Can Portland beat King Coal?

Nicholas Caleb

By Nicholas Caleb of Portland, Oregon. Nicholas is a local attorney and professor of government, cultural geography, and public speaking at Concordia University. Previously he contributed "The right of the people peaceably to assemble..."

Demonizing coal trains is all the rage in Portland right now; for good reasons. They will bring the Northwest nothing but pollution, noise, and an in-your-face reminder that we are powerless against the dirty energy interests to stop massive amounts of carbon dioxide from being pumped into the atmosphere & continuing our culture’s insane march toward environmental catastrophe. Am I the only one who appreciates the symbolic slap in the face that is exporting coal through the most environmentally conscious region in the country?

Both Jefferson Smith and Charlie Hales have been outspoken about the issue (though Hales’ willingness to take big checks from coal supporters makes me question how serious he is). Steve Novick even says coal is “evil” (but can’t fathom how the city could to do anything about it). It seems that if all the current political will and all of Portland’s historic environmental activism were channeled into city action, we would get… wait for it… drum roll, please…

A non-binding resolution.

Talk about a let down. So, if the federal government says that they will allow coal trains to poison us, we just have to accept it? We’re too unimaginative (or lack the resolve) to come up with anything else?

Note, July 31: I've edited this post based on some serious research I've done on home-rule and city powers.

1. Pass an ordinance banning coal trains from Portland. This is not as legally as weak as it seems on its face. For one thing, Portland (and every other city) has a clear interest in protecting the health and safety of its citizens. Section I of the Oregon Constitution states that our government is instituted to secure the people’s “peace, safety and happiness”. The state constitution also provides for home-rule in Article 6, Sec. 10. This suggests that cities in Oregon are entitled to local democracy with the same powers to protect health and safety as the state. If the state government can protect peace, safety, and happiness of its citizens, so can the City of Portland. And, really, what are governments for -- local, state, or national -- if they can't even do this much? If you want to restore the credibility of government, you've actually got to make government fight for what's right. There's a never-ending tension between state and federal law in this country and Oregon is no stranger to pushing its prerogatives forward (physician assisted suicide and medical marijuana are two major examples). It is within this context that we should make our stand.

  1. Pass ordinances banning coal trains from Portland & Multnomah County. This is not legally as weak as it seems on its face. For one thing, Portland & Multnomah County (and every other city & county government) have a clear interests in protecting the health and safety of their citizens. Section I of the Oregon Constitution states that our government is instituted to secure the people’s “peace, safety and happiness”. The state constitution also provides for home-rule in Article 6, Sec. 10. where counties are explicitly given powers to govern as long as their governance is not inconsistent with state law. The spirit of home rule and long-standing American principles of representative democracy also suggest that cities in Oregon are entitled to local democracy with similar powers to protect health and safety; the only real differences are in scale and physical jurisdiction. If the state government can protect peace, safety, and happiness of its citizens, so can city and county governments. And, really, what are governments for -- local, state, or national -- if they can't even do this much? If you want to restore the credibility of government, you've actually got to make government fight for what's right. There's a never-ending tension between state and federal law in this country and Oregon is no stranger to pushing its prerogatives forward (physician assisted suicide and medical marijuana are two major examples). It is within this context that we should make our stand.

  2. Point the lobbying apparatus of the city at the state to urge further action -- either a state ban, explicit support for the Portland ban (so we get even more constitutional protection), or at the very least, serious environmental impact studies that will assuredly bolster our claims for the necessity of a ban.

  3. Put the call out to other cities and municipalities counties to pass binding ordinances against coal trains. Seattle already passed a resolution against coal trains and municipalities like Eugene are considering a ban. Let's set the bar higher and help them go one further. Establishing regional opposition to this very global issue is absolutely crucial. If we simply ban coal trains in Portland and the coal is exported through a different route, we still lose.

  4. Endure a legal challenge (hopefully with lots of cities and municipalities joined alongside) and fight like hell in the media to popularize the struggle to defend the health of citizens and oppose massive environmental degradation. Again, this issue is such a no-brainer. It's the all time low-hanging fruit to start the resurgence of a populist environmental movement in this country; the perfect starting point for something even more audacious.

No one should underestimate the potential effect of a highly publicized ban on coal trains. If we were able to stop coal trains in the City, we would vastly improve our chances of winning in the region. If we win in the region and stop coal exports out of the western United States (Canada already said no), we strike an international blow to the fossil fuel economy and show that local democracy has teeth in this struggle. Could this be the victory we need to finally start a green resurgence in this country?

In the coming weeks, people need to put some serious thought into what we can do to win on this issue. If we start from the position that losing is not an option, that we will keep coal out of our community and the region, we will find a way.

In addition, what better environmental legacy for our outgoing mayor than to be the guy who beat king coal? So much better than an expensive building downtown, in my opinion.

Comments

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    Interstate commerce is regulated by Congress. Giving the right to every municipality to selectively block whatever goods they choose is not a viable, legal, or constitutional policy.

    I happen to be vegetarian. ( I am actually.) I might like to block the shipment of meat through my town and I have substantial arguments that meat production is environmentally damaging and harmful to our health. Let's have a policy to block all shipments of meat and meat products as well as live animals through my town.

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      Addendum: Some might think my example is far fetched. But meat production, especially from grazing animals like cattle, has serious ecological consequences, when mega pig farms pollute river systems and ground water, or rain forests are cut down to produce burgers for fast food, or when overgrazing from sheep and cattle devastate watershed and produce flooding. More importantly when food grains are produced for cattle rather than for hungry humans, mass starvation is the result. Policies should be changed, but in the correct way, and through the correct process, not through delusional ideas about blocking traffic or commerce.

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        It's true. Green movements should start engaging through "the correct process." They clearly haven't spent enough time lobbying the federal government. Should the scientists getting purged and silenced in the federal environmental agencies be more pliant to satisfy your concerns for process? Should people ignore clear conflicts of interest in the government, pretend that there are no issues of campaign finance, and that we have a non-corrupted judiciary to satisfy your notion of process?

        What is the correct process anyway? Bribe your congressperson?

        Starting policy from the bottom up IS the correct process. No one else is going to step up, so we should.

        Time is running out to make significant changes in our approach toward climate change.

        Read up about movements that actually changed things and I think you might be surprised to find that "the correct process" was actually the last thing to happen. If you want a list, let me know.

        (And to answer your first question. If your community was endangered by meat production in a very direct way like with the NW and coal, leading experts agreed, and your community wanted action, why couldn't you do something locally? I mean outside of the sacred process.

        Fetishizing process is one of the more absurd things you can do. Clearly, "the process" isn't working so well or we wouldn't be in a fix to begin with.)

    • (Show?)

      Portland, may not be able to block the shipping of coal outright, but Portland could certainly implement time, place, and manner restrictions such that it makes it unfeasible.

      For example, we might require them to only bring the trains through during the day (but not during rush hour), and require them to cover the trains, etc.

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        Negotiation perhaps, but there is no legal authority to harass shipments that will make them not feasible.

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          Interesting theory. You should see how states have reacted to the storage and shipment of nuclear waste. States and municipalities have had "no legal authority" (under your conception) and have still managed to affect the trajectory of such plans. The legal context is slightly different - as it is with every issue - but local action is procedurally legitimate and does work.

          It's called politics. It doesn't work if you quit before you try.

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    It is obvious that we do not have legal authority to stop the destruction of our planet. We should just surrender, go on a picnic, and await our unpleasant demise.

    I apologize to all the other species we will take with us. We simply do not have legal authority to change our ways.

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    Elections do matter. But if you want to throw your body on the tracks, have at it! In the meantime we are all required to follow the law. And until we have a different Congress, most importantly a different consciousness in this country and in this world, then coal burning will not stop. And when people get arbitrary and thwart the law they end up hurting the very cause they support.

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      Survival trumps legality - every time.

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      I can't tell if you're being intentionally dense or you actually believe that the only law in the country is what the federal government says.

      I also object to comments about "laying in front of trains" when I am advocating for local and regional governments to step up - clearly a view toward legitimate democratic policy.

      "And until we have a different Congress, most importantly a different consciousness in this country and in this world, then coal burning will not stop."

      You really have no idea how movements work, do you? How do you change consciousness? By taking a hands off approach? Sitting idly by? By appealing only to the highest power and when it fails, demonizing any other attempt as lawless. Imagine if unions would have deferred to the law on labor (social darwinism from the Supreme Court telling states that it was unconstitutional and against commerce to pass laws against child labor or any business regulation). Similarly, imagine if the civil rights struggle would have taken your approach. Ask nicely, and when that fails, give up and accept your circumstances.

      The importance of a green movement at this point in history is undeniable.

      You need to spend some time learning the legal history of this country. Start with "A People's History of the United States" by Howard Zinn.

      Advocating for human rights at the city and regional level is not lawless and it certainly isn't arbitrary. It's a very conscious understanding that democracy means having representation. And politics has never been limited to absolute deference to decisions coming from on high. If you think that the federal government -- Congress or the Federal Judiciary -- is representative of anything but $ at this point in history, you're the "delusional" one. It's not to say that there aren't good people in government -- I know many -- but nearly everyone acknowledges the decaying state of affairs. I don't know where you learned American history or who taught you about the law, but your understanding is horribly wrong and dangerous.

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        Quite a righteous rant there! At any rate we'll see how this plays out. I'm betting that coal trains and coal ports happen in Oregon, because the politics right now are about having more jobs and more income. And I also think that the courts will not uphold individual cities and municipalities putting up blockades on train routes. When China and India and the U.S. begin to be convinced about carbon and global warming enough to pay the full cost of energy transformation then something will happen and laws and governance will change. We're not even close. The crisis will have to get much worse and the consequences much more severe before there is genuine change. In the meantime making a claim to a greater moral superiority won't change the mind of single person.

        Have you seen the Ads being put out about coal trains and ports? They are much more convincing to average citizens than righteous rants about blocking coal trains right now. Even with the Midwest drought, it is all pretty esoteric for the people who are more worried about bread on the table and a roof over their head. If Peter DeFazio and Steve Novick aren't convinced, then we're indeed not even close to supporting what you want to do.

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          Rant? Supplying information to cure your deficits in knowledge about how change in this country has happened? Ok, interesting characterization.

          "If Peter DeFazio and Steve Novick aren't convinced, then we're indeed not even close to supporting what you want to do."

          That's what the point of writing about it is. You don't understand building a political coalition and the concept of dialogue either? Man... why do we even have debates if positions are always going to stay the same?

          Are you some serious historical determinist? Do you think things just are what they are and are incapable of changing? Do you think that people magically decide to act or do you think they are inspired to? Or, are you so cynical that you don't even have a position and are you just consistently derisive, disrespectful, and contemptuous of people and ideas you haven't been exposed to?

    • (Show?)

      Bill, I'm a little surprised, I'd have expected you to be a guy who supports civil disobedience in at least some circumstances ...

      I also think that in cases where the stakes are high it is worth trying things to test if they are illegal. Courts make surprising decisions, cf. Roberts' "tax" argument on the ACA individual mandate.

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        Civil disobedience can be a great tool for changing consciousness. In this case it would merely hurt the climate change cause, and convince the unconvinced that the liberal elitists are out to cost more working class jobs. What is much more effective in changing consciousness is the heat wave and drought we are experiencing in the Midwest and other parts of the country. But that doesn't change China's mind.

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          Yesterday, I met with a coalition called Our Children's Trust who has been filing lawsuits around the country on the theory that constant degradation of natural resources is a degradation of the public trust doctrine. They've had mixed successes. The theory is novel in modern law (though the doctrine is something that has been around since the founding of this country), but it's not traditional "civil disobedience". Neither is attempting to assert local democracy at the city and state level.

          To return to a point above, consider the concept of representation when you think about legitimacy of process. If there's no representation, is there legitimacy of government just because it's an established institution? I say no. The founders of this country followed this logic and populist movements ever since have followed the same.

          Obedience to authority isn't a virtue on its own. Obedience to legitimate authority may well be.

          Do you know how we came to be a strict property protecting country? The standard answer is that the Constitution enshrines strict private property rights. And while the language, interpreted in our modern context, certainly seems to fall in line with that, we actually have a history of common property and open use of public lands. The enclosures and strict private property theories only came about after the railroads began bribing everyone in sight -- state and federal legislatures and courts especially. The official law changed from a much more reasonable paradigm and began the ludicrous extremist notions of private property that are the norm today. There are plenty of histories written about this, but I suggest "On Private Property" by Eric T. Freyfogle.

          We need to move back the other way now. And it's not going to happen if you sit and wait. All tools must be utilized.

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          Also, read this while you're at it: http://www.mismanagingperception.com/hey-portland-lets-give-nature-some-rights-and-create-democracy-in-the-process/

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    Nicholas, I like your approach in its specifics and also on the general point of pushing for active collaboration among local and state government entities.

    On your number 2 point, the City of Portland is having meetings on what its state legislative agenda should be. We should organize people to turn out for that and push this.

    The City should also start developing a parallel "intergovernmental collaboration agenda" to organize with other localities for common interests that would also make them potentially more effective "tribunes of the people" who have better access than ordinary citizens to higher levels of government that have undemocratically insulated themselves from us by selling access to get re-elected -- both dominant parties.

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