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    Why your community needs a bill of rights

    Guest Opinion: The public comment period may have ended, but communities across Washington and the country are rallying to take back their rights to make local decisions about their resources.
    Written comments in Bellingham

    Written comments in Bellingham Floyd McKay

    The Bellingham audience waves and shows signs (no applause was allowed) to support a speaker.

    The Bellingham audience waves and shows signs (no applause was allowed) to support a speaker. Floyd McKay

    I just spoke with an old friend in Portland, OR who didn’t know about coal companies’ plans to construct a coal export terminal just north of Bellingham, WA, where I live. The port would be the largest of its kind in North America, expanding coal companies’ capacity to mine coal from public lands in Montana and Wyoming, put it on freight trains, and ship it to Asia. My friend was impressed. 

    Like him, when I learned about the proposal I wanted to know what I could do to stop it. “Make a comment,” environmental activists told me. It was “public comment time” and I mattered. I could make a difference.

    The public comment period ended January 22, 2013, so that officials could inventory comments and include them in an Environmental Impact Statement. I never did get around to commenting: Not because I'm lazy or because I don't care about the issue, but because my comments would never have made it into the EIS.               

    You see, for citizens’ comments to be heard and addressed in the terminal’s environmental impact statement, they must relate to a topic regulated by a public agency. For example, impacts on local economies are not regulated by a state or federal agency. If your business will suffer from coal trains, your “comment” will not be addressed in the impact statement. The only way to get in on the impact statement is if your comment speaks of a harm that can be quantified and is applicable to something like the Clean Water Act, which regulates water pollution.

    The comment I would have made would never have met these requirements. 

    In August 2012 a Whatcom County Superior Court Judge granted the city of Bellingham's injunction to keep an initiative off the November ballot, denying citizens the right to vote on a Community Bill of Rights. If approved by Bellingham voters, the measure would have elevated the city’s right to self-government and the rights of ecosystems upon which it depends. Such a designation would have overridden corporations’ rights as “persons,” and outlawed coal trains as a violation of those rights.

    My comment would have said that, without a vote of the people, the trains would violate my right to democratically vote on what happens in my community. No agency that I am aware of regulates that.    

    What we can do, now that the comment period has ended, is help to pass Community Bills of Rights across the Pacific Northwest that elevate communities’ rights to democratically decide what happens in their jurisdiction; that protect the human rights of their citizens and the rights of nature above corporations.

    If Bellingham, Seattle, Tacoma, Olympia, Vancouver, Portland and the rest of us enjoyed these rights, we’d have the power to decide whether or not the terminal could proceed, rather than leaving it to an agency to regulate.

    You might be thinking this sounds impossible. It’s not. A national legal defense fund, the Community Environmental Legal Defense Fund, has already helped more than 150 communities in eight states to adopt such local laws. Much of this work has taken place in the East and Midwest, but it’s creeping west.

    Benton County, Oregon is working on a Food Bill of Rights to protect its right to seed heritage from contamination by genetically modified crops. Bellingham is continuing its work on a Community Bill of Rights, California is taking notice and New Mexico has passed multiple community bills of rights.

    Just across the mountains in Spokane, citizens are trying for a third time (after being outspent 8:1 and losing by just 500 votes in 2011) to pass a Community Bill of Rights. This bill, which they’re hoping to add to the November 2013 ballot, would give Spokane neighborhoods the right to vote on zoning changes involving major commercial, industrial or residential developments. It would also protect workers' constitutional rights, the rights of the Spokane River and the Spokane Valley-Rathdrum Prairie Aquifer to exist and flourish and the rights of Spokanites to sustainably access, use, consume and preserve the water. To give the law teeth, the rights enumerated in the Community Bill of Rights are raised above corporations’ “rights” and privileges. 

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    Posted Tue, Feb 5, 4:17 a.m. Inappropriate

    " I never did get around to commenting: Not because I'm lazy or because I don't care about the issue, but because my comments would never have made it into the EIS."

    How do you know that?


    Posted Tue, Feb 5, 11:13 a.m. Inappropriate

    Though there's more to the story, the forth and seventh paragraphs should help you understand why "my comments would never have made it into the EIS". Does that clear things up?

    Posted Wed, Feb 6, 8:10 p.m. Inappropriate

    I've read your whole opinion piece, Simon.

    I asked the question because it has the 'why should I vote, my one vote doesn't make a difference' excuse flavor that distances the citizenry from participating in their town/city/county/state/federal governing bodies.

    At least 120,000 others didn't feel the same way.

    Now if you submitted the comment, and had an issue with it being ignored, or maybe disagreeing with the response, then you could make a convincing case for your dissatisfaction.

    I'm not making a value judgement on what I think you opinions are concerning the coal issue, other than I advise that you pick the targets of best value, and, with the help of a good devil's advocate, make sure your arguments are bullet-proof.


    Posted Thu, Feb 7, 3:31 p.m. Inappropriate

    Agreed, good devil's advocates are essential. True, the piece expresses a lack of faith in the comment period. My theoretical comment cannot be mitigated by a regulatory agency, which is why I saw it as futile to submit.

    The comment period is valuable (impressive that over 120,000 folks made comments) but what I am trying to express is that the comment period is not our only outlet for participation.

    Thanks for helping strengthen these arguments, and getting things cleared up.

    Posted Thu, Feb 7, 8:48 p.m. Inappropriate

    Not that I agree with the anti-coal train crowd on every point, but there are a few holes in their arguments.

    Given that, then there has to be thought as to what is an acceptable compromise.

    If a number of issues are mitigated as part of the review, will critics be placated?


    Posted Sat, Feb 9, 10:18 p.m. Inappropriate

    Except that you're wrong that only "quantifiable" impacts are included in the scope of the EIS. Any "probable adverse significant environmental impact" must be included. "Probable" is defined:

    WAC 197-11-782 Probable. "Probable" means likely
    or reasonably likely to occur, as in "a reasonable probability
    of more than a moderate effect on the quality of the environment"
    (see WAC 197-11-794). Probable is used to distinguish
    likely impacts from those that merely have a possibility
    of occurring, but are remote or speculative. This is not meant
    as a strict statistical probability test.

    But you are correct that economic impacts are not studied in Environmental Impact Statements. Currently, when a state agency adopts a rule, it must perform an "economic impact analysis." But when gargantuan corporations propose to move and peddle millions of tons of polluting substances no disclosure of the economic impacts is required.

    Steve E.

    Posted Tue, Feb 5, 12:43 p.m. Inappropriate

    Regulatory agencies are created with very specific mandates. It would not be appropriate for them to function as general policy agencies or to allow their commissions to make decisions that go beyond the purview of the laws that created them. Maybe the laws that create the agencies would be broadened, but then the effect is to allow businesses, such as those proposing to ship coal, to be subject to the whims of the executive or public opinion. That wouldn't be fair either.

    There is also the matter of the Commerce Clause, which puts the regulation of interstate and international commerce within the purview of the federal government. That's for a good reason. For a town, or even a state, to assert that privilege is not only a threat to the ability of business to function, but it comes uncomfortably close to the doctrine of nullification.

    Now, don't take this to be an endorsement of burning coal. Coal produces a great deal of toxic pollution, not to mention the impact on global warming. But an effort to deal with these problems has to be done right. First, it should be focused on those entities which have proper jurisdiction, such as Congress. Second, rather than treating business as the enemy, it should be focused on creating clear rules that allow business to function in a manner that is consistent with a clean environment.

    Posted Tue, Feb 5, 2:19 p.m. Inappropriate

    I am confused by your interpretation of my writing. I never hinted at expanding the function of regulatory agencies.

    The Commerce Clause has a function, but like all law, it can be amended and should function for the best interest of citizens. My piece spoke to the relationship between corporations' protections (including under the Commerce Clause) and the Rights of localities to decide what happens in their jurisdiction. Of course each level of government has limits, that is why we live in a federalist structure. But when the conflict is between a corporation's protections under the Commerce Clause and a city's Right to democratically decide what happens in its jurisdiction, I side with Americans' Right to Self-Government, personally. This is what Community Bills of Rights encode into local law.

    Also, could you point out where I treat business as the "enemy"? My brother is a local business owner. I think it should be up to people to decide what's good or bad for business.

    This is about more than coal and the Commerce Clause.

    Posted Tue, Feb 5, 11:12 p.m. Inappropriate

    Simon, you're a typical "progressive" hypocrite. You have absolutely no interest in community control and you know it.


    Posted Wed, Feb 6, 12:53 p.m. Inappropriate

    I would encourage you to reread the article.

    Posted Sat, Feb 9, 10:20 p.m. Inappropriate

    The environmental impacts of this entire proposal - mining, shipping, and burning vast amounts of coal - is well within the purview of the EIS. And one of the agencies is Federal.

    Steve E.

    Posted Tue, Feb 5, 3:38 p.m. Inappropriate

    My concern is that the phrase "Rights of localities to decide what happens in their jurisdiction", in this context, trumps the right of a nation to regulate international trade on a federal level. That's the way that I read the article; since it revolved about Bellingham and the coal port debate, a community bill of rights would effectively give a city the power to veto international trade that passes through its jurisdiction. That's what worries me.

    The rhetoric of "corporations versus people" strikes me as anti-business. It seems to cast "people" and "corporations" in distinct and antagonistic roles, and I'm not sure that is a constructive approach.

    Posted Tue, Feb 5, 4:13 p.m. Inappropriate

    The "right of localities to decide" would not override all national policy, it would specifically trump federal and state protection of corporations' rights. If a community passes such a Bill of Rights that elevates its right to self-government above the constitutional rights and protections corporations enjoy as "people", the right of the American community would override the "right" of the corporation. However, if the commerce was facilitated by a state or the Federal government the commerce would be outside the communities jurisdiction. I am referring to specifically the relationship of local control and corporations' rights as "people". Do Americans have a right to clean drinking water for example, and is this right superior to corporate "rights" to commerce that contaminates drinking water?

    Your statement that "the rhetoric of 'corporations versus people' strikes" you as anti-business is, I feel, off base. This assumes that people do not represent business interests. The best interest of people does not conflict with business interests, people like thriving economies. There is nothing stopping a community from inviting corporations into their town or city. The point is to allow American communities to decide if a corporate activity is in its best interest, or not.

    Posted Wed, Feb 6, 8:40 a.m. Inappropriate

    Thank you for responding to the comments. I am not entirely unsympathetic to what you are proposing; after all, think about the history of "railroading", particularly in the West. Individuals and communities do need to be protect their rights, as do businesses. But I am still skeptical that the "Community Bill of Rights" proposal is really the way to do it, since I am concerned about what ramifications it could have down the line.

    Posted Wed, Feb 6, 1:04 p.m. Inappropriate

    Thank you for your response.

    I agree, these are good things to think about. I suppose with anything there will be uncertainty, but I do see the Community Bill of Rights tactic as one of our few tangible options to protect ourselves. I think with the rise of corporate hydrofracking, coal mining and exportation, GMO agriculture, etc. we need to draw some lines that corporations cannot cross. I see Community Bills of Rights as an explicit way of drawing these lines.

    Posted Tue, Feb 5, 8:26 p.m. Inappropriate


    A little thought experiment here.

    You own a farm of 1000 acres on one side of the Skagit.

    I and nine other people, using our constitutional right of Freedom of Association, form a corporation and contribute capital to it equally. Our corporation buys an identical farm in terms of land area, soil, water right, etc. on the other side. We elect 3 board bembers and authorize them to hire a manager. Between the Board and the manger,o we delegate all authority in managing the farm.

    You choose crops and agricultural management practices to maximize your income (and that of your family and heirs)consistent with local, state, and federal laws.

    Our manager chooses crops and agricultural managment practices to make sure our farm produces enough revenue to pay himself a salary and give us a return on our investment so he won't get fired by the Board (and the Board won't get fired by the other 7 shareholders if they don't replace the manager if he/she doesn't get results).

    Why should the two enterprises have different property rights, or different regulations relative to democratically elected governments just because they have different forms of ownership?

    Assuming the land is zoned, or can be rezoned, to permit each enterprise to quit practicing ag and build competing coal terminals, why does the community get a veto over the corporate land owner, but not the individual landowner, just because the former group chooses to associate around a mutual interest and pool their capital?

    Posted Wed, Feb 6, 2:44 a.m. Inappropriate

    I personally would not say that EITHER the individual landowner OR the corporate landowner get to override the community's veto power. That makes sense right? We ALL have to play by the rules, right?

    Posted Wed, Feb 6, 6:18 p.m. Inappropriate

    Yes, but the approach you advocate only targets corporations.

    More significantly, the approach you advocate seems to create a "taking" under the constitution. Veto power takes away a property right after it has been granted (i.e. the right to develop and use your property as you wish in line with current zoning, uses and income production permitted by law).

    How are you free in your person and propety, if a community can veto a lawful use of your land, AFTER you act to excercise that lawful use?

    Posted Thu, Feb 7, 1:36 p.m. Inappropriate

    Correct, this approach looks at the relationship between corporations and American communities right to decide what is in their best interest. The question is whether a corporation's protections under the fifth amendment's protection of private property, for example, should trump an American community's right to make decisions in its best interest.

    Posted Tue, Feb 5, 9:09 p.m. Inappropriate

    Rather than stop coal trains the effort should be to keep them environmentally safe as they travel the US. The coal is being used in the third world to equalize oppressed population with the USA. The USA represents colonialism and capitalism that made these countries oppressed. If you voted for Obama you should be pro coal train. If not you are not helping the third world. It's better the coal comes from here where we have regulations, than let parts of Africa be strip mined to death by China. Send experts to China and invest in safety and health at their coal plants. industrial outreach by the us. The anti coal train people are agitating just for their own backyards and don't have much interest in a better environment. Reactionary. Almost Republicans.


    Posted Wed, Feb 6, 2:54 a.m. Inappropriate

    The coal we are exporting would be illegal to burn here, because it is much dirtier than our regulatory standards allow us to burn.

    I am all for sending "experts" to China to advise China in public safety and health, but who are we to tell another country what to do? Isn't that what colonists do? Not sure myself.

    It seems like you agree that the coal trains would be bad for the west coast? Our backyard would be harmed. Not sure if I can speak more on this.

    It is not clear what Chinese people you are referring to that would benefit from coal imports.

    Posted Sat, Feb 9, 10:30 p.m. Inappropriate

    I agree with you. I don't want to eat and drink the Mercury that will come blowing across the Pacific Ocean from the coal when its burned. I realize that is extremely selfish of me. In the best interests of Peabody Coal, BNSF, and Goldman-Sachs I should readily sacrifice myself for the better good of their corporate executives and shareholders. Or maybe just to keep things fair they should also have to consume mercury. After all, they're making money from this, I'm not.

    PS: I'm surprised you didn't also point out that for the very same reasons that you bring up for coal, we should also open Olympic and Mt. Rainier National Parks to commercial logging and turn them into 'tree farms,' to keep the corporations busy for a little while longer before they move on to Siberia, Africa and Asia. Oh . . . I guess they already have.

    Steve E.

    Posted Tue, Feb 5, 11:11 p.m. Inappropriate

    Hey Simon, how about a Seattle neighborhood's rights to oppose a new development? Ooops, now they're "NIMBYs," you "progressive" hypocrite. Who do you think you're kidding with that phony democracy act of yours, anyway?


    Posted Wed, Feb 6, 12:10 p.m. Inappropriate

    I agree with much of the underlying content of your comments, but really, "You have absolutely no interest in a civil dialogue and you know it."

    Aside from your frequent failure to cite facts and make logical arguments based on them, you'd be more convincing if you were polite more often. And if you'd stop using "progressive" as a universal epithet for everything you hate about your community.


    Posted Wed, Feb 6, 2:58 a.m. Inappropriate

    Not sure what the definition of a "progressive" is, though I would be interested to here what you think makes someone a "progressive". I don't see any hypocrisy here, it seems logical to me that a neighborhood would posses the power to make the decision about a development in its own neighborhood.

    It is unclear what your point is.

    Posted Wed, Feb 6, 12:52 p.m. Inappropriate

    I should add that the Spokane Community Bill of Rights does not give neighborhood associations the power to determine developments "financed by governmental funds allocated for low-income housing."

    Posted Fri, Feb 8, 10:59 p.m. Inappropriate

    Why of course not. Your whole screed is all about coal trains. When it comes to any actual "community bill of rights," it couldn't be more obvious that you'd shove every "progressive" piece of crap down the throat of any community. If you actually think you've fooled anyone other than your own cult, better think again.


    Posted Wed, Feb 6, 1:51 p.m. Inappropriate

    So do the citizens of Yakima County have the right to decide how the Federal lands in Yakima County are managed? If not, then you do not have a leg to stand on.


    Posted Fri, Feb 8, 11 p.m. Inappropriate

    Trust me, he would never, ever actually buy into local control. His article is purely a smokescreen to oppose the coal trains. It has nothing at all to do with local community control. Not ever.


    Posted Wed, Feb 6, 2:27 p.m. Inappropriate

    I believe that passing Community Bill of Rights is the best strategy citizens have to rectify an imbalance of rights between real people/communities and corporations. This imbalance allows corporations that have the sole purpose of increasing profits to own, pilfer, destroy and poison our communities without compensation or accountability. This is not an anti-corporation movement. I recognize that corporations have necessary and important roles to play in our society. However, they cannot be grant (relatively) unchecked rights to operate with impunity. Appropriate limitations on their operations, purpose and financial contributions, as well as liability, must be part of the legal structure of corporations. In the 1800s, corporations operated under charters with such limitations. Our individual, community, national and global health cannot withstand the devastation of profit-driven corporations who hold all the legal cards. Communities, made up of the real people empowered by their state constitutions, must organize for change and engage in the law-making that corrects the imbalance of rights that favors corporations. Thank you for this article.


    Posted Wed, Feb 6, 6:26 p.m. Inappropriate

    Accept Ann, those corporations are really associations of all of us.

    Do you realize that over 50% of the Fortune 500 companies is owned by the public via public retirement funds, 401k's and the like. Until Newtown, CALPERS (which invests public employee retirement funds for all California's government workers - state and local) was the largest invest in a private equity firm that held large stakes in gun manfactures. CALPERS, many teacher retirement funds, etc. demand high returns for the benefit of those that get pensions and under presure from elected officials to lower the likelihood of more drains on tax revenue to fund pension obligations.

    Walter Kelley wrote, "We have met the enemy and he is us." Those corporations are so purely profit oriented because big instituional public players like CALPERS demand returns or they will take their investment dollars elsewhere.

    Posted Wed, Feb 6, 6:52 p.m. Inappropriate

    I believe that the Community Bill of Rights is a movement that is attempting to change the status quo in a very fundamental manner. Corporations strive to maximize profits for their share holders, but due their immense financial influence they are not held accountable to the costs incurred by their operations. Corporations have personhood status and are protected and sheltered. They can influence politicians, lobby for their causes, and have the funds to challenge any reigning of their domains.
    The CBR is an attempt to hold corporations accountable.


    Posted Wed, Feb 6, 9:52 p.m. Inappropriate

    ... and they do so because of the returns demanded (and lawsuits) by shareholders, who want to retire well. So aren't we culpable as well? Isn't there an issue here of reconciling what we say are our most important values with what we (in the collective, aggregate sense) say are our most important values?

    Posted Thu, Feb 7, 7:54 a.m. Inappropriate

    There is a fundamental flaw in a system that allows corporations to rape and pillage and then offer shareholders a stake in the booty. We are all affected and we are all implicated.
    Doesn't change the fact that it is an unjust and flawed system.


    Posted Thu, Feb 7, 8:55 a.m. Inappropriate

    The writer states, "For example, impacts on local economies are not regulated by a state or federal agency. If your business will suffer from coal trains, your “comment” will not be addressed in the impact statement." In fact, that comment will be addressed by the EIS, but it may be dismissed. If so, that will likely be the subject of an appeal, because many individuals and organizations commented on the need to measure economic impacts. Protect Whatcom specifically argued for the need for an Economic Impact Assessment, particularly given that one of the three stated purposes for the proposal by the proponent was economic development. That purpose is irrelevant if there is no NET economic benefit of the terminal and to know that, regulators must conduct an EIA. The hope: we're moving into a brave new world in which the real costs of a fossil fuel proposal are measured to determine net social benefit. To push the law where it should go, however, one must participate in the process.


    Posted Thu, Feb 7, 1:49 p.m. Inappropriate

    That's right we need to participate, and explore our many outlets for doing so. I think that would be great if through comments on an environmental impact statement (EIS) we could demand an economic impact statement. My piece should not be interpreted as a put down on those who invested in the EIS, I think all of our energy should be encouraged. The EIS process was instrumental in putting the issue in the public eye. We can focus on different tactics and compliment one another.

    This is an attempt to illuminate one of our many options.

    Posted Thu, Feb 7, 5:47 p.m. Inappropriate

    If it could actually stop the coal terminal, it would be an "option." But it can't. There has not been one CELDF initiative that has withstood legal challenge. They are instruments of raising social awareness. The difference between the initiative -- which fails legal challenge under our system of laws -- and the EIS process is that appeals under NEPA and SEPA could at least theoretically succeed.


    Posted Fri, Feb 8, 11:41 a.m. Inappropriate

    Here is a response:

    These local ordinances are absolutley about making enforceable law. It is because of having these laws in place that fracking, factor farming, sludging, and corporate water withdrawal haven't happened in a 100+ communities. These communities also understand that they'll need to take the next step, which is to move constitutional changes at the state level and eventually the federal level. If we want to talk options, than we have to make a sharp distinction between investing our time in the regulatory world (NEPA , SEPA, etc.) where we interpret giving comments at a hearing as having control or we can exercise our right to political power and put in place a structure of governance and laws that puts people, communities, and nature above the endless production of more. This second option means building things from the ground up. It means confronting an unjust structure of law. It means doing so without apology. Even at my young age I don't understand why so much time, money, and energy goes into the regulatory world when it's clear that the environment is a distance second, at best, to commerce and property. Why? Because that is how the laws are written. How is that system working? Well, the evidence is overwhelming that we are worse off enviromentally than when the major environmental laws were passed 40 years ago, and the predictions are that things are only going to get worse. So what are we so afraid of?

    Posted Fri, Feb 8, 11:02 p.m. Inappropriate

    Let's see what Simon says when some town within the Columbia River Scenic Area wants to allow people to build any house they please. At that point, we'll find out exactly what the "progressive" hypocrite means by local control.


    Posted Fri, Feb 8, 2:36 p.m. Inappropriate

    The coal trains are going to be allowed because they meet legal requirements under legal zoning regulations. The regs can be tweaked here and there - but not offed completely by a frenzied group or individuals who think yelling is as useful as legal regulations that allow growth, transportation, development, and more.

    I realize you are young. But more than anything, regulations provide stability.

    Cite your sources please for the 'overwhelming evidence that we are worse off than 40 years ago'? Compare, contrast, and show economic numbers.

    Methinks the two sides of extremity fight so much that reason gets lost.

    Posted Fri, Feb 8, 8:48 p.m. Inappropriate

    I think your first paragraph makes the case why strategies like Community Rights are essential. I actually wasn't sure if you were going to go on to support CELDF's efforts or not.

    And come on, it is not just "frenzied groups or individuals" who think that coal trains transporting and releasing a toxic substance across forest, farm and residential lands, through the middle of small towns and past water and food resources to ship it off to a foreign country where emissions from coal plants will be released into the air only to return to our country (the northwest specifically) on the air currents to poison us again. No, instead it is many, many concerned citizens and local governments who, because this incredibly destructive act of transporting coal is "legal," can do absolutely nothing to come together and say "we don't want this in our communities." And so are you really satisfied that our current environmental laws adequately protect the health of our communities and environment? Because, just as with the coal train, once something is a "legal use," there is very little we can do to alter the decisions of self-serving corporations, which are really just a small number of people conducting business for a profit with almost no accountability to anyone?

    How sad that you think demanding rights for people, communities and nature while restricting the virtually-unconstrained destruction of corporate activity is a folly of youth. This isn't a conversation about regulation, it is about rights.


    Posted Fri, Feb 8, 11:33 p.m. Inappropriate

    Twist my words all you want, but those coal trains will be a go.

    Posted Sat, Feb 9, 7:35 a.m. Inappropriate

    This article is asking us to think outside the box. New assumptions and parameters. Restructure the status quo.
    Your argument is based on status quo parameters and misses the point of expanding our legal assumptions.
    In the long term, a different set of assumptions and priorities need to evolve.
    If you are satisfied with the status quo then I can't fault your conclusions.


    Posted Sat, Feb 9, 10:38 p.m. Inappropriate

    The coal ports will not happen if as a result of enforcement of environmental laws the proponents of this proposal have to pay all of the cost of their development. In other words, if we prevent them from shifting environmental costs to everyone else, the economic benefit for the proponents will collapse. That's really all this is about: forcing them to internalize all the costs so that the market will operate fairly.

    Steve E.

    Posted Mon, Feb 11, 12:03 p.m. Inappropriate

    Hey Simon,

    Great article. Communities need to be treated as the valuable centers of our livelihood that they are.

    Though I am disappointed you chose not to submit a public comment (you could actually have submitted at least 20 separate ones addressing any and all issues) I would like to discuss the Bellingham Community Bill of Rights with you. I believe that the attempt to put this ordinance on the ballot was a legal and strategic mistake for a number of reasons.

    First of all, the initiative was beyond the scope of initiative power under City Charter and state law. It proposes legislation beyond the jurisdictional authority of the City of Bellingham; to pass such a Bill of Rights into law would be in direct conflict with the state constitution, federal law, and even the U.S. Constitution. Municipalities cannot pass legislation in conflict with state or federal statutory or constitutional law. Railroad operations are managed on a national level according to the Commerce Clause. The Constitution is not amended by city ballot referenda.

    Also, the proposed measure seeks to regulate and enforce transportation controls, land use planning, and property rights. This is administrative in nature and not within the power of legislation.

    The Bill of Rights, though deemed an 'ordinance' contains plenty of language that can be defined only as 'resolution,' which is not included in the authority of initiatives.

    The City of Bellingham sought an injunction in order to prevent our public funds from being spent to defend an invalid initiative. Had it been on the ballot and passed in November, the city's lawyers would have been obligated to defend the Community Bill of Rights as law in court.

    I believe that the Community Bill of Rights, though it pertains to very important issues of autonomy and the opportunity to determine our own fate as a city, was also a strategic misstep in the context of the campaign to prevent the construction of the Gateway Pacific Terminal.

    Obviously, we must obstruct the GPT project in order to protect our community, the ecological systems of the region and of Puget Sound, human health along the shipping corridor, the environment of the Powder River Basin, and the global climate, not to mention amenities such as China's air quality. In order to block the proposed facility from being built, it will take a monumental effort on the part of all those affected. The public comment period was a grand success, and will provide many opportunities for litigation to delay the progress of the project later down the road. And perhaps our legal tools with which we can delay the project may be our greatest asset. The public comment period was extended to four times its typical length. The EIS will not be drafted for at least another year or two. Lawsuits will be filed at every step of the way. What if China adopts a carbon tax in the next few years? They may not even want our dirty coal then!

    After signing the Bill of Rights, and then voting for it had the initiative reached the ballot, many community members would surely have felt that they had done their part. They would not have realized the faulty legal assumptions implicit in the proposed legislation, and may have neglected to take advantage of other opportunities to show their opposition to the coal terminal publicly, such as the public comment period and its scoping hearings. Citizen input is written into the law as part of these decision making processes, but it is not frequently exercised to the extent possible. It is up to us to demand that we have a say and take part; according to the law, the government agencies must provide us ample opportunity to do so. To speak loudly, together and without exaggeration or outrage at every possible chance is our responsibility, and it will pay dividends. It must. Political pressure is felt even by non-elected officials. No one will want to be vilified as the one who permitted massive coal export to China, who signed off on the destruction of communities along the railway, who allowed the Puget Sound herring population to go extinct.

    With much respect,



    Posted Mon, Feb 11, 3:26 p.m. Inappropriate

    Thank you Sam,

    Yes, the Bellingham Bill of Rights exceeded the power of the initiative, because municipalities do not have the power to obstruct interstate commerce or the exercise of corporations' constitutional protections. I agree, this is true. My point is not that the Bill of Rights was legal, my point is that the Bill of Rights could conflict existing law is such a way as to help change it for the better.

    The threat of being sued did not stop Suffragists, for example, from passing illegal law that gave women the right to vote. They passed illegal law to change the law.

    Maybe I should have made a comment, but I would just as well leave that end of the fight to people like yourself. Thank you for your work and determination, I hope the regulatory fight does more than delay the project, I hope that as you hope it can stop it.

    Maybe the regulatory scheme will work to stop Gateway Pacific, but as I see it the regulatory permitting process is designed to permit projects, not stop them. Delaying Gateway Pacific will hopefully be enough to stop it, but the same cannot be said for many other projects across the country.

    We need to turn the tables, so projects have to prove that they are not violating our rights, rather than us requiring a monumental effort on the part of all those affected to prove that they do.

    With respect,

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