The Lost Promise of Environmental Rights

The small community of Anmoore, West Virginia, sprang up out of the Appalachian wilderness in 1904 when an Ohio-based chemical company opened a manufacturing plant just outside the city of Clarksburg, and migrants seeking work settled nearby. They found jobs, but the work was filthy. By the late 1960s the chemical corporation Union Carbide had taken over the plant, and fly ash and particulate matter had settled on everything in town. “Bits of debris, some of it as large as butterfly wings, gather in drifts on Anmoore’s dead lawns,” recorded the essayist, novelist, and erstwhile speechwriter Charles McCarry. The pollution, laced with silica and lead, killed plants, blackened houses, ate the paint off cars, and infiltrated the lungs of the residents.

The omnipresent soot and ash (and smell) decimated home values in Anmoore, making it difficult for people to sell their houses and leave. Meanwhile, Union Carbide paid a pittance in taxes, trapping the municipal budget at just $19,000. Anmoore’s children trudged to school (a building that at the time had been condemned for almost thirty years but was still in use) along steep dirt roads, which during the wet months were an unholy slurry of mud and sewage. There were no parks, no playgrounds, no sewers, no health clinic.

Early in 1968 two Anmoore residents decided they’d had enough. Enraged by a rosy Union Carbide advertisement, Dale and Leonise Hagedorn wrote a sarcastic letter to the company, asking that it “lend credence to your slogan ‘The Discovery Company’ by discovering a way of relieving the people of Anmoore of this unsightly, depressing, and unhealthy black fog.” After receiving only a perfunctory reply, they started writing a series of open letters to their fellow citizens, seeking “to motivate everyone concerned to explore all possibilities in finding a solution to the appalling air pollution problem under which we exist.” The letters struck a nerve. Outrage grew in Anmoore. The national press arrived in town. Eventually, in 1970, the Hagedorns and some fifty of their neighbors decided to sue Carbide, claiming that the “rain of pollutants” belched by the company’s smokestacks “violates their Constitutional right to a decent environment.”

This was a bold move, but the Hagedorns were among a number of activists who in the late 1960s and early 1970s brought a slew of suits in federal court, seeking to stop pollution on the basis of environmental rights that were, they claimed, inherent in the Constitution. As the Hagedorns told their neighbors, they wanted to vindicate “the right to air that we and our children can breathe without fear.” Their lawyer, meanwhile, told the press that a victory in court could “set a national precedent.” Other activists tried to pass state or federal laws and even constitutional amendments to unequivocally establish these rights.

Ultimately the Hagedorns lost, as did all the other plaintiffs. Congress proved intransigent, and the few rights-based laws and amendments that these activists did force through state legislatures have amounted to little. Under the Constitution, US citizens have a right to vote, to free speech, to free religious worship, to interstate travel, to a speedy trial, to remain silent, to contraception. However imperfectly defined (most federal constitutional rights are negative, i.e., freedom from something), however tenuously established (mere months ago, we had a right to abortion), these rights are usually treated as sacrosanct. Yet the Constitution is silent when it comes to clean air and water, and no federal court has ever recognized a constitutional right to a decent environment.

Perhaps because of these failures, the push for environmental rights fifty years ago has been largely forgotten, even among environmental attorneys. Yet this movement was significant. It represents a road not taken, or, more accurately, a road foreclosed. It was a grassroots uprising, and its tribunes were—at least at times—unapologetically radical. Today, as environmental rights appear to be on the verge of a comeback, it’s worth remembering why they once seemed so promising, and why that promise remains unfulfilled.

Amid the activism of the mid-1960s, calls for environmental rights were neither uncommon nor confined to the fringes. Even Lyndon Johnson—no activist’s idea of a radical—gave a speech in front of Congress in 1966 proclaiming a “right to clean water” and a “right to clean air.” This was four years after Rachel Carson’s Silent Spring drew public attention to the dangers of pesticides, and as movements against unregulated industry were beginning to take shape. Johnson’s call was purely rhetorical, but activists brought the idea directly into court. They wanted to give environmental rights teeth.

The lawsuits began the year of Johnson’s speech. Victor Yannacone—a bold young trial attorney from Long Island—filed suit in federal district court on behalf of his wife, Carol (who had urged her husband to sue after seeing a local lake full of dead fish), and “all of the people of the United States, not only of this generation, but of those generations yet unborn.” Yannacone claimed that the spraying of DDT violated the people’s “rights…to the protection of their environment,” which he asserted were inherent in a number of clauses of the Constitution. “A unique case, it is being watched all over the country by conservationists,” commented a reporter for a Long Island newspaper. A New York judge tossed the case, but Yannacone was just getting started. The next year he and a handful of acquaintances founded the Environmental Defense Fund (EDF), in large part to bring similar lawsuits. “Litigation seems to be the only way,” he declared in a rousing speech to the Atlantic City conference at which EDF was founded, “short of bloody revolution.”

Itching for someone to sue, Yannacone turned his attention to the state of Michigan. In 1967 he filed suit against the state government to halt the spraying of pesticides, again on behalf of all Americans, again invoking environmental “rights” contained in the Constitution. At a hearing he drew on even more ancient origins for these rights, including the public trust doctrine, at the time an obscure concept dating back to Roman law, according to which the state holds natural resources in trust for its people. Again the courts tossed the case, but a New York Times editorial celebrating EDF’s efforts invoked “the right to breathe or to live.” “The legal battle,” it said, “has just begun.”

In the years that followed, Yannacone and a handful of other EDF attorneys crisscrossed the country, bringing suits in Wisconsin, Colorado, Montana, and Arkansas, hurriedly writing their briefs in cars and on planes. Other lawyers started getting in on the action. After an oil well blew out off the coast of Santa Barbara in 1969—then the largest oil spill in American history, coating dozens of square miles in perhaps a hundred thousand barrels worth of crude—the ACLU brought suit on behalf of a number of Californians, claiming that further oil drilling violated a constitutional right to a clean environment. “This is the first time, here or anywhere, that the ACLU has involved itself in a legal concern for what it describes as ‘the quality of human life,’” read an article from the time.

Responding to the onslaught of lawsuits, scholars raced to create an intellectual infrastructure for environmental rights. Shortly after the ACLU filed suit, Roderick Nash, a young historian at University of California, Santa Barbara, wrote the Santa Barbara Declaration of Environmental Rights, a foundational document which begins, “All men have the right to an environment capable of sustaining life and promoting happiness.” Around the same time, a conference in northern Virginia brought together a star-studded group (including Ralph Nader and several prominent scholars) to consider, among other questions, whether Americans had a constitutional right to freedom from pollution. Yannacone chided the other attendees for trying to fit environmental law into existing paradigms: “It’s about time the legal profession got some ecological sophistication. We have to invent causes of action.”

The activists knew their claims were creative but insisted that environmental rights were grounded in intuitive principles. “The rights to breathe clean air and drink pure water seemed so basic that the founding fathers did not think it necessary to include them in our Bill of Rights,” wrote a group of Arkansas environmentalists in 1970. “Unless we quickly assert such rights and use a little common sense,” the environmentalists argued, these rights would be lost forever. Even in the face of judicial skepticism, the activists would not budge. In the Arkansas case, the judge asked an attorney “how serious” he was about “your contentions as constitutional rights of the plaintiffs.” “If Your Honor please, we are very serious,” the attorney replied. “We think that the trend of the law is in this direction…. there is definitely a good chance that a new right, as it were, would be developed by the courts in this area.”

It was, after all, a time when the courts were discovering other “new” rights: the right to be free from discrimination, the right to access birth control. The activists felt certain that freedom from pollution flowed naturally from these other burgeoning freedoms. In one state case in Arizona the defendants maintained that “the Judicial process is not an appropriate vehicle for social change.” The plaintiffs replied, “Much the same was said in the wake of the unanimous decision of the United States Supreme Court in Brown v. Board of Education.” It was an exhilarating time to be a movement lawyer, an environmental scholar, or an activist in small-town West Virginia. Anything seemed possible—even environmental rights.

Tall and pale, with brown hair and blue eyes and an amiable disposition, Orville Dale Hagedorn was the son of a coal miner and a housewife. Young Dale worked in the mines and as a shop clerk before he and Leonise settled in Anmoore, sometime before 1950. There, Dale found work as a sign painter, later becoming a commercial artist and cartoonist. Leonise, like her husband a round-faced West Virginia native, kept house—a Sisyphean task, given all the soot in the air. The Hagedorns’ environmental awakening was undoubtedly informed by the popular unrest around them, by the movements against nuclear technologies and pesticides. But when a journalist asked Dale what had instigated his campaign against Union Carbide, he cited his own life experience. “You know, you live under a smokestack and you endure so much dirt,” he said, “but when it becomes excessive you say, ‘Wait a minute, you’re my neighbor and you shouldn’t do that.’”

Dale’s words suggest a truth about the movement for “environmental rights”: it was driven, in significant part, by working-class activists. Today, as was the case fifty years ago, it’s a common cliché that the environmental movement is made up of elites with too much time on their hands, educated tree-huggers, white-collar types who like to hike. But this image, peddled by industry and movement conservatives and pricy public relations specialists, has always been oversimplified, and it is especially inapt when applied to the push for radical legal change. To the extent they’ve been discussed at all, environmental rights have been presented in the legal literature and by critics as vague and lofty, but their creators sought to ground them in material concerns of health, justice, and power.

From their earliest open letters, the Hagedorns urged their neighbors to recognize the quotidian indignities of having their environmental rights violated every day. “You can change your shoes, wash your feet, throw your smelly doormat in the garbage, and not suffer a very significant loss,” they wrote in 1968. “But you cannot sacrifice your health and the health of your children, your environment, your God-endowed atmosphere, your home, and your property to the ravages of a large industrial concern.” In another letter, they noted the frequency of lung cancer among Carbide workers in Anmoore. This was the result of pollution, the Hagedorns insisted, and if Carbide “is not violating the law, then we must assume there is NO LAW!” They named their missives Carbon Copy.

The letters appeared in runs of five hundred. Once, that first spring, the Hagedorns went a week without printing an issue, and they were besieged by phone calls and in-person inquiries from agitated neighbors. The Carbon Copy grew so popular that, according to the Hagedorns, Carbide sent spies to tail them. All this interest not only attests to their hard work and the dire conditions in Anmoore; it also reveals that environmental rights enjoyed a popular base of support.

In the summer of 1969 this populist pressure led to an electoral rout in Anmoore. For eighteen years, the town’s mayor had been corporate-friendly Victor Gonzalez, who presided over an underfunded, do-nothing local government. A slate of reform candidates led by Buck Gladden, a laborer who made three dollars an hour, promised to pave the roads, clean up the water supply, and tax Carbide. The son of an illiterate mountaineer, with a third-grade education and missing front tooth, Gladden became Anmoore’s mayor by a vote of 198 to 139. He promptly convinced the town council to double Carbide’s taxes, and raised them still further in the years to come.

Rebellion was sweeping West Virginia. Throughout the late 1960s coal miners launched a series of wildcat strikes, demanding governmental action on mine health and safety. A hundred miles from Anmoore, in the town of Alloy—home to a cluster of emphysema cases and a Carbide plant that reportedly generated more pollution than the city of New York—a petition asking President Nixon to force the company to stop polluting garnered nearly four hundred signatures. Ken Hechler, a liberal lion representing western West Virginia in Congress, introduced legislation to provide for mandatory health and safety standards in mines, regular inspections, and compensation for miners afflicted with black lung, a bill that became the Federal Coal Mine Health and Safety Act of 1969.

Significantly, these insurgents were invoking environmental rights. Representative Hechler spoke in 1968 of “the peoples’ right to breathe fresh, clean air,” while the West Virginia AFL-CIO declared in a statement “that every worker in every job situation has a right to expect the conditions at his place of employment to be as healthy and safe as it is humanly possible to make them.” Outside West Virginia, too, grassroots activists decrying pollution and poverty claimed that their rights had been violated. At one 1970 administrative hearing in Illinois, hundreds of people showed up to demonstrate their displeasure at the state’s largest electrical utility, Commonwealth Edison, for its air pollution and a proposed rate hike. According to an article in the Chicago Sun-Times, a student representing a new group called Citizens Revolt Against Pollution (CRAP) stated that they “not only opposed the rate increase but said Edison should rebate 2 percent of charges as token reparations for damages because of pollution.”

“We have a right to clean air,” declares one of CRAP’s rare surviving leaflets, “and no company has the right to poison our environment in the quest for profits.”

In the end the companies won. On August 24, 1973, Robert Earl Maxwell, chief judge of the District Court for the Northern District of West Virginia, ruled against the Hagedorns. Addressing their constitutional arguments, he wrote, “These and similar claims have been widely advanced, but regularly rejected by the federal courts.” Every other federal lawsuit invoking environmental rights likewise foundered on the shoals of precedent.

Many judges had been sympathetic. “Those who would attempt to protect the environment through the courts are striving mightily to carve out a mandate from the existing provisions of our Constitution,” wrote one judge in Arkansas. “Such claims, even under our present Constitution, are not fanciful and may, indeed, some day, in one way or another, obtain judicial recognition.” But, quoting the eminent jurist Learned Hand, he concluded it was not “desirable for a lower court to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant.”

As defeat followed defeat in the early 1970s, lawyers largely stopped bringing cases founded on environmental rights. Instead they turned to process: did the polluter get the proper permits, did the developer do a thorough environmental assessment, did the agency follow its own rules? Lawsuits were time-consuming, expensive, and frustrating; it was usually more efficient for activists to push agencies to police polluters, which was, after all, the agencies’ mandate. Just as importantly, the hard-won federal statutes of the 1960s and 1970s—the Clean Air Act, the Clean Water Act, the National Environmental Policy Act (NEPA)—made it possible to suspend or delay industrial projects by suing the agencies with oversight. Rather than directly contesting the practice of polluting, environmentalists forced polluters and their regulators to assiduously follow the rules. Often this did have the effect of diminishing pollution, but indirectly. As the historian Joshua Ashenmiller has written of the outcome of early NEPA suits, “judges halted construction projects only because agencies had violated the procedures laid out by NEPA, not because the agencies’ projects themselves were flawed.”

In spite of their unwillingness to recognize environmental constitutional rights, creative federal judges also shaped the emerging environmental-legal order. Amid a surge in liberal skepticism of agencies in the 1970s, these judges issued a number of decisions that amounted to a doctrine compelling future jurists to take a “hard look” at administrative decision-making. Then, as the Reagan administration sought to gut federal agencies (environmental ones above all others), environmentalists understandably rushed to defend the administrative state, and federal judges created precedents that granted agencies substantial deference. Both of these developments bound environmental litigators ever closer to the agencies they once mistrusted. Over time, these practical bonds led attorneys to abandon an alternative model of environmental law—and then forget that it had even once seemed possible.

Today, most environmental law occurs within the administrative rulemaking process. This can be frustrating, since, according to the legal scholar Sidney Shapiro, it can take “anywhere from four to eight years or more to promulgate a significant rule.” Plaintiffs cannot even bring suit under most environmental statutes unless they’ve “exhausted administrative remedies”—that is, given the agency the chance to enforce the statute first. Over the past several decades, federal and state courts have also tightened the so-called “standing” requirement to bring suit, narrowing the class of individuals or organizations that can sue over pollution in the first place. It’s no longer enough to simply see pollution and object; to have standing to bring suit, someone must be able to claim a “concrete,” “particularized” injury to themselves.

In the end it was an agency, not a court, that delivered some measure of relief to the residents of Anmoore. In 1970 the newly created Environmental Protection Agency decided to make an example of Union Carbide and informed the company that it had to submit a plan to reduce its pollution aggressively in the coming years. Carbide initially agreed to cut toxic emissions, then announced that it couldn’t comply with federal pollution reduction demands without mass layoffs. Fights ensued in multiple arenas, with Nader publicizing Anmoore’s plight and the Securities and Exchange Commission threatening an investigation into whether the company had misled shareholders regarding pollution. Finally, in 1972, Carbide committed to spending $50 million to clean up.

The cleanup inched along in Anmoore. Two years in, Carbide workers still endured disgusting, excruciating conditions: burning pitch, blinding dust, substances that caused breakouts of warts.¹ Workers in South Charleston submitted a handwritten petition to their union local, demanding that it “take a more active interest” in health issues: “We do not feel that Union Carbide is telling us the seriousness of the health hazard.” Though conditions would materially improve over time, the industrial valleys of West Virginia remain among the poorest and most polluted regions of the country.

Of course, more than just the law has changed since the heyday of environmental rights. Deindustrialization, capital flight, addiction, atomization, and repeated grassroots conservative upsurges have all made the fights for environmental justice in West Virginia feel like they happened a very long time ago. The corporate stranglehold on state politics has become suffocating. Still, in the face of enormous odds, West Virginians continue the struggle to breathe. The remarkable wildcat strike by tens of thousands of the state’s teachers in 2018 was a spark that could yet catch flame; the congressional campaigns of populist politicians like Paula Jean Swearengin and Richard Ojeda—imperfect as those candidates were—are another indication that many in the region are ready to disempower extractive industry and redistribute its wealth. The audacious Appalachian environmental-legal crusades chronicled in a number of recent books are the clearest sign that a change may yet come.²

After five decades of dormancy, environmental rights are making something of a comeback. In 2015 twenty-one young people filed suit against the United States in a federal district court, claiming that the government had knowingly violated a number of their constitutional rights by permitting and encouraging the burning of fossil fuels. This suit, Juliana v. United States, attracted considerable attention. Perhaps most radically, the plaintiffs asserted that the Ninth Amendment implicitly contains a “right to be sustained by our country’s vital natural systems, including our climate system”—an invocation strikingly similar to the one made by Yannacone and others half a century earlier.

A federal appeals court dismissed Juliana on technical grounds in 2020, holding that the young plaintiffs lacked standing to sue. Other cases that invoke environmental rights are still pending, with one scheduled to go to trial in Montana in June. A pair of suits brought under the Pennsylvania constitution (which since 1971 has contained an article granting the people “a right to clean air, pure water,” and environmental preservation) invalidated attempts to expand fracking in the commonwealth. This past November, New York added a section to its constitution declaring that “each person shall have a right to clean air and water, and a healthful environment.”

These developments reveal new strains of climate radicalism, but so far they have amounted to only limited change. In spite of the grand potential of environmental rights amendments in state constitutions, courts have generally muted their effect by interpreting them narrowly and holding their most sweeping pronouncements to be purely symbolic. Yet the symbolic power of “rights” in American political discourse also seems to energize activism: from parents’ rights to patients’ rights, disparate groups have long used the term as a rallying cry.

At the same time, the concept of rights itself has come under increasing scrutiny and suspicion from a long list of legal scholars, including many of the most prominent of the last half-century—from Ronald Dworkin to Mary Ann Glendon, from Mark Tushnet to Samuel Moyn. Most recently, the law professor Jamal Greene published a book entitled How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart. Among the objections to rights are that they are anti-communitarian (privileging the individual over the community) and that they are insufficient to anchor political change (again by prioritizing individual vindication or property over mass mobilization). Perhaps the most prevalent strain of this school of thought is that a reliance on rights led to a reliance on courts, which made ordinary people far too dependent on the whims of unelected judges. The solution, proponents argue, is to disempower courts and return political power to the people’s representatives—that is, to legislatures.

This account has much to recommend it, yet it reflects a naiveté regarding the susceptibility of legislatures—really, any organ of government—to capture by industry. Only by systematically disempowering industry—by legislative enactment, by judicial fiat, by any means necessary—can our rights truly be vindicated. If, as the activist Chico Mendes once said, “environmentalism without class struggle is just gardening,” then political reform without class struggle is just debate club. For a more convincing, and challenging, critique of rights, we must again return to a movement from fifty years ago. In 1969, when a group of Hopi traditionalists objected to coal mining on their land in Arizona, they framed their charges not as assertions of their rights but by reference to indigenous religion and culture. “The Great Spirit said not to take from the Earth—not to destroy living things,” they wrote in a letter to President Nixon. “We are not set-up like Whiteman. Our complete life, land, ecology includes the Great Spirit in every facet of life. The Whiteman divides God and man. We do not.”³ Implicit in these writings is the rejection of a rights-based environmentalism in favor of an indigenous ethic of ecological stewardship—the rejection, that is, of the artificial border separating human civilization from the world around us.

It’s an approach with which many US governmental policies, from freeway construction to fire management to single-species conservation, remain at odds. Yet it’s one that might have rung true to the Hagedorns, had they been aware of it. They recognized that Union Carbide’s bottom line could not be separated from the integrity of residents’ lungs, that soot and ash are not just eyesores but a material breakdown of the order that sustains all life. In this recognition is the tantalizing possibility of solidarity—so long as environmentalists in turn ground their advocacy in the struggles of the working class. The Hagedorns may not have succeeded in convincing a court to recognize their right to clean air, but their activism generated solidarity among their neighbors that did produce real electoral and policy changes in Anmoore. As Dale wrote in a statement enclosed with his donation of the Carbon Copy archive to the West Virginia and Regional History Center, “I’m trying to say, no big deal, anyone can do it if they fight for it!”