I think that environmental law is the single biggest issue I “struggle” with when I do thought experiments about the philosophy of libertarianism. How does self- and property ownership interact with the externalities caused by the things that you do pursuant with your ownership of yourself and your property? There are many answers, but the currently implemented one is the EPA.
[Insert Standard Libertarian Disclaimer Here]
Everybody has that annoying neighbor. The one who shoots off fireworks at 2am on Thursday April 17th. The one who blows all of the lawn trimmings into your vegetable garden. The one who honks his horn every time he drives past his friend’s house (yeah, I’m looking at you, jackass!). A core competency of government is balancing your annoying neighbor’s habits with your want for peace and quiet. Noise ordinances keep the fireworks to a reasonable hour, trespass laws keep the lawn trimmings out of your food, and I’m pretty sure I’ll be given the keys to the city when I complete my horn-triggered IED.
One could argue, however, that a well-constructed civil court system may prevent the need for all of these laws and regulations. Between monetary damages and injunctive relief, a civil court could restore me to whole and prevent my annoying neighbor from further annoying me. Tort law has been a hallmark of government for millennia, and its classic application is neighbor v. neighbor.
Great! We’re done! Torts take care of annoying neighbors. On to minarchy!
Not so fast, my friend!
There is a genre of annoying neighbor that is downright toxic. Let’s say, for example, that I have a well pulling groundwater from the regional aquifer, and my neighbor’s in-ground heating oil tank leaks heating oil into the aquifer. If the amount of heating oil is enough to spoil the aquifer and make it non-potable, tort law make for an easy, albeit inefficient, resolution to the issue. Neighbor pays everybody who uses the aquifer enough money to get them hooked up to an alternative water source, and voila! Everybody is restored to whole!
Oh wait, the neighbor is living in a house still using heating oil in 2019, and the aquifer supplies 15,000 people. Neighbor is judgement proof, and those 15,000 people will not be made whole again.
Not For Sale
This exposes one of the core issues with the tort system as currently formulated. The default relief from damages is cash money. If, for some reason or another, the cash judgment is insufficient or left unpaid, many people are left damaged by the negligence/recklessness/idiocy of Neighbor.
I can hear the rejoinder already. In beautiful harmony, a thousand libertarians belt out “Insurance!” There are two issues with that answer, though.
First, insurance is protection against bearing the full consequences of an injustice. It doesn’t prevent the injustice. Insurance may pay out enough money to tap into the local city’s water system, but it can’t unpollute the aquifer. Insurance still doesn’t make the person whole again, because the insured is paying for the service. Insurance is akin to hanging a portrait over a hole in the drywall. As long as you’re happy with that portrait staying there for the foreseeable future, it’s a decent restoration. However, there’s still a hole in the wall.
Second, insurance operates on the convenient fiction that everything has an objective value. It’s a fine assumption for commodities and furniture, but it starts to break down when more unique property is involved. The easiest example is life insurance. That’s not an even trade. I’m not gonna off myself for a few hundred thousand dollars. Even if the insurance pays way over the “market value” of unique property (like a family farmhouse), the sentimental value can’t be replaced. Properties that are “not for sale” are not easily compensated for when they are damaged.
If the aquifer under my “not for sale” 5th generation family homestead is poisoned to the point that there is no convenient way to get potable water to the house, Neighbor has done irreparable, uninsurable harm to me. I may have some of the harm reversed through cash payments, but nothing is going to restore me to being able to live in that house again.
There are three solutions that come to mind for handling this issue. The first one isn’t all that appealing: tell victims of such environmental harm to suck it up and deal with it. Maybe you can get some traction telling somebody displaced from a sentimental property to get over it and smile about your payday, but this one doesn’t translate well when the damage is to people instead of things. “Suck it up and deal with your 5 year old dying of leukemia” isn’t a winning argument.
The second option is prevention. There may theoretically be some libertopian way to do this without using government force, but color me skeptical. Unfortunately for libertarians, the two most effective ways to prevent environmental damage are 1) an expansive growth of the use of injunctions by courts; or 2) a regulatory agency (e.g. the EPA). Self-policing doesn’t work. Communities usually don’t even know enough about the issue (because it’s occurring on a company’s private property) to be able to gin up an angry mob in time. Heck, the injunctive power of the court only works if the community knows that the polluter is planning on polluting. Short of a whistleblower giving his/her best Louis Armstrong impression, it’s too late for injunctive relief by the time it ends up in court. That only leaves the regulatory option. Hello EPA!
The third option is remediation. This is a “sometimes” solution in cases where pollution can be reduced or made inert using chemical or mechanical processes. It’s great when it works, but it’s not all encompassing, and it’s not a substitute for prevention. As they say, “an ounce of prevention is worth a pound of cure.”
A Wafting Stench of Statistical Significance
Another issue causes the reactive systems of justice to bind up. Risk factors. In a car accident, for example, it’s pretty easy to prove that Neighbor swerved out of his lane, causing his car to impact my car, causing me to smack my head into the steering wheel, breaking my nose. It doesn’t always work that way with environmental contaminants. To take an obvious case, not everybody got cancer in Hiroshima and Nagasaki. However, epidemiological surveys show a massive uptick in the amount of certain cancers and birth defects.
Exactly how much is a 3x elevated risk of leukemia worth in Benjamins? Can you even say that it was caused by environmental contaminant X if somebody gets lung disease after being exposed to it? Again, the reactive system of justice fails when these unique harms are merely compensated ex post facto with greenbacks.
Libertarians apply the NAP in situations where somebody employs force, fraud, or coercion, but it may be appropriate to expand that to “risk” as well. It’s a bit of a blurry line, and it’s rife with totalitarian pitfalls, but risk is just diluted force, and the pollution itself is a form of force and/or coercion. Much like celebratory gunfire, the lack of a guaranteed harm doesn’t prevent the community from proactively stopping behavior that presents a high risk to others.
The EPA may be a bloated monstrosity these days, but the preventative justice it affords to the community is a unique form of protection for land, life, and limb that would otherwise be sacrificed to short-sighted and irresponsible polluters.