The Role of Rights; R. Meiners

THEFREEMAN IDEASON LIBERTY The Role of Rights by Roger E. Meiners T he modern environmental movement was launched in the early 1960s.Rachel Carson's 1962book, Silent Spring, triggered fears of chemicals. Concern about dirty air was heightened by a London smog disaster that same year and several noteworthy pol lution incidents in the United States. Such events increased awareness among the pub lic, elected representatives, and the media of the potential for damaging our surround ings. These forces helped lead to the passage of a host of major federal laws, culminating in the Clean Air Act of 1970 and the Clean Water Act of 1972. These and other federal environmental statutes began to erode tra ditional private property rights in favor of central government control of property. People began to think it normal for the government to issue permits to allow the operation of plants and factories. At the same time, Americans also began to aban don their traditional rights to stop pollution nuisances through the courts; this respon sibility, too, was largely given over to gov ernment regulators. Within ten years there was a regime shift in favor of federal control of environmental matters.

To many people at the time, environmen tal statutes seemed necessary to correct the problem that economists call "externali ties," or costs imposed on others in society, such as using the air and water as free goods. It was not until the late 1980s, when gov ernment regulations on wetlands and endanDr. Meiners is Professor ofLaw and Economics at the University of Texas at Arlington. gered species began to prevent people from using their property in what seemed to them clearly harmless ways, that the real conse quence of federal environmental regulation became obvious. The result now is substantial restriction on the use of private property. To preserve species such as the red-cockaded wood pecker, for example, many owners of small woodlots cannot log their land. Others can not plow their land because plowing may endanger the Stephens kangaroo rat. Some are prevented from building homes on their land because it is suddenly declared a wet land, even though it may be dry most of the year. Thus, major attributes of private prop erty have been taken from private property owners and placed under federal regulation.

In response, hundreds of grassroots groups have arisen spontaneously around the country to form the property rights movement, as property owners have come to confront, often for the first time, the effects of direct restrictions on the use of their property. Politicians, sensing the strength of this movement, are proposing that the government compensate property owners for takings that substantially reduce the value of property. Fearing such amend ments, supporters of environmental laws that restrict property rights kept numerous environmental laws off the legislative agenda of the 103rdCongress. In their view, it was better to have no new law than one that reduced the impact of laws already on the books. This was a major reason why Congress failed to reauthorize such envi160 ronmental laws as SupeIfund, the Clean Water Act, and the Endangered Species Act. The Common Law Tradition Forgotten in the move to central environ mental control was the fact that the enforce ment of rights, including property rights, by citizens and communities in the past pro vided environmental protection without fed eral interference. Environmental protection occurred through the application of various parts of the common law to violations of personal rights.

Common law (also called private law) refers to the body of rules that guidejudges' decisions in disputes. In particular, the com mon law regarding nuisance, trespass, and riparian water rights gave citizens and com munities a sound basis to sue polluters who imposed damage on persons or property. While common law dealt with disputes be tween individuals and did not deal directly with pollution that affected everyone equally, such as automobile pollution in Los Angeles, the record of common law cases indicates that individuals and communities protected their rights to healthy air, clean water, and unpolluted land. The environ mental horror stories of the past few de cades ignore the fact that air quality im proved more during the 1960s, before the Clean Air Act of 1970, than it did in the 1970s.1 The common law has never been perfect. However, it plays a key role in promoting responsible behavior and allows citizens to decide for themselves if they want to en force their rights. The common law of torts, contracts, and property provides the key legal framework for the free market system.

Individuals decide what actions they will take. Other persons injured by their actions have recourse to private litigation when their protected rights have been violated. Yes, every day there are cases that make little sense. But occasional mistakes by thousands of independent judges are subject to review by courts of appeal, and legal rules, if mistaken, can be countered in other jurisdictions. As a result, decisions are 161 much more likely to be correct, and less devastating in impact when wrong, than are decisions by congressional mandates and regulatory standards. The common law, like markets, evolves to take advantage of new knowledge, technology, and the desires of consumers. In a way similar to the effects of strict liability imposed on producers of defective products, the common law used to (and occasionally still does) impose tough stan dards against polluters who inflicted harm on others. 2 In contrast, environmental laws and regulations tend to establish technolog ical standards, often at the behest of special interests. They are implemented by officials who want central control, and are almost inevitably outmoded by changing technol ogy.

We do not know what the common law rules regarding pollution would be today if common law protections had not been cut short by statutory intervention. But as oc curred before regulatory controls, we could expect to see a relatively stable set of rules that adjust to take into account new scien tific evidence about the effects of pollution. In contrast, the legislative process is never clear, since it involves constant pleading before Congress and regulators to modify the rules again and again, often with no rational relationship to the risk of harm from pollution. Erosion of Rights The erosion of our traditional rights, in cluding the right to use our property as we wish, as long as we don't harm others, is a fundamental loss. It is a modern myth that our rights were created by the Constitution (the "supreme law of the land"); the writers of the Constitution presumed inalienable rights held by virtue of being free persons.

As a great British legal scholar, A.V. Dicey, said over a century ago, "Personal freedom does not really depend upon or originate in any general proposition contained in any written document. ,,3 Much of American law is English in ori gin. When the nation was founded, much 162 THE FREEMAN • MARCH 1995 English law, especially the common law and the rights and duties it provides for all citizens, was incorporated into the new legal regime that includes the federal Constitu tion. The Constitution created the basic framework of government, expressly lim ited the powers of government, and pro vided express safeguards against invasions of certain rights. But the Constitution did not grant us all rights we have as citizens. We are presumed to have a host of rights, often called natural law. Some natural law is expressed through the common law; but the elements of natural law were presumed to be understood by the judiciary. Thus a modern constitutional scholar, Bernard Siegan, points out that the framers of the Constitution' 'believed that liberty and per sonal security are the ultimate purposes of society; they favored limited government and dispersal of power, feared the tyranny of political majorities. . . . They subscribed to the belief that individuals have fundamen tal and inalienable rights with which gov ernment may not interfere."4 The United States is one of the few governments created by a free people who understood that they possess inalienable rights. This is unlike most governments in history, which grant some rights to their citizens; typically the state is presumed to be the source of all law.

This point has been lost in political and judicial talk about citizens having "rights" to assorted public benefits, such as a "right" to subsidized medical care or a "right" to Social Security. The use of the word right in such contexts has confused public under standing of what rights are. No doubt the legislature has the power to collect taxes to spend on things such as medical care and Social Security, but to presume that the "right" to receive benefits granted by the legislature is similar to the inalienable rights understood by the framers of the Constitu tion is a perversion of the basis of liberty. The rights that make us a free people are natural rights,. they are not granted by a legislature created by a free people. That is why the modern debate over the preservation of property rights is a key issue. If traditional property rights are lost in favor of legislated control of property, a major cornerstone of all liberty has been lost. We come closer to being like most peoples in the world-granted certain fa vors (called "rights") at the pleasure of the legislature, but having few rights that may not be invaded by the legislature and the agencies it creates to execute its wishes. The property rights grassroots movement re flects a common-sense understanding that the natural rights we have by virtue of living in the United States are being seriously eroded in favor of state control and that it is time to resist that erosion. D 1. See Paul Portney, Public Policies for Environmental Protection (Washington, D.C.: Resources for the Future, 1990), p. 51. See also Robert W. Crandall, Controlling Indus trial Air Pollution: The Economics and Politics of Clean Air (Washington, D.C.: The Brookings Institution, 1983), p. 19.

2. See, for example, Roger E. Meiners and Bruce Yandle, "Clean Water Legislation: Reauthorize or Repeal?" in Taking the Environment Seriously, edited by Roger E. Meiners and Bruce Yandle (Lanham, Md.: Rowman and Littlefield, 1993), pp.73-101. 3. A. V. Dicey, The Law of the Constitution (Indianapolis: Liberty Press, 1982; first edition, 1885), p. 123. 4. Bernard Siegan, Economic Liberties and the Constitu tion (Chicago: University of Chicago Press, 1980), p. 12. Attention Teachers and Professors! Recent Issues of THEF'REEMAN for Classroom Use Here~ s a chance to introduce students to The Fl~eeman at little cost to you or your school. We are offering cartons of back issues of The Freeman for the modest charge of $10.00 per carton (within the United States) to help defray our shipping and handling charges. Each carton contains between 175 and 200 copies. Payment must accompany order.