Rachel's Democracy & Health News #851  [Printer-friendly version]
April 20, 2006

LIBERTY TOWNSHIP CHEMICAL TRESPASS ORDINANCE

[Rachel's introduction: In Pennsylvania, local governments have begun
to confront corporate power directly, enacting ordinances intended to
define corporations instead of merely "regulating" their behavior.
The ideas embodied within these ordinances have been hammered out by
Pennsylvania citizens in open debate, but the legal language has been
crafted by the Community Environmental Legal Defense Fund (CELDF).
Here we present a new model ordinance from CELDF, not yet enacted
anywhere, which defines "chemical trespass" (toxicants entering our
bodies without our consent), prohibits it, and punishes corporations
(and their directors) if they do it. To understand the goals of this
innovative approach to corporate power, you really should attend
Democracy School, which we recommend highly. -- Editors]

By Thomas Linzey

Introduction

This "Corporate Chemical Trespass" ordinance was developed by the
Community Environmental Legal Defense Fund (CELDF), a Pennsylvania
non-profit law firm. CELDF is making this model ordinance available to
anyone interested in mobilizing their communities to confront chemical
trespass by chemical corporations and the directors of those
corporations.

CELDF ordinances are designed to be discussed, perfected, and used
as linchpins of organizing campaigns conducted in coordination with
the Daniel Pennock Democracy Schools. These ordinances and Democracy
Schools reject a regulatory mode of organizing, and instead seek to
assert local control directly over corporations and the few who run
them.

Anyone interested in exploring this ordinance and Democracy Schools
for use in their municipality, may contact CELDF at (717) 709-0457,
info@celdf.org, www.celdf.org, or Richard Grossman at
rgrossman@riseup.net.

Liberty Township, Westmoreland County, Pennsylvania

Ordinance No. 2006-

An Ordinance of Liberty Township, Westmoreland County, Pennsylvania,
Prohibiting Chemical Bodily Trespass within the Township; Establishing
Strict Liability and Burden of Proof Standards for Corporate Chemical
Trespass; and Subordinating Chemical Corporations to the People of
Liberty Township

Section 1. Name. The name of this Ordinance shall be the "Liberty
Township Chemical Trespass Ordinance."

Section 2. Authority. This Ordinance is adopted and enacted pursuant
to the authority granted to the Township by all relevant state and
federal laws including, but not limited, to the following:

§ The Declaration of Independence, which declares that governments are
instituted to secure people's rights, and that government derives its
just powers from the consent of the governed;

§ The Pennsylvania Constitution, Article 1, §2, which declares that
"all power is inherent in the people and all free governments are
founded on their authority and instituted for their peace, safety, and
happiness";

§ The Pennsylvania Constitution, Article 1, §27, which declares that
"the people have a right to clean air, pure water, and to the
preservation of the natural, scenic, historic and esthetic values of
the environment";

§ Common law, which recognizes well-settled rules governing the tort
of trespass, and which requires injunctive, compensatory, and punitive
relief to be assessed for unauthorized intrusions;

§ The provisions of the Second Class Township Code Article XV, as
codified in 53 P.S. § 66501 et seq. that provide for the protection
and preservation of the natural resources and human resources, and for
the promotion, protection, and facilitation of public health, safety,
and welfare;

§ The provisions of the Second Class Township Code, Article XVI, as
codified in 53 P.S. § 66601 et seq. that authorizes the Township to
enact ordinances dealing with the protection of the township
residents' health, nuisances, and promotion of public safety.

Section 3. Purpose. The Board of Supervisors of Liberty Township
recognizes that over eighty thousand (80,000) corporate-produced
chemicals are currently used in the United States, and that scientists
estimate that over seven hundred (700) of those corporate-produced
chemicals are now found within the body of every human. Only a small
percentage of those chemicals have ever been screened for even one
potential health effect, such as cancer, reproductive toxicity,
developmental toxicity, or injury to the immune system. Among the
approximately fifteen thousand (15,000) chemicals tested, few have
been studied enough to conclude that there are no potential risks from
exposure. Even when testing is done, each chemical is tested
individually rather than in synergistic combinations that reflect
actual human exposure in the real world. The Board recognizes that one
thousand eight hundred (1,800) new chemicals enter the stream of
commerce annually -- thus entering into the bodies of people, and into
the air, water, soil, and food -- with few of those chemicals tested
for adverse impacts on human health or ecosystems. The Board
recognizes that sufficient data and experience exists for a reasonable
person to conclude that a significant percentage of both currently
used and newly manufactured chemicals are harmful to humans, animals,
and ecosystems.

Section 4. Purpose. The purpose of this Ordinance is to recognize that
it is an inviolate, fundamental, and inalienable right of each person
residing within the Township of Liberty to be free from involuntary
invasions of their bodies by corporate chemicals. The Board of
Supervisors of Liberty Township declares that persons owning and
managing corporations that manufacture chemicals and chemical
compounds trespassing on the bodies of residents of the Township must
be held liable for those trespasses. The Board of Supervisors also
declares that the failure and refusal of the United States' government
and the government of the Commonwealth of Pennsylvania to ensure that
corporate chemicals do not trespass on the residents of Liberty
Township makes them jointly and severally liable for those trespasses.

Section 5. Definitions. As used throughout this Ordinance, the
following words and phrases shall have the following meanings:

"Corporation" -- any corporation organized under the laws of any state
of the United States or any country.

"Deposition" -- the placement of a toxic chemical or potentially toxic
chemical within the body of a person. The act of deposition shall be
assumed if a toxic chemical or potentially toxic chemical is detected
within the body of a person.

"Municipality" -- the Township of Liberty.

"Person" -- a natural person.

"Syndicate" -- includes any limited partnership, limited liability
partnership, business trust, or limited liability company organized
under the laws of any state of the United States or any country.

"Toxic chemicals and potentially toxic chemicals" -- includes, but is
not limited to, polychlorinated biphenyls, organophosphate pesticides,
organochlorine pesticides, carbamate insecticides, PBDE,
polychlorinated dibenzofurans, phytoestrogens, and pyrethroid
pesticides. The phrase shall include other chemicals or chemical
compounds that have been found to cause adverse effects to animals,
humans, or ecosystems, including those chemicals or chemical compounds
deemed to be mutagenic, neurotoxic, carcinogenic, or reproductive and
developmental toxicants.

"Township resident" -- a natural person who maintains a primary
residence within the Township of Liberty.

"Trespass" -- as used within this Ordinance, the involuntary
deposition of toxic or potentially toxic chemicals within a human
body.

Section 6. Statement of Law -- Chemical Trespass. All residents of the
Township of Liberty possess a fundamental and inalienable right to the
integrity of their bodies, and thus, have a right to be free from
unwanted chemical invasions of their bodies.

Section 7. Statement of Law -- Prohibition. The deposition of toxic
chemicals or potentially toxic chemicals within the body of any
resident of Liberty Township is declared a form of trespass, and is
hereby prohibited. No corporation or syndicate shall engage in the
production, distribution, use, and/or sale of toxic chemicals and
potentially toxic chemicals within the Township of Liberty.

Section 8. Statement of Law -- Culpable Parties. Persons owning or
managing corporations which manufacture or generate toxic or
potentially toxic chemicals detected within the body of any resident
of Liberty Township shall be deemed culpable parties, along with the
corporation itself, for the recovery of trespass damages, compensatory
damages, punitive damages, and the instatement of permanent injunctive
relief. If more than one corporation manufactured or generated the
detected chemical or chemical compound, persons owning and managing
those corporations, along with the corporations themselves, shall be
held jointly and severally liable for those damages, in addition to
being subject to injunctive relief.

Section 9. Statement of Law -- Requirement to Produce. Corporations
manufacturing or generating toxic or potentially toxic chemicals
detected within the body of a Township resident shall provide
information about the manufacture or generation of those chemicals to
the municipality sufficient for a determination by the municipality of
the culpability of that particular corporation for the manufacturing
or generation of a particular toxic or potentially toxic chemical.

Section 10. Statement of Law -- Duty of Municipality. It shall be the
duty of the municipality to protect the right of residents of the
Township to be free from chemical trespass under the provisions of
this Ordinance, and to obtain damages for any violation of that right.
If the presence of toxic and/or potentially toxic chemicals is
detected within the body of any Township resident, the municipality
shall initiate litigation to recover trespass, compensatory, and
punitive damages -- and permanent injunctive relief -- from all
culpable parties. If a significant number of Township residents have
been similarly trespassed against, the municipality shall select
representative plaintiffs and file a class action on behalf of all
Township residents to recover trespass, compensatory, and punitive
damages -- and permanent injunctive relief -- from all culpable
parties.

Section 11. Statement of Law -- Strict Liability. Culpable parties
shall be deemed strictly liable if one of their toxic or potentially
toxic chemical or chemical compounds is discovered within the body of
a Township resident. The municipality's showing of the existence of
that chemical or chemical compound within the body of a resident
living in the Township, and the municipality's showing that the
Defendant(s) are responsible for the manufacture or generation of that
chemical, shall constitute a prime facie showing of causation under a
strict liability standard. Current and future damages resulting from
the culpable parties' trespass shall be assumed, and the burden of
proof shall shift to the culpable parties for a showing that the
chemical or chemical compound could not cause harm or contribute to
causing harm, either alone or in combination with other factors, or
that the culpable parties are not responsible for the trespass of that
particular chemical into the body of residents of the Township.

Section 12. Statement of Law -- Corporate Constitutional Protections.
No corporation or syndicate engaged in, or planning to engage in, the
manufacture, distribution, and/or sale of toxic chemicals or
potentially toxic chemicals within the Township of Liberty shall be
protected, or empowered by, the Bill of Rights to the United States
Constitution, or by rights claimed within the text of the United
States or Pennsylvania Constitutions, within the Township of Liberty.
No corporation or syndicate engaged in, or planning to engage in, the
manufacture, distribution, and/or sale of toxic chemicals or
potentially toxic chemicals within the Township shall be deemed a
"person" for purposes of the Pennsylvania or United States
Constitutions, nor shall such corporations or syndicates have the
legal standing to assert State or federal preemptive law against the
municipality or the people of Liberty Township.

Section 13. Statement of Law -- Corporate Constitutional Protections.
A corporation or syndicate deemed a culpable party under this
Ordinance shall not be protected, or empowered by, the Bill of Rights
to the United States Constitution, or by rights claimed within the
text of the United States or Pennsylvania Constitution. Such
corporation or syndicate shall not have legal standing to assert State
or federal preemptive law against the municipality or the people of
Liberty Township.

Section 14. Statement of Law -- Municipal Testing. Liberty Township
shall select a laboratory with expertise in the testing for toxic
chemicals and potentially toxic chemicals and chemical compounds,
including, but not limited to, those chemical compounds listed in §5
of this Ordinance. The Township shall provide financial resources for
the first ten residents who request to be tested for the presence of
toxic chemicals and potentially toxic chemicals and chemical compounds
within their bodies, and make all reasonable efforts to provide
financial resources for the testing of additional residents.

Section 15. Enforcement. The Township Board of Supervisors shall
notify the Code Enforcement Officer of any possible violations, and
any resident of the Township may also notify the Township of any
possible violations. In addition to civil litigation brought against
culpable parties by the municipality, all violations of this Ordinance
shall be considered criminal summary offenses. The Board of
Supervisors authorizes a fine of up to $1,000.00 per violation. Each
day of non-compliance shall be considered a separate violation of this
Ordinance. The Township may also file an action in equity in the Court
of Common Pleas of Westmoreland County, Pennsylvania, or any other
Court of competent jurisdiction to abate any violation of this
Ordinance. If the Township fails to bring an action to enforce this
Ordinance, or fails to diligently prosecute an action to enforce this
Ordinance, any resident of the Township shall have legal standing to
enforce the provisions of this Ordinance.

Section 16. Severability. The provisions of this Ordinance are
severable, and if any section, clause, sentence, part, or provision
thereof shall be held illegal, invalid or unconstitutional by any
court of relevant jurisdiction, such decision of the court shall not
affect, impair, or invalidate any of the remaining sections, clauses,
sentences, parts or provisions of this Ordinance. It is hereby
declared to be the intent of the Supervisors that this Ordinance would
have been adopted if a provision deemed by the Court to be illegal,
invalid, or unconstitutional would not have been included herein.

Section 17. Effect. This Ordinance shall be effective immediately upon
its enactment.