Two weeks after Nottingham voters passed the “Freedom from Chemical Trespass Rights-Based Ordinance” in 2019, Brent Tweed sued the town, arguing it was unconstitutional and unenforceable.
The complex ordinance was aimed at protecting the town from companies dumping toxic pollutants, but Tweed feared it was so vague that his mail- order business could be at risk for $1,000-a-day fines for using fossil fuels to make deliveries and heat his place, for disposing of packaging and other waste material, and for using paint and cleaning supplies.
After nearly two years of legal wrangling, a Rockingham County Superior Court judge has sided with Tweed.
In a ruling issued Monday, Judge Martin Honigberg found that the ordinance was “unconstitutionally vague and cannot be enforced.”
The ordinance, which the town never enforced while it was tied up in court, was pushed by the nonprofit Nottingham Water Alliance, a group whose interests include the environment .
Among other things, the ordinance stated that residents have a “right to a climate system capable of sustaining human societies, which shall include the right to be free from all corporate activities that infringe on that right, including chemical trespass.”
The ordinance asserted that “ecosystems and natural communities” in Nottingham have rights, and that those rights include the right to be free from corporate activities that “threaten” their right “to naturally exist, flourish, regenerate, evolve and be restored.”
It attempted to establish a legal right for any resident to intervene in any action concerning the ordinance.
The ordinance was intended to grant ordinary town residents the power to personally enforce the rights and prohibitions outlined in the ordinance if the court found it unlawful or elected officials failed to enforce it.
It also allowed for $1,000-per-day fines for violations, plus the cost of restoring land, water or air.
Tweed said he understands that many voters supported the ordinance because they want clean water and want to prevent toxic waste from being dumped.
“I agree with the idea. We all want clean water. We don’t want anybody to pollute our drinking water,” said Tweed, who is the sole shareholder and director of G&F Goods, LLC, a Delaware company registered to do business in New Hampshire that makes mail-order purchases and sales.
But he argued that the ordinance was too broad and too vague, making it hard for people to know which activities could be considered a violation.
“It’s basically banning any corporation from releasing any amount of toxic contaminants. There are a lot of chemicals that are toxic. You release toxic chemicals when you burn gas in your car,” he said, adding that a business using a woodstove or other heating means is also releasing toxic contaminants.
In his order, Honigberg wrote that Tweed and G&F “face imminent risk of extrajudicial demands for thousands of dollars in penalties by ordinary town residents who may deem the petitioners’ activities to violate the ordinance by causing ‘any injury’ to the town’s ecosystem.”
He also found that state law would not give the town the power to “engage in the kind of broad regulatory activity which an ordinance prohibiting all ‘corporate activities that release toxic contaminants’ would involve.”
The ruling was disappointing to members of the Nottingham Water Alliance, which worked with the New Hampshire Community Rights Network to create the ordinance.
“Hazardous waste is really nasty and we want to prevent the townspeople from getting hurt by what commercial people are dumping on a piece of property. That’s the purpose of the fight,” said Nottingham resident John Terninko, acting president of the alliance.
The ordinance was put to the voters in March 2019 as a petitioned warrant article proposed by residents.
The judge’s ruling didn’t surprise the Nottingham Water Alliance’s lawyer, Kira Kelley, whose efforts to convince the court to allow the group to intervene and represent its interests in the case were unsuccessful.
She said in an email to the New Hampshire Union Leader that the “courts in this country exist to protect the status quo, and to serve this end will find ways to resolve cases in favor of the rights of property owners even at the expense of a surrounding ecosystem and community.”
Neither the town’s attorney nor Town Administrator Chris Sterndale could be reached for comment Wednesday.