2. Principles & Strategies in Environmental Law
Articles,  Blog

2. Principles & Strategies in Environmental Law


Prof: All the times will
be up on Friday so that you can make your choices.
We have eight different
sections that are set up, and we’re hoping that that’s
sufficient for the class. There is also the obligation to
either take a midterm paper or conduct a research effort that
would produce a paper, roughly ten to twelve pages in
length. And I’ll talk more about that.
And as I lecture,
I’ll often pause and suggest what I think are interesting
research topics that will span a whole array of different kinds
of laws and problems that we’ll cover.
So that will be followed at the
end of the course by a final examination that also I’ll
provide a review session for. And I wanted to make one thing
clear about this. I made an obligation to give a
lecture elsewhere about a year ago that is up at Dartmouth next
Thursday. So we will not have class next
Thursday. But I will make that up by
providing you with a lecture at the end of the course,
an additional lecture which will review all of the course
material for you prior to the final exam.
So let me start in.
My interpretation of the
failures and successes of twentieth century environmental
law is very much tied to how problems have been defined.
And if you look back in
history, you’ll see that problems that have become
immediately apparent, have reached the press and a
wide public have often been translated into law.
So if you think about the
Cuyahoga River, which used to catch fire
routinely in Ohio. It used to catch fire because
of the petroleum products that would lie on the surface of the
water. That prompted changes in the
Clean Water Act to try to reduce the emissions from industrial
facilities into the rivers. The Toxic Substance Control Act
evolved after concern about a variety of events,
as well as the Resource Conservation and Recovery Act
that applies to hazardous waste sites following the discovery
that a canal that had been loaded up with toxic substances
in New York State known as Love Canal,
had turned into a school site. The corporation had basically
abandoned the facility and it was turned over to the
community, which built a school. And gradually,
this seeping, oozing toxic soup started
bubbling to the surface of the playground and people’s
backyards and into their basements.
That prompted the passage of
the Superfund law back in the 1980s.
So in many respects,
law follows public recognition of significant threat that is a
surprise in a sense. But these laws evolved not in a
systematic way. It was not as if somebody said,
“Okay, we need air law. We need clean water law.
We need toxic substance control
law. We have to worry about
hazardous sites. And what about all the federal
land management responsibilities?
How are we going to manage
grazing lands, timberlands,
access to minerals? How about private development?
How are we going to manage new
development, new subdivisions?”
Rather than there being some
sort of a comprehensive vision about the nature of law that was
specific, saying, “Okay,
this kind of problem should be dealt with best at the federal
level as opposed to another kind of problem should be dealt with
by states.” And what about local
governments? Which level of government has
the best capacity to deal with which kind of problem?
No one sat down and thought
comprehensively about this. And the result is really what I
think of as a really fragmented patchwork quilt that’s quite
frayed of various statutes that are pieced together,
that have embedded within them different decision standards as
well as different levels of funding,
and administered by a variety of different agencies.
So when I talk about
environmental law, you probably know that the
Environmental Protection Agency has a primary responsibility to
administer some of the core statutes,
like the Clean Air Act and the Clean Water Act.
But there are many other
statutes that deal with chemicals in the environment
that give authority to groups like the Food and Drug
Administration, the Consumer Product Safety
Commission, as examples.
And often, responsibility for
one kind of a problem, and we’ll see this particularly
with respect to pesticides, is fractured among different
agencies with responsibility to implement.
So the Department of
Agriculture has a responsibility to consider the benefits and
cost to farmers of new pesticide regulations.
EPA has a responsibility to
look at toxicity data for pesticides and to judge what the
risk is and to set the standards.
The Food and Drug
Administration has the responsibility to go out and
monitor what’s in the food supply so we know whether or not
people are being exposed to dangerous stuff,
chemical residues. So does this make sense?
It absolutely does not.
And when we get to the
pesticide case, I’ll tell you a story about how
I tried to pull data together from the Department of
Agriculture on what people eat, pull data together from the
Food and Drug Administration about what residues they found
in those foods, pull data from the
Environmental Protection Agency together in a way that made
sense, to try to figure out what you
or an individual might be exposed to and what your risk
might be. The databases were all set up
in different formats using different software.
It was a nightmare and it took
about three years to integrate the datasets in order to answer
the simple question, what are people exposed to?
So the patchwork quilt that’s
frayed, that offers insufficient protection, is a key image that
I want you to carry with you. How we define problems often
will result in the effectiveness of the solution.
And often the problems have
been highly reductionist in their definition.
And this has also been
associated with their assignment to specific agencies.
And we’ll see that many of
these problems cross many different boundaries.
And the absence of thinking in
a systems way, or thinking ecologically,
lies at the core of the issue. So what are the central
questions of environmental law? One is the level of government
that’s appropriate to the problem.
Clearly, if you have air
pollution blowing across state boundaries and local boundaries,
if everybody sets their own, every state sets their own air
pollution law, that’s going to be a nightmare
if each state has their own standard.
Another key question would be
what branch of government should establish the law?
So should it be the Congress?
Or should it be the Executive
Branch? So EPA has the authority to set
regulations. So Congress passes a statute,
sets out broad guidelines, and then the Environmental
Protection Agency has the authority to set regulations
that really are more refined and dependent upon scientific
evidence. So you really wouldn’t want
Congress to get involved in the setting of highly specific
regulations that really would demand an understanding of the
technical details. What’s our capacity to detect
this chemical? What’s our capacity to
understand its risk? Who’s most at threat?
What are the costs and benefits
associated with regulation? Do we really want Congress to
deal with that kind of specificity?
And I think often not.
Therefore, the Executive
Branch, meaning the Environmental Protection Agency
or other regulatory agencies, are often given that authority.
When they’re given that
authority and they don’t do anything about it,
as has been the case for many of these problems,
Congress often will call them up and hold hearings and demand
them to explain why nothing has been accomplished.
And we’ll talk about the Safe
Drinking Water Act as a great example of that,
where Congress finally threw up its hands and said,
“EPA, you’re just not doing your job,
and we are going to specify which chemicals you have got to
test for in drinking water, and you have got to set maximum
contaminate levels for those chemicals in drinking water,
and you’ve got to do it by date X.”
They did that also with the
hazardous chemicals law. So Congress does get upset.
Regulations can be passed by
the President via executive order.
And also the judiciary plays a
really critical role so that the collection of decisions
surrounding any one of these problems creates precedent for
future decisions. And courts are often in a
position of interpreting uncertainty in the language of
statutes, but also uncertainty in the language of regulations.
And there are highly
individualized cases. And unfortunately the process
of adjudication in the court system is not very close to the
process of discovering new knowledge that we think about
here within the academy. It’s not about discovering
truth, it’s not about proving causality.
It’s about control of evidence
to tell a story. So the courts really are
looking at competing narratives of what the problem is,
what the damage is, and whether or not the
defendant really is responsible for adversely affecting the
plaintiffs. So another key question is
monitoring and surveillance. And it’s very easy to pass a
law that sounds great on its face,
but if you look at it really carefully,
what you’ll find is that there’s really no comprehension
of how much monitoring and surveillance is required in
order to really do the job, to get the job done.
So monitoring and surveillance
I think of as one of the primary defects of twentieth-century
law. So we have grossly
misunderstood the amount of money that it will take to
really figure out what happens when you release a chemical to
the environment. What happens if you blow it out
of your tailpipe on your car or it comes out of a nuclear power
plant, a radionuclide goes up into the air?
What happens to that?
To figure that out is extremely
expensive. And in society with respect to
air pollution law, chemical law,
even endangered species management,
understanding how many individuals of both sexes of
endangered mammals exist, where they are,
what their reproductive rate is,
that takes intensive monitoring. So when these laws are passed,
if the government does not set up a really effective and
efficient monitoring and surveillance program,
the whole thing is just like a waste of time.
So the level of
misunderstanding of this issue, I just cannot emphasize enough.
Another key question is access
to data. So who should have access to
data? And I’ll give you a good
example of this. I’m working on a project now.
It happens to do with green
building standards. And I was wondering about
carpet treatments and the Stainmaster Carpets as an
example, everybody’s heard of Stainmaster.
Other chemicals are applied to
the surface of carpets to keep them from absorbing stains or to
keep things from sticking to them.
So you might think about
cookware as another example. A lot of cookware now you don’t
have to put any sort of an oil into it in order to keep things
from sticking in it. So the chemicals that are used
to accomplish this, including to make your clothing
waterproof. For example,
I was skiing last week and I looked down at myself and I
said, “Boy, I thought this was
just a nice waterproof shell that I was wearing.”
And then I started thinking,
“Oh, you idiot. You’re wearing a product and
you have no idea what the ingredient is.”
And I’m reading a report saying
that almost everybody has this chemical in their body and it’s
detectable in their human tissue.
Now think about this history.
The chemical is released into
the marketplace. It gets used in nonstick pans.
It gets used to be sprayed on
carpets to keep red wine from absorbing to the fiber.
It gets sprayed on surfaces
such as clothing to keep people dry so that the functionality
has been the primary concern. Nobody asks the question what
happens to this chemical? Then down the road somebody
says, “Well, let’s test blood or let’s test
urine or let’s test body fat, or maybe even hair to figure
out where this thing is going or whether or not it’s there.”
And they find lo and behold,
that it is there. And then to try to get the
chemical out of the marketplace, which is now global,
is a very difficult thing to accomplish.
So access to data.
I’m reading in this report
about this data. One of the major corporations,
DuPont, has been producing chemicals that have this effect.
And they submitted a report to
EPA. EPA put it up online.
And I’ve got to show it to you.
I haven’t gotten it up in a PDF
format yet, but I’ve got to show it to you,
because every page has the title of the topic and then it
has CBI written on it with nothing else.
CBI is the acronym for
confidential business information.
So the information was
submitted from DuPont to the Environmental Protection Agency.
And the Environmental
Protection Agency basically shuts down the public from
understanding what that is. And it’s all about how much of
the chemical is produced, what the company knows about
where it goes, and also what the health
effects or environmental effects might be.
So access to data,
intellectual property rights, secrecy and confidentiality,
these are all things that we really need to think about very
carefully when we structure environmental law.
Another key question,
number five, is should we allow preemption?
Preemption is a really
interesting idea that the federal government could prevent
a state from adopting regulations that might be
different or less restrictive than the federal standards.
And the Clean Air Act is a
great example of this. Because the Clean Air Act does
preempt states from adopting regulations that are different
from the federal standards with respect to vehicle emissions,
power plant emissions, mercury emissions.
And the state of California,
however, was exempted by Congress when that statute was
passed. And why is that?
Well, it’s because they have
some pretty severe air quality problems.
There are different patches in
the country where air quality is very, very poor.
And one is the L.A.
basin, another is the Salt Lake
basin, and Houston,
Atlanta, Chicago, New York,
this area is out of compliance with Clean Air Act standards
quite routinely. And you might think that this
geographic and climatological variability is a pretty good
justification for states to have the legal capacity to set their
own laws. Some states have far higher
pollution than the national average.
So that thinking about what
kinds of problems are amenable to having states have more
authority as opposed to when do we want to centralize authority
across all states and locate the authority with the federal
government? This is a really important
question. Another key question is
administrative discretion versus statutory criteria.
So when should Congress give
the Environmental Protection Agency the administrative
discretion to set standards, to judge whether or not the
economic benefits are outweighing what the
environmental harm might be? Should they have the authority
to do that? So if you adopt a utilitarian
standard that’s cost-benefit balancing or say risk-benefit
balancing, then you’re basically giving
the agency a lot of discretion to do their technical analysis
and to try to figure out how to go through that balancing act.
That gives them a lot of
authority. As opposed to setting statutory
criteria, saying, “The risk shall
not be greater than X,” say,
cancer risks should not be greater than one in a million.
Or the decision standard within
the Food Quality Protection Act that the agency must find a
reasonable certainty that no harm will result from any
pesticide. Sounds unfortunate.
So thinking about whether or
not it makes sense to give an administrative agency that kind
of discretion is very important. And it depends again on the
technical nature of the problem. Another key question is risk
averaging. If you have lousy data,
data that is collected maybe with very small sample sizes so
that you have no understanding of demographic variability and
exposure or in the complex temporal and spatial
distributional patterns of pollution,
then it’s like looking at the world without my glasses on.
Which is, all the students look
the same so that you lose any resolution,
you lose the ability to identify pockets of serious
problems or high risk or high exposure.
And if you don’t have that
resolution in your data, you can’t go in and protect the
most vulnerable, those people that are most at
risk. So if EPA does not have good
monitoring and surveillance data,
they get to a position statistically where they’re
forced to average very broadly across space,
across time, and across demographic groups.
And this is a very serious
problem. Getting our system of
environmental law to have the scientific and evidentiary
foundation that allows the analyst to discriminate between
what’s a really clean area and what’s a really dirty area.
And I’ll give you one example
of that that we’ll look at later in the term with respect to
vehicle emissions. I wondered about this,
because EPA sets their air quality monitoring out in
fields. There’s one just across the
Q-Bridge on Interstate 95, right next to the highway.
When you go across,
you get to the other side of the bridge, if you’re heading
east on 95, you can see it set up on a little platform.
So that’s a fixed monitoring
site where they’re measuring particulate matter,
they’re measuring ozone. Occasionally,
very occasionally, they measure VOCs.
So that their image of the
distribution of air pollution in the nation comes from this
network of fixed stations. And they’ve got probably two
dozen set up in Connecticut. I wondered whether or not you
would come to a very different conclusion about the quality of
air and the movement of pollution,
particularly vehicle emissions and the carbon particles I was
talking about on Tuesday, if instead of reading your data
coming from the stations, you put the monitors on kids
and you followed them through their daily life.
And the answer is,
of course it’s different, it’s radically different.
And I’ll demonstrate in a few
weeks why that is. So EPA has this image of
pollution being quite uniform across a state or across a
region, whereas the pollution that you
inhale on a daily basis coming from secondhand cigarette smoke
or firsthand cigarette smoke, coming from vehicle emissions,
coming from power plant emissions,
power plants in Ohio. Generally it takes about two
weeks for particles released to the air in Europe if they’re
very fine to make it into the stratosphere and to go all the
way around the world and then come back and become part of our
climate. So that it’s very interesting
that your image of what’s worth worrying about is very dependent
upon this monitoring and sampling and how specific it is.
Number eight is really
critical, the burden of proof and the standard of proof.
Who should bear the burden of
proof that a problem is really serious?
Well, industry often claims
that it’s the public’s responsibility to demonstrate
that their emissions, their chemicals,
their harvesting of a national forest,
that that is creating a problem. So if this burden lies on an
impoverished community or it lies on a group of families in a
small neighborhood, they’re not going to be able to
mount the scientific analysis and develop the funding to mount
a legal campaign to challenge industry standards.
Most large corporations have
groups of lawyers. They have large offices of
lawyers, or they hire law firms to represent them.
I’ve been involved in
litigation for the past two decades,
and have sat across the table from six lawyers from a major
chemical company being deposed on a number of occasions.
And this was just a very small
group of lawyers that were trying to pick apart my claim
that a chemical posed a specific threat to children.
So most plaintiffs would not
have the capacity to mount that kind of legal expertise.
And don’t forget this basic
idea that probably ninety percent,
even ninety-five percent of environmental science,
of health science relative to environmental quality,
what sector does that go on in? It doesn’t go on in the public
sector; it goes on in the private
sector. So that corporations that are
very interested in making a profit and selling goods and
services, they basically are doing their
own internal risk assessments for what the effect might be on
the environment or human health. And those can never see the
light of day. I’ll talk on the pesticide case
in a few weeks about one compound, it’s an
organophosphate insecticide, one of the world’s most heavily
used. And Bio-Litigation,
the group I work with, forced disclosure of a database
that was really quite remarkable.
This company had spent $100
million on studies for one chemical to keep it in the
marketplace so they could understand what its risks might
be. Now, that’s quite impressive.
So think about challenging the
quality of that evidence. Another company submitted a
proposal to the Environmental Protection Agency to continue
their license to use a pesticide.
This happened to be an
herbicide known as atrazine. Atrazine is found in the wells
of about thirty million people in the Midwest right now,
because it’s sprayed across the landscape planted with corn and
soybeans. It’s an endocrine disruptor,
in other words it’s hormonally active.
And also it’s believed to pose
different kinds of threats to human health.
So when this corporation
decided that it wanted to submit its data to the Environmental
Protection Agency, they decided to do it not
electronically, but to deliver the material.
And to deliver the material,
it took them two tractor-trailer loads of boxes
with the data sets and the supporting evidence,
which they drove up to the docks of the Environmental
Protection Agency and unloaded. So you can imagine this
regulatory office of EPA looking at this huge sea of boxes that
they would have to analyze. That’s a very interesting
strategy. So what would that do?
Well, it basically would put a
regulatory effort that might be chugging down the road at a good
pace, and it would put it in the deep freeze.
It would slow it down to the
point where, oh my gosh, this agency has to look at
1,000 chemicals. This is one chemical and we’ve
got to go through all those datasets and we’re going to have
to understand whether or not that evidence really is
supportable, credible, replicable.
Oh, that’s going to slow things
down. One out of 1,000 chemicals.
So the burden of proof,
the standard of proof, is a really critical issue.
So for civil actions,
you need to remember that the plaintiff needs to demonstrate
that damage occurred not beyond a reasonable doubt,
but by the standard of preponderance of the evidence.
In other words,
it’s more likely than not that the defendant caused the damage.
Think about that with respect
to the standard of proof required if you wanted to submit
a paper to Science Magazine.
Well, you’d be asked questions
about what’s your confidence interval?
Do you have ninety-five percent
confidence in the causal relationship that you’re
hypothesizing? Or is it ninety-nine percent
confidence? So that the standard of proof
that is applied before a decision is made is a critical
issue, and this can be adjusted if you’re designing law.
Also national sovereignty to
regulate foreign hazards. There are a variety of
international standards set up to prevent the export of
hazardous waste. So there’s quite a controversy
brewing right now about electronic waste being
transmitted, particularly to Asian nations,
which are trying to recycle the precious metals out of computer
equipment, old cell phones.
And even though there maybe
only seventy-five cents per cell phone in terms of the value of
those metals, there are some three dozen
different metals that can be extracted from electronic
equipment. And if they’re thrown away or
if they’re burned, the material will go up into
the atmosphere or it will make its way down into the soil and
the groundwater. And also, the people that are
doing this, the people that are burning the
plastic off of the electronic components and the metals,
they are often exposed at a high level.
So that’s a very interesting
problem. How could we regulate
international trade? Well, this issue of national
sovereignty is very important. Does one nation want another
nation telling it what it can and cannot import?
Does it want to demand that
that nation adopt some sort of a universal standard?
And the answer is clearly no.
And finally,
what criteria would we use to choose among the possible legal
strategies that are there? So I’m going to skip really
quickly now to a variety of different cases.
And I’d like you to imagine a
society with no environmental law.
And by the way,
that was the United States back in 1950, when we had no Clean
Air Act, no Clean Water Act. And how would you design law in
order to assure a healthy, productive, and sustainable
future? That is a central question that
I hope you can address by the end of the course.
Now imagine a society in the
year 2010 as we sit here, where our law is fractured by
problem and by media. By media I mean air,
water, food or by problem type, hazardous wastes or hazardous
sites or pesticide problem. It’s fractured by level of
government. There’s very little
surveillance. It tends to evolve at a snail’s
pace. And a little anecdote there,
in a variety of decisions to regulate or license an
individual chemical or a new product,
it often will take EPA up to a decade or fifteen years to go
through a review to determine whether or not that chemical is
safe, whether or not it poses
excessive risk, or what the economic benefit is.
If it’s being reviewed under a
balancing and cost standard, so that — now,
imagine this. Out of the 80,000 chemicals
that are out there in international commerce,
if it takes EPA fifteen years to review one chemical,
what does that tell you about what their capacity is to manage
your exposure to dangerous things?
It tells you it’s exceptionally
limited. Our system of law also provides
a false sense of security. Because most of us believe that
the little statements on the back of different products,
such as an herbicide in the hardware store that says,
“This is EPA’s license,”
that’s almost a certification of safety in most people’s
minds. Many people think,
“It wouldn’t be on the marketplace if it was dangerous,
people have reviewed this, right?”
Well, by the time you’re
finished with this course, you will be thinking quite a
lot about that problem. So environmental law is also
highly specialized in the sciences.
And as I just said,
about ninety-five percent of environmental science goes on in
the private sector. And what that means is that
they have a leg up, they have a competitive
advantage in controlling the narrative about the nature of
the danger. So that thinking about how to
set up an institution that really would produce science
that would be publically available,
that would be transparent, it would be open,
the data would be out there so you or I could review it.
I mean, that’s a big obligation.
It’s also highly politicized in
its implementation. There are all sorts of stories
about regulators inside the Food and Drug Administration,
Occupational Safety and Health Administration,
and the Environmental Protection Agency,
and how they move at fairly high levels from the agency
assistant administrator for toxic substances in EPA going to
work for Monsanto. They’ll go to work for Monsanto
during periods of liberal administration,
and then they’ll come back into the administration during
periods of conservative administrations.
So that there’s this revolving
door idea among top regulators that’s extremely difficult to
regulate. Also, our system of law is very
poorly supported by the nonprofit community.
You may think that there’s a
large network of nonprofits out there that are playing the
watchdog role, but you’re wrong.
In fact, in the area of Safe
Drinking Water Act, there is no nonprofit in
Washington, D.C. that has taken the Safe
Drinking Water Act under its purview saying,
“This is our specialty,”
you can always count on them to be there to try to judge the
reasonableness of a proposed regulation.
Generally, the system of
environmental law that we’ve got is utilitarian.
It’s balancing of costs and
benefits or risks or the estimate of damages and what the
economic benefits might be. And inherent in that decision
standard is this problem. You’ve got costs that are
pretty easy to quantify. And if you’ve got a firm that’s
making a product, they’re going to tell you with
pretty good accuracy their opinion about what they would
lose if you took that right away from them to produce that
product. Now, by contrast,
if you think about the damage side of the equation or the risk
side of the equation, that’s a projection out into
the future. That’s a probabilistic estimate
of what might happen into the future.
And the global warming
transformation in thinking that we’ve seen over the past decade
has really been quite remarkable.
Because people are thinking now
out over a long time horizon in ways that they never had before.
What is the climate going to be
like? And what’s it going to do to
our ecosystems and to our shorelines and to our health 100
years down the road? There were very few people that
think out in that long term. So how do you project damages
out over long periods of time? Well, you rely on very complex
computer models to do that, so that you have to faith in
those who are doing the projection and the quality of
the analysis. So that this problem can be
kind of capsulized in the idea that costs are often relatively
well known, and they can be projected with
relative precision over the short term compared to the
harms, the environmental and health
harms, that are highly uncertain.
And they’re often projected way
out into the future with a really fuzzy image of how
they’re going to fall out differently on different groups.
Also, our system of
environmental law has been trivialized, I think,
by the concerns that we have over international security and
terrorism. Basically, nobody was talking
about environmental law for several years,
between 2001 following the attack on the Trade Centers.
And 2004,2005 environmental law
came back to life. But even when the public is
asked what do you care about most in terms of problems that
the United States faces, you will see issues such as the
economy regularly being first on that list.
You’ll see issues of national
security being in the top two or three.
But people are thinking about a
very different collection of problems rather than
environmental concern. We’ll be talking about the
importance of a public perception of the environment
compared to these other social objectives in the future.
One other point I wanted to
make is that the estimates today are that the system that we have
in place now costs industry about $300 to $400 billion per
year in the United States alone, only in compliance costs.
That’s pretty remarkable.
EPA and other groups have
reviewed this estimate, along with the Government
Accountability Office. That’s a very large investment.
So put the pieces together here
of what I’ve just told you. I’ve told you that we have this
system of law that is not working very well,
for a whole variety of reasons. Now I’m telling you that this
is costing society an enormous amount of money.
Well, does that make sense?
We’ll come back to that issue
during the term. Now I’m going to spend about
ten minutes just quickly reviewing some of the cases that
we’ll go through that will demonstrate some of these key
principles. 1954 was a turning point for
environmentalism in the nation and in the world because it
basically taught people to think at a global scale about nature
and about the environment for the very first time.
And it’s the result of this
explosion on the Bikini Atoll in the Marshall Islands that
punched up radioactive material into the stratosphere.
And at the time,
they thought that well, we had to worry about where it
would go, how it would be distributed, within a couple
hundred miles. And a variety of mistakes were
made, including exposing people working for the military.
This group of people was
sitting in these lawn chairs in their shorts and their caps on.
They had ski goggles on with
the dark lenses thinking, well, that would be safe
enough. There are many,
many stories about workers being exposed beyond what
normally we would think of as being a safe level today.
So what you don’t know can hurt
you. And the more you ask about
chemical movement, the more we recognize that
chemicals actually persist longer than we thought they
would. They often move further in ways
that were non-intuitive through ecosystems, marine food chains.
They may get deposited in the
landscape in different ways. We’ll see next week when we
take this story apart that one of the major surprises was that
this material got into global circulation so that everybody in
the world was exposed to radionuclides —
strontium-90, iodine-131, cesium-137.
And your parents are all
walking around today with those byproducts that often have half
lives of thousands of years. So that these are really
important lessons. The Atomic Energy Commission
figured this out by 1955,1956. They figured out that these
radionuclides wouldn’t just kind of go away.
And that’s been the perception
of most people about chemicals released to the environment,
they just go away. Many of them don’t go away,
particularly radionuclides. And they move around the world.
They tend to settle down,
the heavier particles will settle down when it’s dry.
The finer particles tend to
aggregate. And then when a rain cloud
intersects with a dust cloud as they settle down into lower
elements of the atmosphere, that’s when they rain down into
the earth. And that creates a patchy
pattern of contamination. It’s a patchy pattern,
but we can figure out what the deposition rates were fifty
years ago today, just by taking soil samples.
It’s very interesting.
So that you can back-calculate
the half-life of cesium-137 or strontium-90.
And you see that it actually
plays out in a very patchy way that is dependent upon this
intersection between the dust cloud and the rain clouds.
So the number one failure that
we’ll see as we go through this case is a failure of systems
thinking, a failure to think ecologically.
But the Atomic Energy
Commission was clearly thinking ecologically back in 1955.
But then we’ve been waking up
over the past fifty to sixty years without really paying much
attention to this story. So that we’ll see as the milk
was tested and the ground soil contamination levels of
strontium-90 were tested between the period of ’54 and 1958 when
more atomic bombs were exploded than during any other period in
human history, you see this correlation,
this rise in levels in the soil and levels in the milk.
And then you see the levels in
the human diet going up during the same period of time,
and the levels in human bone. They didn’t know that.
They didn’t know that at the
time they designed the bombs, so that they didn’t know that
strontium-90 would compete with calcium to be fixed within bone
in the human body. But the Atomic Energy
Commission created this clandestine operation where they
collected dead bodies from 15,000 people around the world
and they sent them to labs in Chicago and to Lamont Laboratory
and to Columbia University, where they were tested.
And every bone they tested
found strontium-90 in it. And it really woke them up.
You can find this story only
because this documentation that was formerly classified until
the mid to late 1990s is now available in the declassified
documents database. It’s really a fascinating story.
So these people were sitting
around in the Atomic Energy Commission’s headquarters
actually saying, “Well, what is the law on
body snatching?” They used that phrase,
body snatching. “Where are we going to get
cadavers? Do we really have to ask
relatives about this? Well, what about homeless
people?” So the Atomic Energy Commission
was collecting bones from around the world,
and they were able to build this map of the deposition rate
of strontium-90 by looking at bones that came from Argentina,
bones that came from South Africa.
I can just imagine what their
faces looked like when they saw the levels that were spanning
all latitudes and basically all nations in the world.
Well, this story gets repeated.
It gets repeated chemical by
chemical as EPA begins to come to life in the 1970s and ’80s,
begins to wake up in this case to polybrominated diphenyl
ethers that are these flame retardants that we now all walk
around with. And it’s a common story that we
first find the chemicals in wildlife.
Why?
Because they’re easy to test.
People generally don’t like to
give bone samples so that their bones can be tested for
strontium-90. By the way, there’s an
interesting kind of way to figure out what’s in your bone
by testing teeth. So by testing the deciduous
teeth of young kids, the Atomic Energy Commission
figured this out and they were actually going around from
dentist to dentist collecting teeth from people,
thinking, “why were we crazy enough to have to collect
bones from dead people when we could have just collected
teeth?” So you find this pattern of
recognition first in wildlife, then they say, “Oh, boy,
now how did it get into the wildlife?”
And then gradually somebody
said, “Boy, if it’s in the wildlife,
it might be in humans too.”
And gradually,
people started testing breast milk.
Breast milk became the tissue
of choice in order to understand whether or not chemicals were
being transmitted transgenerationally.
And also, it’s easy to collect,
it is relatively inexpensive to store.
And here’s a good example of
DDT found in different nations around the world in breast milk
in the 1970s. So human tissue testing became
really an important way to figure out what people were
exposed to. And if you know that you find
it in somebody’s body, then you have this kind of
interesting problem. Well, how do I figure out where
I encountered it? How was I exposed?
Did I breathe it?
Did I eat it in the food?
Did it come in the drinking
water? So these are all questions that
EPA has faced on numerous occasions.
This is the island of Vieques
that we’ll spend a lecture on or two in a few weeks,
where I’ve worked for a couple of years.
And I’ve worked on hazardous
defense sites and the process of their restoration for sites in
Massachusetts, sites in California,
as well as sites in Puerto Rico.
And this is a fascinating story
that led me to understand how chemicals move through the food
chain. And this is a bombing run,
200 million pounds of bombs were dropped on this little
island over the period between 1940 and 2003.
So I wondered,
where did the chemicals in those bombs go?
So I took students,
some from this class down. And we dove in this bay.
We found an old destroyer.
We found 2,000-pound bombs that
were as long as this stage and about that wide,
lying under water, rusting out,
leaking. We found mounds of artillery
shells. I remember one case where my
goggles had fogged up and I came to the surface and looked around
and looked and saw there was a tank on a hill that was only
about twenty meters from where I was.
And then I cleared my goggles
and I looked down, and I was within about two
feet, standing on a pile of artillery shells.
And I hadn’t really put two and
two together, but destroyers had sat offshore
and for thirty, forty years,
were lobbing these artillery shells at the tank on the hill
for target practice. And a bunch of them had missed
and piled up in the same place. So they’re still sitting there.
I mean, I could take you there
now. We could still see the
2,000-pound bombs. So the Base Closure and
Reclamation Act that was established that’s closing down
a bunch of these bases has led the Army,
the Air Force, the Navy to basically close
bases, walk away, and clean up
according to standards that they believe are safe.
So this will be a story about
standard setting that turns into a story about chemicals moving
in the marine food chain. You’ve heard about mercury in
tuna. You’ve probably heard about
mercury in shark and large predatory fish.
But you probably haven’t heard
about mercury in the array of tropical fish that exist in the
Caribbean seas. Well, that’s because they
haven’t been studied. People tend to look at the
chemicals in the larger fish. They tend to avoid the study of
this set of tropical fish, because these don’t comprise a
large proportion of the U.S. average diet,
or rather high-income nations that would fund this kind of
research would not comprise their diet.
So the problem I faced in
Puerto Rico is wow, I know that these people eat a
lot of these fish and there are probably two dozen that they eat
on a routine basis. What happens to TNT,
HDX, which are explosives, what happens to cadmium and
mercury and lead and aluminum and copper,
and a variety of other chemicals that are components of
munitions? How do they build up in fish?
And is this population more
exposed than others? So that island communities,
whether it’s the Marshall Islanders,
the Seychelles Islanders, the Viequense,
that had these diets that are very rich in fish,
they can be more exposed than others.
So I’m going to jump ahead
here, because I’m running out of time.
And I’ll come back to these and
get to the final slide. See how much fun we’re going to
have? I’m going to leave you today
with one image. I was up in the Wasatch last
week. I spent eight days in heaven,
so to speak. If any of you have not been to
the Wasatch, I encourage you to go there.
This is just east of Salt Lake
City, about 10,000 feet in height.
And standing there looking out
at these magnificent mountains, I suddenly realized,
given what I’ve told you today, chemical movement through the
atmosphere through the environment,
I suddenly realized that the idea of wildness,
the idea of purity, the idea of environmental
quality that most people have and most people value,
is really being challenged by the way we’re using and abusing
chemicals. So that the failure of law to
effectively control these chemicals,
to rain down in the snows in the Wasatch,
to get into the bodies of different species of wildlife,
into the plants and the animals, or to humans that are
drinking the water, the failure to control that is
challenging our very sense of what wildness is,
of what purity is, of what nature is.
So I’m going to close there and
leave you with a sense of challenge that we need to think
about a different system. We need to think about a
different way for law to work that could prevent this from
continuing through future generations.
Okay, that’s it for today.
Thank you.

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