Paul and the Environment
by Walter Block: Is
Wendy McElroy Still a Libertarian?
We donít hear
too much about Ron Paulís views on the environment. But, no surprise,
he is very, very sound on this issue as he is on so many others,
at least from a libertarian point of view. A strong advocate of
private property rights, Dr. Paul correctly sees this as the cornerstone
of a sound libertarian-based environmental policy.
The idea behind
free market environmentalism (FME) is that pollution, whether of
noise, smoke, dust particles, smells, whatever, is nothing more
nor less than a trespass. It constitutes an uninvited border crossing
of an ownerís property, and thus a violation of private property
rights. In the libertarian society, people who engaged in this sort
of thing would be stopped, forthwith; injunctions would be granted
for clear and present dangers, and damages, when demonstrated, would
be assessed against the perpetrators. These would be torts, not
crimes (unless of course the perpetrator did not cease and desist
from these acts pursuant to a court order).
As for species
going extinct, all of them would be allowed to be owned,
and thus bought and sold. This being the case, if any of them that
were desired (elephants, rhinos, whales, etc.) were becoming extinct,
their prices would rise. Then, the ordinary profit and loss incentives
of the free enterprise system would kick in, and, viola, end of
problem. That is to say, "greed" would work in the direction
of saving these species. The owners of elephant, etc., farms, would
jealously guard their private property against poachers; their game
farms would be well protected, as are cows, at present. The cause
of the problem from the free market point of view is that these
animals all too often run free; the tragedy of the commons (when
there are no clear property titles, the resource tends to vanish
or be overused) applies to them, as poachers hunt them down for
their valuable tusks.
In such a free
or libertarian society, there would be no need for "clean air"
acts, nor regulations protecting rare species, or any of the plethora
of laws beloved of the "watermelons" (green on the outside,
but red on the inside).
recently, Congressman Paul has come under attack by a law professor
from the University of California at Berkeley. According to one
Daniel Farber, who is the Sho Sato Professor of Law and chair of
the Energy and Resources Group at UC Berkeley (he is also their
faculty director of the Center for Law, Energy, and the Environment),
Ron Paulís policy planks, if implemented, would be a disaster for
the environment; see here.
unreasonably, Farber links to Ron Paulís web site on environmentalism.
There, we read this:
The free market
Ė not government Ė is the solution to Americaís energy needs.
decades of misguided federal action have helped lead to skyrocketing
fuel prices, making it even more difficult for hardworking families
to make ends meet.
bureaucratic regulations, corporate subsidies, and excessive taxation
have distorted the market and resulted in government bureaucrats
picking winners and losers.
In fact, much
of the "pain at the pump" Americans are now feeling is
due to federal policies designed by environmental alarmists to punish
traditional energy production Ė like oil, coal, and natural gas
Ė in hopes of making energy sources they favor more "economical."
with $4.00 a gallon gasoline, many are attempting to make our energy
crisis even worse by working to impose job-destroying carbon taxes,
or a "Cap and Tax" system.
As long as
we allow federal regulations and bureaucratic red tape to get in
the way of energy exploration, our country will never solve its
energy crisis, and Americans will continue to pay the price in high
Ron Paul will lead the fight to:
restrictions on drilling, so companies can tap into the vast amount
of oil we have here at home.
the federal tax on gasoline. Eliminating the federal gas tax would
result in an 18 cents savings per gallon for American consumers.
- Lift government
roadblocks to the use of coal and nuclear power.
the ineffective EPA. Polluters should answer directly to property
owners in court for the damages they create Ė not to Washington.
- Make tax
credits available for the purchase and production of alternative
Itís time for
a President that recognizes the free marketís power and innovative
spirit by unleashing its full potential to produce affordable, environmentally
sound, and reliable energy.
This all sounds
pretty good to me. My only "complaint" is that Congressman
Paul does not call for the imprisonment of those responsible for
creating the unconstitutional and thus illegal EPA in the first
place (they donít call me Walter "Moderate" Block for
nothing), but Iíll let that lacunae slip. You canít have everything.
Dr. Paul is, after all, a politician, and what can you expect from
such people? Thatís why I give him only a 97% libertarian rating.
to me, Farber is aghast, aghast I tell you. He is appalled that
there should be any such thing as free market environmentalism (for
the best publication on this subject ever written, the one that
informs my own views on these matters, see here).
Ecological concern, donít you know, is a monopoly of progressives,
socialists and liberals. Now, here are Farberís comments, in italics,
and my reaction is interspersed with his comments:
wrong with this proposal? Here are a few things:
1. Why just
property owners? Why not other people with health effects? Is there
some reason why a tenant with asthma canít sue, but a company with
paint damage can go to court? Because property values matter, but
not human health?
There is a
clear answer why Ron Paul specifies "property owners"
not "tenants." This is because the property owner
has the ultimate responsibility for the property in question. "The
buck stops" with the property owner. And, you may well ask,
who is the "property owner" in the case of tenancy? Why,
of course, it is the tenant. It is the tenant who is the
temporary "property owner" for as long as the lease contract
is in effect. But, there is a complication. If a third party, the
polluter, is bombarding the home in question with smoke particles,
this not only affects the temporary property owner, the tenant (e.g.,
his lungs), it also negatively impacts the permanent property
owner, the landlord (his property is being physically invaded and
damaged, and as a result he will not be able to charge his tenants
as much money compared to the situation where his property rights
were sacrosanct). Both of them may, in the free society, obtain
an injunction against the polluter, warding off future offenses,
as well as seek damages for past wrongs. Does Farber really think
it is fair to criticize a mere plank on a web for not engaging in
this level of specificity? Evidently, allís fair in love, war and
politics, at least for this law professor.
Nor is his
criticism of Ron Paul a fair one based on the claim that "property
values matter, but not human health." Indeed, as we have
seen, the two go together! Farber seems unacquainted with Adam Smithís
invisible hand; we are led through the market process to promote
the general good. In this case the way to earn profits is by pleasing
customers, not alienating them. Why else would the landlord want
to sue the polluter apart from protecting his tenant from this nuisance,
if not that the higher rents he can collect would reflect a more
desirable pollution free environment? Why, to maximize profits,
of course. (This is why the landlord has an incentive Ė in the absence
of government interferences like rent control, to paint, to fix
the plumbing, make other repairs, etc.). But these considerations
lead precisely in the direction of "human health."
This Berkeley law professor does not at all appreciate the benefits
of the marketplace in protecting "human health."
He seems to think that if the government doesnít do it, then it
doesnít really count.
2. Who would
be the defendants? If you live in a big city, how do you sue all
of the polluters for damage? Do you sue everyone who has a car or
truck for contributing to air pollution? How do you pay for the
expert witnesses and legal fees?
defendants would be the polluters, of course. Who else? No, you
donít sue all the polluters; only the ones who have actually trespassed
their garbage onto your property (whether you own the property temporarily
or permanently, see above, it matters not one whit). How would you
determine who is who? Why, under free enterprise there would arise
an industry composed of firms that engage in environmental forensics.
We are all now fully well acquainted with ordinary forensics (the
study of blood, semen, hair follicles to determine who has committed
a crime) based on popular television shows. Environmental forensics
would be carried on in much the same way. The victim would hire
a company familiar with the chemistry of pollution. This firm would
take samples from your property. Then, woe betide the company guilty
of such trespasses.
No, no, you
donít have to "sue everyone who has a car or truck for contributing
to air pollution." That is silly; it would be way
too cumbersome. In the free society, all roads, streets, highways,
avenues, thoroughfares, etc., would be privately
There would be many fewer street owners than motorists. You
would just sue them (if your environmental forensics agent found
evidence on your property of the end products of vehicle fuel);
it would be a lot more efficient and reasonable that trying to take
every single motorist in the big city to court.
But, to directly
respond to Farberís challenge, one way of financing such law suits
would be on a contingency basis. Under proper libertarian law, the
forensic firm would offer chemists, lawyers, etc. If they were convinced
there was an actual case of pollution, they would likely go to court
in support of their clients and initially bear these costs. We must
not lose sight of the fact that many victims of pollution are very
large corporations, some with thousands of tenants. Surely, they
could self-finance any necessary lawsuits.
3. Why only
damages? If he truly believed in property rights, heíd allow
injunctions to stop the harm from continuing.
In the FME
philosophy, there would of course be injunctions in cases of clear
and present dangers. No person in a crowded city should be allowed
to keep dynamite on his premises. If anyone did, an injunction against
him would surely be justified. Just because this point is not mentioned
in a very brief web site is surely not a valid criticism of the
Paul campaign. These statements, by their very nature, must be brief.
They cannot possibly cover all bases. I note that the web does not
mention species extinction, either. Does this mean that Congressman
Paul wants all species to disappear? Or is unconcerned with endangerment
of elephants, rhinos? Of course not. Farber is a cheap-shot artist.
In the libertarian literature on the environment recommended below
the justification for injunctions is certainly included. The ethos
of libertarianism opposes initiatory force, or the threat thereof.
And, what is to be done, what is the only thing that can
be done, about the latter? Why, injunctions, of course.
4. How would
courts handle the immense body of litigation? The pollution
suits would be the worldís biggest class actions, with millions
of plaintiffs, swarms of defendants, huge fees for expert witnesses,
etc. Is that really what conservatives want?
and challenges assume that there would be any pollution under
a regime of free enterprise with strict protection for private property
rights. There would not be. If the law of the land was strictly
enforced against the trespass of smoke particles, this practice
would be virtually eliminated. Right now, the law of trespass against
home invasions is strictly enforced. It is must be a rare
thing indeed that someone goes on vacation, and comes home to find
strangers living in his house. Why? Because such would-be trespassers
know full well that if they tried any such shenanigan, they would
be summarily removed from the premises, and face criminal charges.
As a result, there are no "millions of plaintiffs, swarms
of defendants, huge fees for expert witnesses" in these
cases. But the same applies to trespassing dust, smoke and other
tried this approach, and it didnít work. This is more or less where
the law stood fifty years ago. We didnít pass modern environmental
laws because we loved regulation; we passed them because the old
system led to massive air and water pollution. This isnít a policy
proposal. Itís a libertarian fantasy. And a callous one at
If this was
truly the system we had "fifty years ago" then
Farber should well know the answers to the questions he poses under
his second point, above. Did we not have "big cities"
in 1962, five decades ago? How did it work, then, Farber? Were there
"millions of plaintiffs, swarms of defendants, huge fees
for expert witnesses" in those days? Of course not.
law professor is off by a little bit more than one century in his
charges; I guess they donít teach history, or even acknowledge it,
at this world famous university. ĎTwas not in 1962 that we had a
legal system similar to the one Ron Paul is proposing and Farber
apoplectically opposing. Rather, this took place, at least in proximate
form, during the middle of the nineteenth century (see on
this a very important work by historian Morton
Horwitz). In that bygone era, people were allowed to
sue for pollution. When the case of pollution victims, e.g., environmental
plaintiffs, was demonstrated in court, they received damages after
the fact, and/or injunctions beforehand. They didnít always win,
of course. The burden of proof always properly rests with the plaintiffs,
not the defendants.
rights system had several very salutary effects. For one, manufacturers
were led, by Adam Smithís invisible hand, into substituting more
expensive but cleaner burning anthracite coal for cheaper but dirtier
burning sulfur coal. For another, the infant industry of environmental
forensics was born. Someone, after all, had to testify, and demonstrate
that this here particular dirt particle emanated from that there
smokestack. Railroads were incentivized for similar reasons to capture
the sparks from their engines, instead of allowing them to spread
hundreds of feet from the tracks onto their neighborsí property.
The manufacturers of chimneys had reason to place meshes in them,
to capture the end products of the burning process before they could
land on other peopleís lungs and physical property. Was this legal
system perfect? No, of course not, no creation of man ever is. But
it worked tolerably well, until the "Progressive" period
at the end of the 19th century and beginning of the 20th.
the environmental plaintiff went to court, a new legal philosophy
took place. We were not "number one," then, the leading
hegemon, the most powerful imperialist nation in the world. No,
that title belonged to England, at the time. But our political leaders
had ambitions in that direction, and their views began to permeate
the courts. So the next time a little old lady complained about
a factory dirtying her washing on the clothes line, or a small farmer
complained about sparks from a railroad burning his haystacks, the
response was much more likely to be: "Yes, yes, they violated
your private property rights, your stinking lousy selfish private
property rights; but there is something more important, far more
important, than them: the public good. And, in what does the public
good consist? Why, in manufacturing, railroads, heavy industry.
Weíre not going to become the leading military power by taking the
side of little old ladies and small agriculturalists." Here
is an actual Supreme Court of Georgia opinion of this sort: "The
pollution of the air, so far as reasonably necessary to the enjoyment
of life and indispensable to the progress of society, is not actionable"
(Holman v. Athens Empire Laundry Co., 1919, cited here).
Not actionable? That means that environmental polluters cannot be
sued. No one can be granted an injunction against them. They are
liable for no damages when they rampage over other peopleís property,
with their pollutants.
As a sop to
the victims of pollution, however, the legislatures did institute
minimum smokestack height requirements, thus making it far more
difficult to determine who were the guilty parties, who were the
property rights violators. But, as can be expected, this led to
horrific air and water pollution. If there were a "good"
heavy industrialist who engaged in research and development in smoke
prevention devices, who used more expensive but cleaner burning
anthracite coal, who placed traps in his chimney etc., he would
be at a competitive disadvantage vis a vis other members of his
industry who followed these new laws and judicial findings, and
used other peopleís property as a free depository for their air
and water-borne garbage. Under such a legal regime, it is no accident
that pollution became a gigantic problem. The leftist critics, the
Farbers of the day, claimed that free enterprise and private property
rights had failed. Only government could solve the problem, with
its EPA and myriad of regulations. But, as we have seen, the real
cause of the difficulty was not at all that free enterprise and
private property rights could not cut the mustard. It was that they
functioned reasonably well from the beginning of our country in
the late 18th century but were then extinguished at the
onset of the Progressive period, in the late 19th.
Farber; this is not the time or place for a full dress rehearsal
of FME. There is an immense literature on this subject. As I hope
you can appreciate in this op ed I can only touch, very briefly,
on a few of the pertinent high points. But, if you are serious in
pursuing this matter, I urge you to start here,
here, and a few of my own publications
on this subject, here,
And, in the meantime, I suggest you forebear from attacking Ron
Paul on an issue about which you are woefully ignorant. I donít
expect an invincibly ignorant person (a law professor with a specialty
in "Law, Energy, and the Environment" really should know
a bit about this subject) such as you to take me up on this offer.
But, perhaps, there will be some of your readers who will.
Block [send him mail] is a
professor of economics at Loyola University New Orleans, and a senior
fellow of the Ludwig von Mises Institute. He is the author of Defending
the Undefendable and Labor
Economics From A Free Market Perspective. His latest book
Privatization of Roads and Highways.
© 2011 by LewRockwell.com. Permission to reprint in whole or in
part is gladly granted, provided full credit is given.
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