This chapter explores whether tort law can provide a remedy for the injury of ‘endocrine disruption’, at an individual or a collective level.1 Endocrine disruption occurs when synthetic chemicals with structural similarities to common sex hormones ‘trick’ the body into triggering various biological processes and reactions. Many activists in the environmental justice movement want to be able to say unequivocally that the ‘gender-bending’ of endocrine disruption is a new, dramatic and horrifying harm. But taking the example of the declining sex ratio of the Aamjiwnaang First Nation, a Canadian aboriginal community experiencing chronic chemical pollution, demonstrates that finding a ‘harm’ or ‘injury’ in law is fraught with difficulties. On an individual level, an altered sex ratio (the number of boy babies born relative to the number of girls) cannot constitute a harm. No one mother could ever prove that she specifically was harmed; that she specifically should have conceived a boy. But her chances of welcoming a son seem to be less than they should be.2 The concern, from the perspective of the First Nation, is essentially one of cultural survival. It is the collective loss of a viable future. Thus the notion of a collective harm highlights the fact that this problem is situated in the context of an aboriginal community already struggling, as many are, with stemming the loss of culture and tradition amongst their people. Further, because emerging environmental health harms are often localised and concentrated around the worst pollution sources, and because they tend to be distributed along race and class differentials, endocrine disruption is a central concern of the environmental justice movement.
Understanding the nature of contemporary pollution harms or ‘injuries’ is essential to the crafting of effective remedies. In particular, the chapter seeks to destabilise the tendency in the environmental justice movement to conceptualise harms on the basis of unquestioned assumptions about what is ‘natural’ and what is ‘normal’ through the application of contemporary feminist theory of the body. It also seeks to challenge tort scholars to imagine law differently. Legal scholars have begun exploring the idea that tort law is ‘too corporeal’ – that it is tethered too tightly to proof of physical damages – and should move towards the recognition of interests-based damage assessments in specific contexts. But even where recent scholarship in tort has included some calls for expansion of what should count as harm or physical damage, the scale at which we look to find such damage remains primarily at the level of the individual, the single unitary legal subject. Perhaps, as has been suggested, we should move away from assessing physical damage only on the basis of a ‘factually observable’ change in the physical structure of persons, and adopt a more contextual approach based on social perceptions of damage. The way that pollution manifests, and the blameworthiness of its perpetuation in certain communities, demands that tort law evolve, and that we, as legal scholars, work creatively to devise new legal remedies for emerging injuries.
This chapter offers a critique of tort remedies grounded in feminist theory of the body. It exposes how tort law is invested in a notion of an individuated legal subject, which in this case fails to capture the critical interconnectedness of bodies in a community inseparable from the social, political, historical and colonial context. The analysis considers various torts on a conceptual level, and what they might offer the Aamjiwnaang First Nation in the way of remedies. In each case, what the tort can do depends on how the injury, and the scale at which the entity taken to have suffered the injury, is conceived.
The chapter concludes that none of these remedies are adequately able to account for the way the pollution has saturated the community, been soaked up in bodies and altered social and cultural relations. But brainstorming around tort law’s potential remedies, at various scales, allows for the body to be opened up – for the gender-bending synthetic chemicals flowing through bodies to become visible, for their free movement between individuals and their worlds to be exposed – to the point that our insistence on a fixed bodily boundary, and a centrally controlled self, begins to break down. Further, the analysis demonstrates that the scale at which we conceive of an ‘injury’ shapes the determination of whether the injury is seen as ‘remediable’, and on what terms. These conceptions and determinations then, in turn, shape ideas about the allocation of blame for the harm. Essentially, the argument is that our constructions of ‘injury’ – where and how we choose to find it – carry consequences for communities affected by contemporary pollution harms.
The chapter proceeds through three parts. I begin by reviewing the contamination of the Aamjiwnaang First Nation, and describe how the struggle of this small reserve community, and its members’ campaign against endocrine disruption, has garnered the attention of environmental justice activists worldwide. Next, I explain how tort law might conceive of the harm or the ‘injury’ that is visited on the Aamjiwnaang community, including what the gender dimension of that harm might be. Finally, I begin to brainstorm around the way that various torts might operate at different scales of injury to provide a remedy for the Aamjiwnaang people.
The contamination of Aamjiwnaang First Nation3
The Aanishinaabek people of Aamjiwnaang First Nation live on a reserve located immediately adjacent to Sarnia’s notorious petrochemical corridor. The area hosts one of Canada’s largest concentrations of industry, and has the air pollution to prove it. Sarnia sits in southwestern Ontario, at the southern tip of Lake Huron, bordering Michigan, USA. The north end of town, with its executive estates and golf courses, gradually gives way to a working-class core, and a string of large petrochemical, polymer and chemical industrial plants, as well as coal-fired utilities along both sides of the St Clair river.
For the community of Aamjiwnaang, living in the shadow of Canada’s ‘Chemical Valley’, a recent epidemiological study confirmed what many had suspected for years – that the community’s ‘sex ratio’ (the number of boy babies born relative to the number of girls) was declining at an alarming rate. It was widely speculated that chronic exposure to toxic chemical pollution, specifically a group of endocrine disrupting chemicals provocatively nicknamed the ‘gender-benders’, was responsible. Residents that had wondered about why they needed two softball teams to accommodate the girls on reserve, when they could barely field one team of boys had their answer. A research partnership was launched and the team had soon documented a marked decrease in the number of males born into the community. The study appeared in a prestigious journal and the Aamjiwnaang First Nation was left to deal with the unwelcome distinction of the world’s lowest documented birth ratio (Mackenzie et al 2005).
It is widely speculated that the noted decline in sex ratio could be correlated with the community members’ exposures to industrial pollutants. In fact, it fits perfectly into a scientific picture that is being pieced together throughout the Great Lakes region. Other studies conducted on wildlife populations in this region have found changes in the sex ratios and reproductive ability of fish, bird and turtle populations, which are thought to be due to exposures to endocrine disrupting chemicals (Gilbertson 2002). Endocrine disruptors are said to have a ‘hormone-mimicking’ effect. They may induce long-term effects upon low-dose exposures in susceptible developmental phases. There are a number of competing hypotheses for how, specifically, these environmental contaminants disrupt the human endocrine system, and how they might be influencing sex ratio. According to the hypothesis with the most traction, interference with a mother’s hormonal milieu at key developmental stages very early in a pregnancy can induce sex-specific mortality in miscarriage. Essentially, the hypothesis is that embryos that would become boy babies are disproportionately lost in early miscarriages, usually occurring before the prospective mother even becomes aware that she may have been pregnant.
Activists living in pollution hotspots are increasingly identifying with and being inspired by the environmental justice movement. They see ‘connections between social welfare and the environment, pollution and the home, and pollution and discrimination, that have gone unnoticed (or conveniently ignored) by mainstream environmentalists’ (Verchick 1996: 46). A central focus is the notion of ‘disproportionate burdens’ – the claim that while pollution is everywhere, it is most easily found in a few choice places, particularly those inhabited by the poor, the racialized, and the marginalized (Luke 2000). The aim of organizing is to expose the fundamental power differential that exists between the polluters and ‘the polluted’. As a result, many activists in the environmental justice movement want to be able to say unequivocally that the ‘gender-bending’ of endocrine disruption is a new, dramatic and horrifying harm.
The mantra of the environmental justice movement – that some of us live more downstream than others – is a stark and obvious truth in Sarnia’s Chemical Valley (Scott 2008). Talfourd Creek gathers its waters in an industrial corridor home to 40 per cent of Canada’s chemical production before it meanders through the Aamjiwnaang reserve and empties into the St Clair River (MacDonald and Rang 2007: 5). There are 62 large emitting industrial facilities within 25 kilometers of the reserve (MacDonald and Rang 2007: 5). In 2005 there were 5.7 million kilograms of toxic air pollutants released from the facilities on the Canadian side of the border alone (MacDonald and Rang 2007: 5). The Aamjiwnaang First Nation has been confined to a small portion of its traditional territory by colonialist law, has been steadily surrounded by oppressive industry, and many residents now feel that it is being slowly choked out by the legacy of a century of petrochemical production.
While the skewed sex ratio garners media attention, and is undoubtedly a potent symbol of the complexity of contemporary pollution harms, it is by no means the only manifestation of the pervasive body-altering pollution that the residents report. They experience elevated rates of cancer and diabetes, developmental and attention-deficit disorders, asthma and other respiratory ailments (Scott 2008). In recent years, community members have expressed a building anger as residents learn of the extent of their health problems and the mounting evidence linking those problems to the actions of their industrial neighbours. They are a deeply injured community (Scott 2008).
Identifying the injury
Communities struggling with contamination face significant challenges in seeking to achieve ‘environmental justice’ through tort litigation (Collins and McLeod-Kilmurray 2011; Toffolon-Weiss and Roberts 2004: 261). These ‘toxic torts’ are, in fact, notoriously difficult to win, and prohibitively expensive to mount. In my analysis, the ‘injury’ suffered by the Aamjiwnaang First Nation is a classic example of how contemporary pollution harms are currently beyond the reach of effective resolution through tort law.
To find an injury in law we need to identify a cause-and-effect relationship that culminates in a tangible harm. Not only is the causality contested in this case, but a tangible harm is elusive. Thinking specifically of the issue of the declining sex ratio, how should we characterise what has been lost in the Aamjiwnaang situation? Only chances – chances to welcome sons. No one mother could ever prove that she specifically was harmed; that she specifically should have conceived a boy. No actual child has been harmed. But it is difficult to fathom that there is no harm being done. It is clear that there is wounding to be accounted for.
Cultural anthropologist Sarah Lochlann Jain employs the term ‘wound’ to capture the sense that harms exist out there in the world that are not contained in the legal notion of ‘injury’ (2006: 6). And, as she reminds us, ‘wellness and wounding will always be at play within various cross-cutting hierarchies’ pre-existing in our society (2006: 5). ‘[W]ounding itself’, Jain states, ‘brings a mode of attention to objects into being … objects only emerge as separate from the [agent] when something goes wrong’ (2006: 5). It is as if the chronic chemical pollution in the streams, rivers, air and soil of the Aamjiwnaang reserve is suddenly rendered visible by the duly documented epidemiological study of the plummeting sex ratio.
How should we understand the harm or the injury that the Aamjiwnaang community has suffered, and continues to suffer? Or, as a colleague (half-jokingly) put it to me, ‘What’s the harm in a few less men?’ Why does this sex ratio dynamic, a declining proportion of boys born into a community, present a challenge to tort law? Jain observes that tort law’s prerequisite is that the (injured) ‘physical body … come[s] to the table as a preceding artifact being reclaimed after having been unjustly altered’ (2006: 6). It is offered up as collateral for the ‘justness’ of a legal logic through which certain practices, like the discharge of endocrine disrupting chemicals into the environment, in theory, become morally reprehensible or unacceptable. But, on top of the inability of the Aamjiwnaang community to produce a single or distinct injured body, ‘unjustly altered’, the chronic low-dose exposures to pollution that are suspected to be responsible for the ‘injury’ are (for the most part, at least) legally sanctioned and permitted. The actions of the corporate polluters, instead of being seen as morally reprehensible, are in fact state-sanctioned acts of productive economic activity.
It is in this respect that I have argued that the law appears ambivalent to the endocrine disrupting pollution (Scott 2008). The basis upon which the prevailing regulatory approach rests is that pollution is permitted according to certain specified limits set down in a regulation and adopted in a ‘Certificate of Approval’ granted to each facility.4 The system is built on the assumption that cases where this legally sanctioned pollution results in proven harm will be rare, and that the state can rely, in these situations, on tort law to step in and provide compensation.
The ambivalence of our law, then, derives from the continued prominence of the understanding of environmental health harms as incidental, and not central, to industrial production. Any harm caused by legally sanctioned, permitted pollution (as most of it is in Sarnia’s chemical corridor) is treated as a by-product or an accidental side-effect of the economic activity. It is construed as unintentional. And yet, pollution is a ‘fixed feature’ of modern economies (Luke 2000: 248). As Richard Lazarus has noted, ‘pollution in our regulatory environment finds the pathway of least resistance. It finds those places where the laws are least enforced and least understood’ (1997: 714). The production of chemicals, the refining of oil and the generation of electricity in the Sarnia corridor has harm and wounding embedded in it. It is equally the production of pollution.
‘Wounds adhere differently to different people’ (Jain 2006: 58). And the act of wounding, as Jain shows, focuses attention on things which were previously not clearly in view. But the fact that the chronic contamination of the Aamjiwnaang territory was only rendered visible by the sudden notoriety of having the world’s lowest birth ratio, is also largely due to the nature of toxic chemical pollution. It is invisible. The ‘risks’ associated with it are virtually undetectable without scientific investigation. They manifest as ‘harms caused by molecules’ (Cranor 2006: 12).
To understand the mechanics of endocrine disruption, for example, the way that certain chemicals mimic hormones in the body by binding with available receptors and influencing gene expression, we are forced to rely on biomedical ways of knowing. The consequences of exposure tend to eventually manifest themselves in ways that start from within the body and work their way out (Erikson 1991). Further, the latency period associated with many contemporary environmental health risks underscores their psychological impact in that it renders the experience of risk unbounded: ‘an “all clear” is never sounded’ (Erikson 1991: 21). Bodies contain chemicals banned years before the individual’s birth; contamination can be extremely long-lasting, and can be passed down from generation to generation. For example, in part because it is widely accepted among epidemiologists that exposures to toxic chemicals in one generation may produce effects in the next, no one can tell the Aamjiwnaang community whether they face a present danger, or are experiencing the latent manifestation of exposures long past: as one Band member states, ‘was it me, was it my dad, my mom? … we don’t know who’s been exposed’.5
The gendering effect of endocrine disruption
The mechanics of endocrine disruption are often described in the following way. Certain synthetic chemicals share structural features with common sex hormones; these chemicals, or ‘xenoestrogens’, mimic hormone action in the body by binding with, and activating, available hormone receptors.6 The endocrine systems of the body are understood as responsible for regulating complex and interconnected physiological processes, and thus synthetic chemicals that interfere with these systems are thought to have profound and wide-ranging effects on health.7 As hormones travel in the blood in very small concentrations, even very low levels of xenoestrogens can disrupt the flow of internal communications, triggering biological responses and functions in the processes of growth and embryonic development. Accordingly, susceptibility to xenoestrogens is thought to depend highly on sex and on the timing of exposures.
We rarely hear about the phenomenon of endocrine disruption without reference to the controversial theory of ‘feminisation’ (Mittelsteadt 2008: F4). This posits that we are experiencing, not just in humans but also in wildlife, a feminisation trend that is observable across a variety of markers including decreased sperm counts, increasing testicular cancers, declining levels of testosterone and high incidence of undescended testes (Solomon and Schettler 2000: 1472; Langston 2008: 41).8 ‘These things theoretically have a common etiology’, according to Devra Davis (Mittelsteadt 2008). It is hypothesised that a declining sex ratio may be just one of a number of manifestations of a feminisation trend that is tied to endocrine disruption as very broadly experienced across the industrialised world (Solomon and Schettler 2000: 1472–3; Mittelstaedt 2008).
The gender dimension of the ‘harm’ experienced by the Aamjiwnaang community is as difficult to demonstrate as it is to dismiss. The impact of pollution seems not only to be gendered, but gendering. By this I mean that the endocrine disruptors do not just dole out their environmental health horrors disproportionately as between men and women, or girls and boys, they actually seem to be driving whether we get girls or boys. The pollution is feared to be actively ‘producing’ sex, and to the extent that it is related, gender.
The Aamjiwnaang experience is marked by the individual trauma of repeated miscarriage and the collective loss of a viable future. The skewed sex ratio, conceptualised as a ‘harm’, is one that is both visited specifically on women, and felt by the community as a whole. As Joanne Conaghan has argued and the previous part has made clear, harm is an ‘unstable, slippery concept, highly dependent on context and very much the subject of interpretation’ (2002: 320). But at the same time, as Robin West has argued, the question of what constitutes a ‘harm’ is central to legal theory (1997: 94). Further, the question is a critical one for feminists: as Martha Chamallas and Linda Kerber have shown, tort law traditionally falters when it is faced with claims based on harms for which there is no ‘precise masculine analog’ (1990: 814).
According to Robin West’s ‘connection thesis’, women’s material connection to future human life necessarily produces a gendered notion of harm (1988). The prospect of pregnancy, of contributing to a future generation, marks the key difference between women and men. Underlying all branches of feminist theory, West says, is the notion that ‘women’s existential state … is grounded in women’s unique potential for physical, “material connection” to human life’ (West 1988: 14). This is the one place where even feminism’s divisions dissolve: we all come together, she says, on the ‘discovery or rediscovery of the importance of women’s fundamental material difference from men’:
… Women are actually or potentially materially connected to other human life. Men aren’t. This material fact has existential consequences … [it] defines women’s subjective, phenomenological and existential state, just as surely as the inevitability of material separation from the other defines men’s existential state.9
(West 1988: 14)
In the context of suspected reproductive harms, it is obvious how deeply West’s notion is internalised. Aamjiwnaang mothers and potential mothers, even if they are not uniquely ‘harmed’, are usually identified as the medium through which the poisoning occurs: they are seen as sites of contamination. The notion of the mothers as mediums for the pollution is reinforced by various strategies of resistance that have been employed by residents of the Aamjiwnaang community themselves, including ‘body burden’ testing and ‘body mapping’ exercises, and even self-help strategies such as leaving the reserve when trying to become or once becoming pregnant.10 This is true even as the epidemiological evidence remains contested as to the significance of the maternal influence. In fact, the scientific literature that links endocrine disruptors with skewed sex ratios focuses on male and female reproduction, with researchers often unwilling to make a call at this point as to which is the more likely mode of action (Scott 2009: 247-248).
Sex is typically understood as a stable and pre-cultural biological reality that may be verified through a visual assessment (Bloom 2010) while gender is often understood to be socially constructed – a product of our socialisation. But it is not just gender that is constructed, of course, it is sex as well. In the present example, focusing our gaze on the declining sex ratio and the mechanics of endocrine disruption brings the body into focus and exposes the active construction and categorisation of bodies into discrete sexes.
Conventional wisdom holds that sexual identity occurs ‘naturally’ as a binary category, which consists of two ‘opposite’ sexes: male and female. That there are only two mutually exclusive categories is not questioned in the environmental health movement. But as the growing literature on intersexuality makes clear, many bodies, even in ‘nature’, do not conform to the rigid boundaries of a male/female classification (Bloom 2010). Conservative estimates put the incidence of intersexuality at around 1 in 2,000 births, with as many as 1 in 100 of us born with bodies ‘differing’ from the standard traits of male or female.
Where we draw the line between ‘male’ and ‘female’ is now recognised as arbitrary, and sex is better understood as occupying a continuum (Nye 1998: 229). But, many will protest, surely genetics settles the matter conclusively: it is the presence or absence of the Y chromosome that creates a binary. Students of introductory biology courses may recall a standard narrative something along these lines: A person’s sex is predetermined in the sperm gamete. The cells of the egg gamete all possess the XX sex chromosomes. Around half of the sperm gametes contain the X chromosome and others possess the Y chromosome. In light of this, there are two possibilities that can occur during fertilisation between male and female gametes, XX and XY. Since sperm are the variable factor, they are responsible for determining sex …
In life, it turns out, it is more complicated. In some cases, babies are born with an extra X or an extra Y, and some babies are born with only one X. In many more cases, babies are born with, or individuals develop later in their life, physical traits that do not comport with the category designated to them. For example, some XX individuals have both ovaries and the reproductive equipment we might typically associate with a male. And in many more cases still, individuals exhibit personality traits, or gender identities, that puts them on a collision course with prevailing cultural expectations about the characteristics that are typically associated with the two categories of sex identity. If this all seems new, it is because, as Anne Bloom demonstrates beautifully, several authoritative discourses and institutions (law and medicine chief among them) have ‘collaborated’ so as ‘to make binary sexual difference appear more “natural” than it is’ (2010: 403).
Hormones, of course, are implicated as well. According to the standard line, sex is determined by genetic factors, and sexual differentiation is driven by hormones. As Nelly Oudshoorn’s (1994) work exposes, the ‘discovery’ of hormones early in the twentieth century became celebrated as providing the ‘missing link’ between genetic and physiological models of sex determination. It quickly became accepted that the ‘intentions of genes must always be carried through by appropriate hormones’ (Oudshoorn 1994: 20). Accordingly, hormones assumed the role of the ‘chemical messengers’ of masculinity and femininity.
If there is no ‘natural’ categorization of sexual identity as a binary, perhaps there is no ‘normal’ balance between two discrete sexes.11 Without these critical assumptions in place, it is difficult to characterise the declining sex ratio of the Aamjiwnaang First Nation, even at a collective level, as a harm. If not through recourse to what is ‘natural’, on what basis can we determine that endocrine disruption, or pollution, is ever harmful? Can we say that uninvited changes to bodies are unwelcome? That just as ‘risks’, however rational to incur at a societal level, are unacceptable if they are imposed involuntarily or if they result in the unfair sharing of benefits and burdens, so the uninvited interference with bodies, with reproduction, in this case, is unacceptable?
One answer is that we validate the harms of the pollution that are tied to illness and suffering and not those that signify difference. Those harmed by the pollution are the people living in Aamjiwnaang – they are the women, men and children, mostly girls, but nevertheless the children of the Band. They are the:
young aboriginal mothers, they are parents who routinely receive ‘emergency alerts’ over the radio indicating that they should ‘Shelter in Place’ as a result of an incident or a ‘fugitive release’ from neighboring industry, they are day-care workers responding to the sirens by shuffling toddlers inside and closing the vents, they are health clinic staff staring down bewildering statistics, they are teenagers struggling with asthma, developmental and attention-deficit disorders, and they are young children prevented from swimming in the contaminated creek that passes through their traditional powwow grounds.
(Scott 2008: 311)
These are the people living with the effects of the chronic exposures to pollution that emanate from Sarnia’s Chemical Valley. The community has more than its fair share of illness and suffering: 17 per cent of adults and 22 per cent of children surveyed have asthma; about 25 per cent of adults experience high blood pressure and/or chronic headaches; about 25 per cent of children suffer from learning disabilities and behavioural problems; and about 40 per cent of women have experienced miscarriage or stillbirth.12