Coming Soon: A Futures Market in Constitutional Rights?

by Jane Anne Morris

It's the best of times, if you're a rapacious corporation with money. It's the worst of times, if you're a citizen with democratic pretensions, or a living thing. Or a rock. Especially if you contain ore.

Feeling cash-poor? Already sold your organs? Had your crop seeds patented by a transnational? Don't miss out on the growing market for selling your rights, individually or as a community. And the prospective buyers are you guessed it, transnational corporations.

In Wisconsin, under the homey phrase "local agreement," corporations have found a way to buy up the constitutional rights of whole cities and counties, once and for all. This is how it works:

MegaMining Corporation (MMC) proposes a contract to a local government body - city council, county board, Native American tribal council, whatever. Then the corporation runs roughshod over open-government laws and exerts all the pressure that a multibillion-dollar corporation can bring to bear on a handful of local officials.

After months or years of pressure, the local government signs the local agreement and the following provisions become law:

• The local government gives MMC the right to mine, as long as they obtain state and federal permits (a breeze, if history is any guide).
• The local government promises to say that MMC "conforms with all local ordinances" when asked about MMC's mine permit changes or the adequacy of the company's reclamation plan.
• The local government promises not to renounce or repudiate this agreement. And here's the good part.
• The local government agrees that this contract replaces and constitutes compliance with all local regulations, laws, permit requirements, licensing conditions, ordinances, etc. - both in terms of substance and procedure. (READ THAT AGAIN. The local government has just given up all authority to govern or to represent its citizens. Local citizens have just lost their rights to enforce any local ordinances or regulations that were put in place to protect their environment or way of life. This goes for future laws, as well.) It gets even better.
• If the local government is party to any proceeding that questions the validity of the contract, it agrees to allow MMC to represent it. (MMC will not charge for its legal services in this case. What a deal.) The local government is assured that it can sue MMC at any time - so long as that action is consistent with the agreement. (But the agreement states that MMC is in compliance with all local laws and that the local government won't question the agreement, so what's left to sue about?)

In exchange, the local government gets a load of empty, unenforceable promises from the corporation - and a yearly payment. (Nashville, Wisconsin, a town of less than 1,000 people, stands to receive nearly $1 million over the first six years after signing its local agreement with a mining corporation.)

In a nutshell, this makes it legal for a local government to abandon all of its governmental and regulatory functions regarding mining activities by promising in a contract not to exercise its governance functions.

(It also may be possible for a corporation to transfer or sell the contract to another corporation. The contract is a form of property, and stranger things have happened in property law.)

If the local government somehow does end up in court over a dispute about conditions for renegotiating part of the contract, the local agreement stipulates that whatever else happens, "the court may not directly or indirectly prohibit mining." (I'm not a lawyer, but it seems downright odd that a contract between a local government and a corporation could stipulate what action a court may take.)

Wisconsin passed one of the first local agreement laws in 1987, right after Exxon Corp. lost its first attempt to turn Wisconsin's North Woods into a mining district. Several local governments already have signed local agreements with mining corporations, despite sustained and persistent protests by area residents. Other government entities are under heavy pressure to do the same. (Of course, they have a "signing bonus" to look forward to. Nashville was set to receive $450,000 up front for signing.) The fact that the Wisconsin law has not yet been judged unconstitutional sets a decade-long precedent.

The Wisconsin law specifically permits local agreements regarding mining. But if the reference to "mining" were deleted from the law (which is simple enough to do), this would permit any corporation to buy off any local government on any pretext.

Imagine a JunkMart Corporation or a Toxic Mismanagement Corporation buying off the governance functions of a town or city, thereby gaining "legal" rights to do whatever the state department of natural resources and the feds would allow.

All such "local agreement" laws, under whatever name, should be located, identified and repealed.

Jane Anne Morris works with the Program on Corporations, Law and Democracy (POCLAD), 29 E. Wilson No. 205, Madison, WI 53703. If your are aware of any local agreement contracts in your state, please notify POCLAD. A version of this article first appeared in May-June 1997 Earth First! Journal.