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The Gristle

Coalescence

Wednesday, June 20, 2012

COALESCENCE: Is there a statement of principles the People of Bellingham might issue in response to plans to ship tens of millions of tons of climate-changing coal through the city each year to Asian markets?

A group of activists think so; and they submitted more than 6,500 initiative signatures to the Whatcom County Auditor this week in the hopes of placing such a statement, a Community Bill of Rights, in front of Bellingham voters this November. The initiative declares as a unifying principle that local values of ordinary people trump those of distant corporations and seeks, as its central proposition, to prohibit the transport of coal through Bellingham.

More than 140 communities across the country have initiated similar measures, driven to action by corporate extraction schemes that subordinate local control and local proprty rights.

Bellingham’s version amounts to an audacious statement of principle, and one with several significant and perplexing hurdles to clear.

First is the issue of sufficiency. Petitioners gathered more than 9,200 signatures; however, at least a third of those are understood not to be valid to place a citizen’s referendum on the city’s ballot. The reason, organizers claim, is that many Whatcom residents wanted to speak on the issue, not all of whom are registered to vote inside Bellingham city limits.

Organizers gathered on the steps of City Hall this week to celebrate their effort while city policymakers gathered inside to discuss the thornier aspects of their response.

The arc of citizen initiatives is well understood in Bellingham: An initiative is proposed. It gets challenged in court by some resistant party. A judge finds that the public’s desires exceed the scope of the public’s legislative authority, but the judge does not want to impede or comment upon the public’s right to direct democracy. The initiative limps on to the ballot without the weight of law, as an advisory and a passive thermometer of public opinion.

In years past, the City of Bellingham was frequently the petitioner that challenged the merits of the initiative in court, believing the city might be legally exposed if it did not actively resist an improper referendum. In recent years, Bellingham City Council has taken a more circumspect approach and, like the judges themselves, have allowed measures (such as last year’s red light camera initiative) to drift on to the ballot unmolested and uncommented upon.

The Community Bill of Rights poses peculiar and vexing questions for COB. It requires, for example, that the city shall initiate lawsuits to stop the transport of coal through the city. It therefore legislates that COB will expose itself to unknown legal costs.

The Community Bill of Rights also poses peculiar and vexing questions for the courts, for clearly commerce, interstate transportation, international export and energy policy are federal matters beyond the scope of citizen redress through municipal initiative. While local judges have, in the past, stepped aside to allow such redress on the ballot, the measure is so clearly beyond municipal scope and authority it may be struck before it even reaches the polls.

City Council agreed that this time COB must actively challenge the initiative. Mayor Kelli Linville, too, does not believe the initiative will withstand a legal challenge.

Council member Michael Lilliquist, while expressing sympathy for the referendum’s aims, said the proposal appears to violate not only the city charter, but state and federal law, as well as clear authority granted in the Constitution. Others on council agreed.

One of the sponsors of the initiative, Stoney Bird, defended the Community Bill of Rights in front of a tough audience last week, the hyper-conservative Northwest Business Club. Yet even within that group is a spark of sympathy that recognizes our federal system is rigged for predetermined outcomes that thwart local control and the sovereignty of citizens.

Formerly a corporate lawyer, Bird illustrated how the responses and “allowable remedies” of citizens are boxed in on every side by the permitting process—a process, as the phrase itself implies, designed to issue a final permit after limited concerns are offset or mitigated. The box is hardened on nearly every side by case law and Supreme Court rulings, some dating back to the 19th Century, on the primacy of a federated republic of states, the inviolate nature of commerce and transportation, and even the rights of corporations as citizens under the Constitution. A civil rights initiative that argues Nature is not private property is perhaps the only strategy left uncrushed by mountains of legal proceedings.

Paul Guppy, vice president of research for the conservative think tank Washington Policy Center, was invited by NWBC to comment on Bird’s presentation.

Guppy warned the initiative “proposes fundamental changes in city government by extending legal rights to plants, animals, air, soil and water, and then giving any Bellingham resident the right to sue on their behalf. There’s a financial incentive for lawyers because the losing party could be ordered to pay all legal costs, without limit.”

Kathy Bovencamp, formerly the government affairs director for the Building Industry Association, commented at the NWBC forum that, whatever its merits or deficiencies, the Community Bill of Rights offers the public a vote on the coal issue. The public wants that.

“This is Bellingham,” she said. “Bellingham wants to vote on coal. It’s a shame this is the only thing that will be on the ballot for voters to consider in November.”

Hers was a prescient remark.

If Bellingham City Council succeeds in kicking the Community Bill of Rights from the ballot, council should have an alternate to place before voters. Such a referendum would yield key, precinct-level demographics of support and intensity on the coal issue and provide data for months of informed policy.

You can’t just kick it from the ballot, Council. You have to propose something of your own.

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