After a successful six-year campaign to prevent Nestle Waters from building a bottling plant in nearby McCloud, the town of Mt. Shasta, a mountain hamlet of fewer than 3000 residents in California's far-northern Siskiyou County, is taking up a new struggle: to prevent PG&E from seeding the region's clouds. The practice of 'cloud seeding' is a kind of weather modification in which silver iodide, a Class-C toxin, is disbursed aerially or from ground-based towers in an effort to induce rain.
On May 24, the Mt. Shasta City Council voted to put the Mt. Shasta Community Water Rights and Self-Government Ordinance on the November ballot. The objective of the ordinance, which was brought to the City Council by an ad-hoc group called the Mt. Shasta Community Rights Project, is to prohibit chemical cloud seeding and corporate water extraction in the city. If adopted, the law will protect the right to "sustainably access, use, consume, and preserve water drawn from natural water cycles;" more broadly, it will defend "the rights of citizens to self-government and the rights of natural communities and ecosystems to exist, flourish, and evolve."
Despite the fact that Mt. Shasta is a small town with a strong liberal, environmental bent, and about 85 percent of people approached by organizers are in favor of a strong measure to protect the town's water, the ordinance is politically fraught. If it becomes law, the ordinance will not merely prevent cloud seeding and water extraction - it will empower citizens and the City Council to vote down similar proposals in the future.
Such an effort is not as benign, nor as easy, as it might at first appear. On the heels of their six year battle with Nestle, organizers in Mt. Shasta know that in order to secure the region from corporate resource extraction in the long-term, they need to do more than just say no to each threat as it appears; they need to circumvent legal precedent, which generally rules in favor of corporations. In order to do that, they need to overturn both state and federal law.
Water policy in California is infamously complicated, and the state, which is the world's seventh largest economy and one of the world's most vital agricultural regions, is facing an increasingly severe water crisis. Proponents of the Mt. Shasta ordinance say that it has far-reaching implications, both in protecting water and in empowering citizens; in the words of one resident testifying before the City Council on May 24, "this ordinance is the embryo of change for our state."
Mt. Shasta, Source of Northern California's Waters
In the Mt. Shasta City Park, at the bottom of a wooded hill, in a grove of yellow pine and cedar, clear water comes burbling out of the ground, splashing over rocks and rushing to form a sparkling creek, green with watercress and lined with horsetail and huckleberry. This spring, a sign announces, is the headwaters of the Sacramento River. As it flows south through the Central Valley toward its drainage in San Francisco Bay, the Sacramento River provides 75 percent of Northern California's water.
On a chill 40 degree morning in May, at the spot where one of California's most important rivers emerges from a hole in the ground, a local man appeared and filled several large jugs. "This is snowmelt on Mt. Shasta," he told me. "The water passes through lava rock for three years before it comes out here." In quick succession, several more people showed up to fill jugs for drinking. "This is as clean as water gets," one of them said, taking a deep drink.
Mt. Shasta, perpetually snow-capped and wrapped in a near-permanent cloud, rises 14,179 feet from the northern edge of California's Central Valley to mark the meeting point of the Sierra Nevada to the east, the Trinity Alps to the west, and the Cascade Range which runs northward through Oregon and Washington. Saddled by seven glaciers, Mt. Shasta also gives birth to the McCloud and Pit Rivers, which join the Sacramento at Lake Shasta to the south. Shasta Dam, the second-largest dam in the U.S., acts as the keystone of the Central Valley Project, the statewide engineering juggernaut that provides drinking water to most of California.
Given Mt. Shasta's legendary clean water and its location at the top of California's most vital watersheds, it's not surprising that alarms went off when residents learned of plans by Pacific Gas and Electric (PG&E), the state's powerful private utility company, to seed the region's clouds with silver iodide in an effort to bring rain.
PG&E's Bid to Seed the Clouds
In November 2008, McCloud resident Angelina Cook discovered a Notice of Intent buried in the local paper announcing that, in two weeks, PG&E was going to begin a cloud seeding project in the McCloud-Pit River basin, just east of Mt. Shasta. On the heels of a successful campaign to prevent Nestle, the multinational water giant, from building a water bottling plant in nearby McCloud, Cook was immediately alarmed.
Cook holds a degree in International Environmental Policy, but she abandoned her dreams of working abroad when she discovered Mt. Shasta. "I love this place," she said when we met for lunch at one of the tiny town's two health food stores. Despite her education, Cook told me, her first question on discovering PG&E's plan was simple: "What is cloud-seeding?"
Some quick research revealed that weather modification through cloud seeding with silver iodide is not new to California. Also known as "precipitation enhancement," the state's first significant cloud seeding operation was launched by California Electric Power Co. in 1948 in the Owens River basin. Since then, it has been done in several California river basins, in every case to increase water supply or hydroelectric power.
With a little more digging, Cook learned that PG&E's project is included in the draft 2009 California Water Plan, with the objective of increasing the energy yield of PG&E's McCloud-Pit hydropower project by 5 percent. Compared to other methods of capturing water, the financial cost of cloud seeding is relatively low, averaging around $20 per acre-foot of water. This, and PG&E's powerful lobby in Sacramento, undoubtedly appeal to state policy makers. However, opponents argue, the environmental costs of cloud seeding are prohibitive.
Cook was surprised to learn, as she researched the plan, that unlike other large-scale resource management practices with potential environmental impacts, cloud seeding is completely unregulated in California. "That is," she says, "if it is done by corporations or private landowners." If a municipality or other public sector entity wants to seed the clouds, she learned, they must go through a formal environmental impact review process.
Despite cloud seeding's decades-long history in California, the practice is poorly understood and its effects largely unknown. A 2003 report from the National Research Council entitled "Critical Issues in Weather Modification Research" showed that there is no conclusive evidence of the efficacy of weather modification. Two reports published in Science, one the world's top-ranked scientific journals, also point to very few cases of measurable success.
What is known, on the other hand, is that levels of silver iodide (AgI) accumulated in non-biological materials are one to two orders of magnitude higher in cloud seeded areas than in non-cloud seeded areas, and are significantly elevated in fish and other biota; a report from the U.S. National Biological Service ("Silver Hazards to Fish, Wildlife and Invertebrates") calls silver in its ionic form "one of the most toxic metals known to aquatic organisms."
Biologist and Mt. Shasta resident Frances Mangels is the former District Wildlife Officer for the US Forest Service in the Shasta-Trinity National Forest, and a vocal opponent of cloud seeding. Mangels cites many concerns about the local ecology, including abnormal acidity of local waters, and a marked loss of aquatic insects.
"Silver-iodide is an aquatic insect poison," Mangels says. "Cloud-seeding has never been adequately shown to work; it fails ninety-five percent of the time, and it's poison. Doesn't that say it all?"
With her concerns apparently justified, Angelina Cook called the McCloud community service district and Siskiyou County's Natural Resource Specialist, and found that they knew nothing about PG&E's plan. Having worked for years as part of the effort to oust Nestle from McCloud, Cook had significant experience waging environmental campaigns; she and other residents lost no time in building similar momentum to take on PG&E.
"But what does the struggle against Nestle in McCloud have to do with the concern about cloud seeding here?" I asked her.
"This whole region is the headwaters of the Sacramento River, the aorta of California," she said. "Surface water, groundwater, and atmospheric waters are inherently linked," she said. "But while surface waters are protected under public trust, ground and atmospheric waters are totally unregulated. I find this absurd."
Another local constituency who find California's fragmented regulatory framework absurd are the region's first peoples. The Mt. Shasta area is the ancestral territory of several tribes, including the Winnemem Wintu, or Middle-water people. A small, unincorporated tribe of some 123 members, the Winnemem Wintu have been outspoken opponents of state and corporate water policies at least since several of their villages and sacred sites were relegated to oblivion by the construction of Shasta Dam decades ago.
Now, they say, most of PG&E's cloud generators are located on their land, and on private land immediately adjacent to it. Tribal representative Louisa Navejas says, "Our view of cloud-seeding is pretty simple. There is a reason why the rains come in the winter. It is meant that these rains flush the waters and heal the rivers and springs, and carry all the nutrients, the sediments and the food for all the life down the waterways to the ocean, where the ocean also needs to be fed. Silver iodide is neither a nutrient nor a purifier. It is a poison."
Many Mt. Shasta residents sympathize with this view; despite a flagging local economy and a dire need for jobs, many locals are aware that industry brings mixed blessings at best. Coca-Cola maintains a bottling plant just outside of town, and Crystal Geyser has a plant in Weed, just to the north; both plants extract unknown amounts of water, because the companies' right to free speech, as protected in both state and federal law, allows them not to disclose details about their extractive activities.
Seeing that the region would likely be under permanent threat due to its wealth of water, timber, geothermal resources and other natural wealth, Cook and her allies knew that an issue-oriented campaign would have only limited success. They sought a strategy that would not only prevent cloud seeding, but would get corporations out of their watershed once and for all. That was when they got a call from potential allies at the Community Rights Program of San Francisco-based Global Exchange and that program's key partner, the Pennsylvania-based Community Environmental Legal Defense Fund (CELDF), who were interested in taking precisely the same approach.
From a Regulatory Approach to a Rights-Based Approach
Founded in Pennsylvania in 1998, the Community Environmental Legal Defense Fund is a non-profit legal firm and advocacy group whose mission is to enable communities to challenge unsustainable economic and environmental policies set by state and federal law, and to construct legal frameworks that reject and overturn "corporate personhood."
Federal laws and state permitting processes, they argue, do not require corporations to seek community permission to site projects, no matter how dangerous or unpopular they may be. To the contrary, due to a century of legal precedent, corporations are given all the rights of "legal persons," which, coupled with their economic might, allows them to circumvent the rights of actual people.
A report on the Mt. Shasta case published by Global Exchange explains, "Corporations are created by State governments through the chartering process. Courts have bestowed upon corporations immense constitutional powers. Wielding those constitutional rights and freedoms, corporations routinely nullify laws adopted by communities, states, and the federal government. Nullification of those laws denies the people's inalienable and fundamental exercise of their right to govern themselves."
While all of the communities it has supported to date, in Pennsylvania, Maine and New Hampshire, are essentially facing environmental abuses, CELDF's strategy is to address these abuses not through the standard regulatory process, but through the restitution of communities' rights to self-government.
Having gained outside support for their efforts, locals formed the Mt. Shasta Community Rights Project, an ad-hoc group devoted to drafting and promoting a rights-based ordinance to stop corporations in their tracks. Ami Marcus, one of the group's founders, says, "Regulatory ordinances don't allow us to say 'no'; rather, these laws dictate how much harm we have to tolerate. We found that only under a rights-based ordinance do we have the right to prohibit harmful activities."
In the summer of 2009, with legal support from CELDF, input from local ecologists, and feedback from then-mayor Tim Stearns, organizers began drafting language for what would become the Mt. Shasta Community Water Rights and Self-Government Ordinance. By spring of 2010, they had gathered 700 signatures, representing more than a third of the town's residents, and the ordinance went to the City Council. With the requisite signatures, the Council had two choices: to enact the law as it was written, or to send it to a popular vote.
Mt. Shasta Is in for a Fight
On May 24, after a 30-day deliberation period, the Mt. Shasta City Council was to announce its decision. City Council meetings in the hamlet of Mt. Shasta are not generally exciting affairs; but the May 24th meeting was attended by over 120 citizens, making it one of the largest City Council meetings since the town voted down a proposed federal penitentiary there 15 years ago. The meeting, held in the town's Masonic Lodge, represented perhaps a typical Northern California mix of ex-loggers and New Agers, lifetime residents and recent refugees from the smog and congestion of Southern California, as well as members of a newly-established local Tea Party group sporting signs in red white and blue marker declaring, somewhat incongruously, "Taxed Enough Already!"
Commenting on the potential of the ordinance to unite diverse interests, resident Molly Brown said, "People, regardless of their political or environmental inclinations, can agree that we should decide what happens where we live."
Ben Price, an organizer with CELDF and one of the ordinance's authors, flew in from Pennsylvania to give the City Council his perspective: "This is a single-issue ordinance," he said. "The core of the ordinance is the right to water. Making it possible to assert that right is the assertion of pre-existing rights, such as the right to local self-government, the right to a healthy environment, the right not to have your environment or yourself poisoned, and the right not to have your authority to self-governed overturned by creatures of the state, namely corporations."
"Finally," Price said, "surrounding this multi-layered ordinance are two particular prohibitions: corporations may not engage in cloud seeding within the city of Mt. Shasta, and corporations may not engage in water withdrawals for export outside of the city."
Resident John Roshak said, "This is a chance for our community to stand with those communities in Appalachia facing mountaintop removal, with those in the Gulf facing the loss of their fisheries to the BP oil spill, and all communities seeing their environments massacred by corporate personhood."
After a meeting that stretched to 3 hours, with nearly everyone in the packed room offering testimony for or against, the City Council voted 5-to-0 to put the ordinance on November's ballot. However, despite the unanimous vote, several council members expressed deep concerns.
If the ordinance passes, Mt. Shasta will be the first community in California to pass a law asserting self-government, and stripping corporations of their rights within a local jurisdiction. Similar laws have been enacted in 125 communities in other states; these new laws excite advocates, who see such legal challenges as essential to reclaiming citizen power and promoting sustainability. But agencies and individuals tasked with enacting regulatory frameworks and upholding the law as it stands see ample cause for concern.
Ned Boss, a Mt. Shasta City Council member, said at the May 24 meeting, "The City does not have the power to enforce rules that are not in accordance with state law. This ordinance will have to be enforced by the courts. This could bankrupt the city."
Melinda Willey, a Mt. Shasta resident who had hosted an information-sharing event at her house the day before, told the City Council, "We are your bosses. But it is the state that sanctions your actions. So you are forced to choose between who you serve and who you are sanctioned by. This law will empower you to stand up for us."
A report prepared for the City Council by City Attorney John Kenney expressed concern about "logrolling," the common practice of combing numerous unrelated issues into a single initiative, said the ordinance "would create tremendous confusion," and declared it to be unconstitutional.
Chief among the report's concerns is precisely "the assertion of pre-existing rights": "The ordinance attempts to create new civil rights in contravention of those established by the California Civil Code. For example, it creates in all citizens of Mt. Shasta, the 'fundamental and inalienable right to a healthy environment...the right to a natural environmental climate unaltered by human intervention, and the right to protect the rights of natural communities and ecosystems....'" The ordinance, City Attorney Kenney's report states, "attempts to create new rights and liabilities that are contrary to the body of law establishing rights, liabilities and damages adopted by the state legislature. The City has no such authority."
The City Attorney's report, which served as the basis of the City Council's deliberation, concludes with an overarching concern: "What would happen if every city were allowed to pass ordinances superior to and conflicting with federal, state and other local laws? Each City's 'self-governance' ordinances would claim to be superior to any law of whatever origin to the contrary. Which would trump which? What would happen to the rule of law?"
Shannon Biggs, Director of Global Exchange's Community Rights Program, who spoke at the May 24 meeting, addressed that concern directly: "Slavery was legal and constitutional, but illegitimate and unjust, because it was depriving the rights of human beings. Our history has been peppered with opportunities for popular movements to drive new laws to protect rights. The suffragettes, civil rights.... Local self-governance is the new frontier in the ongoing movement for rights."
But City Council members are understandably reluctant to stand at this "new frontier." Despite their victory, members of the Mt. Shasta Community Rights Project left the May 24 meeting concerned that they will face mounting opposition to the ordinance before November, not least from members of the City Council itself.
Jamie Lee, a resident of Anderson Valley in coastal Mendocino County, had driven for four hours to support the ordinance at the City Council meeting; his comments were addressed not to the council but to the organizers, and were prescient: "Don't think when you vote on this in November that you'll just check a box and go home and everything will be better," he said. "Mt. Shasta is in for a fight."
Jeff Conant is a writer based in the San Francisco Bay Area. He is the author of A Community Guide to Environmental Health (Hesperian Foundation, 2008) and A Poetics of Resistance (AK Press, 2010).