Tag Archives: corporate power

The Political Project of MCRC v. EPA, Revisited

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Judge Robert Holmes Bell dismissed the Marquette County Road Commission’s case against the EPA back in May, and last week the Road Commission’s attorneys at Clark Hill PLC filed a motion to alter and amend that judgment. They complain that the Court’s dismissal for failure to state a claim is not only mistaken on points of law but, more dramatically, it allows the “EPA and the Corps to wage a war of attrition on local governments seeking to protect the health and welfare of their people.”

I was struck by this inflammatory piece of political rhetoric about federal overreach for a couple of reasons. First, because it’s just the sort of hyperbolical language Michigan State Senator Tom Casperson and StandUP, the 501c4 dark-money organization funding the Road Commission lawsuit, have used to frame the case for County Road 595 and advance what, in a series of posts (1, 2, 3, 4) last summer, I called the political project of MCRC v. EPA. Second, because the motion here tacitly admits that mining activity on the Yellow Dog Plains has put “the health and welfare” of people in Marquette County at risk. Rio Tinto and then Lundin Mining proceeded with their plans to mine copper and nickel at Eagle Mine and truck it to Humboldt Mill without a clear haul route. They not only went ahead; they were permitted by the state to do so. The risk was transferred to the public.

This is a familiar pattern, but the story it tells is not about federal overreach or intrusive oversight. Quite the opposite: it’s a story about mining companies rushing projects into production without due consideration for the communities in which they are operating, regulatory capture or lax oversight and enforcement, and elected officials who all-too-easily and all-too-conveniently forget where their real duties lie.

The June 13th motion doesn’t often have recourse to this kind of language. For the most part, the motion deals with fine points of administrative law, citing a few cases that it claims the court misread or misapplied. Probably the most important of these is the Supreme Court’s discussion of the Administrative Procedure Act in a May 2016 opinion, United States Army Corps of Engineers v. Hawkes Co.. (Miriam Seifter explains Hawkes over at ScotusBlog. Even with her very clear analysis in hand I can only hope to make a layman’s hash of things.)

In Hawkes, a company that mines peat for golf-putting greens — a process that pollutes and destroys wetlands — sought an appeal of “jurisdictional determinations” by the Army Corps of Engineers that wetlands on their property were subject to the Clean Water Act.

The “‘troubling questions’ the Clean Water Act raises about the government’s authority to limit private property rights” came up for some brief discussion in Hawkes, notes Seifter, but that was not the main focus of the Supreme Court opinion. The case instead revolved around the question whether jurisdictional determinations are “final,” which in this context means they constitute an action “by which rights or obligations have been determined, or from which legal consequences will flow.”

The Army Corps in Hawkes maintained that appeals of the Corps’ jurisdictional determinations should not be allowed, because the determinations of the Corps are still subject to review and are not “final” or binding. The court found unanimously in favor of the peat-miners, saying that determinations by the Corps were final — they would put legal constraints on the peat-miners, who would have to stop polluting or face penalties — and therefore could be reviewed in court.

In MCRC v. EPA, the Road Commission now seeks a decision along similar lines. “The Court erred,” the motion complains, “by holding that EPA’s veto was not ‘final’ because Plaintiff could submit a new application to the Corps.”

In other words, the court held that the EPA’s objections to County Road 595 weren’t the last word: they didn’t constitute “final agency action” and did not entail legal consequences or impose obligations the Road Commission didn’t already have. The Road Commission can even now take EPA’s opposition to the road under advisement, go back to the Corps and seek a new permit. They can continue to work with the EPA, whose objections to the road are “tentative and interlocutory”: there is still room for conversation.

The attorneys for the Road Commission don’t deny that the Road Commission could have gone back to the Army Corps of Engineers; but they say that it would have been time consuming, burdensome and ultimately futile, as the Corps had joined the EPA in its objections to the road, and the EPA’s objections had the effect of a veto.

This brings us back to the arguments advanced in the original complaint. The EPA didn’t just object to the Road Commission’s proposal; they unfairly vetoed the new road, in a “biased and predetermined ‘Final Decision’.” The Final Decision, according to the motion, took the form of a December 4, 2012 objection letter from the EPA to the Marquette County Road Commission, to which the Road Commission replied on December 27th. They did not receive a reply, and the EPA’s failure to reply was tantamount to a “refusal.”

The EPA’s refusal (or failure) to reply to the Road Commission’s December 27th letter indicated that their objections had “crystalize[d] into a veto,” according to the motion. “Unequivocal and definitive,” a veto is a final agency action, “akin” to jurisdictional determinations made by the Corps. What legal consequences flowed from the veto? For starters, the EPA’s Final Decision divested the state, specifically the Michigan Department of Environmental Quality, of any further authority in the matter.

While this is not a new position for the Road Commission, the way the motion lays it out is nonetheless clarifying. The discussion of Hawkes, especially, brings into focus the question before the court — a question of administrative law concerning the “finality” of the EPA’s objections to CR 595. Of course that question entails others: whether the EPA’s failure to reply to the Road Commission’s letter of December 27th amounts to a refusal of the Road Commission, whether that refusal, in turn, crystalized their objections into a veto, and whether EPA vetoes are really “akin” to jurisdictional determinations by the Corps.

Stronger accusations are only being held at bay here. For example, it would be difficult to read the EPA’s failure to reply to the Road Commission’s December 27th letter as a deliberate refusal to reply without accepting the original complaint’s charges of bias and allegations of conspiracy at the EPA, or indulging its witch hunt for “anti-mining” attitudes and its demonizing of “activists.” But even if we are not willing to follow the plaintiff down that dark road, it would also be difficult, now, to overlook the serious dysfunction and administrative incompetence exposed by the Flint Water Crisis, which cost the head of EPA Region 5 her job, and which showed the world just how broken the system of environmental governance is in Michigan.

Can Mining Be Saved?

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TeslaGigafactory

The Tesla Gigafactory, currently under construction in Storey County, Nevada.

Andrew Critchlow, Commodities Editor at The Telegraph, speculates in a recent article that Elon Musk and Tesla might “save the mining industry” by ushering in a new age of renewable energy. Domestic battery power production at the Tesla Gigafactory (now scheduled to go into production in 2016) is bound to create such demand for lithium, nickel and copper, Critchlow thinks, that the mining industry will find a way out of its current (price) slump and into new growth, or possibly a new supercycle.

“Major mining companies are already ‘future proofing’ their businesses for climate change by focusing more investment into commodities that will be required by the renewable energy industry,” writes Critchlow; and the “smart commodity investor” will follow suit, with investments in “leading producers” such as — this is Critchlow’s list — Freeport-McMoRan, Lundin Mining and Fortune Minerals.

It’s a credible scenario, but it’s also terribly short-sighted. The big switch over to domestic solar power and battery storage Musk is hyping in the run up to the opening of the Gigafactory would no doubt give miners a short-term boost, but it will also take a lasting toll on the places where copper and nickel are mined, raise serious human rights concerns, and put even more pressure on the world’s freshwater resources.

After all, the copper and nickel used to make Tesla’s batteries are going to come from places like the Democratic Republic of Congo, where Lundin and Freeport-McMoRan operate a joint venture at Tenke Fungurume, and which has been at the center of the recent debate in the EU parliament over conflict minerals; Peru, where protests against Southern Copper Corporation’s Tia Maria project led the government to declare a state of emergency in the province of Islay just last Friday; or the nickel and copper mining operations around Lake Superior that I’ve been following here, where there are ongoing conflicts over free, prior and informed consent, serious concerns that sulfide mining will damage freshwater ecosystems and compromise one of the largest freshwater lakes in the world, fights over haul routes, and repeated complaints of lax regulatory oversight and political corruption.

Rice farmers clash with riot police in Cocachacra, Peru. The fight is over water. (AP Photo/Martin Mejia)

These are just a few examples that come readily to mind. It wouldn’t take much effort to name others (Oyu Tolgoi, Oak Flat, Bougainville) and to see that the same problems arise, to a greater or lesser degree, no matter where copper and nickel mining — sulfide mining — is done.

The mining industry and commodities investors have historically tended to minimize and marginalize the environmental and social costs of sulfide mining; so it’s really no surprise that Critchlow should argue that increased demand by battery producers is all it will take to “save” mining. Leave it to others, I guess, to save the world.

But the supply and demand model is reductive and misleading, even for those looking to make a fast buck. A recent Harvard study of company-community conflict in the extractive sector summarized by John Ruggie in Just Business suggests just how costly conflict can be. A mining operation with start-up capital expenditures in the $3-5 billion range will suffer losses of roughly $2 million for every day of delayed production; the original study goes even further, and fixes the number at roughly $20 million per week. Miners without authentic social license to operate lose money, full stop. So Critchlow’s is at best a flawed and myopic investment strategy that ignores significant risks. It also appears to shrug off legitimate human rights claims, and turn a blind eye to environmental degradation, and deadly violence of the kind we’re seeing in Peru right now. That’s irresponsible, if not downright reprehensible.

A Macquarie Research report cited by Critchlow claims that the switch away from fossil fuels to battery power in the home is all but inevitable. But if we make the switch to renewables and fail — once again — to address the ethics of mining, what exactly will we have saved?

The First CEO: A Political Revolution?

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I’ve been associating the cultural icon of the CEO with big changes in America, most of which were well underway in the 1970s, when the acronym “CEO” first comes into wide use: the collapse of manufacturing, the financialization of the economy, the emergence of the neoliberal order. David Graeber offers yet another way to characterize these changes: “total bureaucratization.”

An excerpt from Graeber’s new book in the latest issue of Harpers lands us in familiar territory:

What began to happen in the Seventies, which paved the way for what we see today, was a strategic turn, as the upper echelons of U.S. corporate bureaucracy moved away from workers and toward shareholders. There was a double movement: corporate management became more financialized and the financial sector became more corporatized, with investment banks and hedge funds largely replacing individual investors. As a result, the investor class and the executive class became almost indistinguishable. By the Nineties, lifetime employment, even for white-collar workers, had become a thing of the past. When corporations needed loyalty, they increasingly secured it by paying their employees in stock options.

What Graeber at first characterizes as “a strategic turn” and the merging of the corporate and financial sectors, he then goes on to call “a political revolution”:

At the same time, everyone was encouraged to look at the world through the eyes of an investor — which is one reason why, in the Eighties, newspapers continued laying off their labor reporters, while ordinary TV news reports began featuring stock-quote crawls at the bottom of the screen. By participating in personal-retirement and investment funds, the argument went, everyone would come to own a piece of capitalism. In reality, the magic circle only widened to include higher-paid professionals and corporate bureaucrats. Still, the perceived extension was extremely important. No political revolution (for that’s what this was) can succeed without allies, and bringing along the middle class — and, crucially, convincing them that they had a stake in finance-driven capitalism — was critical.

The parenthetical affirmation — “(for that’s what this was)” — asks us to pause and really take the point. Having read only this excerpt, I don’t know whether Graeber goes on to explain why what he elsewhere calls a “shift” or “turn” counts as a “political revolution,” or how exactly he thinks this overturning of the political order was brought about. No doubt there was fraud, collusion and conspiracy, and “everyone was encouraged” to believe they were included; but the passive verb here leaves way too much unsaid. For one thing, the triumph and establishment of  the new order at home and abroad was really not so bloodless as Graeber (here, at least) makes it out to be.

The celebration and glamorization of the CEO — as a leader, a rule-maker and a rule-breaker, the agent and steward of shareholder value — was one of the things that duped ordinary, middle-class Americans into thinking “they had a stake in finance-driven capitalism.” It deserves a chapter in the story Graeber’s out to tell. The acronym “CEO” itself belongs to what Graeber calls the “peculiar idiom” of “bureaucratic techniques” and meritocratic myths — a language with origins in self-actualization movements of the 1970s, “full of bright, empty terms like ‘vision,’ ‘quality,’ ‘stakeholder,’ ‘leadership,’ ‘excellence,’ ‘innovation,’ ‘strategic goals,’ and ‘best practices.’” It’s good to see this language held up for scrutiny, especially since, as Graeber rightly points out, it still “[engulfs] any meeting where any number of people gather to discuss the allocation of any kind of resources.” To the victors go the spoils, and that’s not likely to change as long as we are speaking their language and playing by their rules.

Mine? What Mine?

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Haul road construction for Eagle Mine has already polluted the Salmon Trout River, but unless you’ve been following the Eagle Mine story closely you wouldn’t know that after reading in the local paper about this minor disaster: a road crew’s accidental “exposure” — or rupture — of a perched groundwater seep. “Dirty Roadside Runoff,” by John Pepin, a Marquette Mining Journal staff writer, never once mentions Eagle Mine or Eagle’s parent company, Lundin Mining. Pepin is scrupulous at least in this regard: he keeps the mining company clean.

(The Mining Journal is available online to subscribers only, but you can read it on a phone or tablet if you download the paper’s free app).

The front page item sidesteps any mention of Eagle, laying the “unlawful discharge of sediment and turbid water to a wetland ravine” — which violates the Natural Resources and Environmental Protection Act — at the feet of the Marquette County Road Commission. The Michigan DEQ sent a violation notice directly to the Road Commission on August 4th; to date, so far as I can tell, Lundin Mining and Eagle Mine were not put on notice either by the DEQ or the EPA. Nor, it seems, will the local press hold the mining company accountable. Instead, the Journal seems to have taken pains to keep the company’s name out of the dirt, and keep the reading public in denial. (Those looking for a more honest and more informative account will find it here, on the Yellow Dog Watershed Preserve’s site).

Yellow Dog Watershed Preserve's site features this photo -- data August 6th -- and other photos of the perched seep's destruction.

Yellow Dog Watershed Preserve’s site features this photo — dated August 6th — and other photos of the perched seep’s destruction.

Let’s be clear. The Road Commission has undertaken this “upgrade” of County Road AAA for the mining company; there is no other reason for the work, and no other reason to advertise the work as an upgrade except to pretend that the Eagle Mine haul route will benefit the public in some way. The truth could have been stated in a single sentence: Lundin will be the primary if not the sole beneficiary of the road work on the AAA.

Pepin’s article never comes close to stating that one simple fact, and never even hints at the controversy over the haul route that led to this disaster. But this is about more than shoddy journalism or what might even be a case of corporate capture at the editorial offices of the Mining Journal.

As Lundin prepares to bring Eagle online, and as the mining boom proceeds all around Lake Superior, clear lines of accountability are critical — and need to be carefully drawn. Big miners continue to “de-diversify” and juniors are trying to scale up: in the turmoil, we’ve seen mine properties around Lake Superior flipped (e.g., Copperwood, or Eagle itself); others, like Twin Metals, thrown into limbo; and who can tell what effects Lundin’s big South American acquisition of Freeport’s Candelaria (in partnership with Franco-Nevada) will have in this northern district?

In a situation like this, where ownership stakes are changing hands and companies are exerting undue influence over public officials, accountability can get blurry and responsibilities neglected. The last thing we need — when the future of Lake Superior itself is at stake — is a compliant and servile press adding to the confusion.

A Fourth Note on the First CEO: The Postwar Provenance

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A reader of my posts about the acronym CEO suggests I have a look at the organizational chart for the Manhattan Project to gain a better appreciation for the “American and military” provenance of the term. “I believe during a period of intense collaboration between the military and private sector after WWII,” he writes, “it somehow permeated to corporate use.”

I have wondered about that “somehow,” and wondered, too, if I could be a little more specific about the course this permeation took. Is the acronym CEO — and the idea of the CEO — an outgrowth of the military industrial complex? Does the rise of the CEO to a position of cultural celebrity in the 1970s and 1980s tell us something (we don’t already know) about how the postwar environment shaped American ideas of command, power and leadership, in the private sector and in the public sector?

These are questions worth asking, I think, though I’m not sure the organizational chart for the Manhattan Project is the best place to start. Or at least that chart doesn’t include the term “CEO.” There is an “OCE” — an Office of the Chief of Engineers; the role of “Executive Officer” was assigned to J.B. Lampert. That title was also used in the appointment of Leslie R. Groves (of Now It Can Be Told fame), who in the org chart has the title of Commanding General.

The larger point here still merits consideration: just follow the careers of the engineers and military commanders identified in the Manhattan Project org chart, consider the military industrial development of the 1950s and the American business environment in which COs and XOs and members of the OCE worked closely with the private sector, and in many cases left the military to join the private sector: it’s easy to see how a new vocabulary of command might have emerged during that period, and eventually found its way into ordinary usage.

Still, I want specifics and cases I can point to. To that end, I’ve written to the company historian at General Electric, to ask whether the term CEO was in general use before the era of Jack Welch (who for a variety of reasons — not least for his cultural celebrity — probably deserves the title “The First CEO”). I’m looking for some examples of usage from the days of Ralph J. Cordiner (Chief Executive Officer from 1950-1963), Fred J. Borch (Chief Executive Officer 1963-1972) or Reginald H. Jones, who served from 1972-1981.

ReaganProgressGE seems like an obvious place to start looking. The company that brought us both Jack Welch and Ronald Reagan was, during the war and then in the postwar period, at the very center of military-industrial development; and big American companies like General Electric were never just manufacturing products — or even “progress,” which Reagan used to tout on TV as GE’s “most important product.” They were also designing models of power that persist to this day.

Is Respect Really All That Simple?

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Last week, John Ruggie addressed the UN Global Compact Leaders Summit, where a “new global architecture” for corporate sustainability was unveiled and celebrated. Ruggie started out by talking about the special challenges — the “problems without passports” — that the world’s “tightly-coupled” systems present, and the inadequacy of our “largely self-interested politics” to address them. This was not, however, the brief he’d been given, so he had to move on; and I hope he’ll have more to say on the topic in the future. Instead, Ruggie had been asked, he said, “to say a word about respect,” and — not surprisingly — he took the opportunity to talk about the UN Guiding Principles on Business and Human Rights, and how the framework helps companies meet their obligations to respect human rights.

I have been asked to say a word about respect, specifically about respecting human
rights. Its meaning is simple: treat people with dignity, be they workers, communities in which you operate, or other stakeholders. But while the meaning is simple, mere declarations of respect by business no longer suffice: companies must have systems in place to know and show that they respect rights. This is where the UN Guiding Principles on Business and Human Rights come in. [pdf.]

Fair enough, but I found myself pausing here, and wondering whether the meaning of “respect” is really so simple as Ruggie makes it out to be, or at least whether “treat people with dignity” is sufficient guidance.

I understand that Ruggie’s intention here is largely rhetorical: we all know what respect means, but we need more than fine words, declarations and definitions. We need practical and consistent ways of acknowledging, checking and demonstrating human rights commitments — “systems” like the UN Guiding Principles.

Still, there are good reasons to start unpacking — and challenging — this simple definition, if only to ward off misconceptions.

First, to say that “[to] respect” human rights means “[to] treat people with dignity” (and leave it at that) invites confusion, because it passes the semantic buck from respect to dignity. If we are to treat people “with dignity” — if that’s our definition of respect — then we had better have a good working definition of dignity to govern or temper our treatment of others.

Of course, the word “dignity” is a staple of human rights discourse, so we’ve got to make allowances for shorthand here. If we don’t — if we want to take the long route and spell things out — we will most likely find our way back to Kant’s moral theory. I’m not going to attempt a summary here except to say that for Kant, dignity imposes absolute and non-negotiable constraints on our treatment of other people. Our dignity derives from our moral stature as free, rational and autonomous agents — ends in ourselves — and cannot be discussed in terms of relative value (or usefulness, or any other relative terms). It must be respected: in other words, dignity imposes strict and inviolable limits, absolute constraints, on how we treat others and how others treat us.

Most obviously people may not be treated merely as means to our ends; and that caveat is especially important when it comes to business, where, for starters, people are valued and evaluated as priced labor or “talent,” in terms of services of they perform or as “human resources.” To respect the dignity of people — “be they workers, communities in which you operate, or other stakeholders” — is to recognize them as persons (or ends in themselves) and not just mere functions in an efficiency equation.

This is hasty pudding, but suffice it to say that in the Kantian idea of dignity there is the suggestion that respect follows from our recognition of others as persons: this is an idea suggested by the word “respect” itself, which comes from the Latin respicere, to look back, to give a second look. Every person deserves a second look — or I should say, demands it. Recognition is something we demand of others and others demand of us.

I like to put it this way: respect is always the first, and sometimes the only thing we ask of each other. How we respond to this demand will depend in all cases upon whether we understand that our dignity as persons makes us mutually accountable or answerable to each other in the first place. So before we can talk about how we “treat” others — before we jump, with Ruggie, to considerations of behavior — let’s take a couple of steps back, and make sure that when we talk about respect we are also talking about recognition as well as accountability.

Of course all of this may be implied in Ruggie’s definition, and I wonder if recognition and accountability are just other ways of saying that companies must “know and show” that they respect human rights. My concern is that when you gather business leaders at the UN and tell them that to respect human rights is to treat people with dignity, you may leave them with the mistaken impression that dignity is something they have the power to confer on others, rather than something that makes them answerable to others. Dignity is not something the mighty can grant or deny the meek, and respect is not another word for benevolent gestures companies might make toward communities, workers and other stakeholders. Where people stand, business must yield.

Did Werner Herzog Just Produce The “Red Asphalt” of Our Day?

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Werner Herzog’s new documentary-style PSA against texting while driving, From One Second to the Next, is beautifully shot and edited. Its four stories, which revisit tragic accidents and ruined lives, are presented simply and compassionately, with an eye and an ear for telling little human details.

Still, I have to wonder how this film — which Herzog’s sponsor, AT&T, will distribute to “more than 40,000 high schools, as well as hundreds of safety organizations and government agencies” — will play with teen drivers. From One Second does not wag admonitory fingers and avoids the good-cop scare tactics of old California Highway Patrol road-safety movies like Red Asphalt or Wheels of Tragedy, but its emotional range is limited enough that after watching 3 of the 4 stories Herzog presents here I felt I had had enough of the same tones and colors.

More importantly, the film’s pacing and duration (it’s 35 minutes long) are not exactly suited to a generation that thinks even texts can be tl;dr. I have trouble imagining an auditorium or classroom full of sixteen year olds getting through it without — well, texting or tweeting or checking social media.

So it remains to be seen whether this beautiful and sometimes very moving document can also create an effective intervention. Herzog himself senses the difficulty, but he talks about the problem as a distant observer: “There’s a completely new culture out there,” he told the Associated Press. “I’m not a participant of texting and driving — or texting at all — but I see there’s something going on in civilization which is coming with great vehemence at us.”

I can’t help but be reminded here of the refain from “Ballad of a Thin Man,” written when Herzog was just 23 years old: “Something is happening here / and you don’t know what it is/ Do you, Mr. Jones?” But this isn’t just one generation griping about another, and Herzog is right to suggest that there’s much more at stake in all this than the hazards of texting while driving. It’s about the “new culture out there”, which is taking its toll on human life — a deadly and threatening “something” that’s “going on in civilization.” It’s coming at us, with great vehemence, bearing down on us.

Where it’s coming from and what it is Herzog doesn’t say, or at least the Associated Press does not report; but it’s precisely that “something” that From One Moment misses, and never asks us to confront or better understand. I am not so sure AT&T would have sponsored a film that did.

Public Television and Public Life – A Note from the Road

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Cross-posted from my blog at 1913 Massacre:

We’ve just completed a short tour of the Upper Peninsula, taking 1913 Massacre from Houghton to Ontonagon to Marquette. After each screening of the film, we take questions and comments from the audience. All sorts of things come up in those conversations. People see themselves or their own town in the Calumet story. They make connections between the past and the present, between what happened in Calumet to what’s happening right now in the UP, in Michigan and all around the country. In Ontonagon, one audience member came away from the film thinking about garment factories in Bangladesh; in Marquette, we talked about courage, resilience and how long it takes communities to recover from social catastrophe, among other things. We learn something new with every conversation.

Though the questions, insights and topics may vary, the thing that most impresses me about all these Q&A sessions — no matter the size of the audience or the setting — is the most easily overlooked: the gathering of the audience and the shared experience of seeing the film, together, creates an opportunity for public conversation.

That’s why I’m always a little thrown when someone raises his hand in one of these public gatherings to ask whether we’ve approached PBS with our film or whether 1913 Massacre will air on public television. There are other versions of the same question. Will the film be at Sundance? Will it be on HBO? Wouldn’t it lend itself to feature film treatment? Have we approached Steven Speilberg or — name your favorite Hollywood mogul or celebrity. But the PBS question is the one we get most frequently.

The simple answer is, of course we approached PBS, Independent Lens, POV, and so on, repeatedly, for funding and grants while working on the film; and of course we are still making efforts to bring the film to wider audiences. PBS, or some part of the public broadcasting system, might offer an opportunity to do that.

That, at least, is an answer that gets us past talking about the movie business and the business prospects of our film and back to the film itself and the experience of the film we all just shared.

I realize that the PBS question and others like it show appreciation and support for the film: it’s a way of wishing us success, or a way of saying that other people, friends, family, lots of people, millions of PBS viewers should see our film. They should, with any luck they will, and it’s good to hear others hope they do.

At the same time it’s worth asking why the PBS question comes up so often, and more importantly why the question seems odd and entirely out of place at a public gathering and in a public forum. Would a PBS broadcast give our film a seal of approval it lacks? Would an Oscar? Would Steven Speilberg? Maybe, but why should any of that matter right now? We’re not approaching Speilberg: we’re approaching you. What do you say? What do others in the room have to say? Why look elsewhere? Why wait for permission? What about the approval 1913 Massacre already received, just now, right here in this room? What about the experience we all just shared? Surely we haven’t exhausted that — and surely that counts for something, for much more.

We’re here together, right now, in this room. Let’s appreciate and own it, and make the most of the opportunity we have. Let’s forget about the Corporation for Public Broadcasting and every other kind of corporate gatekeeper. Let’s not await a word from our sponsor or even admit them into the room. Let’s not diminish the present moment and our experience — a public experience, an experience of being together, in public. Let’s not look for validation or value beyond this room: we have it all, right here.

You see where this is heading. There are lessons in all this about the power people and communities have and the power we surrender, every day and for no good reason, to outside authorities, influencers and exploiters — to powerful institutions, brand names, celebrities, big money. These gatherings in small towns, in classrooms, halls and clubs, in local theaters and public libraries may look modest, but they give us a chance to exercise our habit for democracy.

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People gather in the Community Room at the Peter White Library in Marquette for a screening of 1913 Massacre.

That’s why, in the end, television broadcast can’t hold a candle to public screenings like the ones we’ve had and will continue to have. Television is not just a poor substitute for community gatherings and public life. It pulls us away from those things and from each other. Watching television is a retreat from public gathering — a withdrawal into the privacy of one’s own. In this sense, “public television” is an oxymoron, a contradiction in terms.

There’s an aesthetic dimension to this as well. Our film, all film, plays best on a big screen, with a live audience. People laugh and cry together, some gasp, some cough (somebody always coughs), others sigh, shift in their seats. Applause brings everyone together at the end. (Booing and jeering would do the trick, too, but with 1913 Massacre we’ve so far been spared that experience.) These emotions, actions and reactions are an under-appreciated but essential part of the motion, or kinesis, of the cinematic experience. Films come alive — that’s the right word, alive — when people gather to see them; and when people share in public conversation what they’ve seen, they have a special chance to see each other, anew, on the other side of a new experience.

A woman in the audience in Houghton seemed to understand all this when she rose from her seat and exclaimed: “this film should be shown in every small town across the country!” If only we could make that happen.

Drop the Mic: Rio Tinto Community Forums

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Last month, in towns around the Big Bay area of Michigan’s Upper Peninsula, global mining giant Rio Tinto held the second in its series of “community scorecard” forums. At these events, people from the communities around Rio Tinto’s Kennecott Eagle Mine project are asked to score the company on its performance in five areas: environmental performance, local hiring, safety, transparency and communication, and, finally, something the company calls “leaving more wood on the woodpile,” which is supposed to be a folksy way of talking about the company’s contributions to the development of the region.

Rio Tinto prides itself on these forums: “to our knowledge no other mining company has introduced a tool that allows the community to regularly rate their performance, which is then made public. We hope with the Eagle Mine Community Scorecard the UP continues to set new benchmarks in how modern mining works with communities.” But after reading a few accounts of the forums and watching some video clips of the meetings included on Keweenaw Now, a local blog, all I see is a lost opportunity.

Turnout at these forums has been low — about fifty people showed up for the biggest forum in Marquette, and most of them were Rio Tinto employees — so the scorecard results, which the company touts as proof of social license, will hardly stand close scrutiny. “It’s a global mining corporation’s idea of democracy,” remarked Kathleen Heideman of Save the Wild UP. “First they show slides about how great they are — then we should click to indicate our agreement. That’s meaningless.” Even when the company allowed questions and comments before the scoring period at a May 15th meeting in L’Anse, the meeting could hardly be described as an authentic community forum.

Rio Tinto may think that with these forums it’s doing something entirely new, but in reality the company is making a lot of old mistakes.

If these community forums are going to be anything more than a public relations exercise with predetermined outcomes, the current design of the forum needs to be scrapped and they need to be radically reconceived. Voices from the communities around the Eagle Mine need to be heard and heeded — to use a phrase I’ve used elsewhere (e.g., here and here) to talk about what real listening takes — and the power dynamic in these forums needs to shift. Otherwise, I don’t see much chance of the forums making the slightest difference in how the mining company operates, how it contributes to the development of the region, and whether it can ever enjoy social license to operate in the UP. Those are all things Rio Tinto claims it cares about.

In the video clips posted on Keweenaw Now, you can see how things went. Put aside, for the moment, the content of the discussion (which, despite the company’s attempt to kill the discussion by PowerPoint, is rich and provocative — a real tribute to the local citizens who did their homework and turned out for the meeting). You don’t have to know anything about the situation in the Upper Peninsula to sense that things are amiss. Focus on just one very telling detail in the video clips: who’s holding the microphone? At Rio Tinto Community Scorecard forums, the Rio Tinto people stand at the front of the room and speak into microphones. Nobody else does.

This may seem like a small detail. There are, after all, big things at stake — the integrity of the environment around Big Bay and the Salmon Trout River, the economic future of the Upper Peninsula as well as the future of life on Lake Superior. Rio Tinto’s Eagle mine opens the first phase of one of the biggest mining operations in the world — which is about to be staged around one of the biggest freshwater lakes in the world. This is a critical turning point. All around Lake Superior, things are going to change: things are already changing. Surely it can’t matter who’s standing where and whether they are holding a microphone?

I think it might.

Here’s a typical clip, where Jeffery Loman of the Keweenaw Bay Indian Community asks Rio Tinto’s Matt Johnson about the permitting process for discharging mining effluent into groundwater and surface water.

Johnson stands in front of his PowerPoint slides, holding the microphone as Loman, seated with the others in attendance, tries to engage him. At around 2:40 in the clip, when Johnson feels that the question is too technical for him to answer, he hands off to Kristen Mariuzza, Rio Tinto Eagle Project Environmental and Permitting Manager. And what does Mariuzza do? She marches to the front of the room and takes the microphone.

Mariuzza probably does this thinking that it’s the only way everybody in the room can hear her, or she’s so accustomed to presenting in a Rio Tinto corporate setting that she doesn’t know how to drop the act in other settings. Everyone can obviously hear Loman, who remains seated and addresses Johnson and Mariuzza in a normal tone of voice. It’s curious, isn’t it? Johnson and Mariuzza seem to be the only people in the room who require a microphone in order to speak and to be heard. Why do their voices need to be amplified above all others? That is, after all, what microphones do: they amplify one voice so that others are relegated to the background, or drowned out altogether. So both Johnson and Mariuzza are speaking over the community, and (I don’t choose this word lightly) dominating the discussion. The microphone sets the power dynamic of the situation.

Some of us are old enough to remember those corny Popeil TV commercials for a product called Mr. Microphone. The commercial runs through a number of different scenarios in which people use this amazing product to amplify their voices — transmitting it to a radio and broadcasting it for all to hear.

Essentially each scenario is the same: everyone finds Mr. Microphone amazing, but everyone is most amazed at the magical sound of his or her own voice coming through the radio. People around them laugh and notice, but the astonishment, the surprise, the wonder at Mr. Microphone is a deeply narcissistic pleasure. Something like that is happening here, to a lesser degree but with graver consequences. The people from Rio Tinto are amplifying — and most likely hearing — only their own voices, not the voices of others, and they are, I’d venture, deriving from that experience a false sense of satisfaction at having engaged with the local community.

What could they be doing instead? For starters, I would suggest they ditch the microphones, so that no one’s voice is amplified over all others. This won’t solve the problems being discussed, but it will increase the chances for voices from around the community to be heard. If people seated in the back of the room can’t hear what’s being said, then it can be repeated for their benefit: there’s value in repetition, as it gives everyone in the room a chance to assess again what’s being said and agree that someone’s view is being accurately communicated. Efficiency is not a virtue of real conversation.

If the Rio Tinto people are not standing at the front of the room holding a microphone, what will they do? Sit down — and not at the front of the room, where they are sure to command attention and where everyone must ultimately direct their remarks. There is no good reason not to sit in the same chairs that are comfortably accommodating the people with whom one is meeting. Again, this sounds like a minor adjustment, almost a point of etiquette, but I have seen this work wonders in classrooms deliberately designed so there is no front of the room, in corporate as well as academic settings. This way, anyone in the room can lead the conversation at any given time.

Now the room is starting to look like a face-to-face meeting — with everyone’s face at the same level and everyone seated at roughly the same distance from each other. Let’s not pretend for a moment that this will somehow put Rio Tinto on equal footing with the citizens in the room. Johnson and Mariuzza represent a multi-billion dollar global mining company with tremendous power and enormous reach in the Michigan legislature and beyond, to the highest levels of national government. In fact, Matt Johnson himself came out of Governor Jennifer Granholm’s administration to work for Rio Tinto as its local front man on the Kennecott project; Mariuzza also walked through a revolving door, out of government and into Rio Tinto. So there is a huge power disparity in the room — one that a simple conversation like this cannot bridge. But at least with these and other changes there might be a chance at conversation.

There are other steps the mining company can take if it is serious about developing these forums. Here are just a few:

Relinquish control. A credible, independent third party, someone who isn’t in Rio Tinto’s employ, should moderate and facilitate the conversation. Right now the flow of the conversation is controlled by the man with the microphone. A facilitator can help the whole group focus on issues, clarify what’s being said and ensure that people in the room are being heard.

Map the conversation. It looks as if right now there’s no way to capture what’s being said in the room and ensure that everybody agrees on what was said and that their point of view is being adequately represented. Video cameras record, but they also capture one point of view. Some sheets of white paper or a whiteboard would allow one person to track the conversation, and make it possible for anyone to stand up and edit, on the spot, what’s on them.

No more dog and pony. The PowerPoint show should be left where it belongs — back at the corporate office. It is a way to control the narrative, discouraging conversation, other points of view and other stories. If diagrams or maps are required for the conversation, then anyone in the room should be able to control the slideshow — and anyone in the room should be able to introduce slides.

These Community Scorecard forums may ultimately succeed or continue to fail, but people living around the Eagle Mine don’t need microphones or PowerPoint slides or corporate sponsors to talk about what’s happening in their communities. Towns and townships in the Upper Peninsula and communities all around Lake Superior may not have the clout of Rio Tinto or any of the other mining companies, but they have each other — and there’s great power in that, or at least there can be, no matter how much wood Rio Tinto leaves or does not leave on the woodpile.

Race You To The Water

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The other day I expressed some misgivings over the word that Earthworks chose to apply to water in the first sentence of its report, Polluting the Future: their characterization of water as an “asset,” I said, made me uneasy. The water flowing from springs and brooks, the water of rivers, lakes and streams, the raindrops that fall from the sky and the dew on the morning grass, the water in our bodies, in plants and trees, the water in dogs, flowers, bugs, fish, elephants, walruses and caterpillars, the water in everything that is alive on earth — water is and will always be something greater, more wondrous and something other than a mere entry in the accounting ledgers of some grand business enterprise, which is all that the word “asset” conjures for me.

greatlakesoilI came across the word again today as I was reading an editorial in The Detroit Free Press. I am in complete sympathy with the position it takes against plans to build a huge network of oil pipelines carrying diluted bitumen (or dilbit) across the Great Lakes region, and to transport crude oil by barge across Lake Superior. These are reckless, irresponsible ideas. The threat they pose to the integrity of the Lakes and the life the Lakes sustain is only made worse when you consider a couple of salient facts. First (and it is curious that the editorial does not mention this), the new mining around Lake Superior — as I’ve noted repeatedly — is already going to put pressure on Lake Superior and the Lake Superior watershed; the shipping of oil by barge would bring even more industrialization and greatly heighten the risk of environmental catastrophe. Second, the company building and running the pipeline (the Canadian company Enbridge) has already been responsible for an environmental disaster in Kalamazoo, Michigan — the worst inland oil spill in US history, in fact.

The editorial takes the position that these plans betray a “deep misunderstanding of the true value of the lakes,” but when the editors try to say what that value is, they run into trouble:

It’s easy to wax poetic about the value of the Great Lakes to Michigan and the other states they border. The beauty of the lakes, the wildlife and fish that dwell in and around the lakes, the environmental benefits the lakes present — they’re incalculable.

But let’s get practical: Clean freshwater is one of the scarcest commodities there is. And it’s only going to get worse. Clean water will be an asset that’s worth far more than oil. Jeopardizing the Great Lakes isn’t just morally and ethically wrong. It’s financially foolish, as well.

It’s interesting how the argument here moves, in just a couple of short paragraphs, from the “incalculable” to the crudest of calculations — the “worth” of clean water. This is tantamount to arguing that what is “morally and ethically” right should take second place to what is financially sound — as if finance should have more claim on the imagination and intellect (and the heart) than morality, and monetary value should be privileged over moral and ethical considerations.

I suppose that’s the way it goes nowadays, and I just need to get real. Still, there’s a great swirl of confusion in these two paragraphs, and I have a number of questions about the concept of morality being invoked here, how we’re to distinguish it from ethics, and why those things don’t seem to figure into what are called “practical” considerations. Practice and finance here are unmoored from and unrestricted by moral and ethical concerns; it’s precisely that kind of thinking that got us into the precarious situation we’re now in.

One remedy for all this confusion may lie in the perspective that holds water to be a basic human right — a perspective I also found missing from the Earthworks report. But even then we need to go beyond talking about assets and recognize the limitations of the argument that “clean freshwater is one of the scarcest commodities.” Why? Follow the link from The Detroit Free Press editorial to the National Geographic site on the “Freshwater Crisis.” There you enter a Malthusian world:

While the amount of freshwater on the planet has remained fairly constant over time—continually recycled through the atmosphere and back into our cups—the population has exploded. This means that every year competition for a clean, copious supply of water for drinking, cooking, bathing, and sustaining life intensifies.

bilquaszwaterchildHere, all of humanity is engaged in a contest or race. More and more people enter every year to compete for the same, limited resources. This is one reason why it’s imperative to recognize freshwater as a human right. Otherwise, history becomes a death match, or a big, global reality TV show: intensifying “competition” over this scarce “commodity” means that there will be winners and losers in the water game. The winners are fully vested with their rights; the losers struggle to survive in arid, toxic regions, or simply die of thirst.