Some folks marched in Floyd a few weeks back to call attention to their opposition to a natural gas pipeline through Virginia — and also to a particular legal concept they’re pushing: They want local governments to have veto power over whether a pipeline goes through their community.
They weren’t alone: There were other events in other states that day, all coordinated by the North Carolina-based Blue Ridge Environmental Defense League, to make the same point in favor of a local veto over energy infrastructure projects.
We suspect the people who marched through Floyd singing songs, waving banners and carrying a symbolic black coffin would feel differently if the issue were something else: For instance, should communities have veto power over, say, a Supreme Court decision in favor of same-sex marriage?
Virginia’s been through an earlier exercise in local governments trying to veto something they didn’t like: We called that Massive Resistance. Prince Edward County didn’t like the court’s ruling on school integration so much that it shut down its public schools for five years. There’s a local veto for you.
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The legal and moral details may differ — the environmentalists would surely be outraged to be lumped in with the segregationists — but the philosophical point is the same: Both liberals and conservatives are quite inconsistent when it comes to the exercise of government power, and which level of government should do what.
Conservatives, for instance, generally want school decisions made at the local level and rail against mandates imposed from above. However, that hasn’t stopped state Sen. Mark Obenshain, R-Harrisonburg, from proposing to bypass local governments and give the state Board of Education the power to set up semi-autonomous “charter schools” in a particular locality — and order the locality to fund them, whether the local school board wants to or not.
Apparently the old saying is wrong: What’s good for the goose is not always good for the gander.
Only Libertarians are truly consistent on government power, maddeningly so, which probably explains why their candidates rarely get more than a few percentage points in elections.
We’ll have more opportunity to talk about Obenshain’s charter schools proposal — it’s in the form of a constitutional amendment that will need to pass a statewide referendum in 2016. Instead, let’s look at whether local governments should have the power to veto energy projects, be they natural gas pipelines or fracking wells or power plants or compressor stations or waste dumps — the BREDL’s list of objectionable types of infrastructure is quite long.
So what’s wrong with this?
Ideally, the answer is obvious: If a natural gas company had to get approval from every local government along its path, it might never be able to put together a pipeline route. Pipeline opponents might say that’s the point.
Let’s turn the question around, though: Presumably all those people like heat and lights in their homes. What if they couldn’t get them because somebody several counties away, or even several states away, said no, sorry, can’t build that power line or pipeline through our county?
Our nation’s founders were keen on the concept of private property, so keen that the First Continental Congress in 1774 declared that colonists had the right to “life, liberty and property.” Two years later, for the Declaration of Independence, Thomas Jefferson changed “property” to “the pursuit of happiness” because he thought it sounded more poetic. Also, Ben Franklin wasn’t keen on talking up property, which he considered to be a mere “creature of society” that ought to be taxed as a way to finance the government. Still, the right to private property is baked into the Constitution.
We give governments the heavy power of eminent domain — to override that right to private property – when it’s deemed to be in the public interest. Jefferson and Madison probably had something philosophical to say about it, but Spock on “Star Trek” summed it up best: “The needs of the many outweigh the needs of the few.”
When it comes to generating power, we have left that up to the free market — a regulated free market, mind you. On the theory that energy is as much a public need as highways and schools, government has subcontracted its mighty power to condemn land to the utilities.
That doesn’t always look very good — yes, the government has given a private company the right to condemn your land to make money for its shareholders — but presumably we all like the power to come on when we flick the switch. That’s the trade-off.
The folks who want to give local governments the power to block an energy project have a good populist argument, but not a strong legal one. They can blame a 19th century Iowa judge. It was John Forrest Dillon who in 1868 laid out the legal concept that local governments are creatures of state government and can’t do anything without the state’s permission. Today, that’s called the Dillon Rule, and Virginia is one of the states that adheres to it.
That’s why, when Montgomery County and Pulaski County wanted to raise their cigarette tax this year, they had to get Richmond’s permission (they didn’t get it). And that’s why Floyd County or any other Virginia county doesn’t get a veto power over pipelines — unless the General Assembly wants to give it to them. (Good luck with that.)
That’s a somewhat different legal concept than the one that the massive resisters used to defy the Supreme Court in the 1950s, and which some, such as former Arkansas Gov. Mike Huckabee, would like to dredge up again if the court rules in favor of same-sex marriage.
They channel the ghost of John Calhoun, the South Carolina firebrand who in the 1830s insisted that states could “nullify” actions of the federal government — on the grounds that the federal government was created by the states. Andrew Jackson set him straight then, and eventually the massive resisters of the ’50s got set straight, too.
Still, Huckabee, Obenshain and the pipeline opponents all have one thing in common: They don’t like what one level of government has done, or not done, or may be about to do, and want to find another one to block it.
From beyond the grave, Calhoun might sympathize with the Floyd pipeline opponents but their attempt at nullification will get no further than his did.