We don’t need no stinkin’ environmental regulations to save the earth – all we need are well functioning property rights for environmental resources and common law courts to protect that property against trespass. Pollution is simply a neighbor’s garbage dumped in your backyard without permission. If we simply recognize and enforce property rights for nature, the need for most environmental regulation goes away.
That’s the libertarian pitch anyway, and it goes by the moniker “Free Market Environmentalism,” or “FME” to its acolytes. FME was given a firm theoretical foundation by Ronald Coase, embellished and blessed by libertarian economist Murray Rothbard, given academic life by the Political Economy Research Center and the Foundation for Research on Economics and the Environment, popularized in Washington by the Competitive Enterprise Institute, and even pitched by yours truly to the Board of Trustees of the Natural Resources Defense Council about nine years ago.
Alas, there has never been much evidence to suggest that libertarians were making much headway with these arguments and I have come to believe that they have less promise than I had once imagined. But what do you know? FME is now all the rage amongst environmentalists who have discovered that suing polluters for tresspass is easier than passing satisfactory laws against the same.
Think I’m pulling your leg? Read this from Darren Samuelsohn in today’s issue of Greenwire (subscription required):
Efforts to force a stronger U.S. global warming policy through the courtroom came under sharp scrutiny yesterday as eight states, New York City and conservation groups pressed for reduced greenhouse gas emissions from the nation’s five largest electric utilities.
A three-judge panel of the 2nd U.S. Circuit Court of Appeals pressed plaintiffs over why their case was necessary when other avenues exist for addressing global warming – from Capitol Hill to state courts. “My basic question is should we be invoking this doctrine in this very unusual case when there are many other remedies available?” asked Judge Sonia Sotomayor, the lone Democratic appointee on the 2nd Circuit’s panel.
Connecticut Attorney General Richard Blumenthal (D) replied that the utilities’ emissions violate federal common law by harming residents in multiple states. The utilities’ emissions are creating a public nuisance and must be reduced to counteract a variety of global warming effects, including California’s diminished snow pack and more intense heat waves.
Addressing Sotomayor’s question, Blumenthal said his case is not unusual compared with other seminal common law challenges upheld by the Supreme Court, including suits over Illinois sewer water running into Lake Michigan and air pollution from two Tennessee smelters.
“We’re dealing with a developing area of science where federal common law provides a remedy under the doctrines that exist,” Blumenthal said.
Plaintiffs singled out the five companies and their subsidiaries for litigation almost two years ago because they are the largest emitters of carbon dioxide from the power sector in the United States.
… The electric utilities’ defense covered some of the same ground offered successfully last summer before a federal district court, which dismissed the case on the grounds it raised political questions better left to the other two government branches. Both current and former sessions of Congress and presidents have not adopted such an aggressive climate change policy, argued Washington-based industry attorney Joseph Guerra.
Guerra also insisted federal common law has not been applied to an issue of such sweeping scale. Of the Supreme Court precedents Blumenthal cited, Guerra replied, “None of those cases could have possibly affected the entire U.S. economy.”
Pushing another line of the industry’s defense, Guerra cautioned the litigation would be a precursor to more global-warming nuisance claims – with no end in sight as plaintiffs tick through other sources of greenhouse gas emissions.
But Sotomayor, who asked the bulk of the questions during the hearing, took issue with the line of industry defense. “That’s the nature of every tort action,” she told the utility attorney.
Sotomayor also said she had a problem with dismissing the case just because potential remedies were so large.
OK, I’ll grant that enviros are going the common law route less out of conviction than out of necessity. But so what? What was once a fringe argument has now migrated into the political and legal mainstream with a vengeance. Good news for libertarians, right?
Well, if libertarians and fellow-travelling conservatives are popping champagne bottles, it has escaped my attention. FME blogs are dead silent. Conservatives are taking the corporate line that common law is an inappropriate venue for all of this with no dissenters that I can tell. In short, FME’ers either aren’t paying attention or aren’t willing to back their doctrines when they are employed by the Left.
Sure, one can argue that the plaintiffs don’t have proper standing, that there is really no nuisance here to begin with, that the tort system is so messed up that employing it in such cases is problematic, etc. But nonetheless, this is a growing trend and libertarians seem surprisingly ambivalent about it.