Remembering the Bodies

This post is part of a series related to Teaching Environmental Law in Context, a recent book by Member Scholars Rebecca Bratspies and Carmen Gonzalez.

In their brilliant new book, Teaching Environmental Law in Context, Rebecca Bratspies and Carmen Gonzalez do not let us forget the bodies — the human bodies that suffer death, illness, and heightened risk due to air pollution, water pollution, and toxic chemicals.

The bodies they want us to care about, and care for, are everywhere: in Flint, Michigan, after that city’s fateful decision to switch its water supply; in tribal and Vietnamese immigrant communities that subsist on mercury-laden fish; near seaports, where ships run on tar-like bunker fuel; in homes near concentrated animal feeding operations that house thousands of animals in squalid conditions; in Vieques, Puerto Rico, where the U.S. military for 60 years detonated and burned munitions in the open air.

At every turn, and most vividly in each of their chapter-specific teaching exercises, Bratspies and Gonzalez remind us that environmental law plays out in actual communities like the ones just mentioned, that the social and political context of those communities figures crucially in the level of protection they receive, and that death, disease, and elevated risk are the predictable results of inadequate protection.

Students will surely appreciate an environmental law course that consistently reminds them — even amid the dense scientific, technical, and bureaucratic jargon of the field — why they wanted to take environmental law in the first place. But Bratspies and Gonzalez’s attention to the human consequences of environmental contamination isn’t worthwhile only as a means of sustaining student interest. It is, even more importantly, a substantive corrective to the tendency of environmental law to abstract from the physical bodies it aims to protect. The reasons for this tendency toward abstraction are, in my view, evidentiary, legal, and ideological.

First, the consequences of environmental contamination for specific humans and their bodies are notoriously hard to pin down. I’m reminded here of the story of Ella Adoo-Kissi-Debrah, a nine-year-old girl who lived next to a busy highway in southeast London and who died in 2013 after an asthma attack. Thanks to her mother’s advocacy, Ella was, as far as anyone has been able to tell, the first and only person in the world whose death certificate listed air pollution as a cause — “a significant contributing factor” — of her death. Yet in 2022, the highly regarded scientific journal, Lancet Planetary Health, published a study concluding that air pollution is responsible for 6.7 million deaths worldwide, every year. How can it be, with over 6 million worldwide deaths annually due to air pollution, that only once has air pollution been listed as an official cause of death of an identified individual?

Part of the answer is that it is hard to trace the link between air pollution that is known to be lethal and an identified person's death. But this doesn’t mean that no one dies. Bratspies and Gonzalez always keep the reader’s eye on these bodies, even as they ably describe, in chapter 3 of their book, the complexities, limitations, and yes, abstractions, of quantitative analysis of environmental risk.

Another reason why environmental law forgets the bodies is that the law itself often omits them. Many of our major federal environmental statutes require polluters to install particular control technologies rather than to achieve particular health-based outcomes. In classes covering these statutes, discussion of the relevant legal texts has more to do with scrubbers, catalytic converters, carbon storage, and the like, than it has to do with human bodies directly. Most of our federal statutes, moreover, are intended to be precautionary, to protect against physical harms before they occur. This laudable focus on precaution rather than certainty can have the side effect of turning discussions in environmental law classes toward statistics and probabilities — and faceless subjects of environmental risk — and away from actual humans. Bratspies and Gonzalez do not succumb to this tendency. Their discussions of technology and risk are never far removed from the concrete human settings from which they arise.

Last, and worst, racial ideology makes us forget — even erase — the bodies. We have been painfully slow to address, and even to see, the gravely disproportionate environmental burdens that our society inflicts on Black, Latinx, and Indigenous communities. We have, variously, attributed these disparate burdens to market economics, to individual choice, to political power. We have understated the risks — and thus the bodily harms — faced by these communities through a variety of technical-analytical choices, such as a failure to insist on assessments of cumulative risks.

And now the executive and judicial branches of government are aligned in their hostility to seeing and remedying the racialized social burdens of the past and present. President Donald Trump has ordered agencies across the government to abandon the project of achieving any measure of racial justice, and the U.S. Supreme Court has found that patently racist statements are not legally actionable and has all but told us that measures to address structural racism are themselves racist.

Into this troubled setting come Bratspies and Gonzalez, never flagging in their resolve to remember the bodies — all of them — and to place the problem and the pursuit of environmental justice at the center of environmental law. They’re not waiting for the present moment to pass before reimagining the future. Environmental law teachers everywhere should follow their lead.

Lisa Heinzerling is the Justice William J. Brennan, Jr. Professor of Law at Georgetown University Law Center.