My environmental health friends have long argued that the fact that every last person, human and nonhuman, carries a body burden of toxic chemicals is a violation: it is chemical trespass. We were not informed. We did not consent. It is an injustice.
Environmentalists were working off of this equation.
1) Corporations discharged toxic chemicals in the course of doing business.
2) Those chemicals are now in my body.
3) I did not consent.
4) Corporations had no right to contaminate my body as part of doing business.
5) Corporations must be held accountable and the contamination must stop.
The concept of chemical trespass has power because it captures the intuitive sense that it was immoral to put your chemicals in my body without my consent. Given the deep moral outrage that chemical trespass inspires, it is only logical that the courts should stop this. We should be able to walk into court with the evidence of all the toxic chemicals that we carry and if we got true justice the corporations would be forced to change their business plans and we would be restored to our pristine clean selves. But that is not the deal. Scientists can and have documented the number of chemicals in a newborn baby’s cord blood or in the body of a woman with breast cancer but it’s almost impossible to get a court to act and hold the perps accountable.
So why isn’t this injustice translated into legal action? The primary reason is that the plaintiff (the person suing) has to demonstrate that he or she was harmed by the trespass. Harm is really difficult to prove. It is almost impossible to prove that the presence of bisphenol A in the baby’s cord blood led to his birth defect or the presence of dioxin in the adult led to her cancer.
And why do we have to prove harm? Why isn’t it enough to demonstrate that your chemical is in my body and I didn’t consent to the trespass?
Are you sitting down? The reason we have to prove harm is that environmental law is really a form of free-market property law. The presence of a toxic chemical in your body is simply not enough to prove that you have suffered harm.
Economics and property are so deeply embedded in our law that it is difficult to imagine a different way of approaching environmental conflicts. Even the word “trespass” comes to us from property law. Property law is the scaffolding on which we’ve built our legal system. It is so deeply ingrained in our worldview that even the Christian Lord’s Prayer uses property law to describe sin. “Forgive us our trespasses”, it says, unless it has been translated to say, “Forgive us our debts,” another property term.
So most lawyers hear this legal equation when they hear “chemical trespass”:
1) Your body is property.
2) A chemical trespass, if proven to have caused you harm, is a property problem.
3) Trespasses on property that result in harm can be compensated with money.
But what if we didn’t treat chemical contamination of our bodies and the Earth’s body as a matter of property rights? Why should your granddaughter’s body or the whale’s body or the Alaskan native’s body be treated as property just like John McCain’s fourth home?
It doesn’t have to be. Enter stage left: Rights Law. Not property rights –the rights to buy and sell–which dominate the legal system, but inalienable rights that belong to human beings and that can be extended to future generations, nature, and communities. When the slaves were freed, they were not given title to themselves so that they owned themselves and could sell themselves to someone else. We changed the category. They were no longer property; they were human beings and could not be bought or sold by anyone.
The contamination of my body is not a violation of my property right to my body. It is a violation of what should be my inalienable right to a clean and healthy environment. The contamination of my body is also a violation of your inalienable right to a clean and healthy environment because I am breathing, eating, and then excreting that contamination into the air, water, and soil on which your life depends.
This is not a trespass in the property sense. It is a violation of our shared rights to a clean and healthy environment. Forgive us for destroying the Earth, our bodies, our communities, each other.