Oregon State UniversitySpecial Collections & Archives Research Center

“Tipping the Scales of Justice: Linus Pauling, the Fallout Suits, and the Judicial Aspect of the Global Environmental Crisis,” Toshihiro Higuchi

September 8, 2009

Video: “Tipping the Scales of Justice: Linus Pauling, the Fallout Suits, and the Judicial Aspect of the Global Environmental Crisis” 

1:06:26 - Abstract | Biography


Cliff Mead: Well, good afternoon, everybody, and thank you for attending this afternoon's presentation by Toshihiro Higuchi, the 2009, one of the three 2009 Pauling Resident Scholars. The Resident Scholar Program, which is sponsored by Oregon State University Library Special Collections and supported by the Peter and Judith Freeman Fund, awards stipends of up to $2,500 per month for up to three months. Stipends are awarded to individuals researching topics relating to the history of 20th century science and technology and for those people who make substantial use of materials held in the Ava Helen and Linus Pauling Papers. Historians, librarians, doctoral or post-doctoral students, and independent researchers are welcome to apply. So, this first–wait, by the way, I want to thank Peter and Judy Freeman, who are here today. Peter, if you want to... Thank you for making this whole thing possible. This year they have awarded, their generosity has allowed us to have three Pauling Research Scholars for 2009, of whom Toshi is the first.

Toshi got his master's degree in history from the State University of New York at Albany in 2005. Prior to that, in 2002, he got his M.A. in International Political Economy at the University of Tsukuba, Japan. And from August 2005 to the present, he has been a member of the Ph.D. program in the History Department at Georgetown University, and the talk today is part of his doctoral dissertation work. Toshi will be having a – Toshi has published in a number of places, but the most recent one, "The Politics of Environmental Insecurity: Nuclear Weapons Testing, Radioactive Contamination, and Construction and Contention of Risk in Cold-War America, 1945-1963," will be published as part of, will be a chapter in Environmental Histories of the Cold War, which is to be published by Cambridge University Press this fall. So, Toshi's talk today is "Tipping the Scales of Justice: Linus Pauling, the Fallout Suits, and the Judicial Aspect of the Global Environmental Crisis." So Toshi? Thank you.

Toshihiro Higuchi: Thank you very much, Cliff. Before I get into the subject, first I want to thank everybody else – the Special Collections, as well as the Residential Scholar Program and generous support by the Peter and Judith Freeman Fund, as Cliff already introduced. I really thank them and their generous support. And also, I say thank you to Cliff and Chris and Trevor, Ben, Rachel, and Anna – this wonderful staff of the Special Collections. They have really made my research here really productive. Unlike a little less helpful archivists back in Washington, D.C. at the National Archives. Yeah, so you know the situation up there. And the very friendly atmosphere here I really enjoy, and it seems like I'm the first of the three Pauling Scholars here this year. I chose this timing because I thought it might be good to be in Oregon in summer to escape heat waves in Washington, you see, and this year right before I came to Oregon, I heard news that over a hundred degree, you know, triple digit kind of temperature continued all in the Pacific Northwest. And I was totally misinformed! So I decided to put my bets on–finally, global warming came in. So I didn't bring with me any long-sleeved shirts or anything but this [only this], so that's why I don't have even a jacket. And then when I arrived here, it was just a day after that heat wave ended and suddenly comes into the very cold, chilly weather. So I went to Fred Meyer, and I made use of your grant, buying a long-sleeved.


TH: I think this use is justified, justified by a little chilly summer here.


Okay, so today's talk is part of my dissertation project, which I hope to finish within the next school year, this school year. But before getting into the subject of my talk, let me first explain why I believe the case of nuclear fallout is very important for our understanding of modern environmental politics. Many people think of the origin of the modern environmentalism in the United States as an offspring of the postwar economic affluence, which destroyed nature, created new kinds of hazards, and produced an ecology-centered social value. Surely it explains part of the picture, but not the whole. I join an increasing number of environmental historians who take the Cold War seriously and argue that the Cold War and its national security aspect had as much to do with – sorry – as much to do with our environmental awareness, as we now know, as the Long Peace that brought about America's postwar prosperity. On the other side of the same coin, I try to show that the historians of national security and arms control should take the environmental aspect seriously. Many studies have typically considered the fallout scare and the resulting nuclear test ban as a distraction from and a scapegoat of the "real danger" of nuclear war. But the danger of nuclear fallout firmly wedged nuclear weapons into the same category as chemical and biological weapons, as weapons of mass destruction. So in retrospect, this seemingly incidental environmental byproduct of fallout became a powerful source of the emerging nuclear taboo at the very time when the consensus on the best way of dealing with the "real danger" of nuclear war fractured into the supporters of nuclear deterrence and those of nuclear disarmament.

Beyond the context of the United States, the case of nuclear fallout is the first truly global environmental crisis of the Cold War. It is because for the first time in the history of humans activities, it was possible for one nation to pollute the atmosphere, hydrosphere, lithosphere, and biosphere of the entire world in a measurable way. I don't say that's because of us or not, but in a measurable way. But fallout is far from a passive object simply diffusing into nature. The environmental dynamics of diffusion and re-concentration, and the worldwide monitoring of such a process, complicated our understanding of the nature and the extent of fallout hazards and other sorts of environmental pollution. When this environmentally-produced uncertainty met another kind of uncertainty surrounding biological hazards of low-level radiation, the existing risk consensus and the regulatory regime that backed it up disintegrated, slowly giving way to a new kind of risk consensus and regulatory regime. This transition was far from instant or smooth. Entangled with national security policies and encompassing both sides of the Cold War, the consensus-making process in case of a nuclear fallout was one of the most hotly disputed instances in the history of pollution control.

So it is in this context of the transition in the risk consensus and the regulatory regime which the fallout suits came in. I will explain why this [inaudible] underlines the judicial aspect of the fallout program by telling the story.


The idea of the fallout lawsuits first, was first conceived by David Walden in 1956. He was a young Quaker who lived in Pasadena in California. His hope to see a test ban had been long frustrated. The test ban became a top disarmament agenda after the so-called Bikini Incident in March 1954. Back then, a U.S. thermonuclear bomb test in the Pacific accidentally showered deadly radioactive fallout onto over a hundred Marshall Islanders and a few dozens of Japanese fishermen and American servicemen. The following diplomatic talks at the United Nations among the three nuclear powers - the United States, the United Kingdom, and the Soviet Union, plus France - however, went nowhere. The same roadblock that had imperiled all previous disarmament initiatives also hampered this test ban talk. That is the question over how to police a test ban and whether a test ban should be a separate measure or part of a comprehensive disarmament package.

Walden found little hope in the domestic political scene, either. Adlai Stevenson, a Democratic candidate in the 1956 presidential race, advocated a H-bomb test ban on grounds that it would be a step for further disarmament and alleviate health concerns over fallout. But Stevenson was soundly defeated by Republican President Dwight Eisenhower by a wide margin. The Democrats-dominated Congress did follow up Stevenson's initiative and held extensive Congressional hearings on fallout in May 1957. The hearings saw the emerging consensus, among both government and independent scientists, on the theoretical existence of fallout hazards in a genetic sense. That is, radiation, no matter how small it was, could do damage to genes in proportion to the amount of additional radiation. But the Congressional hearings also noted the lack of consensus over the nature and degree, extent of fallout hazards, and the way of putting this kind of new danger into appropriate perspective.

So some scientists, for example, expressed this fallout danger in an absolute number of potential victims. Others expressed them as a very tiny percentage to any particular individual. Some showed how insignificant the danger of fallout was compared to everyday hazards such as car accidents. Others argued that everyday hazards were something we had a choice over or would trade in exchange of benefits, while there was no such choice or benefit in case of fallout. Some argued that fallout was indeed traded for benefits, that is, deterrence to communist aggression. Others argued that those outside the United States did not see such a thing as their benefit, and that no more nuclear tests would add any benefit to national security. Seeing this impasse, deadlock, in the risk judgment, Congress took up no action plan but a "wait-and-see" policy, allowing nuclear tests to continue until further research would hopefully point to a definitive consensus on fallout hazards.


It is this deadlock in the policy review process at the executive and legislative branches which gave an idea to Walden that the only untried recourse was the courts. Unlike working through the elected representatives, only a few committed citizens are necessary to bring the case to the court. In the history of social movements, the court has been one of the most heavily used venues of power. The minority cause can make a breakthrough in the court which might be impossible in the other branches of power...just like Brown v. Board did for the subsequent civil rights movement and Roe v. Wade did for both the pro-choice and pro-life movements. It is no wonder why Walden found the judicial venue as an attractive means to break a deadlock in the review process of nuclear test policy from bottom up.

Walden's idea came to the attention of many people living in Pasadena. One of them was Linus Pauling. Our hero.


It is not clear when Pauling came to know his proposal, but he would have heard Walden's idea with great interest at any time. A Nobel Laureate in Chemistry in 1954, Pauling spearheaded a movement to bridge chemistry and biology, tracing various biological phenomena to a molecular level. His research interest in biology and medicine strongly resonated with his personal humanitarian faith, creating a sort of bioethics that made him deeply concerned about people's health and their biological integrity.

His bioethics seamlessly merged with his antipathy to war when the fallout question came to surface. In May 1957, he delivered a speech at Washington University in St. Louis about the effect of radioactivity on human hereditary factors. His standing was clear. First, there was no safe threshold for the genetic effects of radiation no matter how small it was. Second, there was no need of further nuclear arms race, only increasing a chance of nuclear war. This meant that, for Pauling, the fallout from nuclear tests would make more, many children in the future suffer from genetic defects and diseases for nothing. His speech inspired many in audience and set in motion a global grassroots petition campaign among scientists. His experience in this campaign became a crucial asset during the preparation of court actions.

Walden and Pauling then contacted two constitutional lawyers, Francis Heisler of Carmel, California, and A. L. Wirin of Los Angeles. Working as a volunteer attorney for the American Civil Liberties Union, Heisler had represented many labor unions, conscientious objectors and draft resisters. By February 1958, Heisler and Wirin agreed with Walden, Pauling, and other like-minded people on the purpose and legal strategy of the court action.

They had three major goals in mind. The first aim was to use the court's power to order the government to disclose information relevant to its risk judgment. Just like the congressional hearings in 1957 had forced the government to do so, Pauling and his associates tried to break the government's monopoly of information. As more information was available in public, an alternative risk assessment would have a more solid ground.


The second aim was to link knowledge and action, which is possible in the court. The congressional hearings found the consensus on the existence of hazards, but refused to advise a ban or limit on nuclear tests, citing uncertainty and disputes surrounding the degree of hazards and their relative values in light of national security and other hazards. But Pauling's team agreed that the existence of hazards and the number of potential victims in the worst case scenario should be enough to advise caution against further nuclear tests. The court could admit Pauling's alternative risk judgment as a legal fact and link this admitted fact to an immediate actions that is an injunction against further tests.

The final purpose was to attack a legal root of the fallout problem found in all three nuclear nations on both sides of the Cold War, that is, conflict of interests and the absence of the due process of law. On both sides of the Cold War, the atomic and defense officials had become a law unto themselves in judging the safety of their own acts, exceedingly, the powers loosely delegated to them by their respective governments. For example, U.S. Congress was found to have unlawfully delegated its power to the executive branch agency, that is the Atomic Energy Commission, because the Atomic Energy Act set no standards which indicated the limit of power on behalf of Congress. The purposes of the Atomic Energy Act, such as "welfare" and "national security," were found so vague, indefinite, and uncertain that it also violated due process of law set forth in the Fifth Amendment. In short, the legal root of the fallout crisis was the creation of, the root of the problem, it was the creation of autonomous and unaccountable atomic agencies in all three nuclear countries. This irregularity in the rule of law was justified in name of national security. Pauling and his lawyers agreed that all three governments should be challenged at once to show how to justify nuclear tests not only based on the their war-making power, but also in light of the consequential violation of the fallout victims' constitutional and human rights.

Suing both sides of the Cold War had an additional purpose, that is, to challenge the Soviet Union to show if the rule of law functioned at all. Asked by Pauling's lawyers, Harold J. Berman, professor of Russian law at Harvard, believed that there was at least in theory a way for aliens to sue the Soviet government and ask for an injunction. The extent to which they could find a Russian lawyer willing to participate in the suit, and Russian citizens who would agree to join plaintiffs, would be "a test of the freedom of the Russian people to pursue the dictates of their own conscience and to challenge the acts of their own government in the same manner as citizens of the United States and Great Britain are doing in these suits." Nuclear fallout, whose victims were within the Soviet Union just like elsewhere, provided a unique opportunity for citizens to challenge the Soviet Union to show if it was a genuine democratic state as it claimed, or a totalitarian police state.

Once Walden, Pauling, and their lawyers agreed on the court strategy, the remaining question was how to find people willing to join them as plaintiffs. In this enlistment process, Pauling's worldwide reputation and transnational network, which he had cultivated in his global petition campaign, proved crucial. The plaintiffs were diverse in profession and nationality. Brock Chisholm, a Canadian psychiatrist and the first director of the World Health Organization until 1953, joined the fallout suits. So did three Britons including philosopher and Pauling's staunchest ally Bertrand Russell, plus four Japanese, one French, and one German. The plaintiffs were chiefly made of academicians and Christian leaders, but including a fisherman and a housewife to represent the anxiety of food producers and consumers over radioactive pollution.


A crucial problem was how to gain support from geneticists. It is because the damage of radiation Pauling and others claimed was entirely dependent on the genetic theory. And no one was a better authority in this matter than Hermann Muller—a little creepy picture.


Well, [inaudible], actually, he's nice but still... Herman Muller, he was a Nobel Laureate geneticist at Indiana University. By the way, I am going to go to Indiana University two weeks later to do research on his papers so I really want to explore this man. Actually Muller had signed Pauling's petition, and Pauling took much space in his letter to President Eisenhower about this fact. Like Pauling, Muller believed in the human duty to protect the human gene pool from artificial radiation, and repeatedly warned against the unnecessary overuse of X-rays. Unlike Pauling, however, Muller went back and forth between two extreme attitudes toward national security. On the one hand, he had a strong antipathy against communism, which was suppressing intellectual freedom and promoting Lysenko's anti-Mendelian doctrines by force. But on the other hand, he saw further arms race meaningless. Since he believed that mutual deterrence had already set in, he supported arms control and coexistence. Muller's conflicting desire to see peace and freedom led him to accept Pauling's request to join the fallout lawsuits first, only to reverse the position and refuse to do so. In his letter explaining this change of mind, Muller asked Pauling to compare the estimated deaths, death numbers, numbers of deaths, resulting from nuclear fallout and those who'd die in concentration camps if the Soviet Union dominated the world.

Besides the geneticists, another big question in the plaintiffs' selection process was whether to include residents near the nuclear test sites. Dwight Heine, a native resident of Ebon Atoll in the Marshall Islands, agreed to join and head the group of direct victims, made of 15 other Marshallese, 1 American Samoan, and 3 Japanese. Heine was a spokesman for the petition to stop nuclear tests filed at the United Nations Trusteeship Council in 1954 following the Bikini Incident. The presence of the Marshall Islanders and their claim of a "direct, immediate, and imminent danger" was surely expected to strengthen the tort claim in the fallout lawsuits. But at the same time, their legal standing in the American court was not all certain in the 1950s. Back then, the wave of decolonization had just started, and the international legal doctrine of guardianship which had justified the colonial rule remained effective. This legacy of colonial citizenship put the Marshall Islanders, just like the Native Americans, in a category of neither U.S. citizens nor foreigners of sovereign states. The success of the fallout suits, therefore, was closely tied up with the legal status of the Marshall Islanders and colonialism in the 1950s.


Around the Nevada Test Site, on the other hand, Pauling and his lawyers found it almost impossible to find anyone as a plaintiff. "The reason is obvious," Heisler later recalled, "since the AEC was spreading jobs and emoluments around Las Vegas so generously that everybody is beholden to that organization." You know Las Vegas. And can you see the crowd in the window? The picture? That's atomic mushroom cloud. The path of the Las Vegas economic promotion. But the lack of interest was not totally limited to Las Vegas and economic benefits. Many "plain folks" in rural Nevada and Utah firmly trusted the government's safety statements out of their sense of patriotism. Some government officials in charge of monitoring the radiation level lived among them, spoke in their language, and earned trust and respects from them. In this situation, the community often regarded those who warned about the fallout danger as outsiders who disturbed the peace of the community. This antipathy was reciprocated by avoidance, if not indifference, on the part of the fallout lawsuits team. Knowing much difficulty in recruiting people from Nevada, Heisler simply saw no need of doing so. He simply abstracted the problem, arguing that the fallout lawsuit was a class action of all potential victims against all tests, in theory including those near the Nevada Test Site. But the rhetoric of class action cannot hide the ultimate limit of inclusiveness in the fallout lawsuits. The ambitious goal of representing all victims across the world came in part from the inability for Pauling and his associates to follow a traditional standard of tort jurisprudence based on a direct, immediate and imminent danger of life, liberty and property.

With all preparations done, the showdown came on April 4, 1958. Just four days ago, the Soviet Union suddenly declared a unilateral test moratorium, threatening to resume tests at any time if the other two nuclear powers would not follow. London and Washington refused to follow and went ahead with their own test series. At this crucial moment in the history of the nuclear test ban, Pauling and his associates filed a lawsuit in the U.S. District Court for the District of Columbia. On the same day, the identical complaint was mailed out to R. A. Rudenko, the Soviet Union procurator-general, to assist the plaintiffs to bring the suit to the Civil Division of the Soviet Supreme Court. The picture lower shows the Soviet Supreme Court, inside the Soviet Supreme Court. And Rudenko was quite a famous person. He was a prosecutor at the Nuremberg War Crimes Trial. In case Rudenko failed to act, the American attorneys announced their intention to go to Russia, interview fallout victims in Russia, and file the suit directly with the aid of the Foreign Law Division of the Moscow College of Advocates.


On July 24, after a three-month delay, District Judge Richmond Keech finally heard the case. The plaintiffs argued that the health effects from radiation fallout were direct, causative, and substantial, that is, the damage should be established as a legal fact in the tort claim. Citing the consensus among geneticists, the plaintiffs insisted there was no such thing as a safe dose of ionizing radiation in terms of genetic effects. Even if fallout adds only a 0.1 roentgen in thirty years from gamma radiation, the effects of this increase on the gonads of the world, entire world population were such that some thousands or tens of thousands of seriously defective children might be expected in the future. Besides the genetic effects, which belonged to the future, Pauling and his associates also cited the latest study that indicated a linear relationship between a radiation dose and the instances of leukemia, arguing that there was a "high probability" that the damage was being done to the health of people now living. Following the argument on health damages, the plaintiffs also claimed the unconstitutionality of the Atomic Energy Act, arguing that the power delegated by Congress to the AEC was unconstitutional and so was its manner which failed to set forth due process of law and circumscribe any limit of power.

In response, the government lawyers did not take issue with the risk judgment. Rather than picking up a fight, the government filed a motion to dismiss the case, and for the purpose of this motion, the government admitted all the pleaded facts in the complaints. The government attorneys argued that the plaintiffs had no standing to sue in the first place, and that the question raised in the court was not judicable. A Justice Department attorney said the executive and legislative branches were supreme in the area of foreign and military affairs, and the testing of nuclear weapons was constitutional just like waging war was constitutional. A week later, Judge Keech ruled in favor of the government and dismissed the case with prejudice, that is, allowing no re-filing of the same case. Judge Keech followed the traditional interpretation of the tort claim. None of the plaintiffs apart from the Marshall Islanders, for example, was injured more than anyone else by the tests. So the plaintiffs are damaged just like anybody else, so you can't claim that you are being damaged because that's not a traditional tort claim. As the Court of Appeals later explained, "Standing to sue, even as to the citizens of the United States, does not arise from such general and indefinite allegations of injury." So you need to set yourself apart from the lesser people to claim, to do a tort claim. The Marshall Islanders, on the other hand, were declared as non-resident aliens, and it was declared that all non-resident plaintiffs could not appeal to the protection of the Constitution. It was also argued that the United Nations Charter did not provide individuals with legal rights which they could assert in American courts.


The plaintiffs immediately brought the case to the Court of Appeals in August 1958. The case eventually went up all the way to the Supreme Court. In the appeal, the plaintiffs argued against the application of a traditional standard of tort claims. They also protested that the lower court denied the non-resident alien standing. To make these points, Pauling's lawyers cited, among many, some landmark environmental litigation cases. For example, to refute the claim that territorial limits corresponded to the limit of court jurisdiction, Heisler and Wirin cited the famous inter-state pollution case in 1907 in which...in which a sulphurous acid gas from a copper smelter in Tennessee did damage to lands in Georgia, showing that the air over the territory of a different country should not be polluted on a great scale, and that non-resident aliens subject to such a trans-national pollution had the standing to sue.

The plaintiffs also mentioned an ongoing litigation against DDT. In 1957, some residents in Long Island, New York, filed a lawsuit to stop an aerial DDT spraying program. Like the fallout suits, the plaintiffs in this DDT case charged chiefly in terms of due process of law in the Fifth and Fourteenth Amendments. Pauling and his associates took note in the court that this DDT case was not only about birds and other wildlife, but as much as or more about human beings including the petitioners as part of the DDT-contaminated ecological chain, pointing out evidence of harmful DDT-contaminated milk, just like fallout-contaminated milk. Although the Supreme Court in this DDT case upheld lower court's finding that the DDT spraying program as suggested by the government was not injurious to human health, but Judge William O. Douglas dissented. A pioneer in jurisprudence in environmental law, he had served the Board of Directors of the Sierra Club in 1960until 1962. On the Long Island DDT case, Douglas supported the plaintiffs' claim that changing technological innovations and use of unknown matters might give rise to a change in the judicial approach. Citing evidence on DDT's harm on birds and wildlife as well as humans, he regarded it as the indication of a rising concern about the wisdom of the use of DDT. Douglas's opinion was a dissent, not a mainstream. But his idea about the precautionary principle and due process of law strongly resonated with the points Pauling and his associates were trying to raise in their fallout case. The plaintiffs echoed Douglas, saying "Defendants' error is the necessary result of a pre-nuclear thinking in the nuclear age."

In both the Court of Appeals and Supreme Court, conservatism in jurisprudence prevailed. The upper courts basically repeated the same argument as the lower court. Although the government, for sake of the motion to dismiss, admitted all pleaded facts on the danger of fallout in the complaints, the Court of Appeals denied that this indicated anything about a sweeping legal conclusion in the form of factual allegations. The momentum flagged also because the Anglo-American powers eventually followed the Soviet Union and declared a one-year moratorium since October 1958, pending the technical talks to verify a nuclear test ban. The technical talks soon reached the same roadblock of safeguard issues, but President Eisenhower still extended the moratorium as long as the Soviet Union did not violate it. Since the matter at issue in the court became moot, the government attorneys cited this fact and argued that the court should not discuss the constitutionality in the absence of the matter. On October 1960, the Supreme Court denied the writ and the case was closed.


The test moratorium also gave a excuse for the Soviet Union to dodge the fallout suit. The Procurator-General Rudenko did not respond to Pauling's request to bring the case to the court. When Pauling's lawyers applied for visas that guaranteed their rights to visit the Soviet Union and file lawsuits, the Soviet Embassy interfered, politely received the requests but repeatedly put it on the shelf. Eventually tourist visas were offered but the fallout lawsuit members refused to be tricked and insisted on the special visas for the sake of lawsuits. In June 1959, over a year later since the first attempt, a representative of the Fallout Suits Committee finally visited the Soviet Union. Rudenko, however, refused to act on their request, arguing that the lawsuits had no purpose whatsoever because the Soviet government had declared a moratorium. Pauling repeatedly tried to contact the Washington lawyers for help but without any result.

The case of Great Britain is interesting because lawyers there, unlike the American counterparts, seem to have followed the very narrow traditional standard of tort claims. The British lawyers contacted by the Fallout Suits Committee showed their interest only in the case of the Marshal Islanders. It was because the American Samoan plaintiffs included in this case alone could possibly have a direct legal interest in the British court because American Samoa is very close to Christmas Island where the British did tests. And here the conventional cause and effect law would come into play. But even this conservative approach seems to have gone nowhere at least until July 1959. Actually, I haven't confirmed any progress further than that but as soon as I can get [inaudible], but I will check it out.

But anyway, I would like to conclude my talk by talking about the judicial aspect of the global [inaudible]. In the transition of the risk consensus and [inaudible], the first difficultly was a kind of power where a few citizens could bring the case, unlike the other branches of power and he, also, in the court the citizens tried to represent the entire victims as class action, among them plaintiffs. So he chose a sweeping scope of the subjects at risk in this global environmental crisis. And also, the Fallout Suit Committee tried to sue all three nuclear nations. The...and also attack the same group, same legal group, was a problem. That is, the lack of the due process of law, and it became a core environment of legal jurisprudence later in the seventies. You know, like, in part the impact statement for example, is the due process, so you need to exhaust this process and you need to have a hard look at all possible risk assessments. But back then, of course, there is no such kind of, you know, National Environmental Protection Act. But still they followed kind of the same problem, legal problem, that is capable beyond the United States and, as well, in the Soviet Union as well, I think [inaudible] and because, you see, the Soviet Union after the Cold War, you know, it's almost like a [inaudible] disaster and, you know, in a major part because of the lack of [inaudible] law, of due process, [I'm guessing].

So, even in the fifties they could locate the same legal root and they tried to copy the [inaudible] the Constitution. So it's kind of a very forward looking thing. And quick, some legacies. Seeking justice in the court became part of tools for both peace workers and environmental activists in their joint ventures. As the Vietnam War turned into a war of chemicals like [inaudible] Agent Orange, both antiwar activists and scientists fought against the use of defoliants like Agent Orange. Later in the ‘80s, Vietnam veterans filed a class action lawsuit against Dow Chemicals and other herbicides manufacturers, challenging the military-industrial complex to be accountable for the environmental and health disasters. Another example is almost identical to the original fallout suits. That is the lawsuit in 1971 filed by eight disarmament and environmental organizations, including the Sierra Club and the would-be Greenpeace, to stop a five-megaton underground nuclear detonation in Amchitka Island the Alaska. This 1971 suit had a powerful legal weapon which had lacked at the time of Pauling's suit. It was the National Environmental Protection Act, which obliged the government to produce an Environmental Impact Statement as due process of law. The 1971 suit made best use of this new procedure and almost won the injunction. The...In 1971...So, sorry. "An appeal to law" has been a viable tool of those seeking for both Green and Peace.


CM: We do have some time for some questions for questions. Yes?

Audience: I just had a quick question. So Toshi, I really enjoyed this presentation and you mentioned that, you know, the U.S. Supreme Court threw out the case because there was a moratorium going on and the same thing seems to have occurred in the Soviet high court and I'm wondering if you see any consciousness of that on the case of the U.S. government and thinking well, maybe we should keep the moratorium going until the Supreme Court has made this decision. I mean, is it, was this done consciously?


TH: That's definitely [inaudible] but among the [inaudible] there was a kind of feeling that they did some [inaudible] to the extent of the moratorium. They did maybe because of the existence of the case all the way up to the Supreme Court. As for the actuality of this, I'm not sure so I maybe I need to look at the impact of the case.

CM: Any questions?

TH: Any Questions?

Audience: I really enjoyed your talk, it was very valuable and I appreciate that your bringing back the Asian fallout suits because a lot of the secondary... it's just not there. And so I really appreciate you bringing this to the narrative and my question to you is this whole concept of consent. It seems to be pivotal in your talk today and the way that I think about this issue also. And I was just wondering, how purposefully are you addressing consent in your dissertation?

TH: You mean the consent in the case... you mean consent to...

Audience: So the case that Pauling was making was that they had not been able to consent to the testing and this whole issue of the lack of consent that's addressed by... so I'm wondering... when I say consent I mean willing to...

TH: Willing to subscribe to the policy?

Audience: Yeah, I'm wondering how much of your dissertation...

TH: Yeah I tried to see for and against the nuclear tests as more like of a function of something else, that is, how to assess the risk of all hazards and benefits. So we treat the consent... the consent part is very important because, as I've already pointed out, in the case of fallout there is no choice. So you are subject to fallout no matter how far you are. Of course to put another question is how much. But the bigger part that everybody's subject to, in the future too. Especially since it lasts for a thousand years. So maybe everybody after many generations could be subject to fallout so it's beyond consent of the originating act. So that's very important case and I tried to... but the problem is, of course, you know some people thought that they should consent because the freedom is very important against communism. But it really is that "only us" would subscribe to it so I tried to look up a different risk discourse outside the United States like Japan and India. And actually I'm going to go to Russia to do some background research while I'm there. Definitely I tried to see and I tried to use some Russian papers.

Audience: Thank you.

CM: Toshi, there is another one for you.

Audience: Were most of the scientists geneticists? Were there any public health scientists or epidemiologists who were involved in this lawsuit?

TH: In this lawsuit there's no public health scientists except for [inaudible]. I generally didn't see any public health but it was biochemistry, geneticists were it.

Audience: Just on as far as public health... so the Atomic Bomb Casualty Commissions had been going on for about twelve, thirteen years when this is happening. Is there an attempt on Pauling and his group to have access to that information? I mean it's not exactly fallout but it is ionizing radiation genetic damage.

TH: So actually back then in the fifties the information at that time coming out from the ABCC was in favor of the government judgement because of the absence of evidence of the monsters coming out from the [inaudible]. So I'm going to talk about... the length of the genetic effects on the popular notion back then [it isn't known] was that it was alright so it was really in favor of the government. Because the government can point at nuke and say "there's no monster, everybody is happy and fine". So the reports from the ABCC actually were in favor of the government's claim and the scientists understood that the first generation research and even second generation research results didn't show anything but no more than that the government didn't care about anything. So that's why it actually helped the government.


CM: We'll try to get a couple more questions, Mary Jo?

Audience: What was the absolute number of plaintiffs in the case? Was it a dozen? Or was it twenty? How many?

TH: The American case actually... there are two cases. I talked about the first case in 1958 but there was another case in 1962 after [inaudible] I didn't really bring it up because of the time. But basically... the first case had 18 plaintiffs joined in American court and six supposedly joining the British case so twenty four, so 24 including the British case. So 18 plaintiffs were scheduled to appear in all three national courts plus six for the British. And also later, as I've told you in my talk, the [inaudible] like one American and three Japanese joined the case so it made 28. But in the 1962 case, Pauling on his legal team really tried to make a point that this is a class case so they kind of wanted to include 189 plaintiffs and tried to include almost every possible profession. And also one hundred eighty-sum from twenty countries including Czechoslovakia, Hungary, and Brazil. So really they tried to make a point of this being a class case.

CM: Toshi, I have a question here. It seems that there was a growing public awareness of this global environmental crisis even if it wasn't called that at the time. In the mid to late fifties, certainly the idea that there were contaminants in the air whether it may be Strontium-90 and the cause of it getting into the food supply or the DDT spray. Rachel Carson when she wrote Silent Spring in 1962, but shortly after that she became an icon, a seer. Pauling was... well why do you think... and that was viewed in a very positive light by many Americans as it continued to grow... why do you think that that got so much more traction than Pauling and his thing the atomic fallout?

TH: I think that's a very interesting question and I think that it is very interesting to see the contrast among the public onto Pauling's case. Most of all, Rachel Carson extensively used analogy to explain her case in DDT. In most of the fallout problem is in the biological sequences like the food chain or that kind of stuff. It was almost like a first measure of the dedication of the ecological chain in people's mind so that Rachel Carson really relied on the existing knowledge of awareness among the public about the fallout cycle in the environment and tried to make a case at the root, DDT's a thing. But the interesting difference and maybe this explains a little bit the contrast is that Carson actually she warned the danger not just to [inaudible] but the top ladder of the food chain. But somehow people remember [inaudible]. So the little [inaudible] to understanding our [inaudible] and the contemporary understand to some extent maybe because here he kind of warned about the effect on wildlands. Not really emphasizing the intimate human results. But anyways the point is that Carson's book, no matter how she intended, has been remembered as a warning against contamination to wildland and nature [inaudible] humans. And also it doesn't really include any [inaudible]. Interesting the chemicals in DDT was heavily used precisely because of World War II. It's because of WWII the DDT patent was being public because you could not keep it patentized during war because you needed to produce lots and lots of DDT to cover the whole battlefields in occupation. So the government de-patentized DDT. So the DDT actually is deeply related to war and national security but obviously Rachel Carson didn't really show that kind of stuff.

CM: We met our time limit. I thank you all for coming here, I hope you'll all join us for the next Pauling Resident Scholar talk which we will have probably later this Fall. And if you want to stick around afterwards to ask Toshi some questions, please do. Thank you for coming.



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