Even as hydraulic frac­tur­ing (“frack­ing”) has spread rapid­ly in com­mu­ni­ties across the Unit­ed States, there’s a sense that com­mu­ni­ties are gain­ing trac­tion to stem this tide. But the real­i­ty on the ground — despite news head­lines — says otherwise.

For exam­ple, in New York in 2014, the state’s high­est court ruled that com­mu­ni­ties could use local zon­ing ordi­nances to ban hydraulic frac­tur­ing for shale gas. Six months ear­li­er, the Penn­syl­va­nia Supreme Court over­turned a state law that stripped zon­ing author­i­ty away from com­mu­ni­ties regard­ing the sit­ing of gas wells. And in Ken­tucky, the state Supreme Court ruled that a pipeline cor­po­ra­tion couldn’t use emi­nent domain author­i­ty to take pri­vate prop­er­ty for a pipeline car­ry­ing frack gas liq­uids through the state.

While on the sur­face it may look like the courts are final­ly begin­ning to fix the pow­er imbal­ance between ener­gy cor­po­ra­tions and com­mu­ni­ties, the basic rela­tion­ship between cor­po­ra­tions and com­mu­ni­ties remains untouched by these rulings.

Frack­ing in New York

In New York, begin­ning sev­er­al years ago, towns began adopt­ing zon­ing ordi­nances that banned frack­ing as part of more expan­sive bans on heavy indus­tri­al activ­i­ty. These ordi­nances were insti­tut­ed to pro­tect the rur­al char­ac­ter of those towns.

Sev­er­al frack­ing cor­po­ra­tions chal­lenged the ordi­nances, assert­ing that the state had the exclu­sive right to reg­u­late oil and gas drilling, and that the munic­i­pal­i­ties there­fore lacked the author­i­ty to adopt the local laws. While the munic­i­pal courts and the State Court of Appeals both dis­missed the cor­po­rate law­suits, they did not, how­ev­er, do so on the basis that the peo­ple of those towns pos­sessed a right to pro­tect them­selves from frack­ing. Instead, the courts mere­ly held that ​“ban­ning” wasn’t the same thing as ​“reg­u­lat­ing,” and that while the state leg­is­la­ture had pro­hib­it­ed addi­tion­al oil and gas reg­u­la­tion, it hadn’t decid­ed to explic­it­ly pro­hib­it munic­i­pal­i­ties from using zon­ing ordi­nances to ban fracking.

Dis­pens­ing with any doubt about where the real pow­er lay, in June 2014, New York’s Court of Appeals explic­it­ly rec­og­nized the right of the state — at any time — to nul­li­fy the town zon­ing bans, declar­ing that ​“there is no dis­pute that the State Leg­is­la­ture has the right [to over­ride local oil and gas laws] if it choos­es to exer­cise it.”

Oil and gas drilling in Pennsylvania

In Penn­syl­va­nia, in an effort to clear the play­ing field for oil and gas cor­po­ra­tions, the state leg­is­la­ture adopt­ed Act 13 in 2012, which exempt­ed oil and gas drilling from most munic­i­pal zon­ing laws. Sev­er­al munic­i­pal gov­ern­ments filed suit against the state. The courts struck down por­tions of the state law — but not on the basis that peo­ple with­in Penn­syl­va­nia com­mu­ni­ties pos­sess the right to pro­tect their water and well­be­ing. Rather, the courts found that exist­ing state law had already bestowed author­i­ty on munic­i­pal­i­ties to adopt pro­tec­tive zon­ing laws — author­i­ty that the state’s pas­sage of Act 13 inter­fered with.

Thus, in Penn­syl­va­nia, the courts did not find that peo­ple have the right to local, com­mu­ni­ty self-gov­ern­ment — and thus the pow­er to pro­tect their com­mu­ni­ties over the state pow­er used to advance the inter­ests of ener­gy cor­po­ra­tions — rather, as in New York, the court chose to side­step the issue.

These courts — while assum­ing that the state has the unbri­dled author­i­ty to over­ride any com­mu­ni­ty laws — are left to exam­ine the sole ques­tion of whether the state has explic­it­ly wield­ed that pow­er, and whether its use of that pow­er con­flicts with oth­er state-grant­ed authority.

Frack­ing in Texas

In Novem­ber 2014, the peo­ple of Den­ton, Texas, passed the state’s first local ban on frack­ing. With­in 24 hours, the com­mu­ni­ty was sued by both the state and the oil and gas indus­try. With­in sev­er­al months, the Texas leg­is­la­ture adopt­ed a pre­emp­tion bill nul­li­fy­ing the local ban. In June 2015, Denton’s City Coun­cil, under pres­sure from the com­bined forces of the state and indus­try, repealed the law.

As with the con­fronta­tions in New York and Penn­syl­va­nia, the sit­u­a­tion in Den­ton has revealed that com­mu­ni­ty rights are a myth — that we do not have any right to gov­ern our own com­mu­ni­ties that can­not be tak­en away by either cor­po­ra­tions assert­ing cor­po­rate ​“rights” in the courts, or by cor­po­ra­tions using state gov­ern­ment to direct­ly over­ride our communities.

Pipelines in Kentucky

In 2014, in a con­fronta­tion in Ken­tucky between the Kinder Mor­gan corporation’s Blue Grass Pipeline and landown­ers in its 13-coun­ty path, a cir­cuit court judge in Franklin Coun­ty held that the cor­po­ra­tion lacked the author­i­ty to seize land for the pipeline.

Known as the pow­er of emi­nent domain, the author­i­ty to direct­ly take land for projects has been con­ferred upon rail­road cor­po­ra­tions, pub­lic util­i­ty cor­po­ra­tions, and ener­gy cor­po­ra­tions by most state leg­is­la­tures over the past two cen­turies. Instead of rec­og­niz­ing com­mu­ni­ty rights or even the rights of landown­ers in its rul­ing, the court instead declared that the pipeline’s pro­posed deliv­ery of frack gas liq­uids to des­ti­na­tions out­side of Ken­tucky — and not to the gen­er­al pub­lic of Ken­tucky — dic­tat­ed that it was not a ​“pub­lic util­i­ty” under state law, and thus, the cor­po­ra­tion couldn’t exer­cise the pow­er of emi­nent domain.

As rec­og­nized in this rul­ing, how­ev­er, the state leg­is­la­ture has the option — at any time — to expand the cat­e­go­ry of cor­po­ra­tions that pos­sess emi­nent domain author­i­ty, and thus expand the pow­er that cor­po­ra­tions have over com­mu­ni­ties. The court’s rul­ing thus didn’t ques­tion the abil­i­ty of the state to del­e­gate that pow­er to cor­po­ra­tions, it sim­ply said that it hadn’t hap­pened yet.

Cor­po­rate ​ “ rights” and state preemption

These hap­pen­ings in New York, Penn­syl­va­nia, Texas and Ken­tucky, while cer­tain­ly buy­ing a reprieve for the affect­ed com­mu­ni­ties in the short-run, unfor­tu­nate­ly have done noth­ing to change the basic pow­er that can be wield­ed by cor­po­ra­tions against communities.

In many ways, the cur­rent sys­tem of law views local laws as unen­force­able unless affect­ed cor­po­ra­tions agree to abide by them. If a cor­po­ra­tion should decide that it does not want to abide by a local law, there are two pri­ma­ry ways it can nul­li­fy it. First, the cor­po­ra­tion could sue the com­mu­ni­ty — and thus use the courts — to rule that the law vio­lates the corporation’s con­sti­tu­tion­al ​“rights.” Or, the cor­po­ra­tion could choose to use the state leg­is­la­ture to draft and adopt new state laws that will pre­empt local ones.

Because cor­po­ra­tions pos­sess cer­tain con­sti­tu­tion­al ​“rights” of their own, the rul­ings in New York, for exam­ple, do not insu­late com­mu­ni­ties from law­suits by cor­po­ra­tions. Thus, cor­po­ra­tions own­ing oil and gas leas­es, which they are now pre­vent­ed from enforc­ing, can sue com­mu­ni­ties for mon­e­tary dam­ages equal to the val­ue of those leas­es. Thus, they could file a law­suit claim­ing that their 5th Amend­ment con­sti­tu­tion­al ​“rights,” against ​“tak­ings” of their prop­er­ty, were vio­lat­ed by the communities.

The courts in New York found that the local laws — which pre­vent heavy indus­tri­al activ­i­ty such as oil and gas frack­ing — do not vio­late cur­rent state oil and gas law. But, they did not touch the ques­tion of whether oil and gas cor­po­ra­tions could sue com­mu­ni­ties for lost prof­its as a result of being unable to access oil and gas reserves.

For com­mu­ni­ty rights to become real — that is, for the right of peo­ple to deter­mine the future and fate of their com­mu­ni­ties — peo­ple must pos­sess law mak­ing author­i­ty that is immune from state and cor­po­rate con­trol. They must be rec­og­nized as the final deci­sion mak­ers in their own com­mu­ni­ties when they choose to adopt mea­sures more pro­tec­tive of their com­mu­ni­ties than what is afford­ed by state and fed­er­al law.

Reliv­ing the past: side­step­ping the civ­il rights movement

It’s not the first time, of course, that the courts have deliv­ered ephemer­al vic­to­ries while endors­ing a rule of law that respects cor­po­rate prop­er­ty more than people’s rights. In 1961, a Delaware cof­fee shop refused ser­vice to Bill Bur­ton, an African-Amer­i­can. Bur­ton sued, con­tend­ing that ser­vice of whites, but not blacks, was a vio­la­tion of his con­sti­tu­tion­al right to equal pro­tec­tion of the laws under the 14th Amend­ment. The cor­po­ra­tion that owned the cof­fee shop con­tend­ed — as cor­po­ra­tions con­tin­ue to argue to this day — that it was free to dis­crim­i­nate because con­sti­tu­tion­al rights could only be enforced against gov­ern­men­tal actors, and it was not part of government.

Instead of vin­di­cat­ing civ­il rights by hold­ing that cor­po­ra­tions could be liable for vio­lat­ing them — and open­ly dis­man­tling the ​“state actor” rule (which is still used today to shield cor­po­ra­tions from con­sti­tu­tion­al vio­la­tions) — the U.S. Supreme Court instead applied a tor­tured argu­ment which found that the cof­fee shop was depen­dent upon the park­ing garage next door, which was owned by a gov­ern­men­tal author­i­ty. Thus, the jus­tices held, the cof­fee shop’s actions were gov­ern­men­tal actions due to the close rela­tion­ship with the gov­ern­men­tal­ly-oper­at­ed park­ing garage next door. Such was the basis of one of the ​“sem­i­nal” civ­il rights deci­sions of that era, Bur­ton v. Wilm­ing­ton Park­ing Author­i­ty.

Dis­man­tling the cor­po­rate state

The truth is that the courts — as insti­tu­tions that have expand­ed cor­po­rate pow­er by cre­at­ing both state pre­emp­tion and cor­po­rate ​“rights” — are the least like­ly to reverse them­selves on these issues. In oth­er words, if we are look­ing to the courts to ​“save” us — through some sil­ver bul­let court case — we’ll be wait­ing a long time.

Rather, for com­mu­ni­ty rights to become a real­i­ty, we must nul­li­fy and then over­turn the legal doc­trines that cur­rent­ly allow a rel­a­tive­ly small num­ber of peo­ple who con­trol cor­po­rate deci­sion mak­ing to over­ride our communities.

This will require mil­lions of peo­ple and thou­sands of com­mu­ni­ties across this coun­try to open­ly dis­obey those key legal doc­trines — includ­ing cor­po­rate ​“rights” and state pre­emp­tion — in the name of their con­sti­tu­tion­al right to local, com­mu­ni­ty self-gov­ern­ment. It will require com­mu­ni­ties — such as those in Texas and Ken­tucky and Penn­syl­va­nia and New York — to over­ride the courts by join­ing togeth­er to change their state con­sti­tu­tions to rec­og­nize the author­i­ty of com­mu­ni­ties to write their own rules for ener­gy cor­po­ra­tions and others.

It’s some­thing that close to 200 com­mu­ni­ties in 10 states have begun to do already — har­ness­ing their munic­i­pal gov­ern­ments to adopt local laws that not only seek to stop frack­ing and oth­er threats, but that repu­di­ate state pre­emp­tion and cor­po­rate ​“rights” with­in their own towns, vil­lages, and cities. To the peo­ple doing this work, it’s not mere­ly a choice to con­front these doc­trines, but a nec­es­sary step toward actu­al­ly enforc­ing their own local laws.

It’s the only way that move­ments begin — by begin­ning to solve real prob­lems which have been inflict­ed on real peo­ple and com­mu­ni­ties. Most impor­tant­ly, it is that process of prob­lem-solv­ing that is giv­ing birth to a new army of com­mu­ni­ty lead­ers who under­stand that dis­man­tling the cor­po­rate state is a pre­req­ui­site towards being able to pro­tect their own communities.

Noth­ing less than a mass move­ment of peo­ple, out from under the spell woven by the unholy alliance of a cor­po­rate few and their leg­isla­tive lack­eys, will be able to change the basic ele­ments of a sys­tem that stands today in stark con­trast to the gov­ern­men­tal sys­tem imag­ined by the Amer­i­can Revolutionaries.

It’s time to imag­ine that sys­tem once again, and to pick the fights that will make it real.