Susquehanna  [Printer-friendly version]
June 1, 2006


[Rachel's introduction: Across the country, corporations are
privatizing the commons -- water -- so they can sell it. Now one town
is fighting back in a powerful new way: Barnstead, New Hampshire, has
become the first municipality in the U.S. to adopt a binding local
law that bans certain corporations from withdrawing water within the
town. To protect their local law, Barnstead residents have also voted
to strip corporations of their claims to constitutional rights and
powers. This is not your father's old "regulatory" approach.]

By Kat Bundy

As raw Northern winters melt into spring, people in some New England
towns still gather to set their local budgets, pass laws, and instruct
their local elected officials. In March of this year, Barnstead, New
Hampshire, (population 4,800) passed a law banning corporations from
mining and selling town water. The law also stripped corporations of
constitutional power and authority.

What happened in this small, rural community about 20 miles Northeast
of the state capital of Concord? Why didn't Barnstead citizens turn to
the state's regulatory agencies and elected state officials to save
them from global water corporations, like most towns across New
England have been doing? States Long Ago Empowered Corporations

Over the past several years, directors of global water corporations
have been invading New England towns -- including Barnstead neighbors
Nottingham, Barrington, and Alton. The story is always the same: A
water corporation buys or leases land, then announces plans to pump,
bottle, and sell millions of gallons of "blue gold." Citizens who are
less than thrilled by these developments turn to their elected state
officials and state regulatory agencies for help.

At first the state appears supportive. But when pinned down -- which
can require several years of citizen self-education and organizing --
legislators and regulators reveal that corporate directors have the
"right" to vacuum up a town's water. Because of this so-called
"right," all that corporations need to do to get state permits to pump
and sell water is to file thorough and complete applications with the

What happens next? Townspeople get angry. They form community groups
to intervene in the permit application process, hoping to stop their
state from issuing permits. They become experts in regulatory law and
administrative procedure, on water, and on multinational water
corporations. They learn that corporations own five percent of water
"services" around the world, and are rapidly buying up publicly owned
water systems. They discover that the largest water-bottler in the
United States -- Nestle Corporation -- makes $1.7 billion per year
peddling the water it sucks out from under communities.

Community groups hire lawyers, sometimes paying hundreds of thousands
of dollars to fight a corporation's permit applications over years and
years. But because the application process assumes that corporations
have the constitutional right to take a town's water, the only
contested issues are: How much corporate harm to the water supply and
individual well can groups predict? And, how much harm will the
regulatory agency -- in New Hampshire, the Department of Environmental
Services (DES) -- declare acceptable?

Now and again, a regulatory agency rejects a corporation's permit
application. The citizens group celebrates, only to see the
corporation return with a new and improved application. Or, they watch
helplessly as the corporation goes to a neighboring town, targeting
the same aquifer -- this time with a slanted pipe to access the water.

Sounding the Alarm

Barnstead residents Gail Darrell and Diane St. Germaine had joined
with neighbors to prevent corporate-hauled sewage sludge from being
spread on farmland in their town. They worked hard to educate their
neighbors about this life-threatening practice. Their struggle came to
an end when the person on whose land the sludge was to be applied
changed his mind. In the process, they learned that the State of New
Hampshire regarded corporate sludge spreading as perfectly legal.

They also learned that, like all municipalities in the state, Bamstead
was vulnerable to corporate directors from anywhere. No matter what a
corporation wanted to impose -- hazardous waste incinerators,
quarries, toxic dumps, super-duper retail complexes, microwave towers
-- a handful of corporate directors were empowered to use law to
overrule community majorities.

That didn't seem fair to Darrell. In fact, it seemed entirely anti-
democratic... and certainly incompatible with the ideals and
traditions of "Live Free or Die" New Hampshire.

Alerted that Barnstead's rich aquifer was on a water corporation's hit
list, Darrell and St. Germaine, with help from Bruce Shearer, Sharon
Hodgdon, Carolyn Namaste, Stuart Liederman, and others, began to look
at Barnstead's water situation and examine the operations of global
waterbottling corporations. Then they started sharing their findings
with neighbors, many of whom began to voice their own concerns.

As a way of engaging the entire town and spurring Barnstead elected
officials into action, they wrote a bill for consideration at their
March 2005 Town Meeting. Warrant Article 22 was a general call to
arms, instructing the Town of Barnstead to protect the community's
ground water. The Article also directed their town government to seek
assistance from state and federal agencies, conservation groups and
neighboring communities to protect their water.

The Selectboard supported this Article, and Barnstead citizens voted
it into law. The town and its elected officials were committed to
doing something. But what? Neighboring municipalities had pressured
and begged state legislators and other elected officials to intervene
against water corporate invasions. They had invested years and dollars
in permit application battles with regulatory agencies, but the water
corporations kept emerging triumphant. So the next step was to look at
what communities around the country were doing to resist invading
corporations -- and to see what worked.

Enter Catalysts

Ruth Caplan is national coordinator of the Alliance for Democracy's
Defending Water for Life Campaign. Having been involved in many
community struggles against a variety of corporate invasions, Caplan
had been reflecting on her labors. Participating in a Daniel Pennock
Democracy School weekend, Caplan was excited to find other organizers
and community activists also rethinking past campaigns. Some, she
found, had actually begun to refashion their groups' civic work.

Democracy Schools were launched in 2003 in Pennsylvania by attorney
Thomas Linzey and historian Richard Grossman of the Community
Environmental Legal Defense Fund (CLEDF). The Schools are safe places
where people study today's government-by-corporations while exploring
United States histories -- especially people's struggles for rights
and self- governance.

The Schools also tell the stories of Pennsylvania townships that
turned their backs on their state's regulatory agencies. Instead of
participating in stacked-deck permit application processes, growing
numbers of townships have enacted laws to stop corporate assaults.
These laws also undid constitutional precedents and state rulings
enabling corporate directors to use law against people and

"What impressed me most that weekend," said Caplan, "was learning how
Thomas and Richard were working with rural, conservative, Pennsylvania
communities that wanted to stop corporate hog farms from coming in. It
was a 'Just say NO' approach to the corporate directors pushing those
hog factories. I was already organizing in New England around
corporate privatization and commodification of water, so I began
looking for ways to apply what I had learned at the School."

Two New Hampshire residents -- former state lawmaker Bill McCann and
Olivia Zink -- had been sounding the alarm about water corporations
stealthily slipping into the state. In 2005, Caplan encouraged Zink
and McCann to attend a Democracy School at Wilson College in

Zink, a graduate student in the Community Economic Development program
at the University of New Hampshire, serves on the board of the New
Hampshire group Save Our Water. Having followed community struggles
against giant global water corporations, she noted, "Our state
agencies did not protect the people of the town of Alton. On the
contrary, the Department of Environmental Services (DES) permitted a
water corporation to siphon 250,000 gallons of water per day. So why
would people in Barnstead or any other town believe that DES would
protect them?

Reframing the Work

Returning home from the Democracy School, and eager to find towns
wanting to go on the offensive against water corporations, Zink and
McCann joined Caplan in exploring local control options in New
Hampshire. In Barnstead, the trio ran into a receptive Darrell and her
neighbors. Over many conversations, they shared communities'
experiences with regulatory agencies. For example, they observed that
citizen groups start off assuming that regulatory agencies like DES
are stewards of the environment. Only after months and sometimes years
of effort do they learn that, when those public officials ride in on
white horses, it's to save a handful of corporate directors from local
majorities shouting "No." The Democracy School grads also passed along
some of the little- known histories that resulted in corporate
directors gaining constitutional power to deny people's fundamental

Gail Darrell and crew concluded that communities cannot stop water
corporations by intervening in corporate permit application processes.
Experience made clear that even should a permit be denied (as had
occurred in Barrington), there was nothing to stop a corporation from
filing a "corrected" application (as had also occurred in Barrington),
or from setting their sights on the next to.

Zink and McCann confirmed that "well-settled law" empowered
corporations to engage in any lawful business. And it was clear that
New Hampshire had made it lawful for corporations to extract and sell
communities' water.

At a Selectboard meeting to consider how to carry out Warrant Article
22, Darrell and St. Germaine described some of what they had been
talking about with McCann, Zink, and Caplan. Impressed, the
Selectboard invited McCann and Zink to make a presentation at its next
meeting. Intense interest in this presentation prompted the Planning
Board to call a special meeting to talk about what Barnstead could do
to prote t its groundwater. At tF, went, several speakers referred
enthusiastically to the work of the Community Environmental Legal
Defense Fund. They suggested that the Town invite staff attorney
Thomas Linzey to Barnstead. Shortly thereafter, the Seleetboard sent
for Linzey. Breaking Bread

Linzey appeared before the Barnstead Selectboard and a packed Town
Hall on October 23, 2005. He told the crowd that the regulatory system
worked just fine -- for corporations. He described majorities in
Pennsylvania townships, facing unwanted corporate invasions, asserting
local municipal control by passing their own laws. Almost 100
townships Linzey said, had banned corporate hog and chicken factory
"farms," along with the spreading of sewage sludge on farmland and
reclaimed coal mines.

To illustrate why Pennsylvania townships had also passed laws
declaring an end to corporate constitutional authority within their
jurisdictions, he offered a little history. Starting with the United
States Supreme Court decision in the 1819 Dartmouth College case,
courts had been wrapping corporations and their directors in the
Constitution. In that famous case, the Court nullified a New Hampshire
law asserting public control over education, and "found" corporations
in the U.S. Constitution. This caused great outrage and opposition in
New Hampshire and around the nation. But after the Civil War Linzey
explained, courts and state legislatures have steadily given even more
constitutional privileges to corporations.

There was a different history Linzey wanted people to know. Pulling
out the New Hampshire Constitution, he read: "All government of right
originates from the people, is founded on consent, and instituted for
the general good. ...and that government [is] instituted for the
common benefit, protection, and security of the whole community, and
not for the private interest of or emolument of any one man, family,
or class of men." [Article 1, 10]. How democratic is it, he asked,
when state and federal governments enable a small class of men to
usurp the people's governing authority? To deny the consent of the

Following a spirited discussion, the meeting recessed, and people
turned to the hearty food townspeople had prepared. Many felt a
special buzz in the air. As the town broke bread together, Zink felt
"a real participatory aspect to it all." Compared with other public
meetings she had attended, "you really felt part of a community," she
said. "Something had clicked. From then on, new strong relationships
would be built, as people started doing the hard work of democracy."

When the Selectboard called the meeting back to order, Linzey put it
to the elected officials: What do you want to do? They replied: Draft
us an ordinance. Selectman and Vietnam Veteran Jack O'Neil told
Linzey, "We are walking point with you" -- an army term meaning that
elected officials would take the lead and face the consequences.

The Legal Defense Fund's' draft ordinance stimulated many
conversations, along with suggestions for revision. When the local
editing had been completed, the organizers came to the Last phase of
the work -- making law. They realized that to pass a Warrant Article
directed at corporations and at constitutional precedent, they would
need to involve large numbers of Barnstead citizens in discussions
about the process. So they undertook the labor- intensive process of
talking one-on-one and to small groups. And they worked with Caplan,
Zink, and McCann to organize a second town forum featuring Linzey and
Richard Grossman.

On Friday, February 23, 2006, another packed Town Hall was the site of
a spirited discussion about the right of communities to pass laws
reflecting their wants and needs. During the rest of the weekend,
Linzey and Grossman led a Democracy School in downtown Barnstead for
about twenty residents and neighbors. Democracy School, said Darrell,
revealed "so much history that people need to know to judge where they
are today. Without that missing history, you can't see how the
corporations wield their power." After the School, graduates fanned
out across Bamstead to talk with friends and neighbors about why a
Warrant Article asserting local authority over corporations was the
only way the townspeople could protect their groundwater and their

Making Law

Endorsed by a unanimous Selectboard, Warrant Article 31 -- The
Barnstead Water Rights and Local Self-Government Ordinance -- was
presented to the Town Meeting on March 18, 2006. The Article drew on
the Declaration of Independence, declaring that governments are
instituted to secure people's rights, and that government derives its
just powers from the consent of the governed. Asserting that water is
a common resource essential for the functioning of the ecosystem and
for the residents of Bamstead, the Article also asserted that
corporatization of the town's water against the majority's will would
usurp the people's governing authority.

The Article's "Statement of Law" was short and sweet: It simply
prohibited corporate water withdrawals for resale. It also banned
corporations from using U.S. or New Hampshire constitutional
provisions to interfere in community governance or deny people's

Darrell told the Town Meeting that the Article was "totally citizen-
driven and citizen-produced." Another speaker declared that "No one
has the right to steal our water." As questions came up, Darrell,
Shearer, and the Selectboard offered clear and reassuring answers.
Finally, to cries of "Call the question!," the Town Moderator put
Warrant Article 31 to a vote-136 residents vigorously shouted "yea,"
to a single "nay."

With this vote, Bamstead became the first municipal government in the
United States to ban corporations from pumping out a drop of water for
sale elsewhere. And it became the third municipal government, after
Porter and Licking Townships in Pennsylvania, to decree that, within
their jurisdictions, corporations may wield neither state nor federal
constitutional powers.

"This Ordinance," said Selectman Gordon Preston, "is not a typical
ordinance. This is not about land use, but about something much more
fundamental." After watching the townspeople deliberate and vote,
Preston declared "Success will be gauged by how far we can spread this
to other communities. If this incredible example of democracy remains
just in Bamstead, then that's fine for our community. But without
similar efforts and laws in neighboring towns, we'll all still be
vulnerable to the corporate water bottlers who so easily claim our
water for their own."

For more information, contact the Community Environmental Legal
Defense Fund (CELDF) at info@celdforg or by calling 717-709-0457.

Susquehanna is the newsletter of CELDF.