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Winter 2023: The Future of the Energy Grid

Literary Resources

Frederick H Turner


  • A review of the book “Toxic Debt: An Environmental Justice History of Detroit.”
  • Explores the three book in “The Sea Trilogy” by Rachel Carson.
  • Covers the book “Total Takings, the Nuisance Exception, and Background Principles Exceptions: Public Trust Doctrine, Custom, and Statutes” by David Callies.
Literary Resources
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Toxic Debt: An Environmental Justice History of Detroit

Josiah Rector
The University of North Carolina Press, 2022

Every once in a while a book comes along that reorients the way in which we see the environment. Toxic Debt is one of those books. Josiah Rector’s account of environmental injustice in Detroit transcends the traditional boundaries between historical fields; he brings together environmental, legal, labor, economic, and urban history. Rector’s method flows from the foundational idea that environmental inequity is multilayered and interdependent—it is a result of efforts by “white segregationists to exclude African Americans from desirable neighborhoods and jobs, and by capitalists in heavy industry, finance, and real estate to externalize environmental costs onto workers and communities.”

Rector’s book is in many ways a local story that shines a spotlight on Detroit. From that perspective, it will serve as a valuable tool for those interested in reading about automobile companies and neighborhoods in this midwestern metropolis on the Canadian border. And the copious notes will be a valuable resource for other historians interested in combing the city’s archives.

Yet I see at least two broader contributions emerging from this account that could apply to other major cities across the country over the last century and could reshape how scholars and policy makers understand the causes of environmental inequity. The first is Rector’s focus on the workplace as a site of disparate health impacts. The second is his recognition that economic circumstances play a critical role in whether a community has access to clean water, clean air, and homes free from toxins.

Occupational health is frequently overlooked in environmental history and the environmental movement writ large. Not so for Rector, who places workers center stage. We learn about the deadly 1927 explosion at the Briggs Manufacturing Company, where workers toiled on auto bodies for Packard, Dodge, and others. The incident occurred in a part of the factory where paint was applied, and specifically Duco paint, which dried quickly but was based on a “combustible nitrocellulose compound called pyroloxylin, invented for munitions production during World War I.” This was just one of the technological advancements that set back the health of Detroit’s workers: paint sprayers, sandblasters, and pneumatic drills increased the amount of lead and dust in the air. The effects of the “toxic effluvia” flowing from the manufacturing sites could be seen in the dirty air and water around Detroit, but “factory pollution was most heavily concentrated in the air that automobile workers breathed.”

Four decades later, Chrysler opened the Huber Foundry, which Factory Magazine hailed as one of the “Top Ten Plants of the Year.” The adverse health impacts were felt inside and outside, and Chrysler faced nuisance suits and protests. A member of the United Auto Workers said that to “alleviate some of the stack emissions, the company reversed some of its blowers to dispurse [sic] the smoke throughout the plant.” Rector also quotes a community organizer who led protests and created bumper stickers reading “Chrysler Pollutes Out Homes, Don’t Buy Chrysler.” According to the organizer, the foundry workers said: “‘You’re suffering outside and we’re suffering inside, and we could use those [stickers] too.’ I actually saw the bumper stickers in their parking lot on the employees’ cars.”

Consistent with the theme of interdependence, Rector shows that occupational hazards were also tied to economics. For example, he devotes space to a conference in Black Lake, Michigan, where labor, environmental, and civil rights activists gathered to discuss the links between environmental justice and economic justice. The conference, which occurred in 1976, “complicates conventional narrative origins by showing that the concept of environmental justice was already circulating” before the 1982 protest in Warren County, North Carolina, which is often viewed as the genesis of the environmental justice movement. Rector treads carefully to avoid downplaying Warren County, and this is emblematic of Rector’s approach—he endeavors to offer a nuanced view.

The connection between environmental and economic issues has taken on a new form in the years since the Black Lake Conference. Toward the end of the book, Rector depicts a fiscal crisis that led to the shutting off of water in Detroit in 2014 and 2015 and poisoned water in nearby Flint. In the 2000s, predatory lending caused many poor and working class households to fall behind on water bills, the toxic debt carried by Detroit led it to pursue municipal bankruptcy, the Detroit Water and Sewerage Department (DWSD) was partially privatized, and in 2014, “DWSD began the most aggressive water shutoff policy yet,” which meant the city was stopping water delivery to those least able to afford it. In this way, the toxic debt of the city became the toxic debt of its minority and low-income residents.

Here and elsewhere, debt informs Rector’s narrative, but using the concept for the book’s title undersells the breadth of the book. Moreover, given the thread of occupational health, it seems to me that one of the chapter titles—“Bodies on the Line”—could have been a more representative title. On a related note, the different roles played by municipal debt, austerity measures, and finance more generally are not as clear as they could be given the centrality of economics to the book. These are minor quibbles with an excellent book that sets the bar for a new way of looking at environmental justice.

Rachel Carson: The Sea Trilogy

Sandra Steingraber, ed.
The Library of America, 2021

Rachel Carson set the bar for how we think about nature. Through a career of prose, she helped launched the modern environmental movement. That career began in earnest with the publication of an article entitled “Undersea,” which ran in The Atlantic in 1937. It began with a simple question: “Who has known the ocean?” She began to answer it with these lyrical words:

Neither you nor I, with our earth-bound senses, know the foam and surge of the tide that beats over the crab hiding under the seaweed of his tide-pool home; or the lilt of the long, slow swells of mid-ocean, where shoals of wandering fish prey and are preyed upon, and the dolphin breaks the waves to breathe the upper atmosphere. Nor can we know the vicissitudes of the ocean floor. . . .

Carson went on to describe a journey from the seashore to the deep ocean that included “crepuscular shadows” and “abyssal creatures.”

“Undersea” is a good place to begin this enriching Library of America collection of Carson’s writing on the sea. The article, as well as two other documents, an explanatory note, and a chronology of Carson’s life appear at the back of the book, but they tee up the collection’s three primary texts—Under the Sea-Wind (1941), The Sea Around Us (1951), and The Edge of the Sea (1955). In the chronology, we learn that “Undersea” grew out of a document originally drafted for the U.S. Bureau of Fisheries, where Carson worked on radio scripts for an educational series entitled “Romance Under the Waters.”

Before diving into Carson’s romantic renderings of the sea, it is worth going to the front of the book for Sandra Steingraber’s introduction. Steingraber cautions against faulting Carson for not foreseeing the catastrophe of global climate change. Instead, Steingraber suggests that the sea trilogy, which she fittingly characterizes as a “triptych,” helps illustrate a “disappearing natural baseline” and that it can “inspire curiosity and care” about what we are losing. Steingraber also proposes that these books “are not just popular accounts of marine biology or guides for beachcombers (although you can use these books for those purposes, too) but what amounts to an ocean-centric planetary ethic and philosophy of life.”

This idea of an ocean-centric ethic sounds similar to Aldo Leopold’s land ethic, but notably Carson’s first book appeared nearly a decade before Leopold’s A Sand County Almanac. Her Under the Sea-Wind picked up on the theme of the outbound oceanic journey that framed “Undersea” as Carson divided the book into three sections: the first follows the tideland-based sanderling, the second follows the continental shelf-based mackerel, and the third follows the deep sea-based eel. One of the most memorable themes is that of sound. Carson notes that in “the fish world many things are told by sound waves,” and she also spells out the calls made by birds, such as the “Tee-ar-r-r” of the tern. Yet silence is also evoked: the “mackerel are voiceless” and “the distant voice of the sea was hushed.” And even when she talks about taste, sound is involved, as when she notes that “the bitter tang of the water spoke of the sea.”

Notably, almost the entire book is told from the perspective of the animals. As Carson explained in a memo she wrote to help publicize her book (and that is included at the back of the book): “I was determined to avoid this human bias as much as possible. The ocean is too big and vast and its forces are too mighty to be much affected by human activity.” The result is a remarkably fresh viewpoint about a sea wall that serves as a place for weeds that grow into “a thick-piled tapestry,” anchored boats that provide shelter from predators, and what it feels like for a fish to swim into a net.

This perspective wanes somewhat in the The Sea Around Us, which includes references to shipbound explorers and scientists, such as Thor Heyerdahl aboard Kon-Tiki and Charles Darwin aboard H.M.S. Beagle. One of the more intriguing aspects of this edition is its bookends: a preface written in 1960 and an accompanying set of footnotes. The preface laments the atomic age because of the disposal of nuclear waste into the ocean while a footnote ironically extols the “revolutionary development” of nuclear-powered submarines that made it possible to explore beneath Arctic ice. In between, the book covers the formation of waves and the continental slopes.

The final book, The Edge of the Sea, brings the reader back up from the continental slopes to the seashore and the tide pools. Like “Undersea,” the book includes a journey, this time from the rocky coasts of New England to the sand beaches of the Atlantic coastal plain and to the coral reefs of the Florida Keys. On the last stop, the book provides vibrant explanations of not only coral reefs and how they form, but also the creatures that live among them. These include the sea hare, which is a marine slug that Carson says “seemed to belong in some book of mythology,” and the loggerhead sponge, which is depicted both in prose and in one of the many exquisite drawings by Bob Hines.

Carson’s work on the ocean began nearly a century ago, but this recent collection could be a cri de coeur to protect a part of the world that we will never fully know.

Regulatory Takings after Knick

Total Takings, the Nuisance Exception, and Background Principles Exceptions: Public Trust Doctrine, Custom, and Statutes

David Callies
American Bar Association, 2020

A little more than a century ago, the U.S. Supreme Court’s decision in Pennsylvania Coal Co. v. Mahon (1922) established that a regulation that goes “too far” could be a taking for purposes of the Fifth Amendment, which prohibits the taking of private property for public use without just compensation. As David Callies notes in his succinct monograph on regulatory takings, a “glacial silence” from the Supreme Court followed Pennsylvania Coal. States courts also largely overlooked the concept, “particularly as governmental regulation for a host of environmental, ‘welfare’-life public purposes proliferated.” But the last three decades have produced a series of regulatory takings cases, many of which touch on natural resource issues, such as mining regulation, flood control, and beach renourishment.

Callies covers this precedent yet the focus of the first part of the book is the Supreme Court’s decision in Knick v. Township of Scott (2019), which is seen by some as “the most significant property rights case of the last decade.” Knick eliminated one of the two elements that the Court had previously established for determining whether a regulatory takings claim was ripe for review: under Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985), a landowner raising a Fifth Amendment challenge to a regulation must obtain a final decision from a state or county agency and then seek, and fail to obtain, compensation in state court. The second of these essentially created a state action exhaustion requirement, and the facts of Knick demonstrated how this could be problematic.

Knick involved a local ordinance requiring cemeteries to be accessible to the public during the day and allowing officials to enter private property to ascertain whether a cemetery was present. Knick was found to be in violation of the ordinance and sought relief from the state court on the grounds that it constituted a regulatory taking. The state stayed enforcement, which meant Knick was “procedurally precluded from a state remedy.” The Supreme Court found that the state action requirement rested on a flawed reading of the Takings Clause; a takings claim arises when the uncompensated taking occurs. Callies argues that by eliminating this requirement, Knick “has reopened the door of federal courts to regulatory takings claims.”

But this book is as much about the Court’s decision in Lucas v. South Carolina Coastal Council (1992) as it is about Knick. In Lucas, the Court established two exceptions, or defenses, to a regulatory taking: (1) the use of the property is a private or public nuisance; and (2) background principles of a state’s property law permit the restriction on the land. The remainder of Callies’s book explores these two exceptions, which might be used to keep the door of federal courts from swinging wide open.

Two of the more interesting topics here are the public trust doctrine and native customs as background principles. For public trust, Callies considers whether courts have expanded the common law such that public trust now applies not only to submerged lands, but all natural resources. The answer—generally “no”—matters because only the common law designation of a public trust “provides government cover of an exception to a Lucas categorical regulatory taking.” For native custom, Callies states that it “can provide a means for guaranteeing certain rights of native peoples in lands owned (technically held in fee simple) by others.” He focuses in particular on the Hawai‘i Supreme Court, which has interpreted the state constitution and several statutes to “confer distinct legal status on Native Hawaiian customary practices, often to the detriment of Western-style absolute property rights.”

Depending on one’s experience in the field of regulatory takings, Callies book can serve as either a useful introduction or a handy refresher on a complex topic that is likely to fill court dockets for many years.