Rachel's Democracy & Health News #851, 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
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, firstname.lastname@example.org, www.celdf.org, or Richard Grossman at email@example.com.
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.