Why a green future is "unconstitutional" and what to do about it.

Author:Morris, Jane Anne
Position:Surviving Climate Change

Working in tandem with a cooperative Supreme Court, corporate lawyers have insinuated themselves into the US Constitution like retroviruses, rewriting constitutional code so that instead of protecting human persons from an oppressive government, the Constitution has been twisted to shield corporate persons (corporations) from control by the governments that create them. (1)


No out-of-state water sales without the approval of the state legislature--that's how Texas put it in a law passed in 1965. Nebraska's 1978 law permitted water sales to an adjacent state only if a reciprocity agreement was in place.

Both laws were important steps toward protection of local resources, steps that might have paved the way for a more self-conscious bioregional awareness, perhaps even a realization that treating water as a commodity is as short-sighted as treating an ecosystem like a factory.

A federal court declared the Texas law unconstitutional in 1966; the Supreme Court declared the Nebraska law unconstitutional in 1982. (2) Such declarations send a "chill" to any other states or localities that already have, or are considering, similar laws. The take-home message: don't even think that you who live there can control local resources.

Hazardous waste

Fearing the consequences of becoming the "toxic waste dump of the nation," in 1989 Alabama tightened requirements for waste entering its Emelle waste facility, the largest commercially licensed hazardous waste dump in the US.

The commonsensical measures were reminiscent of rules I recall from my high school chemistry lab. Keep an inventory. Sort and label everything. Don't mix things together that might explode or produce dangerous new compounds. Don't play around with "mystery" ingredients.

The Supreme Court found the law unconstitutional in 1991. Alabama, recognizing that it would have to do the sorting and segregating itself, added a fee to cover costs. This fee was declared unconstitutional in 1992. (3)

"Regular" garbage

In Michigan, people sought to improve and clean up their handling of "regular" garbage. A 1978 law encouraged locals to reduce their waste stream, re-use, and recycle. Why penalize conscientious people for their responsible waste practices by making them accept crud from oblivious uber-consumers elsewhere? To prevent Michigan's safer, more slowly filling landfills from becoming destination sites for sloppy mixed trash from faraway places, potential garbage donors were limited to those with standards comparable to Michigan's.

The Supreme Court declared these fair and balanced laws unconstitutional in 1992. Michigan's dumps began filling up with outsider trash, including bulky bottles. In 2003, Wayne County (the Detroit area) passed an ordinance requiring garbage donors to at least have a beverage container recycling law similar to Michigan's. In 2004, the ordinance was also declared unconstitutional. (4)


Many other green-leaning laws passed by states were declared "unconstitutional." A cascade of labeling laws comes to mind. In 1892, a Minnesota law requiring ingredient labeling on baking soda was found unconstitutional. In 1913, the Supreme Court threw out a Wisconsin syrup-labeling law. The same fate met Oregon's country-of-origin law for imported meat (1967) and Arizona's law requiring that Arizona cantaloupes be labeled as Arizona cantaloupes (1970). (Author comment: How can this be unconstitutional? Have we lost our minds?) A 1996 Massachusetts law requiring disclosure of ingredients in tobacco products was labeled unconstitutional by federal courts in 2000. (5)


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