For All to See: Bias of New Hampshire Judiciary Exposed in Rights of Nature, Healthy Climate Proceedings

Facing industrial threats to freshwater systems and climate disruption, residents of Nottingham popularly adopted a Freedom from Chemical Trespass Ordinance at their 2019 town hall meeting. The ordinance secures rights of ecosystems “to naturally exist, flourish, regenerate, evolve, and be restored” and rights of townspeople to a “climate system capable of sustaining human societies.” Residents may enforce these rights by suing corporations who infringe on them.

“The ensuing corporate legal challenge and court proceedings, culminating in last week’s decision by the Rockingham trial court to overturn the ordinance, has exposed a systemic bias within the New Hampshire judicial system,” says New Hampshire-based Community Environmental Legal Defense Fund (CELDF) Organizer Michelle Sanborn.

This historic case has illuminated realities within the judiciary that are of critical public concern:

• No access: Both the trial court and state supreme court denied the people and ecosystems of Nottingham a voice and their “day in court” by rejecting the townspeople as “intervenors” in the case and not allowing oral arguments.
• Arbitrary hypocrisy: The courts upheld corporate constitutional “rights,” a judicial invention—not actually enumerated in any state or federal constitution—while denying residents’ clearly-enumerated rights in the state constitution and federal constitution. Including the assertion that government is “instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men.”
• Acceptance of convoluted corporate arguments: The goal of the Nottingham Water Alliance (NWA), the group of residents who wrote and petitioned for the law, is to protect the people and ecosystems of Nottingham from intentional corporate dumping of toxic waste. The plaintiff, a mail order company run out of a private residence, convolutely argued that somehow the ordinance would be used to prohibit or fine the company for actions such as disposing of cardboard at the local dump. The ordinance was never enforced against the company and did not classify disposing of cardboard as a toxic activity.
• Loss of rights through a system of public “municipal corporations”: Claims were made that the Town of Nottingham—a municipal corporation legally subordinate to private corporations and the state—has no authority to adopt protective laws that the state has not enabled. But it was not even the Town of Nottingham (the municipality) that passed the law, it was the townspeople. 
• False theory of democratic representation: Courts refused to see the public’s standing, claiming residents are sufficiently represented by elected politicians, even when those officials refuse to defend a direct democracy measure. This left democratic rights no recourse. Town officials did not defend the law, in essence, violating their oath of office to uphold the state constitution.
• The trial court overstepped its authority: The trial court ignored the NWA's amicus argument that because the Town officials were not defending the ordinance, there would be no “controversy” so as to illicit vigorous arguments on both sides. Therefore the court lacked standing to hear the case. The court’s refusal to acknowledge this did away with even the pretence of neutrally in applying its own rules.

“It is our responsibility to take meaningful action on behalf of future generations,” says John Terninko of NWA. “But our judicial system is not letting us.”

A detailed history of the controversy is available in court documents.

Copies of the latest decision and all other documents are available upon request.