"That majority (of living inhabitants), then, has a right to depute representatives to a convention, and to make the constitution that they think will be the best for themselves."

--Thomas Jefferson 1816.

The Vermont Alliance for Locally Initiated Democracy

Who Will Decide The Future Of Our Water?

(Published in the Montpelier Bridge, June 29th, 2007)

The proposal by the Montpelier Springs Water Company to use the public right-of-ways to take public water for private gain has generated a lot of questions. How many gallons will be withdrawn? Where will the pipes run? What will the environmental impact be? How will this affect the watershed? And while debate has begun and the answers to these questions speculated upon, the most important questions are yet to be addressed. Who owns the water? Does anyone have the right to sell it? Who will make the decisions that will dictate the future of this common resource? How will those decisions be made?

The privatization of public water faces a dual threat. Corporations like Nestle (Poland Spring), Coca-Cola (Dasani) and PepsiCo. (Aquafina) continue to tap groundwater and municipal water supplies to expand water bottling operations while lesser known corporations like Veolia, Suez and RWE are focused on ownership of municipal water distribution systems. The corporatization of water and the water scarcity that private ownership has created have become the subject of intense debate and public outrage.

In 1998, as a condition of securing World Bank loans, the Bolivian government agreed to turn the public water system of one of its largest cities, Cochabamba, over to the Bechtel Corporation. Citizens suddenly found themselves unable to afford to buy water and were even legally prevented from collecting the rainwater that fell on their roofs. Those who claimed the right to sell the public water and those who claimed the right to own it ushered in this deal without the input of the citizens who would be affected. The laws, as defined by international trade agreements, made this taking of the commons completely legal. When tens of thousands of people hit the streets to demand that their water return to public hands, the Bolivian government was forced to cancel the contract with Bechtel. Even though the people have reclaimed their water, international law gives Bechtel the right to sue them for $40 million in lost future profits.

I use the example of Cochabamba to illustrate a fundamental point: privatization of public resources occurs when decisions are made in an undemocratic fashion and when the law favors the "right" of corporations to profit over and above the right of communities to preserve their resources. It becomes a question less about water than about control. Here in Vermont, we must ask, Who will decide the future of our water and how will those decisions be made?

Steve Kerr, project manager of Montpelier Springs Water Company and former Vermont Secretary of Agriculture, commented that, "No matter how much you follow the rules, there are people that are going to throw a wrench into the gears." The rules, which he is happy to follow, work very much in his favor. They consist of regulatory laws that very narrowly frame the coming debate and jurisdictional boundaries that place decision-making authority in the hands of a few.

Under regulatory law, the authority to approve this project lies with a handful of appointees to the Agency of Natural Resources and the District Environmental Commission. Their permit approval proceedings are framed to regulate the quantity of withdrawal and mitigate environmental damage but not to address the fundamental question of whether MSWC has any right to take public water for private gain. Citizen input on the project will be limited to addressing narrow questions of how the project will proceed rather than whether it should proceed at all. When framed in this way, it is no surprise that 98% of permits are granted.

In a democracy, jurisdiction over a project of this fundamental importance should instead reside directly with the citizens of Montpelier and East Montpelier whose access to water will be put at risk. At very least, their elected representatives on the City Council and Select Board should decide whether this project serves their long-term interests after an open and extensive public debate. Mayor Hooper’s comment at the May 23rd City Council meeting highlights this fundamental flaw, “…the use of water resources and the removal of water out of one watershed and putting it somewhere else is a huge issue. But, we don't have jurisdiction over that."

Recent developments in New Hampshire demonstrate where attempting to regulate corporate water withdrawal will lead. In May of 2001, USA Springs Inc. filed a permit to withdraw over 400,000 gallons per/day from the aquifer shared by the towns of Barrington and Nottingham, NH. The citizens organized and were successful in having the permit rejected twice only to see it come back a third time in 2004 and be granted. They challenged it in the NH Supreme Court and lost. Despite the fact that groundwater had been declared in public trust, the court ruled that USA Springs’ “need” for the water trumped the desire of the towns and its citizens to maintain their common resource sustainably for the benefit of all.

The citizens in neighboring Barnstead, NH watched this unfold and recognized that their water would be no more protected by traditional methods of organizing. They took a different approach, which began with the belief that, as citizens in a democracy, they were the governing authority and that an issue as fundamental as their water supply is too important not to make democratically. The end result of their 2-year campaign was the Barnstead Water Rights and Local Self-Government Ordinance, which prohibits corporate water withdrawal for use or sale outside of the town. It was overwhelmingly voted into law at town meeting in 2006 and remains unchallenged to this day.

This significant action by the brave and empowered citizens of Barnstead has gotten the attention of communities nationwide and provides an effective model of real groundwater protection. Similarly, the way this story plays out in Montpelier and East Montpelier will be watched closely, setting the precedent for future water withdrawal projects by the major bottling operations here in Vermont. In the end, it is not about Montpelier Springs Water Company and it’s not even really about water. It is about democracy and the right of the people to decide the future of their communities.

Rick Scharf is the co-founder of The Vermont Alliance for Locally Initiated Democracy. VALID is committed to helping the citizens of Montpelier and East Montpelier decide the future of their water democratically rather than through the regulatory process. Interested citizens are encouraged to attend an informative organizational meeting on Tuesday, July 10th at 6 pm at the Kellogg-Hubbard library.

Let the People Decide

(submitted to Seven Days- June 13, 2007)

If, as Mike Ives suggests, (“Montpelier Environmentalists Question Water-Bottling Scheme”) groundwater belongs to all of us, then the taking of our commonly held resource is nothing short of theft. The Montpelier Spring Water Company has proposed diverting the public spring for their private use to be bottled and exported for profit. The process by which they plan to turn this theft into a legal business venture is necessary for citizens to understand.

Under current law, the authority to approve this project lies not in the hands of the citizens whose access to water will be put at risk, but in the hands of unelected appointees to the Agency of Natural Resources. Their proceedings are framed to regulate quantity of withdrawal and mitigate environmental damage but will not debate the fundamental question of whether MSWC has any right to take what belongs to all. The City Council, on the other hand, has voiced concern over the commodification of their water but hesitates to claim jurisdiction over this important decision.

Thus, regulatory laws and jurisdictional boundaries will combine to insure that citizen participation will be limited to steering the project rather than on deciding whether it goes forward at all. When the debate is framed in this way, it is no surprise that 98% of permits before the ANR are granted.

I call on the City Council to recognize that an issue as important as access to water must be decided democratically by the citizens of Montpelier. If they defer to the regulatory agencies, they and their constituents will one day be buying their tap water back from Montpelier Spring Water Company.

Who Will Decide?

(published in the Vermont Peak Oil Newsletter March 2007)

Vermonters recognize the benefits of participatory democracy. We believe not only that average citizens have the ability and knowledge to make important decisions but that we have the authority. However, we have allowed too many of the decisions that affect of our lives, livelihoods, community and environment to be made elsewhere and it is time to bring control home.

While the virtues of participatory democracy are many, the challenges to preserving it are substantial. Among the biggest challenges that towns face in keeping their town meeting strong and viable is attendance. Frank Bryan and Susan Clark identified the two factors most determinant of attendance at town meeting: the size of the town and the importance of the decisions to be made. It becomes clear from their analysis that citizens will get involved on issues of importance when their opinion will matter.

Despite the merits of participatory democracy and our long held societal belief that we are the world’s strongest democracy, the decisions that have the greatest impact on us are currently made either by representative democracy or by entirely undemocratic means.

Representative democracy is only effective when the representative both knows and is known personally by each constituent. Even a legislator here in Vermont, the smallest of representative governments, can’t claim to know the desires of more than a fraction of his or her constituents on more than a fraction of the issues. The duties of state government are too large and legislators will be the first to admit that they can not make informed decisions on all the bills that come across their desks.

I need not convince many that decision making on the federal level is far from representative of the will of the majority. Not only do these “representatives” in federal government fail to act in our interest, but when they enter into international trade treaties they actually cede their power to undemocratic bodies like the WTO. In the interest of standardization, efficiency and free trade, the uniqueness of our local communities, environments and economies are ignored and local laws are deemed unfair to corporations. Our authentic democratic efforts to build sustainable communities have actually become illegal.

In addition to centralization of decision making which places the halls of power literally far from home, the authority to decide has been handed over to “experts” appointed by the executive branch who are unaccountable to the electorate. Regulatory bodies like the EPA are not the industry watchdogs that many assume them to be but were rather created at the insistence of industry. The Interstate Commerce Commission, the first regulatory body established in 1886 was a way for the big players in the railroad industry to maintain the status quo. It insured a legal means to stabilize prices and to place a government buffer between the major corporations and the citizens who would control them. Any examination of the “revolving door”, by which members of regulatory agencies pass between government and industry, from regulator to regulated, makes it clear whose interests are being served. It is to these bodies that we citizens hopelessly continue to petition despite vast evidence that we’re not being listened to. Just as democracy has become illegal, pollution, monopoly and other social ills have become legal under regulatory law.

Though our nation’s founders failed to put power in the hands of the majority, they were fearful of the corporation. They did not settle for regulating corporations, but instead placed the power to charter corporations, and thus define them, in the hands of state legislatures. Charters were approved individually, for a limited time, and for a single purpose that benefited the public. The people behind the corporations were not exempt from liability and corporate books were open to the public. Corporations could not own other corporations and could not get involved in political activity. Corporate charters could be, and were, revoked for any reason at all.

Since then however, corporations have become more powerful than government. State legislators loosened their grip and courts deemed that instead of enjoying granted privileges, corporations had rights. The infamous case of Southern Pacific Railroad v. Santa Clara County established the legal fiction known as “corporate personhood”. When “corporate persons” exercise rights, real people lose them. For example, the 1976 decision in Buckley v. Valeo equated money with speech. With corporate money influencing elections, the voice of average citizens is clearly drowned out.

New England town meeting holds the greatest hope for citizens to build sustainable communities. We find our inspiration in the Declaration of Independence, which reminds us, “That to secure these rights (Life, Liberty and the pursuit of Happiness) Governments are instituted among Men, deriving their just powers from the consent of the governed.” WE THE PEOPLE are intended to be both the government and governed – not one day of the year but all year long, not on a narrow range of issues left to us by the state and federal governments, but on all issues of importance.

The citizens in Barnstead, NH provide an inspiring example of democracy. They watched as state government, the regulatory system and the NH Supreme Court failed to protect the groundwater in Barrington and Nottingham from a corporate bottling operation. Empowered citizens in Barnstead brought a local ordinance before their town meeting, which prevented the withdrawal of their groundwater for sale outside of their town. It further abolished “corporate personhood” to prevent USA Springs or any other corporation from having the legal standing to challenge the ordinance. It passed overwhelmingly.

It has not yet been challenged. But when it is, a corporation will need to argue that the town does not have the right to protect their common resource. Democracy itself will be on trial and we all better hope it wins. The time has come for Vermonters to flex our democratic muscles. We must assert our authority to be self-governing by strengthening the institution of town meeting and demanding the right to decide locally on all issues that affect us locally.

Why sue the EPA?

(published in the Burlington Free Press - December 2006)

Attorney General William Sorrell claims that his recent lawsuit against the EPA will force it to do its job. By seconding these claims and heaping it on the Bush administration’s failure pile, the Free Press editorial staff missed the mark. Ironically, when you understand the origins of government “regulation” of industry, it becomes clear that the EPA is doing its job perfectly.

In the late 1880’s amid citizen calls for tougher state laws and more government ownership of the railroads, industry turned to the federal government for support. They responded with the nation’s first regulatory body, the Interstate Commerce Commission.

US Attorney General William Olney assured the President of the Burlington Railroad that the ICC would satisfy, “the popular clamor for a government supervision of the railroads, at the same time that the supervision is almost entirely nominal.” He continued that it, “becomes a sort of barrier between the railroad corporations and the people and a sort of protection against hasty and crude legislation hostile to railroad interests.”

It was upon this model that other regulatory agencies, including the EPA, were created.
The job that they have been created to do is to disclose and monitor pollution and then deflect anger and attention from polluters. We watched this work to perfection in the case of International Paper. IP was able to pollute legally and now can watch from the shadows as angry citizens attack the EPA.

Rather than sue the EPA, we should ignore it. The work of protecting our shared resources must be done democratically on the local and state level, not through appointed regulatory bodies on any level. The Vermont Alliance for Locally Initiated Democracy (VALID) invites you to join us on January 10th 6pm at Fletcher Free Library in Burlington as we chart a path toward true self-governance.

Vermont's Rich History

(Unpublished)

A Decline in Citizen Control
Vermont has a rich heritage of self-governance, from its status as an independent republic prior to joining the United States, to its continued pride in town meeting. However, the ability of Vermont’s citizens to govern themselves, to create the societies in which they wish to live is a far cry from 1791 and according to most, the institution of town meeting has suffered decline on many fronts. The reasons for this are many.

The first is the transfer of decision making power from local to state and federal government and the more disconcerting shift toward decisions being made by non-elected international bodies like the WTO and World Bank. Decisions made by communities at the local level cannot withstand constitutional challenge by corporations as courts have deemed local comunities in violation of the commerce clause of the federal Constitution. According to current trade agreements, governments that create legislation to protect the health of its citizens, its local economy or ecosystems, can be sued by corporations for any and all damages incurred including the loss of future profits.

The second is that the institution of the corporation has, through Supreme Court decisions, been granted the rights of persons without any of the limitations that real people have. As they are not real people, they are not liable for their misdeeds or debts, they need not fear being incarcerated, and they need not breath clean air or have access to clean water. Our nation’s founders were familiar with the power that corporations had prior to the revolution, and placed control over their behavior firmly in the hands of the people. State legislatures were given the responsibility for chartering and thus defining corporations, offering them privileges of incorporation and placing conditions by which they may continue to enjoy those privileges. States have handed away this important power as legislatures have “modernized” their business codes (most recently here in Vermont in 1996 with very little opposition.) When corporations gain rights, people and communities lose them. When corporate speech is protected, the voices of average citizens are drowned out.

The third contribution to the decline of citizen democracy is the range of issues that citizens can decide at their local town meetings. If the decisions to be made at town meeting are considered trivial or meaningless, attendance will diminish. In their book, All Those in Favor, Frank Bryan and Susan Clark discuss the two most important determinants to town meeting attendance as town size and importance of issues to be decided. It is clear that citizens want to be a part of making important decisions when their vote will be counted.