Citizens can't rely on state laws for protection

Citizens in New Hampshire have been mobilizing to oppose certain large, corporate industrial projects such as Northern Pass or the Kinder Morgan pipeline that threaten the New Hampshire way of life. They are attending meetings and hearings because they believe that the environment will be harmed or that the health, safety and welfare of their families and neighbors are endangered. Many residents believe that once their voices have been heard, the regulators will order major changes to the proposed project or prevent it from being built. Unfortunately, their reliance on the current regulatory scheme is misplaced, because federal, state and local laws cannot be relied upon to accomplish either of these goals. The proposed industrial project will go forward unless the corporation decides, for its own reasons, to postpone or abandon it. Why? Because the regulatory process regulates only how the project proceeds, not if it will proceed.

Throughout the United States, large commercial energy, transportation and building projects are regulated by a host of government agencies, such as the EPA, DOE and BLM. Once the public hearings have been held and the federal rules and regulations (usually fashioned by the industry involved) have been satisfied, the project must be allowed to proceed under federal law. Citizens can’t rely on state laws for protection, because, under the doctrine of preemption, federal law takes precedence over state law.

Similarly, at the state level, where projects are overseen by a myriad of state agencies such as the DES or DRED, the project must be allowed once the corporation meets the required laws and regulations. Local laws are also thwarted. Under “Dillon’s Rule,” because the state allows the municipalities to exist, the state should determine what laws municipalities may enforce. If the municipal law isn’t subject to Dillon’s Rule, it will likely be preempted if the state has already acted. A notable exception was when Durham was able to stop the planned Onassis oil terminal some years ago. However, in order to stop this project, those opposing the oil terminal had to mobilize the whole state to permit the community to do so.

The state allows municipalities to enforce zoning ordinances under the theory that each town can best determine how to manage the land within its bounds, although these laws may not be exclusionary in nature. However, zoning laws are but a temporary impediment to any proposed industrial project with all the necessary state and federal permits. Once all of the requirements of the ordinances are complied with, the project can (and probably will) proceed.

A former presidential candidate once uttered, “Corporations are people, my friends.” He was right. While corporations are a bundle of property rights created to shield the owners from liability, these legal entities have been given the status of “persons” under the law. Over time these artificial persons have been afforded rights under the federal and state constitutions. Corporations have successfully filed suits for damages claiming violation of their constitutional rights. The Fourteenth Amendment has been used to protect corporations claiming harm more than often than it has been used to protect the rights of natural persons. Citing their constitutional rights, large corporations have not been shy about bringing suits against those opposing them.

What can you do? Fight back. Support the New Hampshire Community Rights Network proposed amendment to the New Hampshire Constitution designed to elevate the rights of real persons over the rights of artificial persons. Visit the network at nhcommunityrights.org.

Lorraine L. Hansen

Council for Community Environmental Legal Defense Fund

LL Hansen Legal PA

P.O 1115

Portsmouth