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Lisa Jackson may not know that property rights under common law offered greater protection from polluters than do diktats from Washington bureaucrats.
November 10, 2011
Originally published in The American Spectator
When Environmental Protection Agency head Lisa Jackson recently ridiculed her opponents as thinking of EPA officials as "jack-booted thugs," she should have thought through exactly why so many Republican candidates are calling for the abolition of the EPA -- and getting applause for it. The fact is that many do view the EPA as trampling on their rights. Yet Jackson would have us believe that the alternative to the EPA as currently constituted is environmental degradation and pollution as far as the eye can see. The fact is that we can balance the concerns of civil liberty and environmental protection without the EPA, regardless of whether the agency officials wear jackboots or loafers.
How would we ensure environmental protection in the absence of a $10 billion bureaucracy? Returning to the principles of the American Founding provide the answer to how to make this rogue agency accountable. Moreover, it can validate a free market approach more broadly by showing how progressive policies helped cause environmental degradation in the first place.
For much of U.S. history, clean air and water were protected by the courts. This common law system based environmental protection on property rights. No one had the right to damage another person's property, including his land, air, and water. Polluters were held accountable in the same way as trespassers, vandals, and thieves.
The common law was better for victims because it granted them direct legal recourse against polluters. No new law or regulation needed to be issued. They only had to demonstrate that the pollutant resulted in damage. For that reason, it was also good for businesses, who were not subject to regulation unless they actually imposed costs on others. Both sides also benefited from the ability to negotiate. Firms could offer to pay plaintiffs to allow a certain amount of pollution on their property, which created a natural rather than artificial price for pollution, such as cap and trade policies seek to create.
The 1951 case International Paper Company v. Maddox demonstrates all these benefits. In the 1930s, International Paper built a paper mill along Bodcaw Bayou, Louisiana. It paid 40 landowners downstream several hundred thousand dollars for the right to discharge wastewater. Mr. Maddox ran a fishing camp about 40 miles downstream. When the pollution began to hurt his business, he sued for his loss in property value and business revenue. The court acknowledged that IP had improved its pollution control measures, but still awarded Maddox damages, a verdict upheld on appeal.
In case after case, courts affirmed plaintiffs' right to live pollution free. The EPA did away with this direct legal recourse. Consider the 1972 case of Illinois v. Milwaukee. Throughout the 1960s, Milwaukee and three other Wisconsin cities had substantially polluted Lake Michigan, on which Chicago relied for drinking water. When Illinois sued on Chicago's behalf, the Supreme Court issued an injunction against Milwaukee saying, "[A] State with high water quality standards may well ask... that it not be compelled to lower itself to the more degrading standards of a neighbor." The Clean Water Act changed all that by granting the EPA the exclusive authority to regulate. After it passed, the Supreme Court vacated its order, and Milwaukee continued to pollute.
Environmentalists often claim that the common law system failed. They point to cities like Pittsburgh where during the 1940s pollution was so bad it caused gastroenteritis outbreaks along the river. But these problems, like so many others, resulted from a lack of clear property rights, not a lack of regulation. The river was open-access and cities all along it dumped their sewage and pollution at no cost. When a river basin association was formed in the 1940s, the river was divided, and pollution was reduced dramatically.
The infamous Cuyahoga river fires were caused by the City of Cleveland using the river as a municipal dump. When paper mills, which need clean water to operate effectively, tried to sue to protect their right to clean water, the courts told them that the city and state's rights to foul the water trumped theirs.
Property rights prevent these "tragedies of the commons," while agencies like the EPA help create them, because their regulations displace the common law requirement that plaintiffs must demonstrate pollution has caused harm. Government should protect the rights of individuals and a clean environment is certainly one of those rights, but the EPA all too often ends up hurting the environment by protecting polluters or punishing businesses for harmless activities.
For the past thirty years, the EPA has used every power at its disposal to pursue John Pozsgai, a refugee from communism, for the crime of cleaning up a scrap yard he had bought. At one point, they succeeded in sending him to prison, something that has never happened as a result of a true environmental disaster like the BP oil spill. More recently, the EPA has specialized in subverting Congress, by asserting authority where it has none, such as in the matter of setting national fuel efficiency standards, which Congress entrusted to a different agency. The agency seems to have decided that it is above the law.
Limited government is important precisely because it protects "little guys" like Maddox and Pozsgai from the over-mighty state. They have a right to build their businesses free from pollution, but they also have a right to freedom from government intrusion. And we all have the right to expect agencies to follow the law. Oppression does not require jackbooted thugs, nor does environmental protection require an all-powerful bureaucracy.