Greenwashing Right Wing Legal Activism: Lockheed Martin and Burlington Vermont
Would a Progressive Burlington, Vermont Mayor partner with the Koch brothers? Obviously not. Their well-heeled right wing legal activism has been condemned by liberal icons including Burlington's own Bernie Sanders, and anything they did in liberal Burlington would carry a heavy taint. Would the same Mayor partner with a corporation, which like the Koch brothers, defeats progressive change on a state and Federal level? Say that the corporation's work-a-day existence (instead of building Dixie Cups like the Koch brothers), is selling nuclear missiles and cluster bombs, propping up dictators, and doing detainee interrogation at Abu Ghrahib and Guantanamo. Say that the corporation, like the Koch brothers, was instrumental in the notorious Citizens United ruling, and two controversial Supreme Court decisions in recent weeks. Say one of the court cases was the dismissal of a sex-discrimination lawsuit, brought on behalf of 1.5 million women who have worked at Wal-Mart, which likely will drastically complicate the ability of disempowered victims to stand together in class action suits. The other suit, stopping six states from limiting emissions of greenhouse gases under federal common law. One of those six states being prevented from regulating climate change was the Mayor's home state, Vermont. Would Burlington's Progressive Mayor Bob Kiss, partner the City of Burlington with such a corporation? Apparently so.
Corporate Power Versus A Nation's Right to Regulate Climate Change
On June 20th, the US Supreme Court in American Electric Power Co, et al v. Connecticut, et al decided not to let 6 states -including Vermont- regulate the emissions of electric power companies, which the ruling defines several times as "the largest emitters of carbon dioxide in the nation." These corporations' "collective annual emissions of 650 million tons constitute 25 percent of emissions from the domestic electric power sector, 10 percent of emissions from all domestic human activities, and 2.5 percent of all anthropogenic emissions worldwide." As one environmental group stated about the case, "Despite having reasonable ways to reduce their emissions and ample knowledge of their effects on the environment, these five entities have emitted such staggering amounts of carbon dioxide as to set them apart from the vast majority of other emitters." Inside the Supreme Court decision, the dire consequences of not taking action are outlined: "Consequent dangers of greenhouse gas emissions, EPA determined, included increases in heat-related deaths; coastal inundation and erosion caused by melting icecaps and rising sea levels; more frequent and intense hurricanes, floods, and other “extreme weather events” that cause death and destroy infrastructure; drought due to reductions in mountain snowpack and shifting precipitation patterns; destruction of ecosystems supporting animals and plants; and potentially 'significant disruptions' of food production."
A legal brief filed by eight leading environmental law professors claims these mega-polluters are currently unregulated: "No Federal statute or regulation now limits greenhouse gas emissions from the Petitioners’ ["the largest emitters of carbon dioxide in the nation"] and TVA’s existing facilities." According to the the environmental law professors, the Supreme Court's rationale for dismissing the case was grounded in the idea that someday in the future the EPA might take some action, which might apply to current power plants, but likely won't:
"Petitioners’ [the five power companies'] and TVA’s Title V [Clean Air Act] permits likewise impose no obligation to limit greenhouse gas emissions. Petitioners and TVA also identify a potential future EPA action with respect to greenhouse gases from large stationary facilities like Petitioners’ and TVA’s, but again, that still-unrealized action imposes no present limits on Petitioners’ and TVA’s greenhouse gas emissions. The agency has indicated that more than a year from now, in May 2012, it may issue a final rule under Section 111 of the CA If issued, that rule might limit greenhouse gas emissions from new and modified power plants, and it might also require--by a date in the still more distant future--that States impose similar limits on existing power plants. Again, however, no current Section 111 regulation imposes greenhouse gas emissions limits on Petitioners, TVA, or anyone else, and TVA’s brief emphasizes that EPA has reserved the right not to impose any such limits at the end of the rulemaking. TVA Br. at 51 n.25 ("A commitment to complete a [Section 111] rulemaking will not mean that EPA has prejudged the question of what, if any, [greenhouse gas emissions standard] will be appropriate; EPA could ultimately exercise its judgment to find the imposition of such standards inappropriate" (emphasis added). Moreover, some members of the current Congress disapprove of the proposed settlement; they have made legislative proposals that, if enacted, would bar EPA from using funds to complete a Section 111 rulemaking or, more broadly, from regulating greenhouse gases."
It words like these that add layers of cynicism to the Supreme Court ruling.
This Sweeping Victory for Corporate Polluters is Brought to You By...
Representing corporate mega-polluters, the US Chamber of Commerce's activist law firm called the National Chamber Litigation Center (NCLC) filed a legal brief asking for the case's dismissal. Though the Chamber refuses to disclose the identity of those members which fund it (and the NCLC), the powerful ties between the Lockheed and the Chamber are numerous: Lockheed's Vice President of Washington Operations sits on the Chamber's board. Additionally, according to a 2009 press release from the Chamber "The Board of Directors of the U.S. Chamber's National Chamber Litigation Center (NCLC) elected James B. Comey as Chairman of the Board today. Mr. Comey is currently Senior Vice President and General Counsel of Lockheed Martin Corporation and has been a member of NCLC's Board of Directors since 2005." Maryanne Lavan was named by the National Law Journal as one of "Washington D.C.'s 20 Most Influential In-House Attorneys." According to Corporate Counsel Lavan "cruised like a Hellfire missile up the corporate chain of command," so perhaps it's no surprise the the NCLC chose her to help the Chamber defeat climate legislation, racial, racial, age and gender discrimination lawsuits.The Chamber's NCLC proudly touts itself as The NCLC describes itself as “the voice of business in the courts on issues of national concern to the business community,” and having "become more aggressive in challenging anti-business measures in court, setting a new record for cases entered in each of the last six years." Inside a December 2010 New York Times expose, "Carter G. Phillips, who often represents the chamber and has argued more Supreme Court cases than any active lawyer in private practice, reflected on its influence. 'I know from personal experience that the chamber’s support carries significant weight with the justices,' he wrote. 'Except for the solicitor general representing the United States, no single entity has more influence on what cases the Supreme Court decides and how it decides them than the National Chamber Litigation Center.'”
According to the liberal watchdog group the Center for Constitutional Accountability, the NCLC "prevails in 68 percent of the cases heard by the Roberts court, compared to a 56 percent success rate over the last 11 years of the Rehnquist Court." In practice this means that the National Chamber Litigation Center frequently goes to bat for its favorite war profiteer, filing legal briefs, providing legal council, and eventual victory in employment discrimination cases, sex and age discrimination cases, whistleblower retaliation cases, discrimination under the Americans with Disabilities Act and much more.
To No Lockheed community organizer Anna Guyton, Burlington partnering with a corporation which engages in such legal activism is, "a grave hypocrisy." Guyton says Lockheed "is well-known for their 'revolving-door' with the Pentagon, Department of Defense, and other major corporations. Although it is riddled with conflicts of interest, Lockheed's 'legal activism' extends widely and deeply into our representative democracy. The only way to combat this corruption in our system is to decentralize power and put it back into the hands of small, local business owners, local governments, and the citizens themselves. The more we place our confidence and our dollars in the hands of major corporations, the more power they will wield over our elected officials."
Activism Causes Corporations to Say "the US Chamber Doesn't Speak for Me"
The Chambers', and thereby its members', legal activism has been drawing increasing scrutiny from a coalition of businesses and climate change activists, judicial watchdog groups, corporate watch dog groups, and more. According to a January New York Times expose, the NCLC, the Chamber's activist legal arm, has helped reshape corporate power in the judicial system for its largest members like Lockheed Martin:
The Roberts court, which has completed five terms, ruled for business interests 61 percent of the time, compared with 46 percent in the last five years of the court led by Chief Justice William H. Rehnquist, who died in 2005, and 42 percent by all courts since 1953. [...] The chamber now files briefs in most major business cases. The side it supported in the last term won 13 of 16 cases. Six of those were decided with a majority vote of five justices, and five of those decisions favored the chamber’s side. One of the them was Citizens United, in which the chamber successfully urged the court to guarantee what it called “free corporate speech” by lifting restrictions on campaign spending.
Investigative journalism and grassroots organizing which calls out the Chamber's chilling effect on climate legislation has caused a succession of corporate defections. Enter "Apple iPhone" and "worker suicide" into Google, and the portrait painted isn't exactly one of a socially responsible company. Yet Apple quit the US Chamber over its successful lobbying which helped defeat Congress' 2009 Federal climate change legislation (Waxman-Markey). Catherine Novelli, vice president of worldwide government affairs at Apple said in a statement, "We strongly object to the chamber's recent comments opposing the E.P.A.'s effort to limit greenhouse gases. ... We would prefer that the chamber take a more progressive stance on this critical issue and play a constructive role in addressing the climate crisis." Similarly Nike's brutal labor practices are so well known, that its Swoosh logo is almost synonymous with sweatshops. Yet Nike pulled no punches in the statement it issues as it quit the Chamber's Board over it's efforts to block climate change legislation, stating, "We fundamentally disagree with the US Chamber of Commerce on the issue of climate change and their recent action to challenge the EPA is inconsistent with our view that climate change is an issue in need of urgent action." Even Excelon, a massive $18.6 billion a year energy utility corporation which owns and operates 17 nuclear reactors, including Three Mile Island, announced they are "so committed to climate legislation" that "Exelon will not be renewing its membership in the U.S. Chamber of Commerce due to the organization’s opposition to climate legislation."
Vermont based climate change author and founder of climate change non-profit 350.org, Bill McKibben, says of how this legal activism of the Chamber's effects the proposed partnership between Burlington and Lockheed, "The fear that [Lockheed] could be just greenwashing is real -- for instance, these guys belong to the U.S. Chamber of Commerce, which has opposed every single good idea on energy and climate for decades; to me, that's a sign they're willing to make money on climate, but still work in "
"Sustainability Is Another Word for Justice"
Burlington, Vermont is a liberal college town of 42,000 overflowing with CSA farm shares, bike lanes, and grassroots responses to climate change. From award-winning Efficiency Vermont to AgRefresh, from the University of Vermont's Gund Institute to Burlington Walk/Bike Council, from Carshare Vermont to 350.org, from Permaculture Burlington to the Localvore movement. Even Burlington's Department of Public Works is involved, installing rainwater gardens which serve as traffic calming measures and capture storm runoff in Burlington's Old North End. Local organic farmers play soul music as they make the rounds giving out free produce in low income neighborhoods from their solar powered veggie delivery van. At the Sustainability Academy, an elementary school on North Street, children enter the building under the words "Sustainability is another word for Justice."
Yet despite seven and a half months of protest, No Lockheed community organizers have found no justice. Mayor Bob Kiss is still pushing forward with a climate change partnership with Lockheed, despite its intimate relationship with defeating climate change regulation. In an open letter, community organizers called on Lockheed to "quit the US Chamber of Commerce" to "prove [their] commitment to addressing climate change to the citizens of Burlington so someone other than Mayor Kiss might be a little more supportive of this proposed partnership." The Burlington controversy has garnered national media attention from the likes of The New York Times. Despite his constituents, Mayor Kiss has plowed ahead, using staff time to move forward with Lockheed, seemingly in violation of City Councilor Emma Mulvaney-Stanak's February 7th City Council resolution. The resolution called for "one public meeting at City Hall before the City agrees to proceed with a proposal involving Lockheed Martin," "establish[ing] community standards," and CEDO [the city's Community Economic Development Office] "report[ing] to the City Council CD&NR Committee on any proposal developed by the City or Lockheed Martin for possible collaboration." In a tense June 6th City Council committee meeting, Councilor Mulvaney-Stanak (who's a member of Mayor Kiss' Progressive Party) delivered a stinging rebuke: "Given the attention on this issue' I'd hoped things would be a little more public, or at least the Council would be informed about discussions that were still happening with Lockheed in any sort of public way. [...] I think given the interest the public has shown on this it would have been nice if the Mayor had --and nice is not even the appropriate word-- it would have been I think more appropriate for the Mayor to mention it in the public comments or have something that go out, so people have a chance to weigh in. Knowing that this process [drafting community standards] is still going on."
To Lockheed's critics, if Burlington's Mayor moves forward with Lockheed, it will not only provide a fig leaf for $44 billion a year in war profiteering, legal efforts to stop climate change legislation and more. 350.org's Vermont Steering Committee member Keith Brunner, compares the local struggle against Lockheed to a larger, global fight to keep money for climate change solutions in the public sphere. "One might ask: 'How could one of the largest weapons manufacturers on the planet be invited to join our community discussion on climate change mitigation and adaptation?' The answer partly lies in the framing of the story. Through the pretext of a crisis of epic proportions, Mayor Kiss has decided to go forward by working with anyone and everyone- regardless of their role in actually creating the crisis. Instead of questioning its ties to a corporate-led world-economy which is busily dismantling the ecological infrastructure of the planet, the City of Burlington has seized upon the narrative of climate chaos as merely an excess of CO2 in the atmosphere, and hired as a consultant one of the largest and most powerful of those corporations. It shouldn't be especially surprising that this “problem-solution” framing of the problem leads to techno-fixes which only require capital investment to solve- and hence, the search for the deepest pockets begins."
To Brunner, who participated in UN 2010 climate conferences in Cancun, Burlington's local struggle against Lockheed is representative of a larger fight to keep money for climate change solutions in the public sphere. "So what do we want? Just as global civil society and the dissenting nations call for a global climate fund that is housed within the relatively transparent, accountable, and (in theory) democratically governed UNFCCC, concerned members of the Burlington community are demanding a democratically-governed climate action and energy descent plan, which is free of corporate influence or involvement, and tailored towards meeting the needs of the poorest in our community. Market-based “solutions” (read: corporate profit opportunities) that leverage the atmosphere of crisis surrounding climate change have no place in this town, no matter how many “tons of CO2e” they purport to reduce. A participatory and locally-controlled process sited firmly in the public realm- now this is real progress."
The Big Showdown: The People of Burlington v. Lockheed
After grassroots-powered victories with the February resolution and in City Council committee earlier this month, Burlington activists are attempting to bring a record number of citizens to flood Burlington City Council's public comment August 8th. The City Council is poised to decide whether to Burlington will approve a precedent-setting community standards resolution, calling for the City to not partner on climate change with a corporation which, "Earn the majority of its profit from the production and/or marketing of weapons or warfare technology, including but not limited to nuclear/chemical weapons, land minds, or cluster bombs, as determined by the corporation’s most recent annual report."
Anna Guyton says, "On August 8th, the full Burlington City Council will come together to review and vote on a resolution for community standards for municipal partnerships with corporations around climate change. Citizens have been working closely with city councilors for the past 6 months to carefully draft a set of standards -many of which are already in ordinance for other types of contracts-, which passed unanimously out of committee last month. A binding resolution or ordinance could stop the Lockheed deal in its tracks; but the mayor has already shown little concern for non-binding resolutions, after he failed to honor one passed 10-4 on February 7th, so there is concern that a non-binding resolution will not be enough."
Mayor Kiss "dismisses much of the opposition to the Lockheed partnership as 'theater' designed to simplify and polarize discussion. 'It’s a theater I’m familiar with, because I was in it in the ’60's." In a City Council committee meeting Thursday, Mayor Kiss, lashed out at the resolution, saying it was "politically motivated" and "not helpful," and describes his partnership with Lockheed as "swords into plowshares." Local business owner and art director of the No Lockheed campaign counters Liza Cowan counters, "There is no indication that Lockheed Martin has any intention of beating their enormously profitable and polluting swords (aka cluster bombs, fighter jets, and nuclear weapons) into plowshares." Anna Guyton says "The biggest human sources of the climate problem are war and unsustainable business practices - the two areas that Lockheed Martin has exploited for decades in return for astronomical profits. We have no basis for faith that the corporation will cease these operations as it tries to get its fingers into other markets (like climate solutions) that they view as potentially profitable. It's a hypocrisy that the climate movement cannot afford."
Interestingly, the resolution's sponsor, City Councilor Emma Mulvaney-Stanak, is a member of Mayor Kiss' Progressive party. She explained the need for community standards in a December statement:
"When any municipality considers partnering with a corporation there needs to be some sort of conversation around a set of standards and principals that reflect the community. With Burlington those standard would need to include language to reflect issues long enshrined in the fabric of the City's life: human rights issues, equality issues, peace and war issues. Any agreement or discussion needs to be guided by these community standards, be it on a project level or a policy level. Sometimes the money involved in a potential deal or partnership is not enough to compromise these principals. This deal, frankly, considering Lockheed's long track record would violate any reasonable community standards for the City of Burlington."
Community organizer Anna Guyton says that just like the global struggle to keep money for climate solutions in the public and not corporate sphere, climate change activists are "committed as ever to keeping power in the hands of Burlington citizens." She's optimistic about the CIty Council showdown: "We're hoping many people will come on August 8th to give a short public comment of encouragement and witness the proceedings. We're also helping citizens get in touch with their city councilors to talk about why they feel certain standards are important for the city. These guidelines will give responsible, local businesses the opportunity to partner with the city for future projects, rather than limiting contracts to a major corporation that has shown no signs of legitimate concern for our city, the climate, long-term sustainability, or responsible business practices."
Tiny Vermont's history is a steady march of bold precedents for the remainder of the United States: the first state to outlaw slavery; the first state to institute civil unions (which prefigured several states' marriage equality bills); the first state legislature which voted to shutter its nuclear reactor and the first state to grant single payer health care. Whichever the direction Burlington chooses inside City Council Monday, again a precedent will be set, this time for public-private partnerships on climate change, be it a vote for corporate greenwashing or a vote for sustainable climate solutions which are just.
Jonathan Leavitt is a writer and community organizer based in Burlington, Vermont. He can be reached at jonathan.c.leavitt(at)gmail.com