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Imprimis, On Line
May 1994
IMPRIMIS (im-pri-mis), taking its name from the Latin
term, "in the first place," is the publication of
Hillsdale College. Executive Editor, Ronald L.
Trowbridge; Managing Editor, Lissa Roche; Assistant,
Patricia A. DuBois. Illustrations by Tom Curtis. The
opinions expressed in IMPRIMIS may be, but are not
necessarily, the views of Hillsdale College and its
External Programs division. Copyright 1994. Permission
to reprint in whole or part is hereby granted, provided
a version of the following credit line is used:
"Reprinted by permission from IMPRIMIS, the monthly
journal of Hillsdale College." Subscription free upon
request. ISSN 0277-8432. Circulation 520,000 worldwide,
established 1972. IMPRIMIS trademark registered in U.S.
Patent and Trade Office #1563325.
---------------------------------------------
"The Real Environmental Crisis: Environmental Law"
by Robert J. Ernst
Attorney at Law
---------------------------------------------
Volume 23, Number 5
Hillsdale College, Hillsdale, Michigan 49242
May 1994
---------------------------------------------
Preview: Although universally agreed that it is vital
to protect our environment, attorney Robert Ernst notes
that there is great controversy over how to do so.
Increasingly, environmental disputes are being settled
by government agencies, and the laws they create,
enforce, and adjudicate (in clear violation of the
principle of separation of powers) endanger another
precious resource--our liberty. Mr. Ernst spoke at
Hillsdale College's Center for Constructive
Alternatives seminar, "Politicization of the Law:
Landmark Decisions and Trends in U.S. Legal History,"
in November, 1993.
---------------------------------------------
All too often these days, the laws designed to protect
our environment do more harm than good. The instances
where environmental laws have led to incredible waste
of resources are legion. The laws favor false crises
instead of real environmental problems and even create
greater problems than they were made to eliminate.
Scare campaigns against acid rain, asbestos, toxic
waste, carcinogens, global warming, and global cooling
are just a few examples.
Even worse, such laws are instruments of tyranny.
According to the modern view of environmental
protection, men count not more than the grass upon
which they walk. It is no wonder that this view
attracts adherents who have little appreciation or
patience for the nuances of ordered liberty, or that
the laws it produces are actually contrary to the rule
of law.
The Rule of Law
The rule of law is essential to a free society. We obey
the law so we do not have to obey other men. Most of us
assume that the Magna Carta (1215 A.D.) established the
rule of law as the foundation of the British and
American legal systems, but the rule of law is in
reality thousands of years old. According to Nobel
Laureate F. A. Hayek, the Greek concept of isonomia has
gradually developed into "equality before the law,"
"government of law," and "the rule of law."
Unwritten codes of conduct honored by ordinary
people in their daily lives have also helped secure the
rule of law. For example, there is near universal
understanding of the principle, "third man out.'" When
two men are brawling, the crowd may eject a third who
enters the fray. All civilized people also agree that
crimes like rape, assault, and murder must be punished
and that private property and civil rights must be
protected.
But what is most important to remember about the
rule of law is that it depends on the voluntary
adherence of citizens and the separation of powers,
which protects citizens from the arbitrary authority of
the state.
The antithesis of the rule of law is not anarchy
but a tyranny of laws. When there are state-enforced
rules for every occasion, the state is omnipotent. The
Roman historian Tacitus said it best: "The more corrupt
the Republic, the more laws." Too many laws destroy the
rule of law because individuals will not voluntarily
honor them. And when they do not voluntarily honor the
law, society disintegrates.
The Rise of Radical Environmentalism
From the mid-1960s to the present day, legislators have
been pressed to create so-called environmental laws to
cure what has been popularized by environmental groups
as the destruction of the earth and the death of man.
Smog and pollution seemed to be everywhere. In her 1962
bestseller, The Silent Spring, biologist Rachel Carson
set the tone by summoning apocalyptic visions of the
effects of DDT and other pesticides. (Scores of
imitations have been published since, including the
controversial book, Earth in the Balance by Vice
President Al Gore.)
At the time, the Sierra Club and other
environmental groups began to shift their emphasis from
conservation to protest against capitalism and
technology. Their leaders organized a highly
sophisticated public relations and political campaign
to make every new radical proposal and militant
organization seem mainstream--from the Audubon Society
of birdwatchers to the Earth First saboteurs in a few
decades. A rock tune by The Doors exclaimed the
sentiment of the era:
"What have they done to the earth?
What have they done to our fair sister?
Ravaged and plundered,
And ripped and bit her.
Stuck her with knives in the side of the dawn.
And tied her down with fences and dragged her down."
The philosophical basis of the radical
environmentalists' worldview is pantheism. Earth is
part-divine, part-human, crucified like Christ by
unnamed persecutors. While intellectuals and the
popular press postulated that God was dead, radical
environmentalists resurrected paganism. They did not
call for a variation of Judaism or Christianity; these
worldviews were blamed for polluting the earth. Instead
they were proposing a totally different ethic exalting
nature and lowering man to the level of plants and
animals.
The pantheism of radical environmentalists in the
1960s-1970s (carried on by the New Age movement today)
represented a near-complete rejection of the philosophy
of America's founders and, I suspect, a majority of
American citizens. It also represented a profound
disrespect for the rule of law and individual liberty,
which the founders strove to guarantee. The 19th-
century French writer Alexis de Tocqueville repeatedly
observed that Americans cherished their freedom of
faith in true religion and that freedom of religion was
vital to America. He further noted that pantheism was a
seduction to democracies that must be vigilantly
guarded against. The simple truth is that America is
fixed to its Judeo-Christian foundations and that
pantheism is inimical to that bond.
For their part, politicians ducked the issue. They
ignored the faulty theology (as well as the faulty
science) behind the environmentalists' vision. They
then passed broadly worded laws, leaving their
implementation to executive agencies like the
Environmental Protection Agency (EPA), and ran for
cover. Once in the hands of the executive agencies, the
laws took on a life and liturgy of their own. Our
representatives dodged their legislative
responsibilities by passing the torch to unelected
bureaucrats. Our executives were powerless to halt the
process. Our people now must adhere to what is in
effect a state-sponsored religion.
Environmental Agencies
Environmental agencies are part of the executive branch
of government. Arguably in violation of the principle
of separation of powers, these agencies write the
regulations interpreting the laws, enforce them, and
adjudicate them. They are unrestrained by any real
check on their authority. And they are hostile to
freedom based on the rule of law.
Recently, I listened to a former star professor
at a prominent Eastern law school, now a member of the
Clinton administration, depict all officers of
corporations as polluters whose lust for profit leads
them to commit heinous environmental crimes. He
promised a massive regulatory drive to end the "rape"
of Mother Earth that supposedly began during the
Reagan/Bush era. His concluding warning was: "Corporate
officers, the halcyon days are finished, and we're
going to get you."
He clearly has no sense of the purpose of law,
which is to guarantee and protect freedom--freedom for
men to operate enterprises for profit, to speak out
against injustice, to see redress for wrongs committed
by other individuals or by the state. He caricatures
corporate America as a conspiracy of huge,
irresponsible smokestack industries. He is not alone:
Most bureaucrats do the same.
They are starting to demand that shareholders in
businesses accused of polluting must pay exorbitant
fines, wiping out any return on their investment. The
idea is to personally punish them for having invested
in those businesses. Contrary to fundamental legal
precepts defining traditional criminal conduct,
environmental laws currently mandate punishment of
corporate officials for the negligent acts of their
employees, even when they did not have knowledge of the
negligent acts.
Environmental agency bureaucrats reject the idea
that the law is about freedom--they seek only to
punish. They regard themselves as a special breed:
enviro-cops. A few courageous journalists have bucked
the media establishment and reported on the enviro-
cop's latest victims:
- Viktor Posgay was sentenced to serve time in prison
for removing a heap of trash, thousands of old auto
tires and other rubbish from his property, and
replacing what he had removed with clean sand. EPA
inspectors decided that Posgay's land was not his
land at all but was a "wetland," which could not be
developed because of overriding and uncompensated
state interests. Posgay, an immigrant who came to
this country to escape communism, ran afoul of our
own version of the secret police.
- Bill Ellen was also charged with an alleged wetland
crime. He had secured some 37 different permits to
fill land in order to build a series of duck ponds.
He was creating wetlands, but an EPA bureaucrat
ordered him to halt the dump trucks he had hired.
Ellen redirected the trucks to a different place on
the site. This was judged to be "insubordinate
behavior." Ellen spent six months in jail. The
greatest irony is that he did not even own the land;
he was simply the environmental consultant on the
project. Despite his expert knowledge, he was
trapped.
- Florida residents Ocie Mills and his wife are
appealing convictions resulting from their wetlands
violations; the Mills had the audacity to speak out
against the U.S. Army Corps of Engineers. As a
consequence, they were singled out for prosecution.
It must be noted that at the time that Posgay,
Ellen, and the Mills were tried, there were three
different federal definitions of a "wetland," and
many states had created their own definitions.
Usually, neither water nor wet soil need be present.
- Wayne Hage, a Nevada rancher, was told by the U.S.
Forest Service that he could not clear brush from his
irrigation ditch, a practice relied upon by
generations of ranchers. When Hage sought a
determination of his rights in the U.S. court in
Reno, the government retaliated by filing criminal
charges against him in another U.S. court in Las
Vegas. A federal conviction was the price Hage paid
because he dared to speak out.
- When a small California manufacturing company was
accused of air quality violations, its president felt
the violations were unjustified. He complained to his
elected representatives and to the environmental
agency which had made the charges. Without warning,
agency inspectors swept down on the company, searched
the physical facilities, combed the records, and, lo
and behold, discovered additional alleged violations.
They went on to file a legal suit against the
company, but not before they issued damaging press
releases and gave interviews with the media
describing the violations as the most serious they
had ever seen and alleging that the company was
releasing tons of toxic contaminants into the air.
What contaminants were being released into the
air? Paint and paint thinner. The company stood
accused of using two to ten gallons of paint and
paint thinner per day above the prescribed limit.
Even though this did not result in a threat to human
health or the environment, the agency demanded twice
the company's annual net profit to "settle" the case.
- In Los Angeles, the owner of a trophy shop could not
make his payroll because an environmental agency
slapped a lien on his bank account. The agency
claimed that the ozone filter on his desktop laser
printer was faulty and that a lien was required to
secure payment of a hefty fine. The trophy shop
owner, like hundreds of other former California
businessmen, moved out-of-state.
These cases illustrate how environmental laws are
used to prosecute individual citizens and small
businesses, but, for the sake of comparison, I would
like to share some other cases revealing how the same
laws apply to big businesses:
- The Chevron Corporation settled a case brought by the
state of California when the anchor from a ship
unloading at a dock snagged an underwater pipeline.
It was undeniably an accident. Chevron cleaned up the
diesel fuel spill at its own expense. Yet the state
filed criminal charges, and Chevron paid more than
$300,000 in fines.
- In California, attorneys for some of the more
effective environmental special interests crafted a
law called "Proposition 65," which requires special
labeling for all products that are "known to the
state...to cause cancer or reproductive harm."
According to Bruce Ames, a professor at the
University of California-Berkeley who is also one of
the world's leading scientists, roughly half of all
substances in the world are carcinogens. It is not
too hard for the state of California to find
carcinogens in most products.
Like many others, this law also has a "snitch" or
"bounty hunter" provision that allows private
individuals to recover for violations. So the same
attorneys who wrote the law are now policing it and
getting rich in the process. Here is a case in point:
The Gillette Company makes a typing correction fluid
that comes in a very small bottle. It could not fit
the state warning on the label. Attorneys filed suit
on behalf of the people of California; Gillette was
forced to pay a king's ransom and reformulate its
product.
Who Are the Big Polluters?
Radical environmentalists argue that environmental laws
should mainly be aimed at the big "corporate dinosaurs"
and that violations should carry huge financial
penalties. A $100, $1,000, or even a $10,000 fine does
not trouble a major corporation. They add that huge
financial penalties reflect the true value of what is
lost to society by pollution.
Both arguments are insupportable. The overwhelming
amount of pollution in this country is caused by
individuals--by you and me--not by the Fortune 500. Big
businesses are easier targets. They can more easily pay
huge penalties because they pass the cost on to
consumers. Here are several related observations:
First, big businesses do not stand up and fight
the system. They fear bad publicity, and they can
always be outgunned by Uncle Sam.
Second, big businesses tend to buy their way out
of violations by paying "settlements" and allowing
themselves to become willing victims in an elaborate
extortion racket.
Third, big businesses have latched onto the "green
movement" because they have adopted a defeatist
attitude or have been co-opted by radical
environmentalists.
One way or another, big businesses will survive.
But more and more small businesses are being prosecuted
for alleged violations of environmental laws. These
enterprises do not have the resources to comply, nor
can they buy their way out. What happens to them? Many
simply go out of business. A few attempt to fight and
suffer retribution. The rest pay off government
agencies with small "settlements," but are forever
under the watchful eye of their "protector" who is
constantly seeking new opportunities to collect more
"settlements."
A Return to the Free Market and the Rule of Law
Environmental laws theoretically apply to individuals,
too, but they are rarely enforced, except in the
nightmarish cases described earlier. If we are to find
positive solutions to genuine environmental problems,
we must begin by holding individuals accountable--
fairly and justly, according to the rule of law.
How do we set about doing this? In California, for
example, as little as 10 percent of all automobiles
emit more than 60 percent of the pollutants that cause
smog. These cars should be repaired or taken off the
road. They can be identified very easily with infrared
roadside detectors, yet the state has failed to employ
these devices. Once charged with individual
responsibility for their incremental component of air
pollution, individual citizens will resolve the
pollution crises, first by eliminating pollution, then
by eliminating the environmental agencies. Until
individuals are allowed to rule, under law, there will
be both pollution and a threat to liberty.
---------------------------------------------
Robert J. Ernst, III, is an attorney at law in Salinas,
California. He also serves as vice president of the
Banbury Fund and is a member or a board director of
such organizations as the Monterey Bay Unified Air
Pollution Control District Task Force, the Monterey Bay
Clean Air Coalition, the Pacific Research Institute,
and, formerly, the Astronomical Society of the Pacific.
His publications include "And You Thought You Owned
that Land in the Sacramento Delta: The Impact of
Phillips Petroleum v. Mississippi on California Oil and
Gas Producers" in Landman, "Regional Government
Threatens Private Property" in the Pacific Business
Review, and "Clean Air's Dirty Politics" in the
American Spectator.
###
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