courts to help us, or at least not to block us. Please don't lecture us about what we can't do. Don't come up with legal strategies which enable corporatons to hide behind the privileges and immunities which corporations have taken from the people. And please don't tie our hands."

          Today's leading environmental law groups -- such as the Natural Resource Defense Council (NRDC) -- were formed 20-30 years ago, mostly by young men just out of law school. When these men were law students, the "Critical Legal Studies" movement was not yet a presence within law schools -- the first national Conference of Critical Legal Studies was held in 1977. So as students, they were not exposed to even the modest questioning of curriculum and law professor biases which goes on in some law schools today.

          Some of these environmental law groups received immediate support and financial backing from powerful philanthropies like the Ford and Rockefeller foundations, and from law firms which represented large corporations.

          Today, these groups define the legal agenda of environmentalism. They drive much of the environmental movement towards permitting and disclosure laws administered by federal and state regulatory and administrative agencies. Each wave of environmental activists has had to confront these legal groups eager to stop us from making investment and production decision-making a more public process (in other words from decreasing corporate power). Instead, they have sought mechanisms to determine acceptable amounts of corporate poisons and corporate clear-cuts, and to win compensation for corporate harms. They would have the public give greater profits to corporate leaders to encourage them to act more responsibly. We've seen campaign after campaign for citizen authority over corporations diverted into regulatory agencies and the courts, where all parties toe the line of managerial prerogative and other claimed corporate property rights.

          As an anti-nuclear organizer in 1974 seeking to stop the construction of new nukes and to shut down existing nukes (not make nukes "safer"), and to revise the legal relationship between people and energy corporations, I vividly recall the hostility I encountered in Washington DC when I inquired what help some of these groups would give us. I was astonished at their reaction, and it took some time before I began to understand it.

          In fact, most populur struggles -- labor, civil rights, environmental -- have been taken out of the public's hands. Trade unionists allow their rights as organizers to be defined not by the power they wield but by the National Labor Relations Act. Years of protest by civil rights activists led to federal laws like the Voting Rights Act which are much less than what people had organized and died for.

          Decades ago, the American people accepted the alarms of activists and said: OK, we want clean air, clean water, wild land preserved as national parks, forests and wilderness areas. Our movement lawyers and corporate lawyers wrote the laws.

          What did we get? Laws which legalized the poisoning of the air and water, which legalized clear cuting which left unchallenged the privileges and immunides which corporations had usurped during the past century, and which concentrated power in the hands of appointed regulators and administrators insulated from our reach.

          Today, our regulatory and administrative laws are a stacked deck, granting corporations legal clout while disadvantaging peoples, communities and nature. The National Environmental Policy Act (NEPA) does not mention corporations, and requires nothing of corporations. The Taft-Hartley Act was written by corporate lawyers. Yet our environmental and labor lawyers let these laws define our arenas of struggle, our aspirations and our strategies. And WE let the lawyers shape what and how we think.

          So much hope has been invested in creating, enforcing and reforming these diversionary laws. So much time, energy, and resources.

          Look at the roles of EDF and NRDC and the Conservation Law Foundation in energy. Under the banners of "demand side management" and energy efficiancy, these groups -- with philanthropic assistance and cover -- have helped utility corporations get higher rates of return and decrease the powers of state public utility commissions to direct utility corporation executives to act. They have helped utility executives move decision-making behind closed doors, all in exchange for some voluntary corporation conservation efficiency investment.

          Utility corporations such as Pacific Gas & Electric and Southern California Edison -- regulated monopolies which by law are required to serve the public interest -- took their extra profits and set up subsidiary corporations in other countries to build big new fossil burners. And still, corporate executives flood state capitals and Washington to turn our elected officials against citizens' agandas. They spread their lies and intimidate people and they frame what little semblance of public policy debate we have.

          Now, they're backing off from their energy efficiency promises because they smell bigger profits from new energy wheeling laws they wrote and enacted.

          And environmental law organizations remain these uility corporations' biggest defenders!

          Over the past 25 years, environmental lawyers have been assuring the American people that with each new law the air and water and wilderness were being protected, that our children's health was being protected, that we were on the path to using energy efficiently and cleanly . . . not to worry. And as a movement, we have not challenged corporations' claimed constitutional rights to make all the important capital and production decisions.

          We have not made people's consitutional rights in economic and employment decision-making a movement goal, or placed this on our legal agenda. No wonder the public is vulnerable to corporate agitators and their Wise Use creatures inciting environmental backlash, and governmental backlash.

          In the decades before the 1870s, the corporation was treated by the public -- its creator -- as a subordinate insitution. At that time, both law and popular culture reflected that the use of natural resources -- the commons -- was very much a realm of public decisions. But railroad, banking, mining, grain and land speculator corporations began to steal the public funds and resources in vast amounts, and to change the law. Today corporations exercise governing roles as they direct massive amounts of capital, control jobs, production, trade, technology and property. They dominate our elections, write and pass our laws, educate our judges in the jurisprudance of corporate protectionism, and shape public policy debate.

          Corporations exert influence on law schools, law professors, law students, on our educational system and on our culture as a whole.

          The classic study of "bedrock" law is by Harvard professor Morton Horwitz. It is called, appropriately, The Transformation of American Law, for that is precisely what corporate lawyers succeeded in doing by the end of the 19th Century. Another scholar, Martin Sklar, called it a "corporate reorganization of the production-property system." This is what corporate leaders have been perfecting all during the 20th Century. It is what we face today. Environmental and labor lawyers have placed our movement's hopes in regulatory and administrative agencies -- and appeals courts. In those political arenas, they work hard to limit corporate harms one-by-one, or corporation-by-corporation. But the history of such laws suggests that, starting with the Interstate Commerce Act in 1887 and Sherman Anti-Trust Act in 1890, they were used to divert angry people who had been organizing to get power over corporations.

          Just at the time when the Supreme Court was bestowing upon corporations legal personhood, corporations were working children to death and using convicts to break strikes. Carnage prevailed in the nation's mines and mills. By the 1890s, railroad corporations were killing 6000-7000 people a year and injuring over 30,000 people a year -- employees, passengers and just people who happened to get in the way.

          The owners of western railroad corporations had walked off with 180 million acres of public land. Federal judges were declaring unions to be criminal conspiracies. Corporate and government troops were bloodying and killing working and native people who dared to organize for their lives, liberties and pursuits of happiness.

          The working people and small business people who organized the Knights of Labor, the farmers, urban workers, small merchants and intellectuals who built the Populist Movement, sought ownership and control of railroads, banks, grain and telegraph corporations because they realized that federal regulatory laws and agencies would become barriers between the corporations and the people.

          They understood they needed "democratic money," and an end to the crop lien system so they could break the grip of the cotton merchants, of tool and seed suppliers. They sought cooperation, cooperatives and sufficiency, instead of competition, hierarchy and maximum production of everything. They struggled but were defeated by the combined might of the state and the corporate class. After their defeat, claims to rights and powers by corporate executives were legitimated by legal doctrine, law, courts, historians, and law schools.

          Populists left us important legacies, but the reality of these legacies has been distorted. Regulatory laws were declared great victories for the people. And for the past century, citizen struggles for justice have been channeled into regulatory/administrative law realms -- and to the market -- as if those are the only arenas where a sovereign people may seek redress of grievances.

          We have been playing too long by the rules of the corporate exploiters and destroyers, . . . by the rules they taught our lawyers, who taught us.


(Richard Grossman is co-director of the Program on Corporations, Law and Democracy, 211 ½ Bradford St., Provincetown, MA 02657)

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