Interview of Thomas Linzey ― Resistance Radio

May 20th, 2018

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(Sound of mountain lion)

Hi, I’m Derrick Jensen and this is Resistance Radio on the Progressive Radio Network. My guest today is Thomas Linzey. He is the executive director and an attorney for the Community Environmental Legal Defense Fund, which has assisted close to 200 communities across the country in eight states to adopt binding local laws that elevate community rights to sustainability over corporate rights and powers.

So first, thank you for all of your great work, and second, thank you for being on the program again.

TL: Thanks for having us back, Derrick.

DJ: So let’s start by talking about a recent press release put out by – let’s actually back up and talk about the Community Environmental Legal Defense Fund for a moment, and then talk about the press release. Can you give us, like, the three minute skinny on that?

TL: Sure. So, Legal Defense Fund launched in 1995. We’ve been around for over 20 years, and we started work by doing conventional environmental law. So we began by enforcing things like the Clean Water Act, or the Clean Air Act, or the National Environmental Policy Act. It took us about ten years to understand that the environmental laws weren’t really about stopping anything. They were more about carving the rough edges off of some corporate projects coming into communities. And so we switched gears back in 2002, to do a different kind of work, which was working with municipalities and citizen groups so elected officials, and also community organizations, could actually begin to birth the new area of the law in which people in their own communities would have the power, the legal authority to say “no” to things like factory hog, corporate factory farms coming into their community, or toxic waste incinerators, or land-applied sewage sludge, or fracking. All these different projects that today a lot of people think that their community has the authority to ban, or to prohibit, but unfortunately when they run up into the existing structure of law, they begin to understand that they have almost no power to stop those projects from coming into the communities.

So that was the first piece of the work that we began doing, was this concept of people having a constitutional right to govern their own communities. And that that constitutional right would override state preemption, the state’s ability to overturn or declare local ordinances illegal under the state’s exclusive control of certain things like oil and gas extraction and agricultural issues. And understanding that that constitutional right would elevate above the ability of the state to adopt those laws, as well as corporations claiming certain rights to overturn those communities.

And then along the way, we began doing this area of work back in 2005 dealing with the rights of nature and ecosystems. So today nature doesn’t have any rights under the US Constitution or under our system of law, and we think that’s a big reason why things have gotten worse over the past 50 years, even after the nation’s preeminent environmental laws were adopted. So we work towards creating law that recognizes ecosystems as having legally enforceable rights that can be enforced by the people in the communities that care about the rivers and the forests and the ecosystems within their community, and then essentially making that binding constitutional law in the United States. That is the direction that we’re headed.

DJ: So before we talk more about that, there’s a quote that I’ve recently come across, that I wanted to read to you and then just get your response to. This is by Jane Anne Morris.

“Corporate persons have constitutional rights to due process and equal protection that human persons, affected citizens, don’t have. For non-corporate human citizens, there’s a Democracy Theme Park where we can pull levers on voting machines and talk into microphones at hearings. But don’t worry. They’re not connected to anything and nobody’s listening except for us. What regulatory law regulates is citizen input, not corporate behavior.”

TL: Yeah, it’s one of my favorite pieces. We have used it in our two-day trainings that we do for lawyers and community activists and municipal officials. And she hits the nail on the head, which is that, you know, when you show up at a public hearing and they give you three minutes to comment on something, generally the agency couldn’t care less what you have to say, because their only mission is to issue the permit to the applicant that has asked to put in a factory farm or toxic waste incinerator or whatever in that community. So unless you were a neighboring property owner or someone that has legal standing, in other words someone that’s been injured or will be injured by the issuance of the permit, the agency couldn’t care less what you have to say. And when she draws the parallel to this Democracy Theme Park, that the microphones aren’t even connected when you go to testify, I think she really nails it right on the head.

There’s also another section that she wrote where she talks about whack-a-mole, that work of environmental groups has been about whack-a-mole; you know, you try to stop a project over here, but nine others get through over there. It should be no surprise that we’re in worse shape now than we’ve ever been, in many ways.

DJ: There are two stories I want to tell you, but before you go on, we should let listeners know that we’ve known each other for, 28 years now? 29, somewhere in there?

TL: Yup. Even before the Legal Defense Fund was formed.

DJ: Yeah. So there are a couple of stories that I don’t know, in all that time, if I’ve ever told you. So I’m going to tell you first one story and then the other. And one story is: in my very early activist career, one of my proudest moments was when I was giving some testimony about salmon and James McClure was in the room, a horrible anti-environmental senator from Idaho, and I was able to say to him in public that I expect to someday see him in the dock for crimes against the environment. This made me feel really good, it made James McClure call security on me, and, to get to the point, it made me feel good and it made absolutely no difference in the real world. That’s what so much of this public input seems to be about. A chance for me to go vent my spleen and then let’s get back to business.

TL: Yeah, I had my own similar experience back in law school, when one of the big, he was very well known, I think he was a majority leader at that time in the Pennsylvania Senate, came to speak at the law school. They had a little reception, and I was a member of the environmental law group, the student group at the time, and I went to hear him at the reception and got some time with him and started asking him some really difficult questions, because he had authored and was pushing a bill to eliminate the categories of people that could challenge permits for environmental pollution purposes. And it turned out one of his major donors lived in an area where he had a number of these categories of people challenging a permit. So it felt really good to go after him, and he threw his hors d’oeuvres at me during the thing, and I felt really good about it afterwards because I had gotten to him, but it didn’t do anything else, it didn’t stop the bill, the bill kept running, I think it got passed. It was all the same, business as usual.

DJ: And then the other story is; remember the Rio Summit decades ago? That was going to save the Earth? They had meetings in communities all over the country and they had a meeting in Spokane, Washington, where I lived at the time, and there was a person there representing the United States government, who was going to take our input to then deliver to, to help form United States positions at the Rio Earth Summit. And it was quite an interesting experience, because there were probably 40 of us who gave testimony, and basically, everybody who gave testimony said the same thing, which is “sustainable development” is a lie. “Sustainable development” is nothing but the same old neocolonialism. It is not sustainable, and “development” actually means destruction. Basically every single person said the same thing.

So he gets up afterwards, and he thanks us for supporting the United States position that sustainable development is the way to go, as though he’d not heard a word we said. And the point of this whole story is that I was later talking to the person who had organized his visit and who had driven him around, and it ends up that even before the event started, he was so drunk that he had to be helped to his seat. And that’s just a perfect metaphor for just about everything.

TL: Yeah, the anecdotes all add up. But also, the most effective thing I’ve ever seen at agency meetings is when folks just turned their back to the front. They turned their back to the agency officials that are sitting there and actually speak to the audience and say “Look, these guys aren’t going to do what you want them to do. We need to organize ourselves to do something different.” I think that’s the take. But a lot of people aren’t in that boat. A lot of people that we run into are convinced that if they get enough people to turn out, and they use the right dry erase markers and have the right flip charts and the right diagrams and do enough phone calls that it’s going to change something. And that’s still got a real hold on people. They can’t face the reality that it doesn’t matter. And they cling really really hard to that, you know, “this is what we’re told we can do and now it’s just a question of participation.” That’s got a real hold on people’s brains, unfortunately.

DJ: So before we go to the Amazon, which I do want to get to, a question that that raises is that; something I get all the time and I’m guessing you get all the time too, is that when you say something like you just said, that public input like that doesn’t matter; so often, and this pisses me off no end; so often people will then say “Oh. Are you then suggesting we do nothing?” They’ll say “Oh, you’re just a defeatist who wants us to sit on our hands.” And I know that’s not true. I know it’s not true for me and it’s not true for you. So: A. Do you get that as well? And B. If so, how do you respond?

TL: Yes, we get it all the time. In fact, there’s an anger that comes with it because you’re seen as taking away energy and resources that could be used for other things. So in other words, by saying we should be doing something else, you’re taking away the energy and resources that, like, not to pick on them, but the Sierra Club would use to generate comments to the agency in hopes that it might discourage the agency from doing something. We’ve been talking about anecdotes today, but my favorite is when I went to a meeting in Spokane, which is where we live now, and the meeting was about the fossil fuel trains coming through the city. And at that time, one of the commissioners of the state has the power to say “no” to one of the permits. And he eventually did, as a matter of fact. But not for the reasons the people in the room wanted him to. But the people in the room – the Sierra Club was organizing it then, so they passed out these comment cards at the end, you know, the pre-filled in comment things where you write a short thing and then sign your name, and you accumulate them all and then deliver them to the state government.

And they actually gave out prizes at the end of the night for those who filled out the most (laughing). You know, because they were sending them to a variety of people, not just the commissioner. But they actually were giving out prizes, and I was like “Oh my God, where have we arrived at?” Citizen activism is defined as sitting in a chair and penciling out a sentence and signing your name and then getting prizes for the folks that do it the best.

DJ: Getting a kewpie doll.

TL: It’s become like a game at this point. So anyway, when people come to us and say “what will we do otherwise?” the first thing to do is really show them how, using real data, how pointless and fruitless it is to engage with these folks. Like FERC. FERC has never turned down a pipeline permit. They’ve delayed some, they’ve suspended some temporarily. But they’ve never denied one in the United States. So are you going to turn to an agency and beg them, plead for them to do something they’ve never ever ever done before, on any other occasion? I mean, that’s just nuts. And the histories of these other agencies bear that out as well. In fact, we did a study one year – I’m digressing here – we did a study one year about The Environmental Hearing Board in Pennsylvania. So in Pennsylvania, like other states, you have a special court that’s set up to hear permit appeals. So if a permit’s issued and you appeal it, you end up in front of this thing called the Environmental Hearing Board, which is populated by administrative law judges. You would think that Environmental Hearing Board, that 90% of what they hear is citizen appeals of permits. From an environmental activist standpoint, you would think that would be the case, because it’s about the environment and it’s about appeals. But when you look at the data about what cases they hear, something like 85% of the cases were all brought by corporations to force the agency to issue the permit. So these were cases in which the agency said “Well wait a minute, we’re not sure if we want to issue this, or we’re going to deny it.” And then the corporations, not the environmental activists, the corporations came in to use the Environmental Hearing Board to force the issuance of the permit.

And so I think all of this, specific data aside, is really about a mindset about whether you believe that we live in a democratic system or not. Because if you believe that we live in a democratic system then it makes sense to do those things that the democratic system allows you to do, or in some ways programs you to do and then sets up the apparatus for you to do. But if you don’t believe that we live in a democratic system where these agencies are actually going to become involved or advocate on the side of the communities or nature, then I think it leads you to a much different form of activism. And for us, when we get asked the question, people say “Well what else will we do?” We say “Well, we’re glad you asked, because 200-250 other communities in the United States are doing things differently.” And what they’re doing is saying “Look, we live in this community. It’s not in the authority of the state agency to decide what happens here. They don’t have the authority to do that, we do. And because of that, we’re going to seize,” or hijack, choose your verb, “our municipal governing authority here, to turn it upwards against the state, against the federal government, against the corporations trying to put this thing in. We know that that fracking project that’s coming in is going to not only diminish our quality of life within the community but also degrade the climate in an era in which climate change is now a global emergency and crisis. That we are going to take steps to stop this. And we’re not going to take ‘no’ for an answer, and we’re going to literally seize our municipal apparatus.” That could be the City Council, the township commissioners, the Board itself. Whatever the entity is, they’re going to seize it and they’re going to hotkey it, find the ways to make it active, and make a stand.

And that’s a much different kind of activism than signing your name to a card and getting a prize because you submitted the most things to the state agencies. But it takes a certain kind of people to do that. It takes self-assured courageous folks like the folks you had in the beginning days of the civil rights movement, and the beginning years of the abolitionist movement, and the last quarter-century of the suffragist movement. It takes those kinds of people. So, for 20 years, we’ve looked for those kinds of people, and tried to nurture them and bring them along, and educate others about how the system actually operates. But outside of the regulatory system, that’s pretty established; there’s a vast amount of activism out there that we don’t even think of engaging in, because we think it’s off limits to us.

And the other night I gave a talk to a group, and they said “Well, we have a pipeline coming through. How do we stop it?” And I said “Shoot, it’s a matter of what’s in our heads. It’s not the companies, it’s not the agencies, it’s not the regulators, it’s not the state. None of those things matter. If we had 50,000 people who actually understood that the agencies weren’t gonna do shinola for them, and we put those 50,000 people out in the field, to stop the pipeline physically, by doing civil disobedience, we could stop the pipeline. We would have the power to stop the pipeline. If there were numbers, we could stop the pipeline. We could stop any project. But the problem is that our brains have been colonized. That ‘someone else is going to do that.’ That we have the tools to make someone else do that, but it’s not going to be us. That it’s not our responsibility or our authority, that we don’t have the power.”

So it’s the self-doubt, it’s the colonization of our brain, it’s the punishment of the law when you operate outside of those pre-existing apparatus. So all those things converge to basically make us, you know, bags of plasma, just going through a daily routine, instructed by a higher authority as to what we can and can’t do. We can continue to follow that path, which means we’re going to get the pipelines and the frack jobs, and the climate’s going to crash and everything else is going to happen. Or we can take a step back and understand that we’re about much more than being just bags of plasma. We are the legitimate inheritors of a legacy in which the government’s supposed to be us and the government’s supposed to be protecting our rights, and if it’s not, then we need to readjust the system so that it does.

DJ: This reminds me of something that so many indigenous people have said to me, which is that the first and most important thing we have to do is decolonize our hearts and minds. And there’s a lot in there to unpack, but one part has to do with destroying your loyalty to the system and recognizing that … you know, when I used to give the Endgame talk, I would ask people “Do you believe that governments take better care of individuals, or communities, or corporations?” And everybody would laugh. There wasn’t a single person out of literally tens of thousands who ever said it takes better care of individuals or communities. Everybody knows it takes better care of corporations. And yet we still continue to act as if – and so it seems that some of your work, and some of my work is about attempting to sort of jar people out of that perspective.

And there’s another thing I want to say about this, which is, is it the Interstate Commerce Commission? Is that right, the ICC?

TL: Yup.

DJ: So that was formed, I believe, under Theodore Roosevelt? Is that correct? Or about that time?

TL: Right around the same time.

DJ: So whatever president was in at the time, there was one of his buddies in the railroad industry who wrote to him and said, you know; “How dare you create this commission? You’re basically being disloyal to all your friends.” And either the president or vice president or one of those high-up people wrote back and said basically “Chill out. Don’t you know that the purpose of this thing is to make it so, is to put a buffer in between you and the outrage of the people, because right now people hate the railroads and they want to kill you. And we’re making this thing that they think is going to actually accomplish something, but the real point is to just make this little buffer.”

It was a beautifully honest little note.

TL: Yeah. It was penned by the United States Attorney General at the time, and we use that quote in Democracy School as well. The first part of these two-day trainings that we do is to talk about what regulatory law is. And so we draw a triangle. At the top of the triangle, the top line is all the things that communities are concerned about. So when a factory farm wants to come in, there are economic concerns, there are environmental concerns, there are noise, odor, animal welfare, you name it, there is a huge number of concerns at the local level. And what the system does is, just like that upside down triangle, is take them from that very broad problem statement and then drive them down like cattle into a chute, down to this, we call it the regulatory point, at the bottom. So the point of the triangle is at the bottom. And it drives them down to a place where all they can do is complain over the height of the fences around the factory farms, or whatever the state has determined to be the only acceptable items to complain about or to appeal. So it’s kind of an automaton thing. You’re driven from being real living breathing thinking human beings, concerned about a number of different problems, a multi-faceted problem, down to this point of the triangle in which the state has predefined what your allowable concerns are going to be.

So, moving from the abstract to the practical, in Pennsylvania for example, the only thing you can complain about is the amount of liquid manure produced by a factory farm, and where it’s going. That’s it. That’s the only place where the state gets involved to issue a permit, so it predefines that as the only issue that you can raise. So if you go into the agency proceedings and you try to, say, raise arguments about animal welfare, or about the economics of the fact that we’ve lost 400,000 farmers over the last ten years because they’ve been driven out of business by this agribusiness, you know, vertically integrated agricultural model. That your comments are not relevant, because they’re not keyed into that one issue that the state has determined should be your allowable issue.

And so talk about a great way to just, not only colonize people, but get rid of any activist impulses whatsoever. Is to say “Yeah, it’s okay that you’re worried about this, but that’s not relevant. It’s not going to fit into this permit appeal process at the bottom.” And people are encouraged to travel down that chute, like cattle, by not only the state agency, because people pick up the phone and say “Well, we have this factory farm coming in and I’d like to get involved because I don’t think it’s a good idea.” And the state agency says “We’re so glad you called. We have this permit application now, and if you want to submit comments about nutrient spreading and nutrient production, we’d be happy to hear those comments.” And the corporation, some people go to the hearing and go up to the corporate representatives and they say “Hey, we’d like to become involved because we don’t think this is a good idea” and the corporation says “Well, we’re so glad you asked. We have a permit application here and you’re more than welcome to submit comments on the manure management plan that we’ve submitted to the state.”

And it’s bad enough that the corporation does it, it’s bad enough that the state does it. These are entities that people turn to for authority. But the environmental groups do it. So if you pick up the phone and call the Sierra Club, the Sierra Club lawyer says to you “Well, we’re so happy you called. We’d love to help you out. You can appeal this permit on manure management grounds.” And then they steer you into this expert, you know, manure person, who can give testimony. And they slide people right down into that regulatory chute as well.

And at the bottom of course is where we all lose, because you can’t win it on those issues. That’s why the state’s chosen them to be the issues. And so we take all this energy, this massive amount of caring and energy and investment and resources, all that kind of stuff, and we smash it all down into that regulatory chute, just like cows headed to slaughter with the bolt shot through their heads. And at the bottom is where everybody loses. And even if you win, you don’t win much of anything at all, because the state then comes back and closes the loophole that you found when you did the challenge to the regulations. So it’s no wonder that things are worse now than they were 50 years ago, because that’s a perfect machine for activist burnout.

DJ: I don’t think you’re being fair, because I think that there are huge victories, like you can get the wall to be 6’2” tall instead of 6’ tall. I don’t know what you’re complaining about.

TL: Right. (laughing) Some guy just scaled it in two minutes a couple days ago. The wall between the US and Mexico.

DJ: I was talking about the wall around a pig factory.

TL: Right, right. Or my favorite was a case that challenged paint. You know, what color paint you could apply to the wall around the frack well. It was a frack well challenge. It’s just crazy.

DJ: That’s a huge victory!

TL: Yes! A huge victory, yes.

DJ: We’ll probably get to Amazon with like three seconds left. But anyway, one of the ways I always think about this is that if space aliens had come down to earth and they were doing to this planet what capitalism is doing to the planet, we would not merely be going down to the alien permitting office to complain about their permits. We would actually be resisting in a serious way. I mean, for God’s sake, there are stolid scientists talking about the oceans being devoid of fish in another 30 years. This is not trivial and it’s also not local. We’re talking about life on this water planet. And our responses are just so …

TL: Yeah, it’s like saying the American colonists should have gone to the British Board of Trade to make their arguments about independence. But it’s also important to recognize that there is real punishment in the system. The State of Florida passed these gun preemption laws to preempt municipalities from adopting firearms law, gun control laws at the local level. And not only do they just prohibit passage of those laws, but now they’re threatening local officials with civil fines of $5000 apiece, and removal from office by the governor of the state. And so it’s not just environmental issues. It’s social issues. Paid family leave and all these other things as well.

And when you step in to actually say “Well maybe people within their own community should have the right to make laws and have a right of local self-government, and actually have a constitutional right of self-government that outweighs the corporation’s right to put the project in the community,” you get slapped and you get slapped hard. In January we got hit with a $52,000 fine, from a federal judge, in a case where we were arguing that a community should have the right to say yes or no to a frack wastewater injection well being sited within the community. And in response to making that argument, we got hit with a sanction by the federal court, which granted a motion by the oil and gas company to fine us $52,000. And then she referred the matter to the disciplinary board of the state, in which I could be disbarred, or have something happen with my license.

And so the minute you stand up and say “I’m not going to play in that sandbox,” of the regulatory stuff, and you move outside to do something different, this system smashes your nose in. That’s what it’s intended to do. And so, like Pavlov’s dog, people are hesitant to step off the sidewalk because as soon as you do you get that punishment, that voltage that gets driven into you.

DJ: Well first off, I want to thank you for your courage, and for your steadfastness over these decades. I just want to acknowledge that. And I also want to point out to people how horrible it is, what you just said. That for making the unacceptable argument, for making the argument, forget “unacceptable,” that the community should be allowed to make decisions, the courts came after your organization and possibly you. And that’s just extraordinary.

It’s not extraordinary. It’s ordinary. It’s horrible.

TL: Yes. And it’s ordinary. I mean, this is how it works. And with the lawyers dealing with the early civil rights movement, they got sanctioned as well, and jailed sometimes. I mean, it’s just how the system responds. And here the basis of the sanction against us – I mean, purely, this case was about a community saying “no” to a frack wastewater injection well that was scheduled to inject 151 million gallons of toxic wastewater from fracking operations into the community. And the community passed a law that said “no, we don’t want that.” The entire community is on well water. They said “We know what these things do, and we don’t want it and we’re going to say ‘no.’”

And then coming up with a legal doctrine, a legal theory, which we have been perfecting now for 15 years, that people in a community have a right to say no. People in the community coming together collectively have a right to say no to those things that are going to harm them, in the community. And because we had made that argument in two other federal courts prior to this, and lost, because the courts have not been embracing this concept. And that’s how law changes, you know. You have to keep knocking at the door. You do so somewhat politely, and sometimes not so politely. And in this case the judge said “Well, you made the argument a couple of times before and you’ve lost, so the only intent, the only reason you have to raise it now is to harass the oil and gas company.” And because of that, she issued a sanctions order of $52,000, against the two lawyers, one of which is myself, in this case.

But like you said, it’s not unusual. This is the way the system works. So if in your camp, if you think we live in a democracy and we do have power at the local level to say no under the current system, that leads your activism in one direction. But if you’ve come to the conclusion that the system is so broken in many ways, or precisely operating the way it’s supposed to operate, and not broken at all but perfectly, working very well for some, that you follow a different kind of activism. It’s the same thing as with the suffragists and the abolitionists, everybody that’s come before, is that some activists chose to write letters to the President, asking him to grant women the right to vote. Other women went to labor camps. Got arrested, went to labor camps, did picketing, ran into ballot boxes and stuffed them before the police could arrest them. Went to trial, did civil disobedience and all that kind of stuff. So either you’re in the system and you think the system’s going to work for you and you try to press the pressure points, or you’re outside of the system and you understand those pressure points are just not going to accomplish anything, and you set your sights on something else.

DJ: So I’ve yet another subject before the Amazon, which is an anecdote first. My sister is fairly right-wing, and she was for a time on the city council of a small community in Virginia. And she and I would have some interesting conversations about it, because there were many things that we disagreed about and then some things we agreed on. One example was that somebody wanted to put in a shopping mall in this community. And were I on the City Council, I would have voted no because shopping malls are evil and because it would destroy the environment. It would be for environmental reasons. But she, on the other hand, voted no because the owner was not local, but instead some outsider trying to impose – the person was from Washington, DC. So it was an outsider trying to impose stuff on their community.

And this all brings me to the question of – and I don’t think this is a question you and I have ever talked about, or if we have, I’ve forgotten. So do you work – in terms of this community self-determination, do you find yourself working mostly with lefties? Do you find yourself working some with some right-wing people? Is it across the board? Because there are strong community self-determination groups in the right as well. And I’m just wondering how you navigate that.

TL: So first off, that conversation with your sister probably makes for interesting Thanksgiving conversations, I would imagine.

DJ: Oh, we usually end up talking about football.

TL: So your question about where does this land in the political spectrum? The answer is: “all over the place.” Which is that; in the communities where we work, sometimes the only thing people have in common is that they don’t want the factory farm coming in, or they don’t want the toxic waste incinerator. You get people from both wings coming together in the same room. They may not be able to talk about anything else. Can’t talk about gay marriage, can’t talk about abortion, can’t talk about anything else, but on the local control issue they have common ground. And I think that’s the kind of political constituency that’s emerging.

And there are always concerns about local control being used for bad things. You know, like banning African-Americans from coming into a community. Or banning gay marriage on a local level, or whatever those concerns might be, but the local – the community rights movement, which has emerged in the United States, which is, you know, what we support, and have deepened with the legal arguments, is essentially about an understanding that communities; local communities, municipalities, cities or towns, villages, counties; should be able to expand and broaden out civil and political rights at the local level, above the floor established by the state and federal government. So much in the way that state constitutions and state governments can broaden out federal constitutional rights by recognizing additional rights, or broadening out existing rights, that local governments should have the same relationship with the state and federal government as the state government has currently with the federal government, in terms of broadening out rights.

So we’re not talking about local governments or communities adopting laws that drop below those federal or state civil right floors, but building on top of those. So, you know, rights of nature, right to clean air, right to clean water, right to a sustainable energy future, basically things that have not been spoken to by state or federal constitutions, that can be seen as broadening out or expanding above the floor of those state and federal constitutional rights.

DJ: So we have about ten minutes left, and at long last; you recently put out a press release. “Colombia Supreme Court rules that Amazon region is ‘subject of rights.’” Can you talk about that, please?

TL: Yeah. So the rights of nature stuff has been gaining some traction over the last six months. First there was Colombian and Indian courts ruling that glaciers and rivers would be treated as persons under the law; i.e. as separate entities. So, up until now, basically the legal systems of everywhere except for indigenous communities basically have been about nature being property. So if you own a piece of property, that carries with it the right to destroy that property. If I own a ten acre piece of ground, there’s nothing that stops me in the law as long as it’s not a protected wildland or there are endangered species or some other protection like that; from simply asphalting the whole thing into one giant airfield and destroying the ecosystems on that piece of property. So this rights of nature concept that ecosystems and nature have independently enforceable rights of their own, that they are separate entities that have interests of their own, should be able to enforce rights of their own; that concept is what began in a little town, or borough, of Tamaqua, just north of Philadelphia, way back in 2006, which was the first Rights of Nature law to be passed in the United States. That then became part of the Ecuadorian Constitution, so we traveled to Ecuador and served as an advisor to the Ecuadorian national government who then took the Rights of Nature concept and drove it into the national constitution for the country of Ecuador. We now have a couple of enforcement cases in Ecuador in which a river is a plaintiff. So it kind of bends our brains I think sometimes, but thinking about non-homocentric or anthropomorphic uses of the court system, so a river appearing as a plaintiff represented by the people of the community who have an interest in protecting the river.

And so just six months ago courts in India and Colombia ruled that glaciers and rivers were persons under the law, in other words that they were separate entities that had standing in the courts and could get into the courts and could be represented by other interests and other entities. And just recently last week the Colombian court spoke again, and this time not just on a single river or a single glacier but on the Amazon region, in a case brought by 25 youth plaintiffs who had filed suit against the national government of Colombia to secure their rights to a healthy environment and food and water. It was a very broad complaint. The Colombian court ruled in response that the Amazon itself has certain rights, so the Amazon region has certain rights and was recognized as a person and independent entity that had rights of its own that the national government was forced to respect. And so as part of that ruling, down to the practical aspects of it, the Colombian court ruled that municipalities, as well as the national government, needed to come up with a plan for zero deforestation, to actually halt deforestation in the Amazon region, because the court found the rights of the plaintiffs to a healthy environment and right of future generations required that the rights of the Amazon be respected, and that the rights of the Amazon could only be respected if the government followed a zero deforestation rule.

And so what’s very interesting is that in some places this concept of the rights of nature, concept of some personhood attributes being recognized on behalf of natural systems and ecosystems. That some of it has stemmed from written law, so like when the people of Ecuador voted in their new constitution, actually wrote rights of nature into their new constitution, saying that nature has the right to exist and persist and maintain and regenerate and all those things; versus courts, which are now operating outside of that written law and are using Ecuador, New Zealand, and a couple of other places as examples, to actually write their own law. So you have courts writing their own law. There is no law in Colombia. There’s no Rights of Nature law, legislative law, on the books, and so the courts are beginning to invent. And they’re beginning to extend and expand. And they’re beginning to hook the rights of nature into this right to a healthy environment concept, saying that the right to a healthy environment is not possible unless nature has rights, which I find to be fascinating. I mean, we all know it to be true, but it’s the first time, really, that courts have based rulings on it.

So I think it’s an indicator of things to come, that the courts are becoming more and more activist on these issues in using this Rights of Nature concept to expand out to these other areas. I think it’s a very interesting development.

DJ: Okay, so the rulings have been made, and that’s wonderful. And have these rulings, in some cases, led to tangible protection on the ground, such as a mine not going in, or a river not being dammed? Have they actually protected land yet?

TL: They have in Ecuador. The first enforcement case was brought by the Vilcabamba River, and it was against a local government that was pouring road debris from a road-widening project into the river. It was altering the river’s course, and the courts ruled in favor of the river and ordered the local government to restore the river’s original course. So that was the first Rights of Nature case in the world, that was brought in Ecuador. Since then, it’s been used to stop illegal gold mining in some areas of Ecuador. Other cases of that sort in the Colombian courts and Indian courts have basically been used to force new plans to be drafted by the state government, to eliminate point source discharges into rivers, and to do some climate stuff around the glaciers. And then here, in the Colombian court decision, that just recently came out last week, they were very clear that the government had an obligation to come to zero deforestation.

So it wasn’t just “Hey, you have a responsibility to maintain the forests in the country.” It was “You must come up with a plan that is zero deforestation for these areas.” And so I think we’re getting to a point where people are getting fed up. I mean the Colombian judges are fed up that after all these years, there’s still environmental degradation happening in the Amazon. And I think this was the last straw. And the other thing that’s interesting is that the first Colombian court to make a decision was the Colombian Constitutional Court, which is the final arbiter in the country of what constitutional law means. So it can’t be appealed. There’s no changing that decision. It’s done. It’s in the law. And I think especially in South America you’re going to see more and more courts extending the law in similar ways to what the Colombian courts have done.

DJ: Because a lot of listeners don’t know me, I need to make explicit that this is sarcastic before I say it.

How come in those sort of phony little democracies around the world, they do this, but in the greatest and most wonderful democracy in the world, in fact the only real democracy in the world, the United States, we’re number one! How come in other countries, it may be enshrined into the Constitution, and in the United States, people who make the argument get sanctioned?

TL: (laughing) I’m not sure that requires an answer. We’re kind of in the belly of the beast in the United States. This is the place where property and commerce protections have been elevated above everything else, and it’s constitutionally structured. The Constitution was written in the 1780’s, and back then the question was “How do we write a form of governance that allows us to exploit as quickly as possible the natural resources across the land?” Because that was, in the eyes of the founders, how you became a rich and prosperous nation. So they wrote that constitution. That’s the constitution we have today. It’s a 1780’s constitution.

Meanwhile, in Ecuador they have a 1990’s or 2000’s constitution, because they’ve rewritten theirs. In the U.S. the Constitution is a sacred cow. But the sacred cow is killing us. It’s a 1780’s plan of governance that is rooted in 1780’s values. And until it gets redone, the DNA of this country is opposed to either local control, because local control acts to stop economic development of some kind or the other; and the rights of nature, which recognizes that ecosystems and nature have some kind of rights to stop that which is going to harm them. So we’re in a place, I think, that is the belly of the beast. And it is an uphill climb here to change this stuff.

DJ: So here’s a concern I have, and I’m sure you do too. Let’s say that tomorrow a Constitutional Convention was called, whatever this means. What would stop that new Constitution emerging in the United States from being even worse, given the political climate, and given, also, especially, the power of corporations to control things in the United States?

TL: Yeah. It would be a mess. And that’s why, generally, when people ask that question, I say “We have no business rewriting the Constitution until we create a movement that becomes powerful enough to control that process.” And until that happens; you open it up and it turns over to the forces that are currently transcendent, which are the ones opposite to the values you’re trying to drive. So, for the past 15 years we’ve tried to support the growth of a movement that is based on local self-government as well as the rights of nature work. And until that becomes powerful enough to control changes.

I have to tell you I’m a cynic about most of this stuff, especially on the national level. But a bill was introduced to amend the New Hampshire Constitution this past year, that we helped with. And it would recognize the authority of municipalities to adopt Rights of Nature laws within the State of New Hampshire. And one third of the New Hampshire House voted for that bill, one third of the legislators in the New Hampshire House, which is huge. That’s 400 some people actually voted to adopt that bill, which would have put the constitutional amendment in front of the people of New Hampshire, to decide whether to grant the authority to communities to protect the rights of nature.

So I think amending state constitutions probably comes first. And that only happens when people are powerful enough in different communities to drive that change. And I think that’s starting to happen in Oregon, Ohio, Pennsylvania, New Hampshire. And then eventually, down the road, folks become powerful enough to tinker with the Federal Constitution.

DJ: One of the things I have always loved about you and loved about your work is that you kind of remind me of the fight scene in Cool Hand Luke, and all good activists do. All good revolutionaries do. Where, you know, you get up and you get knocked down, and you just get up and go at it again and get knocked down, and you recognize that’s part of the struggle. I really have so much respect for your ability to persevere and to continue to resist, and to not give in. And I just want to thank you for that.

TL: Thank you.

DJ: So I guess the last question is: if people want to learn more about the work you’re doing, or to help out or to attend one of your Democracy Schools, or to do anything else good, what should they do?

TL: Best thing is to go to our web page at CELDF.org, and that’s the Community Environmental Legal Defense Fund, and all kinds of stuff is up on our web page. Information about the Democracy Schools. And then folks who want to read more about the Colombian Supreme Court decision, that’s on the front page right now.

Press Release: Colombia Supreme Court Rules that Amazon Region is “Subject of Rights”

DJ: Well thank you so much. And I would like to thank listeners for listening. My guest today has been Thomas Linzey. This is Derrick Jensen for Resistance Radio on the Progressive Radio Network.

Filed in Interviews by Derrick Jensen