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Environmental justice is to justice as ...

The Senate Health, Education, Labor and Pensions Committee is the first committee out of the 111th Congressional gate to hold confirmation hearings on President-elect Obama's cabinet nominees. (More accurately: pre-confirmation hearings on anticipated nominees.) On Thursday, HELP hears from former Sen. Tom Daschle, the HHS Secretary-nominee, and on Friday, it's Rep. Hilda Solis (D-CA), the Obama pick to head the Department of Labor.

The business community has responded coolly, if at all, to the Solis nomination, given her near-perfect pro-labor voting record (100 percent in 2007, according to the AFL-CIO rankings; lifetime, 97 percent). We expect the hearing to be dominated by Senators' statements and the occasional question to the nominee about the Employee Free Choice and two pro-union, trial lawyer-supported bills to be voted on Thursday in the House, the Lilly Ledbetter Fair Pay Act, and the Paycheck Fairness Act. (See this POL post.)

It's hard to imagine such lines of inquiry producing much more than platitudes, boilerplate and niceties, at least from the nominee. We already know Solis supports the Employee Free Choice Act and has promoted the Paycheck Fairness Act, so is there anything new to learn?

Another, more productive area of questioning would explore Solis' advocacy of "environmental justice," that is, the argument that malign corporations pick out poor, disadvantaged and minority communities for their polluting facilities BECAUSE the communities house the poor, disadvantaged and minorities. At Solis' congressional website, the issue is framed as, "For decades, minority and underserved communities have been forced to live in close proximity to industrial zones, power plants, and toxic waste sites." Forced!

Solis touts her advocacy for this legally couched form of class warfare, taking credit for sponsoring as a California state Senator the "first environmental justice law" in the nation; she also received the "Profile in Courage" award from the John F. Kennedy Library Foundation for her efforts.

Many, many lawsuits against energy or infrastructure projects are represented as a matter of "environmental justice"; the term is the activist attorney's PR friend. (For examples, see this Riverside Press-Enterprise story on transmission lines and this Environmental News Service story, "Eco-Justice Groups Sue Over Chevron Refinery Expansion.")

Along similar lines, Solis embraces the "precautionary principle" in regulation of chemicals, that is, the demand that all chemicals be proved absolutely safe before being introduced into the marketplace.

She has sponsored the Kids Safe Chemical Act with Rep. Henry Waxman (D-CA) and Sen. Frank Lautenberg (D-NJ), which would "shift the burden for proving chemicals are safe from EPA to the chemical manufacturers. Under the bill, the manufacturers would have to provide the EPA the data necessary to determine if a chemical is safe."

The requirement is basically that companies prove a negative, "prove your chemical is not dangerous." Given the impossibility of such a task, the result is fewer new chemicals -- including ones that improve product safety -- and many new opportunities for class-action lawsuits and speculative tort claims.

One would expect a Labor Secretary to share with the business community the goal of creating good jobs in a growing economy. If so, we'd hope a HELP Committee Senator chooses to examine Rep. Solis' advocacy of "environmental justice" and the precautionary principle, two works of America's political left that instead create litigation and animosity.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.