Task force takes bold stance on environmental protection


By Ashley Archibald, Santa Monica Daily Press

KEN EDWARDS CENTER — The ordinance, called the Sustainability Bill of Rights, would for the first time declare that Santa Monica residents, natural communities and ecosystems within city limits have a right to a healthy environment and conscious practices.

The draft’s stated goal is to “change current economic, political and legal structures” to ones that help advance the goals of self-sufficiency and sustainability.

It was an effort, in part, to take back control from corporate interests, which had been empowered by the 2010 Supreme Court decision Citizens United vs. the Federal Election Commission, said Mark Gold, head of the Task Force on the Environment and president of local environmental non-profit Heal the Bay.

“That’s a pretty important part of the story, that there’s a growing frustration not only within the Santa Monica community, but nationally that corporate rights have somehow superseded individual rights,” Gold said.

The task force also saw it as a way to put some teeth into the existing Sustainable City Plan by giving individuals and City Hall standing to protect environmental issues in court.

That plan, adopted in 1994, ensured that Santa Monica could continue to meet its environmental, economic and social needs in perpetuity without compromising the ability of future generations to do so.

It focuses on conservation, improving transportation, preventing pollution, protecting public health and creating a diverse economy with a focus on sustainable business.

“(The ordinance) is a combination of a response to Citizens United, but consistent with the tremendous work that City Hall has already done,” Gold said. “It’s not a knee-jerk reaction to the court case.”

Gold and the other members of the task force began developing the ordinance in mid-2010, after the Supreme Court handed down the Citizens United decision which effectively declared an open season on corporate donations to politics.

The ordinance guarantees five specific branches of sustainability — water sources; energy; clean air, water and soil; waste disposal; and climate — and commits to protect the rights not only of people, but of the ecosystems and natural communities as well.

It also slashes into corporations, declaring that they “shall not have the rights of ‘persons’ to the extent that such rights intefere” with the components of the ordinance.

Similar measures have sprung up across the country, particularly in Pennsylvania, which has been ground zero for fights between the natural gas industry and municipalities looking to protect their natural resources.

Braden Crooks, a recent graduate of Penn State and the founder of local activist network Groundswell, is on the forefront of that battle.

Natural gas corporations operating in Pennsylvania use a method called “fracking” to extract natural gas from the ground. It is a dangerous process that comes with the real threat of poisoning the local ground water, Crooks said.

“On the local level, we should have the right to decide what does and doesn’t happen here,” Crooks said. “We have the right to clean water, clean air and a healthy ecosystem. We’re going to say that we have these rights, and these are the rights that everyone should have, and on that basis we can ban hydro-fracking.”

State College, Penn. will get the opportunity to be one of the first communities to vote on its version of a Sustainability Bill of Rights, which it calls the Community Bill of rights, in November.

Santa Monica’s bill of rights comes from a similar place.

Had the concept of a Sustainability Bill of Rights been in place 15 years ago, City Hall would have had another tool in its legal arsenal to take on the gas companies later found responsible for poisoning local aquifers with MTBE (methyl tert-butyl ether), Gold said.

“That would be in violation of the environmental bill of rights,” Gold said “We were fortunate enough to have an aggressive enough city, but this would be another clear cut way to ensure that our right to ample clean water is preserved.”

The ordinance is still in the “advanced concept” stage, with many key issues yet to be fully fleshed out.

John C. Dernbach, director of the Environmental Law Center, said that there are several key provisions in the draft ordinance that seem likely to be struck down in court, including language declaring that the ordinance supersedes other state and federal law.

Other restrictions, such as one that deprives corporations of some rights, are not only unlikely to stand up in court, but also create the potential for an adversarial relationship with the very entities that have to abide by the ordinance: the corporations.

“I would be surprised if people in the corporate community had read this any other way,” Dernbach said. “I would worry a little that corporations would see this as unfriendly.”

The threat of litigation may render the proposed ordinance worth less than the paper it wasn’t printed on, said Council member Kevin McKeown.

“I’m all for ending ‘corporate personhood,’ but our city alone can’t alter the Constitution as interpreted,” McKeown wrote in an e-mail. “We should sign onto a national movement, not just make a symbolic gesture.”

Another potential problem is how to ensure that the ordinance can be protective but also not open City Hall up to an onslaught of litigation from local sources.

Although the ordinance isn’t meant to replace existing environmental laws, residents have already begun calling city officials to check exactly how far the protections spelled out in the bill of rights would go.

“We’ve gotten lots of phone calls about how we can get people to stop cutting down trees, or how to use this to close [Santa Monica Airport],” said Dean Kubani, director of the Office of Sustainability and the Environment. “Neighborhood groups have seized on the language as a way to use the tool to combat the city and all the things they don’t like the city doing.”

Task force members identified specific ecosystems to which the ordinance applied, primarily ocean and atmospheric areas, in order to avoid just that problem.

“We did not want to get to the point where this was going to be used for a resident to sue the city of Santa Monica over a tree decision,” Gold said. “That was not the point or intention of this.”

The public will be able to comment on the ordinance before it goes to the City Council for discussion on Dec. 6.