Pauling and Environmental Justice

Promotional flyer for Linus Pauling's Verve recording on fallout and nuclear warfare. 1960.

(Ed. note: Toshihiro Higuchi of Georgetown University, a 2009 Pauling Resident Scholar award winner, spent a month in Oregon State University’s Valley Library this past summer working with the Pauling Papers. The following is excerpted from his final research report.)

Archival research is always full of unexpected discoveries about the past, and my project at OSU was no exception. Of particular surprise was Linus Pauling’s deep involvement in environmental justice through the Fallout Suits, twice attempted in 1958 and in 1962.

While the courts of justice have always marked turning points in the history of racial and gender justice – Brown v. Board and Roe v. Wade, to name but a few – “an appeal to law” has been long underappreciated among scholars in their studies of peace activism and environmentalism. Pauling’s Fallout Suits, indeed, are usually considered as a sideshow overshadowed by his more famous worldwide petition campaign among scientists.

Two archival boxes in the Pauling papers regarding the Suits, however, revealed the judicial aspect of Pauling’s risk knowledge and grassroots activism regarding the danger of radioactive fallout.

brochure

Fallout Suits brochure, 1958.

While both the executive and legislative branches adopted a “wait and see” policy in hope of ascertaining the nature and extent of fallout hazards, Pauling and other “risk entrepreneurs,” acting against the inertia in the majority opinion and the pressure of time, found the judiciary branch as the only untried venue of power. The courts of justice alone could establish a legal fact about hazards and link it to an immediate action – injunction. This unique character of the judiciary power was believed to break the impasse in the other branches because of the inconclusiveness of scientific proof.

The legal recourse, however, was by no means simply tactical. The plaintiffs identified the legal source of the fallout problem – it was the conflict of interest and the absence of due process of law which placed the atomic energy agencies of all three nuclear powers above the rule of law in the name of national security. In the course of the legal fight, the plaintiffs in the Fallout Suits also posed a fundamental challenge to court jurisprudence. The unprecedented nature and scope of risk involved in nuclear fallout pointed to a new direction of jurisprudence beyond the traditional tort law.

The Fallout Suits, in short, aimed at no less than a sweeping legal groundwork for environmental justice at the time when there was no National Environmental Protection Act. Indeed, some archival findings revealed an unknown parallelism between the Fallout Suits and the DDT litigation, both intending to bring about a groundbreaking change in court jurisprudence.

autoradiograph

Autoradiograph used to measure radioactive fallout, 1953.

My study in Corvallis also points to a promising direction of future research: the life-long association of Linus Pauling with litigation. Without doubt, many remember such an association as an unnecessary burden upon Pauling, as most cases related to libel and defamation.

As the case of the Fallout Suits vividly shows, however, Pauling was far from a passive victim in the courts. Indeed, Pauling successfully threatened to bring the case to court at the same time that the Senate Internal Security Subcommittee was using the tactics of red-baiting in its attempt to force him to disclose the names of those who collected signatures for the United Nations Bomb Test petition.

In the course of his involvement in numerous legal cases, Pauling became extremely well-versed with legal resources and approaches. Indeed, the Pauling papers include a vast amount of material relating to Pauling’s legal cases. Further research on this legal dimension of Pauling’s life and career would promise fruitful results.

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Toshihiro Higuchi, Resident Scholar

Toshihiro Higuchi

Toshihiro Higuchi

Toshihiro Higuchi is the second individual this year to conduct research in Special Collections under the sponsorship of our Resident Scholar Program.

Originally from Japan, Higuchi first attended the University of Tsukuba on the Japanese island of Honshu. In 2002 he graduated with an M.A. in International Political Economy, after which he again entered the University of Tsukuba, this time in the Ph. D. program. During his second year as a doctoral candidate, Higuchi received a Fulbright award that presented him with the opportunity to study in the United States, something he had always wanted to do. In August of 2005, he enrolled at Georgetown University, where he is now in his fifth year as a Ph. D. candidate in the History department.

The research that Higuchi is conducting here in Special Collections is related to a portion of his dissertation work, a primary focus of which is the evolution of environmental consciousness in the United States and around the world. Higuchi’s thesis is that the fierce debate in the 1950s over the effects of radioactive fallout generated by nuclear weapons tests  (tests which presented the first instance of measurable global contamination and thus the first global environmental crisis) helped to inform later attitudes underlying not only peace activism, but also the environmental movement.

The Fallout Suits

One key aspect of Higuchi’s research in the Pauling Papers has been a study of a lesser-known component of Pauling’s peace work: the Fallout Suits. Filed in 1958, the Fallout Suits sought to utilize the court systems of the three nuclear powers (the U.S., Great Britain and the U.S.S.R.) to compel each nation to cease their nuclear weapons tests programs. The plaintiffs in these cases included well-known figures such as Pauling, Bertrand Russell and Canon L. John Collins, as well as an American housewife and three Japanese fishermen, all of whom were meant to represent differing perspectives on the dangers of radioactive fallout.

Having retained the council of lawyers Francis Heisler and A. L. Wirin, the backers of the Fallout Suits had three goals in mind. First, they sought to obtain court orders that would compel the governments of the nuclear powers to release secret information detailing the hazards of nuclear weapons tests. Using this information, they hoped that the courts would, either directly or indirectly, redefine the risk consensus associated with nuclear testing, which would then lead to new directives meant to address these risks. The ultimate goal was a comprehensive ban on nuclear weapons tests.

Philosophically, the plaintiffs argued that weapons tests were, in fact, illegal, because government agencies such as the Atomic Energy Commission had been granted powers that effectively rendered them autonomous and unaccountable to the rest of the democratic process. Furthermore, because tests were conducted without the express consent of the world’s population, and because the presumably harmful effects of testing (the plaintiffs argued that there was no safe dosage of radiation as it pertained to any potential impact on the pool of human germ plasm) clearly spread beyond the borders of nations, nuclear testing violated the constitutional and human rights of all individuals.

The U.S. government, acting as defendant in the U.S. filing, responded by admitting to certain of the plaintiffs facts regarding the potential effects of weapons tests, but also by submitting that the plaintiffs had no legal standing to sue. The defense argued that the question of weapons testing was not judiciable and that testing, like war, was in fact protected by the constitution.

The Fallout Suits did go to trial in the U.S. and the U.K., and in both instances the courts sided with the defense. In the U.S. the judges ruled according to a narrow interpretation of tort law; in simplest terms, because none of the individual plaintiffs could prove that they themselves had been harmed by nuclear weapons tests, none of those individuals had a right to sue. (A group of Marshall Islanders, on the other hand, who had been manifestly harmed by tests in the south Pacific, were not allowed to sue because of their status in the U.S. as non-resident aliens.) A similar interpretation was upheld in Great Britain and the Suits never made it to trial in the Soviet Union.

Higuchi with Judith and Peter Freeman, sponsors of the Resident Scholar Program.

Higuchi with Judith and Peter Freeman, sponsors of the Resident Scholar Program.

Though the Fallout Suits did not succeed, Higuchi argues that they did help establish a template for later successful activism. In a literal sense, Vietnam War-era litigation concerning the harmful effects of Agent Orange did gain traction as did other efforts carried out by the Sierra Club and Greenpeace. Furthermore, in terms of constructing a narrative powerful enough to grasp the imagination of large groups of people, Higuchi points out that Rachel Carson’s Silent Spring, published in 1962, just four years after the Fallout Suits were filed, draws many comparisons between the deleterious effects of DDT and earlier claims regarding nuclear fallout issued by Pauling and others.  Clearly, while the Suits themselves did not meet with success, their impact was felt for many years to follow.

To learn more about the Fallout Suits, read this draft press release announcing the suits, as included on our website Linus Pauling and the International Peace Movement: A Documentary History.  A profile of Dr. Burt Davis, an earlier recipient of the Resident Scholarship, is available here.