Diminishing Law and Liberty

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Tuesday, June 1, 2010

The greatest environmental president in history, Richard Nixon, created the EPA by Executive Order and helped make the Clean Air Act, Clean Water Act, and Endangered Species Act parts of the federal code. What most call “environmental law” means the regulations and litigation flowing from a dog’s breakfast of federal and state statutes. The move toward nationalization of the environment in the 1970s spurred the need for PERC.

PERC researchers examined common law environmentalism. We focused on how the common law provided the legal basis for what is now called environmental protection but what was traditionally thought of as protection of property rights. Four centuries ago, in Aldred’s Case, the common law of nuisance dealt with a pig sty that wafted unpleasant odors over a neighbor’s property. People still use the common law today to protect themselves against such damage. But the mundane business of responsible persons protecting their liberty and property on a case-by-case basis is hard pressed to compete with the high-profile issues that dominate a media and body politic excited by the-world-is-going-to-environmental-hell stories.

Command-and-control rules that promise to solve all woes create a mindset that elected politicians and their bureaucratic appointees should and will take care of things. While it is not novel for judges to become infected with such notions, it reached a new high in the 2007 Supreme Court decision, Massachusetts v. EPA (549 U.S. 497). It is noted for a statement by Justice Stevens, writing for the five-judge majority, that “The harms associated with climate change are serious and well recognized.” After all, “EPA does not dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming.” Case summary: No more dithering around on this life-or-death issue, you EPA bureaucrats get to work controlling carbon emissions. And so the EPA has been. It is pushing through regulations that are so draconian in potential impact in cost and restrictions on freedom that they cannot be outlined here. Suffice it to note that a bipartisan (!) group of senators is pressing to derail EPA’s plans.

In the meantime, litigation plods on as judges and lawyers take the high court at its word. Eight states sued six electric power companies that own fossil-fuelfired plants in 20 states for ongoing contribution to the public nuisance called global warming. The district court rejected the case but the Second Circuit Court of Appeals vacated and remanded in late 2009, allowing the case to proceed (Conn. v. Am. Elec. Power Co., 582 F.3d 309). That decision was soon followed by Comer v. Murphy Oil USA (585 F.3d 855). There, a group of property owners along the Gulf coast brought a class action suit against oil and energy companies, alleging that company operations caused greenhouse gasses that contributed to global warming and added to the ferocity of Hurricane Katrina, which destroyed their property. The district court dismissed the case, but the Fifth Circuit Court of Appeals reversed and remanded, sending the matter to trial.

This is the tip of the litigation iceberg. Since 85 percent of our energy comes from fossil-fuel sources, everything is up for grabs. Congress will not stand by while Gaia Lovers Inc. litigate to pull the plug and condemn us to live simple organic lives. This is a major opportunity for Congress to get its mitts into even more details of our economy.

We have gone a long way from a rule of law based upon people bringing suit to protect their person and property. At common law, one must present solid evidence of harm. Global warming, or climate change, we now know, is built on “science” gone seriously awry. Real evidence offered by real people interested in protecting their liberties is a far better legal system than a special-interest driven political system that is the basis of what drives modern environmental law.

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 An economist and lawyer, Roger Meiners defends the superiority of the common law--legal traditions developed through the courts--over federal regulation. In his view, the success of markets is intertwined with the common laws strong protection for property rights. Common law protects the environment by allowing individuals to take action against...
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