A Toxic Bottom Line

Last week on the NYR Online we published an essay by Scott W. Stern on the grassroots activists who organized against industrial pollution in West Virginia in the 1960s and 1970s—and a couple, Dale and Leonise Hagedorn, who took the lead in the company town of Anmoore. Those fights were part of a larger legal movement to enshrine environmental rights in the Constitution. That movement failed, but the idea of rights to clean air and water hasn’t died and continues to be invoked today.

I first encountered Stern’s work when Heather Ann Thompson reviewed his book, The Trials of Nina McCall, about a mid-twentieth century government initiative to police and institutionalize women on the grounds that they were spreading sexually transmitted infections. Incredibly, this far-reaching policy had become a historical obscurity; Stern, who has a remarkable skill for archival digging, started his research as an undergraduate at Yale and continued at Yale Law. In 2021 we published his essay about the AIDS epidemic in New Haven, Connecticut, as it was documented in a social worker’s archive of obituaries.

Stern is now based in Oakland, California, as an associate attorney for Earthjustice, and in the past few years he has turned his eye to histories of the environmental movement that don’t often get told: the racist industries, the workers’ strikes, and the long-shot lawsuits. I asked him this week about finding stories in the archive, and whether capitalism and environmental rights can coexist.

Lucy Jakub: What’s your strategy for finding untold stories in archives? How did you first encounter the Hagedorns?

Scott Stern: Four or five years ago I developed a vague interest in the idea of environmental “rights,” so I went looking for any lawsuits in which people had attempted to assert them. From some basic searching in legal databases, I found a handful. One of these was Hagedorn v. Union Carbide, from 1973. The legal holding of the case was par for the course—the judge seemed intrigued by the idea of environmental rights but couldn’t find any precedent to justify recognizing them—but the West Virginia setting for the case intrigued me. In earlier archival research, I’d found really cool stuff at the West Virginia and Regional History Center (part of West Virginia University’s library system), so I decided to search its collections for any papers related to the Hagedorns, and: bingo! Dale and Leonise Hagedorn had donated their publication, Carbon Copy, to the center. It’s not a large collection—barely a hundred pages—but the voice in their publication is so rich and compelling, plus they featured Dale’s cartoons, so I was hooked. Only through this collection did I learn the story behind the lawsuit, which is this amazing working-class movement against a powerful polluter in a part of the world many dismiss or ignore.

This neatly exemplifies my broader strategy for finding untold stories in archives: research and luck, then repeat. Searching randomly through archives may eventually pay off, but who has the time or the money or the patience? I prefer to have some sense of what I’m trying to find—a particular person, a particular type of person, a particular event—and then I look through the finding aids of an appropriate archive (or search in a database like ArchiveGrid). A lot of the time I strike out, but every now and then I come across something remarkable.

Finding the voices of marginalized folks (or, more generally, nonrich, nonfamous people) in the archive is always a challenge, because the kinds of records that survive are usually produced by those with money and power, to say nothing of literacy. To address this challenge, I’ve embraced the techniques of historians of policing, enslavement, and queerness (among other subjects), which involve locating the voices of marginalized subjects in records that were never really intended to be historians’ primary sources. So one might read a police record to try to encounter the story—or voice—of the person under arrest. This will often entail looking past, or reinterpreting, the bigoted gloss of the recorder. In my own research, court records—trial transcripts, briefs, complaints, etc.—have been vital, but I always need to remind myself that the transcriber may not have been neutral or accurate, that such records often reflect duress, and that the subjects had valid reasons to lie or omit information.

Your legal-historical research and public writing has proceeded roughly along two paths: carceral and environmental injustice. How did the latter become the focus of your legal work? And with the brazen resurgence of laws that criminalize gender expression, sexuality, and reproductive freedom, do you think about turning your career to those issues, which you’ve written so much about?

I’ve been interested in the criminalization of marginalized people for many years—it’s an interest that’s probably linked to my own queerness, though I started doing archival research on the incarceration of sex workers and poor people more broadly years before I was “out” to the world. My interest in environmental injustice may also have some roots in my identity—I grew up in Pittsburgh, which is infamous for its polluted air—but emerged more concretely later, as I learned more about the climate crisis (thanks in large part to my environmentalist younger brother, Benny) and especially after Donald Trump became president. The urgency of the climate crisis—and related environmental crises—terrified me, and this terror is the basic reason I chose to join the environmental movement. So I devoted most of my legal education to learning more about environmental law, which entailed internships with environmental–legal organizations, one of which is my current employer. This is what I’m trained to do, and I find this work immensely rewarding. But, of course, mass incarceration is also terrifying, as is the evil spate of laws that legislatures across this country are enacting. So, this is all a long-winded way of saying that I have many interests, and I certainly can’t predict what the future might hold!

Last year you reviewed Josiah Rector’s Toxic Debt, a history of Detroit that shows how the city’s water crisis was the result of racist industrial practices and municipal policies, including debt and austerity. In your latest essay you write that “only by systematically disempowering industry…can our rights be truly vindicated.” The movements in Detroit and Anmoore were not just working-class, they were often labor strikes. Did environmental rights fail because they’re inherently anticapitalist?

Short answer: yes. Longer answer: yes, and this is also why a working-class environmental movement might still win.

The fights for environmental rights threatened deep-pocketed corporations (Big Auto in Detroit and Union Carbide in Anmoore). They were threatening not just because they promised to affect the companies’ bottom lines (by forcing them to cut emissions or install new technology), but also because they were worker-led and inextricably linked to ongoing unionization efforts. Worker power was horrifying to the bosses in Detroit and Anmoore because it promised to shift the balance of power in the workplace—and maybe, one day, create a model of production with no bosses at all. The bosses struck back with everything they had: they fought the lawsuits; they lobbied against environmental rights laws; they crushed the unions; they backed candidates who in turn made it harder to sue polluters, harder to pass environmental laws, harder to join a union, harder for unions to win. They were remarkably effective. This is why celebratory narratives of the US environmental movement bother me. As I wrote in another recent piece:

pollution continued to accumulate to such an extent that virtually all of us have pesticides and even microplastics in our bodies, the world is hurtling toward climate apocalypse, and we are in the midst of an unthinkably destructive mass extinction. Environmental history should not be comfortable or enjoyable. The environmentalists lost.

For now. These fights are still ongoing, and both the environmental movement and the labor movement are growing in numbers and influence. Solidarity between these movements would be powerful because it could provide a vision of a future that isn’t based on extraction (of labor, of carbon). The unabashed radicalism of that vision—and the energy of those fighting for it, even if they’re using different words or fighting in different contexts—is what gives me hope.

There’s a palpable excitement—dare I say envy?—in your account of the first wave of Environmental Defense Fund cases in the 1970s: “It was an exhilarating time to be a movement lawyer, an environmental scholar, or an activist.” As an environmental attorney working today, does anything excite you? Do you get glimpses of real progress?

You’re definitely right to sense some envy! Victor Yannacone and the other early EDF lawyers were really starting from a blank slate—the field of environmental law as we know it today didn’t exist, and they were following in the footsteps of civil rights and antipoverty lawyers who had convinced courts to recognize a whole range of novel rights and privileges contained in pretty vague phrases that had been written by some eighteenth-century slavers and aristocrats (“due process,” “equal protection,” etc.). The idea that federal courts might have affirmed a rights-based environmental law was not unthinkable.

We obviously don’t have a blank slate today—we have a dense web of environmental statutes, regulations, and even a few state constitutional provisions. This is progress, and this web of laws often constrains the most gratuitous impulses of polluters. But US environmental law is highly limited—it’s very hard for the victims of environmental injustice (to say nothing of nonhuman animals) to get a hearing in court or before an agency in the first place, and polluters have all kinds of advantages (deep pockets, nonpublic information, close connections to their regulators, legal standards that are highly favorable to their interests). Plus the Supreme Court will probably have a conservative supermajority for decades, and even Democratic officials are still approving polluting and carbon-emitting projects at a perilous clip.

There are a lot of reasons for sadness and anger, but I am excited—or at least heartened—by the ongoing fights for justice. In recent years the number of strikes and work stoppages in the US has increased, and what’s good for workers is almost always bad for polluters. We’ve seen protests in Iran and France and Sri Lanka; a fight for a new constitution in Chile; and amazing mutual aid efforts here in the US in the face of police violence, the overturning of Roe v. Wade, and vicious antitrans laws. None of these fights are environmental per se, but all are encouraging, because they show that solidarity is a threat to those in power—and that those in power are right to feel threatened.

When I started law school, there were just a handful of us in the environmental law students’ association. By the time I left, three years later, there were several dozen. I’ve always loved the old union song “Which Side Are You On?” Today it sure looks like there are more people on our side than ever before, and that has to count for something.