By David North
This article has two parts. The first concerns the most recent developments in an environmental justice lawsuit between a group of surfers and U.S. Steel (and in part the Illinois EPA). The second examines a necessary intervention in environmental ethics in light of this lawsuit.
1. SOUTHEND SURFERS
Over the summer, I had the chance to meet a group of people who surf what’s called the “Southend,” a strip of land on the southernmost bend of Lake Michigan occupied by steel and coal factories. The spots aren’t glamorous: an abandoned shooting gallery, a casino parking lot, the dumping yards for refineries and plants. But these are where you can find the best non-coastal waves short of going to Sheboygan, Wisconsin. The catch is, you only get the biggest breaks when the water is below freezing. So, a hardcore group of men and women brave the Midwestern winter, donning weatherproof suits, gloves, and boots.
Despite their passion, many have stopped surfing the Southend after facing injuries due to the chemical waste in the water. It was an open secret for years among the surfers that the water near these industrial sites was dangerous, some having experienced multiple urinary tract infections, shingles, and rashes over the years. When it was later revealed that companies like U.S. Steel, British Petroleum, and ArcelorMittal were habitually breaking the terms of their water usage permits with the Illinois Environmental Protection Agency (thereby leaking toxic levels of hexavalent chromium, a known carcinogen, into the water), the surfers stopped visiting the Southend altogether. Those who still surf there continue to experience the harmful effects.
Mike Killion, Lake Surfer
U.S. Steel eventually reached a consent decree with the U.S. Government, but not without a fight. A local activism group, Surfrider, originally formed to increase access to Surfing in Chicago (which at one point was entirely banned), responded with a lawsuit. Their suit has since been held off until the decree between the Government and U.S. Steel can be settled. Surfrider fought to become an active negotiating party in that dispute.
When I last spoke to the lawyers involved, they told me U.S. Steel was still leaking chromium into the groundwater at their site in Portage, Indiana.
They told me that the government’s’ case focusing on U.S. Steel’s April 2017 spill is “too narrow to deal with these multifaceted and systematic problems.” Their legal reply details several developments since agreeing to the stay which have shown the inadequacy of the government’s’ approach, which has failed to prevent U.S. Steel from dumping chromium into the surrounding groundwater.
“What our reply highlights is that this new information reveals the true nature of Clean Water Act violations at the Portage facility,” said Rob Weinstock, of the University of Chicago’s Environmental Justice Clinic, “and what that shows us is that the proposed consent decree doesn’t go far enough.”
According to a July 18 report, the amount of leaked chromium cited in the consent decree may be wrong. U.S. Steel’s groundwater sampling, reviewed by the City’s experts, shows the carcinogenic hexavalent chromium may still be discharging into the Burns Waterway, which flows into Lake Michigan. Not only this, but flow monitors installed by U.S. Steel in its Enhanced Wastewater Process Monitoring Design study gave contradicting chromium levels, meaning the dangerous toxin could still be leaking, unmonitored, according to Surfrider’s reply.
“When the hexavalent chromium spill happened last April, not all of the chromium went down the outfall pipe,” said Weinstock, “We’ve learned that there’s hexavalent chromium in the groundwater beneath the facility. That is new information [since agreeing to the stay.] Ground impacts are not reflected at all in the consent decree. If there was chromium that spilled into the soil and got to the groundwater, that raises serious questions about the volumes of the spill that were used to notify the public and were used in calculating penalties.”
The consent decree, which would bring U.S. Steel into compliance for its April 2017 spill, would only address the causes of that specific spill — breached conveyance, poor maintenance, and inadequately designed containment — but would not address the causes of the ongoing groundwater leakage or even the October 2017 chromium spill, which was caused by inspection, cleaning, and monitoring failures, according to Surfrider’s reply.
Mark Templeton, co-counsel on the case, went on the say, “when a company is breaking the law, is aware that it’s breaking the law, and regulators know and are not enforcing the law, then what kind of behavior do you think the company is going to engage in?”
Surfrider is still awaiting a lift on their stayed lawsuit to prosecute U.S. Steel, who declined to comment on this story.
Mike Killion, Lake Surfer
2. A CASE FOR ENVIRONMENTAL VIRTUE ETHICS
Reflection on the Southend surfer lawsuit reveals something about the way in which we talk about environmental justice. Notice the asymmetry between how the U.S. Government prosecutes the April 2017 chromium spill versus the ongoing contamination of Portage’s groundwater. The spill poses a specific risk, not only to the surfers (who, by the way, illegally use U.S. Steel’s facilities for recreation), but to Chicago’s drinking water through the Burns Waterway. The groundwater contamination merely devastates the local natural landscape.
I suspect the risk to humans explains why the Government’s consent decree focuses on the April incident. The implication is that environmental damage is only worth prosecuting when it endangers humans. This is what I’ll call the first pitfall of environmental justice – anthropocentricity.
The last thing to notice is that U.S. Steel’s infractions can be weighed and punished by monetary estimates of the damage done to the environment. The original draft of the consent decree asked that U.S. Steel pay $600,000. The implication here is that we can measure and commensurate the health of the environment when dealing with corporate polluters. This is what I’ll call the second pitfall of environmental justice – commensurability.
I assume most card-carrying activists wouldn’t accept a form of environmental justice which explicitly stated either of these two positions reflected in the U.S. Government’s treatment of the surfer lawsuit, which if said in a more pessimistic tone take the form: 1. The environment is only valuable insofar as it sustains human life and 2. we can measure the worth of the environment in terms of dollars. It would be hard to find much if any environmental ethics which state either 1 or 2. But do two of the canonized accounts of environmental justice rest on implied concessions to 1 or 2? This is the topic of this section.
This is the “radical” picture of environmental justice I’d like to argue for: if someone wrecks the environment, they’re a bad person — our moral outrage when dealing with polluters is not exhausted by utilitarian or deontological grammar. When deontic and utilitarian grounds against pollution are taken to their logical end, they concede the two pitfalls we noticed in the Southend surfer case. Or so I’d like to argue, as Thomas Hill does in his paper “Ideals of Human Excellence and Preserving Natural Environments.” This idea is by no means “new,” as there are contemporary environmentalists arguing alongside similar lines to Hill, such as Rosalind Hursthouse, Philip Carafo, and so on, all of whom are writing with the ancient Aristotle in the background.
Let’s assume this much to start: pollution is bad. The question is our explanation why. For this, we need metaethics. Here, philosophers have planted their feet in either the “utilitarian” or “deontological” camp, save for a few who belong to the wily group called “virtue ethicists.” For simplicity, let’s call the difference between each of the three as treatments of “consequence,” “obligation,” and “character” respectively. When asked “should I do this?” the utilitarian in turn asks “what do you expect to result from x,” the deontologist “what and to whom do you have obligation to do x,” and the virtue ethicist “what sort of person would you be if you were to do x?”
Deciding between these doctrines is no small task and makes possible the academic careers of some very smart people. Our goal here is far simpler. Which of these doctrines best captures our ordinary language surrounding environmental justice? Our question, really, is this: when I say “pollution is bad,” do I mean “the consequences of pollution are bad,” “I have an obligation not to pollute,” or “to pollute would make me a bad person?”
Are the consequences of pollution bad? The question itself already seems to mistake something about environmental justice, for pollution isn’t bad until it has bad consequences according to the utilitarian. In this case, we assign value not to the environment, but the potential loss when weighed against the potential gain of polluting. For the utilitarian, there’s nothing wrong with pollution, but pollution can have troubling consequences, like limiting the health of humans, destroying ecological habitats, and contributing to climate change.
There is an opposite but related concern: oftentimes when we pollute there are good consequences. It’s not as if most corporations are sitting around burning fuel. It’s a valuable resource that companies spend a lot of time and money figuring out how to most efficiently use. I think it’s probably hard for a lot of environmentalists to see this, but more often than not pollution is necessary for some greater good: poor, developing countries need to use natural gas to support their growing economies, populations, and agriculture. Hospitals need fuel for life-flight helicopters. Electricity plants need coal to operate. Each of these are simultaneously forms of pollution and things which have or produce good consequences. This spells trouble for the utilitarian. For what grounds do they have to say pollution is bad? The best the utilitarian can do is say, “there’s another way we could do this without using so much fuel,” which isn’t to say this way is bad, just not as good as it could be, certainly not as bad as ignoring the medical needs of those on life support during electrical outages.
But, as environmentalists, we want to say there is something wrong per se with pollution, not just its consequences. For if we take this route, we must come to some explicit version of 2. If pollution is only bad for its consequences, then that’s to say the harm of pollution is commensurable with something. If money is universally fungible, harm to the environment can be measured in dollars, the second pitfall. Of course, this is roughly how U.S. law works, setting financial penalties which scale based on the severity of the pollution, but this doesn’t serve as a perfect vision of environmental justice. Of course, the utilitarian may object, stating that just because something is measurable doesn’t mean it is commensurable, for things can be different in kind as well as in quantity. The environment is one of those things. But, what about the medically necessary use of pollution? We don’t want to place an absolute prohibition on pollution (else we risk the lives of those who depend on it), rather we want to understand when and for what reason we can reasonably pollute. We want to understand the grammar of “polluter” when so invoked. So it seems that the utilitarian is trapped into the commensurability of the environment.
A thought experiment to show why: Once we can measure the value of the environment, we can imagine scenarios in which it’s worthwhile to destroy the environment. If some polluting act X has certain devastating consequences on the environment which can be measured to be worth Z, but not doing X has consequences worth less than Z, then we should wreck the environment. Say a corporation wants to destroy the redwoods to build a new facility. Destroying the redwoods is an environmental disaster, but according to the utilitarian, its consequences could still be measured. Let’s say the redwoods are worth one trillion dollars. There are currently two companies in the United States worth that much — Amazon and Apple. If we had to choose between the redwoods and Apple, should we pick the corporation? I’d hope by this point those sympathetic to the integrity of the natural world will feel uncomfortable. The counterargument I’m proposing is this: would we trade the health of the environment for all the money in the world? For once we assume commensurability, we can put a number to the value of nature. That number can always be surpassed.
If not for the consequences, do I have an obligation not to pollute? This question is at best ambiguous, at worst nonsense. I won’t pretend to fully understand deontology, but to make progress, let’s take a stab at clarifying some terms. We’ll call an obligation the sort of thing that gives someone the basis to make claims for my doing (or not doing) x. One can make such a claim only if they have a right to it. Therefore, rights and obligations are conversational: one has a right in virtue of which they can make claims which oblige others. I have no obligations to do anything until someone else has a right to make a claim against me. For example: you have a right to personal space and so can make a claim to my obligation to abstain from hitting you. If I were to hit you, I broke an obligation, injuring your rights. I can punch the space in front of me freely until I enter your personal space and am thereby subject to obligations sensitive to your rights.
Some environmentalists talk with roughly this timbre. Nature, and the beauty within it, has a claim against you polluting it, argues the deontic environmentalist, perhaps going so far as to say something as absurd as “this tree here has a right not to be mistreated!” Absurdity notwithstanding, we have the deontic answer to our original question: plants have rights and therefore claims to oblige us against pollution.
I’m skeptical much ground can be made in this direction, for plants have no morally relevant interests in this way. Yes, we can speak of plants as better or worse off, healthy and unhealthy, injured and whole. From this, it’s fairly obvious to see that pollution makes plants worse off in this regard. Chromium in the Portage groundwater kills off various underwater plants and disturbs the entire ecosystem that sustains typical lake habitats. Yes, this makes them worse off. It’s not obvious however that we can then say the plant life “dislikes” or “desires otherwise” such pollution. Of course, such pollution “harms” the plants, but it does not “hurt” them.
For the sake of the naive deontic environmentalist, assume for argument’s sake that trees have the rights to oblige, not against our hurting them, but simply our harming them. If harming is all that’s needed to grant a right (and not the accompanying desire not to be harmed that constitutes hurting) against pollution, then where do these rights end? Grass must not be stepped on! For if it is crumpled, it is harmed, so we are obliged in virtue of its right against harm to abstain from stepping on it. Nor should we trim the grass as that runs the risk of killing it off. So too must we abandon medicines which prevent fungal infections, for this would be harming the fungus. And what about artifacts? Would breaking the leg of a chair not be making it worse off? Harming it? I think this thought quickly devolves.
Maybe trees don’t have the necessary rights to make claims against our polluting. Are there other candidates? There is at least a legal claim against most forms of corporate pollution. This is pretty well useless to us. By “pollution is bad” I certainly don’t mean “pollution is illegal.” My outrage is not the same as when one commits petty theft, for this is also illegal. As we’ve seen with the Trump administration’s withdrawal from the Paris climate accord, it may soon no longer be the case that such damage is illegal, certainly not all the kinds of pollution we want to prohibit. So this can’t be the source of obligatory claims.
If not the government, what about other people? Trees and other plant life have been shown to promote human health. Does pollution mean I am infringing on the rights of others to health? Maybe sometimes it’s the case that pollution has a direct effect on the health of people, as has been the case for the Southend surfers. Is every case of pollution like this? Probably not. We could imagine that pollution like this stays in the groundwater of a non-residential area where no one will live in the future. Were there no surfers there, maybe no one’s health would be affected at all. In fact, maybe the pollution caused by the production of gasoline has positive health effects. This gas is needed for the transportation of ambulances, the operation of emergency generators in crisis situations, the production of food. Yet again, we run into the problem that pollution often has positive consequences if no one is hurt. Perhaps others have a claim against our polluting because nature is beautiful, and everyone is entitled to see some beauty in life. Even if both of these were true, it’s not clear that nature exists so that humans can observe it. Nonetheless it’s pretty clear that “pollution is bad” would likely never precede “because it makes the view from my window less aesthetically pleasing.” Worse yet, it concedes the first pitfall we noticed in the Southend surfer case.
AN ALTERNATIVE ACCOUNT
If not for the consequences nor my obligation, what’s left to be said about the wrongness of pollution? Perhaps, instead, we should ask a different question. Instead of figuring out what’s wrong with polluting, we ought to ask what’s wrong with polluters. When we see acts of pollution, our outrage is more explained by questions like “who would do such a thing?” than by questions like “for what reason was this committed?” It is more likely that our outrage is to be continued even when reasons of utilitarian and deontological concern are exhausted. That is, even if certain kinds of action are justified by utilitarian or deontological reasons, we are likely to continue, “even with good reason, who would be so destructive?”
The alternative is this: being disposed to pollute is a character flaw. Perhaps it is like ignorance to the beauty of nature, carelessness for the natural world, impiety for God’s gifts, or something along these lines. This is the program of a virtue ethical alternative. In spite of the failures of utilitarian and deontological concerns to explain our outrage for pollution, we must look elsewhere – character. The ambitious virtue ethicist must then find ways of explaining pollution in terms of the vicious character. This alternative would allow us to say why polluting is per se something bad, for it is what a vicious person would do, without committing the errors of deontology. It also allows to say, yes, sometimes, maybe even often, there will be good consequences when polluting. Nonetheless, sometimes the ends won’t justify the means. And only a vicious person would resort to needless destruction of the environment. And it is in virtue of their character that they act on degenerate reasons for pollution. It is the task of our wily virtue ethicist to decide how we spell out this relationship. This is my call to environmentalists.