Air Pollution: Common Law vs. the Regulatory State

Via Kent Hastings on the LeftLibertarian yahoogroup. A review of Noga Morag-Levine's Chasing the Wind: Regulating Air Pollution in the Common Law State (Princeton: Princeton University Press, 2003). According to the reviewer, Robert Percival, Morag-Levine considers the surviving common law culture (especially its burden of proof in demonstrating harm) to be a hindrance to the efficient functioning of the environmental regulatory state.

Morag-Levine's casual dismissal of common law remedies ignores at least two things. First, the twentieth century regulatory state replaced, not the common law of nuisance in its full vigor, but an anemic common law on its deathbed after a century of attacks by commercially-minded judges. That process, in which the common law of nuisance had its teeth pulled in the interest of "best and highest use" of property, was brilliantly described by Morton Horwitz in The Transformation of American Law.

Second, big business played a major role in crafting federal regulatory legislation (see Kolko's The Triumph of Conservatism), so in actual practice such "strict" measures against polluters are reminiscent of Brer Rabbit being thrown in the briarpatch. The administrative state not only protected polluters against potentially harsher damages imposed by juries, but also preempted state and local legislation with a least-common-denominator standard. And that doesn't even take into account industry capture of the regulatory agencies, which strikes me less as a perverse result of insufficient vigilance than as a near-inevitability. A state-regulated economy will have a huge demand for all sorts of economic data which, by the nature of things, will be generated mainly by industrial management itself. As the structuralist Marxists have argued quite effectively, industrial interests will inevitably be the main policy input in making state industrial policy. And the middle-aged suits running the large corporation and the middle-aged suits running the regulatory agencies already share a common set of managerialist-Taylorist values. Only a naive liberal who believes the suits in government are inherently more "progressive" or "idealistic" (because they represent "all of us together") could hold out any hope against such government-industry collusion. Such a hope is one step away from the view of Charles Reich in The Greening of America, who considered institutional structures largely irrelevant so long as the corporatist hierarchies were staffed by people in bell-bottoms and beads who, you know, like, had their heads right, man.

Kent comments:

It seems to me that government itself is the biggest polluter, and the private polluter's best friend. I wonder if anyone else remembers hearing about those early common law pollution judgements being set aside in favor of industrial interests by the Crown? In the U.S. today, class action suits against polluters are thwarted by the EPA and AQMD regulators.

Here's a random example from the web, in this case about the MTBE gas additive: "In fact, a class-action lawsuit has already been filed on behalf of private well owners against the major oil companies. Of course, the oil companies will point the finger back to the EPA, the agency that made them put this poison in gasoline in the first place. And suing the EPA is a tough row to hoe."

Here's a decent article from Cato that prefers common law to administrative remedies and, despite grudgingly regarding the former alone as insufficient, want to infuse the regulatory state with more of the spirit of the common law: David Schoenbrod "Putting the 'Law' Back into Environment Law." And here's one by Rothbard, who is much less reserved in his enthusiasm for common law action against polluters: "Law, Property Rights, and Air Pollution."

pollution , air pollution , regulation , government