Lafayette Community Forum: CELDF Maps Out the Bold Path Forward

This Monday night, March 5th, members of the Lafayette Council and Lafayette Mayor, Christine Berg, met with Tom Linzey, Senior Counsel of the Community Environmental Legal Defense Fund (CELDF) in a special community forum held in the Lafayette Public Library to discuss the possibility of enforcing Lafayette’s Climate Bill of Rights as a ban on fracking and extraction of oil and gas. CELDF is a nonprofit environmental legal firm that has defended community rights across the U.S. for over 20 years.

The meeting between CELDF and the Lafayette Council was the result of five years of pressure from the citizens, led by the East Boulder County United (EBCU), and the community’s enthusiasm showed. By the time the forum began at 6:30 p.m., all of the 160 available seats in the auditorium were full and a large crowd had gathered to wait in the hallway. Deven Shaff, from the Broomfield City Council, was also in attendance.

The citizens were forced to wait, however, for nearly an hour while the Lafayette Council met privately with Mr. Linzey in an Executive Session. While the crowd waited, Mark Williams, who is running for Congress in the 2nd District, spoke about his candidacy and expressed his support for 2,500’ setbacks for fracking operations. Cliff Willmeng of EBCU also spoke twice, once to thank the audience for making the meeting happen and once to talk about a student walkout, planned for April 3rd, at Pioneer Elementary to protest proposed fracking wells near the school. During his first speech, Mr. Willmeng marked the meeting as “day one in the real resistance of all of this [residential gas and oil development].”

When the Executive Session had concluded, Mr. Linzey gave a short introductory speech in which he explained how CELDF’s rights-based approach was developed as the firm attempted to fight corporate farming operations on behalf of small Pennsylvania communities. Current environmental laws, Mr. Linzey stressed, are powerless to do anything but make corporate projects a little less harmful to the communities that they impact. CELDF wanted to find a way for communities to legally refuse corporate projects that would be harmful to them.

The problem, Mr. Linzey went on to explain, is actually in how our current legal system is structured. Corporations, which are considered legal “persons” under U.S. law, have the highest constitutional rights in the U.S., while municipalities have few rights and are subject to the state. This means that in legal contests between municipalities and corporations the odds are stacked enormously in the corporation’s favor. “You have a democracy problem,” Mr. Linzey said, discussing the current situation in Lafayette. However, he went on to say that, should Lafayette choose to pursue rights-based organizing, the goal of which would be to grant the municipality rights equal to or greater than corporate rights, then they would be joining 200 communities across the U.S. that are currently involved in this work. “Future generations will not be kind to us,” Mr. Linzey concluded, “unless we do what we need to do.”

The floor was then opened to audience questions. More than 20 citizens of Lafayette posed questions to Mr. Linzey, and Mayor Berg interspersed these questions with questions that had been submitted by constituents online. Questions ranged from specifics about the 2013 lawsuit that struck down Lafayette’s fracking moratorium to strategies for the future, and most of the speakers expressed thanks for Mr. Linzey’s honest, open answers. A few questions were also posed to Mayor Berg, who declined to answer them.

The following themes emerged during the Q&A session:

  • Linzey stressed repeatedly that he was against pursuing increased regulations for corporate activities that communities wanted to ban. He said that, except in rare cases, he had never seen regulations successfully used as a ban, and that, on the contrary, regulations only served to validate the corporate activity and made it harder to ban in the future.
  • Linzey was similarly skeptical of tactics involving the Martinez case, even if it should be upheld. He stated that, in his experience, such rulings could not be used effectively to restrict corporate power.
  • Linzey, while obviously a proponent of the rights-based approach, was careful to impress that he believed the fight would be a long one, should Lafayette choose to go that route. The biggest challenge would be ensuring that Lafayette Council would not back down in the face of the lawsuit that would inevitably come from the oil and gas industry.
  • When questioned directly about what Lafayette citizens could do in the short term to stop oil and gas extraction, Mr. Linzey answered frankly that he believed the only way to stop it was large-scale civil disobedience in conjunction with a rights-based legal strategy. As an attorney, he was careful to stress that he was not advocating for direct action, but that it would be “understandable to [him]” if the citizens took that direction, as they had no other recourse. He further discussed the possibility of the municipality taking actions, such as a fund for legal defense or decriminalizing certain types of trespassing, to aid those citizens who wished to participate in direct action.