The Role of Rights
Common Law Promotes Responsible Behavior
MARCH 01, 1995 by ROGER E. MEINERS
The modern environmental movement was launched in the early 1960s. Rachel Carson’s 1962 book, Silent Spring, triggered fears of chemicals. Concern about dirty air was heightened by a London smog disaster that same year and several noteworthy pollution incidents in the United States. Such events increased awareness among the public, elected representatives, and the media of the potential for damaging our surroundings. 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 traditional 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 abandon their traditional rights to stop pollution nuisances through the courts; this responsibility, too, was largely given over to government regulators. Within ten years there was a regime shift in favor of federal control of environmental matters.
To many people at the time, environmental statutes seemed necessary to correct the problem that economists call “externalities,” 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 government regulations on wetlands and endangered species began to prevent people from using their property in what seemed to them clearly harmless ways, that the real consequence 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 woodpecker, for example, many owners of small woodlots cannot log their land. Others cannot 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 wetland, even though it may be dry most of the year. Thus, major attributes of private property 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 amendments, supporters of environmental laws that restrict property rights kept numerous environmental laws off the legislative agenda of the 103rd Congress. 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 environmental laws as Superfund, the Clean Water Act, and the Endangered Species Act.
The Common Law Tradition
Forgotten in the move to central environmental control was the fact that the enforcement of rights, including property rights, by citizens and communities in the past provided environmental protection without federal 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 guide judges’ decisions in disputes. In particular, the common law regarding nuisance, trespass, and riparian water rights gave citizens and communities a sound basis to sue polluters who imposed damage on persons or property. While common law dealt with disputes between 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 environmental horror stories of the past few decades ignore the fact that air quality improved 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 enforce 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 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 standards against polluters who inflicted harm on others.2 In contrast, environmental laws and regulations tend to establish technological standards, often at the behest of special interests. They are implemented by officials who want central control, and are almost inevitably outmoded by changing technology.
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 occurred before regulatory controls, we could expect to see a relatively stable set of rules that adjust to take into account new scientific 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, including 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 origin. When the nation was founded, much 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 Constitution. The Constitution created the basic framework of government, expressly limited the powers of government, and provided 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 personal 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 fundamental and inalienable rights with which government 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 understanding 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 Constitution 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 favors (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 reflects 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.
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 Industrial 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 Constitution (Chicago: University of Chicago Press, 1980), p. 12.