Take Back the Environment; J. Amador

There is a better way to safeguard our health and property from noxious substances. But it requires first weaning ourselves from the notion that the benevolent state is doing it for us. The Law IS the Problem "Most governmental regulations are aimed at overseeing the permitted release of toxic chemicals into surrounding neighborhoods during a company's normal operations," ac know ledges Representative James J. Florio (D-N.J.), one of the strongest proponents of government intervention in the environment.1 The law attempts to manage pollution, not to protect its victims. Those who comply with re porting requirements, get the necessary Mr. Amador is afree-lance writer and editor ofThePrag matist, a current affairs commentary. permits, and stay within prescribed limits may pollute with impunity. The Federal Water Pollution Control Act proclaims ,that "the discharge of any pollutant by any person shall be unlawful," except only ,'as in compliance with this section and sec tions 1312, 1316, 1317, 1328, 1342, and 1344 of this title. "2 Section 1342 of the Act, for instance, autho rizes the Environmental Protection Agency to "issue a permit for the discharge of any pol lutant, or combination of pollutants . . . upon condition that such discharge will meet either all applicable requirements ... [or] such con ditions as the Administrator determines are nec essary to carry out the provisions of this chapter. ' '3 The Hazardous Substances Superfund was established in 1980, ostensibly to make pol luters clean up toxic-waste spills and dumps.

Hailed as a historic victory for the environ ment, the law exempts "releases in the work place and releases of nuclear materials or by products, normal field applications of fertilizers and engine exhausts.' '4 It also excuses spills and dumps from paying cleanup costs incurred by the government if the discharges were in compliance with permits is sued under anyone of a long list of environ mental statutes, including the Clean Water Act, Solid Waste Disposal Act, Marine Protection, Research and Sanctuaries Act, Safe Drinking Water Act, Clean Air Act, and the Atomic En ergy Act of 1954.5 "It is 'the law' that permits environmental degradation," writes Victor Yannacone, a 310 THE FREEMAN. AUGUST 1987 prominent lawyer in the field of environmental law. "And now when we look to the law for answers to many of our social and environ mental.problems, we find that the law itself is the cause of many of those problems. "6 Politicians and Bureaucrats Decide Why does legislation that, we were told, was passed to protect the environment end up pro tecting polluters instead?

"The first and most obvious set of limita tions on legislative power is, of course, the quantum of political constraints under which legislatures must operate, " writes another envi ronmental lawyer. 7 Like anybody else, law makers are affected by what other people tell them. They also have their own preferences. Politicians are ordinary human beings, pushed and pulled by interest groups pursuing com peting and often contradictory demands. Any given vote by the average legislator is the result of a complex balancing process that takes into account these diverse influences. Some want him to stop pollution, others warn that this might ruin the economy. Some repre sent votes, others offer campaign contributions. The savvy politician tries to keep all sides happy. The result is an Orwellian-named "an tipollution" act that actually legitimizes pollu tion. Appointed administrators shielded from democratic pressures do little better. Yanna cone writes, "If we must find a common de nominator for the serious, environmental crises facing all technologically developed countries regardless of their nominal form of govern ment, it would have to be entrenched bureau cracies which are essentially immune from crit icism or public action. "8 Out of political opposition to the program or sheer bureaucratic inertia, civil servants can subvert the best-intentioned acts of legislators.

When Congress renewed Superfund last fall, it appropriated $8.5 billion to be spent over the next five years, $1.5 billion of it in the first twelve months. Yet, four months into the fiscal year, only $220 million had been released for Superfund projects. "One reason," indicated one report, was that the Office of Management and Budget had "not yet approved regulations" drafted by the EPA to guide Superfund spending.9 The 1980 Superfund law directed the Depart ment of Health and Human Services to investi gate the health hazards of toxic wastes, but, as former EPA policy analyst Fred Smith notes, as of last year "almost nothing" had been done. to The law also prohibited persons from chal lenging an EPA decision on what cleanup method to use. 11 This rule was intended to pre vent parties which might be forced to clean up their sites from stalling enforcement for years. But the knife cuts both ways. By initiating pre emptive action, the agency can also prevent victims of pollution from seeking more vig orous enforcement of the law. The officials de cide how to use this weapon.

The Supreme Court has expanded bureau cratic freedom to bend environmental legisla tion out of shape. In 1985, the court allowed the EPA to exempt individual industrial plants from full compliance with limits on toxic dis charges into sewage treatment facilities, despite apparently clear language in the Clean Water Act that the agency "may not modify" the limits. 12 When provisions can be interpreted into meaning their opposite, pro-environment legislation can make for open season on the en vironment. A History of Encouragement ,'It is now clear that the worst offenders in the process of environmental degradation are not the ruthless entrepreneurs dedicated to wanton exploitation of our natural resources," writes Yannacone. Instead, it is "shortsighted, mission-oriented, allegedly public interest agencies. "13 There are some 22,000 sites con taining hazardous wastes in the United States.

Many are municipal dumps. Military bases alone account for more than 4,000 chemical disposal sites.14 Even private pollution is, in very important ways, traceable to public policy. Today, the law protects and encourages polluters at the ex pense of private interests in healthy bodies and usable property. Centuries of common tort law developed under the maxim, "So use your own property as not to injure the property of another." By this guideline, courts ruled that victims could enjoin polluters and collect from them for damages caused to their property. The past two centuries, however, reveal a train of legislative and judicial decisions weak ening judicial defenses against polluters. The process coincided with the rise of large-scale industry. Before then, a tanner who spewed noxious fumes through the neighborhood, for instance, could be taken to court by any of his neighbors. Under the law of nuisance, the tanner was pre venting his neighbor from enjoying his own property by spreading smells that sickened him or drove him away. He could be assessed damages and enjoined from further release of fumes.

Today, nuisances have been divided into "public" and "private" categories. A "public" nuisance' 'is an act or omission inter fering with an interest common to the general public rather than peculiar to the individuaL" A "private" nuisance involves "interference with plaintiff's use and enjoyment of his or her land. "15 This is an important distinction. Because the fumes affect all the neighbors within their reach, they constitute a "public" nuisance, over which a mere individual cannot sue. He would have to show some damage peculiar in kind, not just degree, to himself. "In the ab sence of special damage to a particular private individual-damage which is substantially greater than that suffered by other individuals in society-a public nuisance is subject to cor rection only at the hands of public authority," 16 which are devoted to the political tug-of-war. Yannacone attributes the change to British jurist William Blackstone (1723-1780). "Until Blackstone there was no distinction made be tween public and private nuisance. The rule had been well established that any individual could apply to a court of equity to abate a nui sance."17 Blackstone acknowledged this was for the convenience of the polluter. It "would be un reasonable to multiply suits by giving every man a separate right of action for what dam nifies him in common only with the rest of his fellow-citizens. "18 This line of thinking still TAKE BACK THE ENVIRONMENT 311 In the days of adherence to common tort law, a tanner who spewed noxious fumes through the neighborhood, for instance, could be taken to court by any of his neighbors.

guides the courts. "The reason usually given is that the defendant must be relieved of the many actions that would result if everyone were free to sue for damages resulting from the common harm. "19 The deterrent value of facing a mass of suits from angry victims of pollution seems to have been lost in the shuffle. The traditional causes of action, such as nui sance, trespass, and negligence, have been weakened by the misuse of utilitarian concepts of cost and benefit. William L. Prosser, author of the encyclopedic reference Law of Torts, writes, "Chief among the factors which must be considered is the social value of the interest which the actor is seeking to advance.' '20 In Cases and Materials on Torts Prosser adds, "In this process the courts take into con sideration a number of different factors. . . . Among these are . . . the financial investment of each party, and the relative economic hard ship to either from granting or denying the in junction, and especially the interests of the gen312 THE FREEMAN. AUGUST 1987 eral public in the continuance of the defen dant's enterprise. "21 In January 1987, a Philadelphia Municipal Court judge ruled in favor of a defense con tractor that uses heavy stamping machinery to shape parts for missile casings. The stamping was found to cause irritating and property-dam aging vibrations to neighboring homes.

Residents complained of sleepless nights, crying spells, medical bills, and damage to walls. Judge Alexander Macones ruled that the company should not be fined because it pro vides jobs for 215 people.22 Encouraging Growth As industry demonstrated its ability to lift nations out of poverty,judges became eager to encourage industrial growth. To allow indi viduals to enjoin, for their private benefit, great technological enterprises from making goods that benefited all would be a disservice to the public interest. "Therefore the harm visited upon the city's residents had to be chalked up as an accidental by-product of progress. ' '23 "The pollution of the air, so far as reason ably necessary to the enjoyment of life and in dispensable to the progress of society, is not actionable, " chimed in the Georgia Supreme Court in 1911.24 A more recent statement came in an oft-cited 1947 Ohio case. In Antonik v. Chamberlain, plaintiff sought to enjoin the owner of a private airport because of the noise it created. Court of Appeals Justice Arthur Doyle wrote: It is not everything in the nature of a nui sance which is prohibited. There are many acts which the owner of land may lawfully do, although it brings annoyance, discom fort, or injury to his neighbor. . . .

People who live in organized communities must of necessity suffer some damage, in convenience and annoyance from their neighbors. From these annoyances, inconve niences and damages, they are generally compensated by the advantages incident to living in a civilized state.25 This cost-benefit approach is a mistake on its own terms. Costs are shifted, not eliminated, by ruling for the polluter. While the tanner might produce something else with the money spent on pollution abatement, his neighbors would become less productive if they had to put up with the harm the pollution causes. Shielding polluters from the costs of their ac tions "amounted in effect to a subsidy to incip ient industry during the takeoff period of indus trialization. "26 If it's "too costly" to produce hides without choking adjoining residents, "so ciety" will be in a better position to judge the cost of hides if these costs are incorporated into their price. As economist Murray Rothbard ob serves, "now all of us are paying the bitter price for this overriding of private property, in the form of lung disease and countless other ailments. And all for the 'common good'!' '27 Rothbard notes that "the cost and technology argumentoverlooksthe vital fact that if air pol lution is allowed to proceed with impunity, there continues to be no economic incentive to d~velop a technology that will not pollute. On the contrary, the incentive would continue to cut, as it has for a century, precisely the other way. "28 The courts have developed other restrictions that limit the effectiveness of litigation against pollution. One is the statute of limitations, which for nuisance and trespass actions is dated from the time the original action took place.

This is a serious obstacle in pollution cases, where the injurious effects of toxic substances may not become evident until years after the statute of limitations has run out. Under an action alleging negligence, the statute of limitations has been ruled to begin only when the victim discovers the harm. 29 However, negligence theory has grave short comings of its own. Robert Best and James Collins note that' 'There are four basic ele ments of any negligence action: A duty or obli gation recognized by law requiring confor mance to a particular standard of behavior, a breach of that standard, a causal connection be tween defendant's action or omission and plaintiff's injury, and actual loss or damage to a legally protectable interest.' '30 If the polluter's actions are sanctioned by law, the victim has no recourse, even though he may have suffered harm and may be able to link the polluter to it.

Protection for government-sanctioned pollution has been enshrined in Federal law. The original Superfund legislation, for instance, held that "No person ... may recover under the authority of this section for any response costs or damages resulting from the application of a pesticide product registered under the Fed eral Insecticide, Fungicide, and Rodenticide Act."3! Congressional Quarterly reports that the new Superfund legislation also bans suits against gas station operators for "costs or damages re sulting from release of recycled oil that is not mixed with other hazardous substances, if they are following the regulations and law for han dling such oil." 32 It may be argued that one cannot fault a pol luter who was only following the law or taking precautions not to harm his neighbors. This is the basis for the standard of "reasonable con duct" in adjudicating cases. Though the honest owner of a chemical dump may have dutifully filled all the forms and been careful to use high-quality storage containers, it makes little difference to the un intended victim of his underground leak. We may sympathize with the owner, but his actions injure the victim just the same.

This forms the basis for the idea of strict lia bility, which recently has gained some ground as a supplement to nuisance, negligence, and trespass. "Strict liability in tort is based upon the theory that one who realizes profit from the hazards of his or her activity assumes the at tending risk and may be held liable for any in vasion of the person or property of another, notwithstanding that he or she may be free from all negligence or wrongdoing.' '33 Given the current understanding of strict lia bility, Best and Collins caution that it "appears unlikely" that the theory will gain as much favor in pollution cases as it has in the field of product liability. Liability is made to hinge on an assessment of whether the activity in ques tion is "abnormally dangerous." 34 As with nuisance and negligence, the courts have misapplied notions of social utility to pro vide a basis for defending harm done. Even if it is otherwise "abnormally" dangerous, "though the activity involves a serious risk of harm that cannot be eliminated with reasonable TAKE BACK THE ENVIRONMENT 313 care . . . its value to the community may be such that the danger will not be regarded as an abnormal one. "35 Who Pays?

Senator Lloyd Bentsen (D-Tex.) hailed the new Superfund law's tax provisions as estab lishing "a basic principle that is vitally impor tant to the future of the Superfund program: all who contribute to the toxic waste mess must help pay the price of cleaning it up. " It would be more accurate to describe the new law as a triumph for the principle of "make somebody else pay." The $8.5 billion to be allocated will come from a variety of sources. The petroleum and chemical industries, generally acknowledged as the worst offenders in the toxic-waste problem, will pay $4.15 billion. However, these taxes apply to all producers of certain chemicals equally, without regard to the care each com pany may take to control the leakage of its dan gerous waste. The money will be used to clean up, not just dumps now in operation, but old sites too. Hence, today' s oil and chemical firms are being forced to pay for the sins of others before them.

An almost equal amount, $3.75 billion, is due to come from a new tax of 0.12 per cent on corporate income above $2 million in all indus tries, waste producers or no, and from tax payers through "general revenues." 36 Polluter spills, the rest of us pay. Analyst Smith observes that' 'The Superfund taxes raise money, but create no incentives for anyone to reduce the risks associated with dumps-existing or future. "37 The system makes the conscientious bear their own costs as well as those of the negligent. The result is a perverse incentive to do as little as legally re quired. Waste producers may not have to pay for their own mess, but they'll have to pay for everybody else's. And so will the rest of us. Ira Lupu conjectured in 1967 that "once the legislature acts in certain areas, the court may be even less likely than before to touch the areas left unregulated, on the theory that legis lative inaction signifies legislative intention to have the area remain unregulated.' '38 314 THE FREEMAN. AUGUST 1987 Reality may be even stranger than theory.

The Clean Air Act reads: "Nothing in this sec tion shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief." (Emphasis added.)39 Vir tually identical language appears in the Solid Waste Disposal Act, Safe Drinking Water Act, Maritime Protection, Research and Sanctuaries Act (MPRSA), Federal Water Pollution Con trol Act (FWPCA), and the Clean Water Act. These clauses would seem clearly to preserve any citizen's common-law grounds for suing polluters. Yet in 1981 the Supreme Court inter preted them into oblivion. In throwing out a suit by fishermen who claimed damage to fishing grounds by various government author ities that were dumping sewage and other waste into the ocean, the court, by a 7-2 majority, ruled "there is no implied private right to ac tion" under the MPRSA or FWPCA.4o The justices reasoned that, because Congress devised an elaborate system for enforcement under other sections of the statutes, in spite of its explicit language it really could not have meant to preserve common-law remedies!

,'When the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude" such suits, wrote the ma jority. "We are convinced that the saving clauses do not refer at all to a suit for redress of a violation of these statutes-regardless of the source of the right of action asserted.' '41 In conclusion, the court held that "the fed eral common law of nuisance in the area of water pollutionis entirelypre-emptedby the more comprehensive scope of the FWPCA.... We therefore must dismiss the federal common-law claims because their underlying legal basis is now pre-empted by statute. "42 Abating the Mess ,'In our society, the traditional controls have been unable to cope with the continued deterio ration of our environment basically because of our failure to recognize pollution for what it is: a form of aggression against society as a whole and our neighbors in particular. ' '43 The obstacles seem formidable, but they are not insurmountable. A comprehensive ap proach to the pollution problem would include the following features: Put the environmental protection business out of the government's reach. Place it back in the hands of the people most likely to care those who are directly affected. As we have seen, "environmental protection" laws often serve to protect polluters, not the environment.

Pollution management is left to the shifting dis cretion of politicians and bureaucrats. Courts take legislation as a cue to strike down common-law remedies and to permit pollution in areas not specifically covered by statute. Tort law improvements. In some ways, this requires nothing more than returning to concepts that were in use for centuries before the Industrial Revolution: Collapse the dual law of nuisance back into one to allow private parties to sue over "public" nuisances. Avoid the quagmire of determining what constitutes an "abnormal" danger or "reason able" action, and focus instead on the more objective measure of effects. Whether the pol luter was careless or law-abiding, the result hurts the same, and it indicts both the polluter and the officials who assured us their regula tions would prevent it. The new Superfund law did make one signif icant improvement by overriding the states' statutes of limitations. It provides that these pe riods begin to run when harm from the haz ardous substances it covers was or should have been discovered.44 The doctrine of "joint and several" liability is an incentive to carelessness, as anybody with enough cash, even if only marginally involved in the tort, may be hit for the bulk of the award.

Replace it with a system for determining major and minor offenders and the extent of their in volvement, then assigning each a corre sponding share of the amount to be paid. Incorporate the costs to other parties into cost-benefit calculations. Utilitarian analysis has been denigrated as insensitive to the harm suffered by the victims of pollution. This is so only because these costs have not been factored into the formula, tipping the balance toward polluters. Only when polluters pay will the price of technology approximate its actual cost. There is an intriguing alternative to closing down the plant or installing devices to stop emissions. The polluter might buy a "license to pollute" from his neighbors. The neighbors would agree to let the plant owner emit speci fied particles or chemicals in exchange for peri odic or lump-sum payments calculated to offset the perceived harm the emissions might cause them. Residents who refused to sell harm to their persons or property would still have re course to the courts. If greater risks were dis covered later, those who sold licenses could demand new or higher fees.

Even these reforms would not create a per fect world. A victim may not be able to collect from somebody who simply cannot pay. This reflects man's capacity to do more harm than he can possibly make up for. But the current methods are even less per fect. They encourage pollution, shield the pol luter, and leave his victims defenseless. The al ternative would reward the scrupulous and en courage industry to adopt safe methods of dealing with hazardous substances. It would bring to the fore the hidden costs of some of today's technology and enable us to decide whether it is worth the price. 0 1. James J. Florio, "Superfund Must Be Tough And Strictly Enforced," The New York Times, Sept. 29, 1985, XI, p. 28. 2. 33 U.S.C. 1311 (a). 3. 33 U.S.C. 1342 (a) (1). 4. Congress and the Nation, Vol. V (Washington, D.C.: Congres sional Quarterly, Inc., 1981), p. 585. 5. Ibid. 6. Victor J. Yannacone Jr., "Environment and the Law," in Wil liam W. Murdoch, ed., Environment: Resources, Pollution and So ciety (Stamford, Conn.: Sinauer Press, Inc., 1971), p. 369.

7. Ira C. Lupu, "Factors Influencing the Development of Envi ronmental Law," in N. Irving Sax, ed., Industrial Pollution (New York: Van Nostrand Reinhold Co., 1974), p. 568. TAKE BACK THE ENVIRONMENT 315 8. Yannacone, Ope cit., pp. 371-2. 9. "Showdown Near Over Pollution," U.S. News & World Re port, Feb. 9, 1987, p. 35. 10. Fred L. Smith Jr, "Superfund: A Hazardous Waste of Tax payer Money," Human Events, Aug. 2, 1986, p. 11. 11. "Major Provisions of 'Superfund' Authorization Bill," Con gressional Quarterly, Oct. 11, 1986, p. 2537. 12. Linda Greenhouse, "Supreme Court Upholds E.P.A. on Clean Water Exemptions," The New York Times, Feb. 28, 1985, p. A18. 13. Yannacone, op. cit., p. 371. 14. Philip Shabecoff, "Removing Military's Toxic Waste Will Cost Billions, Official Says," The New York Times, Feb. 28, 1985, p. A18. 15. Robert K. Best and James I. Collins, "Legal Issues in Pollu tion-Engendered Torts," The Cato Journal, Vol. 2 No.1 (Spring 1982), p. 106.

16. Yannacone, Ope cit., p. 379. 17. Ibid. 18. Ibid., p. 380. 19. William L. Prosser, John W. Wade, and Victor E. Schwartz, Cases and Materials on Torts, 7th ed. (Mineola, N.Y.: The Foun dation Press, Inc., 1982), p. 855. 20. William L. Prosser, Law of Torts (St. Paul, Minn.: West Pub lishing Co., 1971), p. 148. 21. Prosser, Wade, and Schwartz, op. cit., pp. 888-9. 22. Henry Goldman, "Judge refuses to fine firm for violating vi bration law," The Philadelphia Inquirer, Jan. 31, 1987. 23. E. F. Roberts, "Plead the Ninth Amendment!" Natural His tory, Aug.-Sept. 1970, p. 22. 24. Holman V. Athens Empire Laundry Co., quoted in J. C. Juer gensmeyer, "Control of Air Pollution Through the Assertion of Pri vate Rights," Duke Law Journal 1967, p. 1131. 25. 78 N.E. 2nd 759. 26. Roberts, Ope cit. 27. Murray N. Rothbard, For a New Liberty (New York: Collier Books, 1978), p. 257. 28. Ibid., p. 259.

29. Best and Collins, Ope cit., p. 111. 30. Ibid. 31. 42 U.S.C. 9607 (i). 32. "Major Provisions," Congressional Quarterly, p. 2537. 33. Best and Collins, Ope cit., p. 113. 34. Ibid. 35. Ibid., p. 114. 36. "Major Provisions," Congressional Quarterly, p. 2540. 37. Fred L. Smith, "Beyond Superfund," The Wall Street Journal, Oct. 5, 1984, p. 32. 38. Lupu, op. cit., p. 574. 39. 42 U.S.C. 7604 (e). The corresponding clause in the FWPCA is found in 33 U.S.C. 1364 (e); and in the MPRSA, in 33 U.S.C. 1415. 40. Middlesex County Sewerage Authority V. National Sea Clammers Association, 453 U.S. 1. 41. 453 U.S. 20. 42. 453 U.S. 22. 43. Arnold W. Reitze Jr, "Pollution Control: Why Has It Failed?" American Bar Association Journal 55, Oct. 1969, pp. 923-4. Quoted in Daniel M. Rohrer et. aI., The Environment Crisis (Skokie, Ill.: National Textbook Co., 1970), p. 56. 44. "Major Provisions," Congressional Quarterly, p. 2537.