I’m frequently asked how an anarchist society would deal with things like pollution and other kinds of corporate malfeasance in the absence of a regulatory state.
One remedy commonly put forward by market anarchists is tort liability, enforced by local juries or arbitration services. For example, a corporation that spilled large quantities of gasoline and polluted the groundwater would be sued by the farmers whose wells were affected.
Libertarian writer Don Boudreaux (“Demsetz on the Costs of Markets,” Cafe Hayek, Jan. 21) cites economist Harold Demsetz to the effect that property rights (like the right to clean air) may go unprotected in a free market because protection costs too much. The transaction costs of defining the property rights, assigning a market value to them, and identifying and punishing violations, are simply more than it’s worth to those who are protected.
If this is the case, Boudreaux’s argument essentially mirrors that of progressives: That the prevention of pollution is a public good. They simply disagree on whether the market’s forbearance is a “market failure” or a rational allocation of resources away from an activity that’s just not worth it.
I don’t think either is correct.
If we look at the actual historical record of how tort liability law has dealt with negative externalities like pollution, it’s clear that the state has had a huge effect on shifting the comparative transaction costs of enforcing different kinds of property rights in a particular direction — namely, reducing the costs for large property owners (in particular firms in extractive industries) to enforce their rights against squatters and trespassers, while increasing the costs of small interests enforcing (for example) rights against polluters.
The bare act of large-scale engrossment of vacant land by the early American state, followed by large-scale land grants or grants of preferential access to favored railroad, mining, drilling, timber and ranching interests, is one example.
Another is the changes which American courts made in common law liability rules, as described by Morton Horwitz in “The Transformation of American Law.” The common law of liability was substantially changed in the early decades of the nineteenth century to protect businesses against liability for things that were regarded as a normal part of doing business, even if it resulted in real harms to third parties.
Yet a third example is the twentieth century regulatory state, which preempted common law liability altogether and created safe harbors for those who met its dumbed-down standards. In functional terms, this was a direct continuation of the process Horwitz described. A polluter who meets EPA standards can point to that as a legal defense, even if a plaintiff can marshal good scientific evidence that the pollution caused her significant harm.
According to Gabriel Kolko, in “The Triumph of Conservatism,” a good deal of the Progressive Era regulatory agenda was actually promoted by the regulated industries, as a way of creating de facto regulatory cartels that would apply the same standards to an entire industry across the board — thereby removing the subject matter of the regulations as an issue of cost competition between firms in the industry.
In fact, in some industries we actually see federal regulatory standards being used as a pretext by some businesses for preventing their competitors from voluntarily adhering to standards more stringent than those set by the regulatory authorities.
So we have not had a free marketplace, where civil protections against pollution and other tortious activity never arose because the transaction costs were too high. What we have actually had is a state capitalist marketplace, where the state artificially raised the transaction costs of enforcing civil protections against pollution — and thereby reduced the transaction costs of pollution.
As always, it’s not a question of what we’ll do when the state stops solving the problem. It’s a question of how to stop the state from creating the problem.
Citations to this article:
- Kevin Carson, Is the environment a public good?, Urban Tulsa Weekly, 02/16/11
Well, "the environment" seems to be a common good, rather than a public good, if you want to approach it in those sorts of terms. The sorts of environmental resources that one might regulate are generally rivalrous; that's the state's justification for regulation, as well as the justification for private appropriation by market environmentalists. On the state side, we have the failed common management of common goods, and on the private-propertarian side, a system that simply assumes that common goods must be managed individually—because common management always leads to a "tragedy of the commons." And, in practice, with environmental legislation and resources both marketed within the existing market system, the state's "common" management is nothing of the sort—the state is merely an assets management company in the service of a modern class of great proprietors.
Early US environmental history is full of examples of small-scale, private land-uses combining to create property issues—not to mention more properly ecological issues—on a large scale. It's hard to compare the impact of state-managed and unmanaged commons in the US, since state management was a (mixed) response to a leap in our capacity for industrial-scale resource extraction, as well as a response to the problems exposed by earlier land-use. But we certainly have good evidence that piecemeal resource appropriation was creating both property problems (upstream deforestation causing flooding far downstream, etc.) and more strictly ecological problems (special loss and loss of systematic biodiversity, loss of disease resistance and other forms of robustness in divided and disrupted ecosystems, etc.) before the feds got into the game. Now, that history also suggests that in many of the cases where state resource-management environmentalism actually served the felt needs of small proprietors (pest and predator control, for example), a pretty successful effort to serve individual property needs was still a common loss in ecological terms—and some instances, in fact, where the sound ecological policies pursued by the very small number of very small units of very small agencies that actually address such things, probably provided something of an alibi for the ecologically unsound land use around them. But there's really nothing coming out of contemporary market anarchism that suggests that private proprietors are even likely to concern themselves with ecosystemic concerns like water purity, animal migrations, ecosystem robustness, etc.
We know that a state that has marketed itself, and our common goods, to capitalists cannot effectively function as a steward for those goods. We also know—or should know—that "state environmentalism" has had a very checkered career, and that its best attempts at addressing the deep issues of ecological concern have been small, badly-funded, hamstrung by commercial interests and under concerted attack for thirty+ years. Examples of the common management of common goods are certainly out there—and they would be the real alternative to freed-market management of those goods—but I don't see much interest in looking for them in market anarchist circles. But, absent a real comparison, I guess I still don't have any sense of how market anarchist propose to address ecological concerns, where "good fences," or their equivalent, may amount to an attack on the property or the basic standard of healthy living of neighbors at a great distance, or the coming generations. I'm particularly curious how these sorts of concerns can be addressed if discussion of property focuses on abandonment, and brushes off questions about appropriation.
Shawn: Didn't a lot of this state resource-management approach to environmentalism arise after the courts had eviscerated or blocked the expansion of common law liability rules, though? A lot of the problems you mention caused by small property owners creating negative externalities, it seems to me, strike me as amenable to the same general principles that governed relations between upstream owners and those downstream under riparian law, as described by Horwitz. But the riparian law was heavily modified by the early-to-mid 19th century, as the liability of upstream owners for downstream effects was limited.
Roderick Long actually made a plausible case for common management under Lockean rules, under a blog post at Mutualist I'm too lazy to look up. I think the question of legitimacy would hinge on whether the active labor of maintenance, like (say) promoting native species and excluding invasive ones, would meet Lockean labor homesteading standards.
But in any case I think the kinds of actions carried out by the privileged big boys in the extractive industries, with the collusion of the feds, on enormous tracts of land preempted by them,, dwarfs what was happening under piecemeal uncoordinated appropriation.
And "appropriation" is a big issue. Even in the old days of uncoordinated appropriation, much of the piecemeal appropriation was carried out by people who had been driven to marginal land by previous engrossment and leapfrog development. So remedying one might at least ameliorate the other.
Any serious discussion of commons management has to start with Elinor Ostrom's work. You can disagree with her conclusions, if you want, but you have to address the historical and case study work she's done that support her conclusions.
BTW, Shawn: "Market anarchy" is a pretty broad category, and the kind based on Lockean property standards is only one segment of it — even if numerically pretty strong. I usually write with the assumption that most of my readership is Lockean and tilt my discussion of market solutions toward things that are compatible with Lockeanism. But you can take anything said about the effects of measures which are acceptable under Lockeanism, and use them as a sort of a fortiori argument for what could be done under an Ingalls-Tucker or anarcho-Georgist system.
Arguments over private vs. public goods matters little when a culture's vision is "The world was made for Man, and Man was made to conquer and rule it." This evolutionarily unstable strategy is about two generations from becoming extinct.
I think the question many greens have isn't how market anarchism would deal with pollution, but how it would deal with overexploitation of resources. The common libertarian retort that scarcity will drive up the price and discourage use of a given resource ignores that the higher price makes it even *more* profitable to plunder that resource. Bluefin Tuna is a perfect example:
http://tinyurl.com/4hxwyk6
The more I've read on ecology, the more I've softened my stance on Murray Bookchin and the other anti-market anarchists. They have a point when they ask whether a system based on unlimited growth continue forever on a finite planet. This is a question you never hear discussed in libertarian or conservative publications, but it's one worth thinking about.
The assumption in this discussion seems to be that people who live on the land do not care about it; that small land owners will just be a lot of small versions of the big exploiters we have now. I have to question that. With some exceptions, if you are there, you see what is happening and you want to fix any problems.
I owned a hay farm in Wyoming for a while. It was flood irrigated via an old dam on the Shoshone River. The farm supported far more wildlife than was there previously in this desert climate. The two main problems we had were eliminating invasive species (some introduced by government, like Russian olive) and controlling erosion at the outlets of the fields from the irrigation. But a change of irrigation methods (e.g. center pivot) could have handled that.
It turned out I discovered I was not a farmer. However I did enough to get a glimmer how things worked. What I most wanted was help from people not in government (I didn't care to be turned into a serf), but in volunteer organizations, that would have allowed me to make the place even more wildlife-friendly than it was, while still allowing an income for subsistence. I also wished for a reduction in the cost of water and an economic incentive to transition to a more water-conserving irrigation technology (which also would have virtually eliminated my erosion problems). All of these things are possible in a voluntary society.
"Arguments over private vs. public goods matters little when a culture's vision is "The world was made for Man, and Man was made to conquer and rule it."
Agreed White Indian. In the 1999' movie Instinct, when Ethan Powell told Doctor Caulder that man needed to give up dominion, boy did that line strike a nerve with me on so many levels. I didn't understand ultimate libertarianism at the time, not that I do now either but it did make sense that to achieve the destination, it was the road one must take.
"The more I've read on ecology, the more I've softened my stance on Murray Bookchin and the other anti-market anarchists."
Cork, I grew up in the 60's in rural NC and spent a huge amount of time out in the wilds. I have a real soft spot for nature and like yourself as I get older and coming from rural communities I can appreciate folks like Bookchin and his POV. I'm a fan of Ralph Borsodi for sure. Like Bookchin, Shawn Wilber above makes points worth giving thought too and I believe worthy of consideration and I hope he posts more here as I'd like to hear his perspective just as I hope you do the same. However I'm not to the point yet of going anti-market because statism itself has so absolutely muddied the waters all across the whole spectrum. Words of caution from folks like Bookchin, Shawn and yourself are well served and needed but all of us on all sides of this need the statism and the gun OUT of the room and then we might all be surprised at how natural actions of man outside force and coersion might very well make us all happy all at the same time.
There are a number of issues on the table that probably need clarification. If I'm reading the history of state environmentalism at all well—and I grew up in the belly of that particular beast, with my first two homes being national wildlife refuges and my father being a field biologist for USFWS—the vast majority of government intervention has been aimed at the strategic management of specific natural resources (including scenery and game), with a comparatively minute effort being made by a very small number of agencies to actually address "the environment" as such, in ecological terms. There are two kinds of goods at issue—or at least two very different conceptions of how nature ought to be conceived as a good. The waters are muddied by the fact that government agencies have attempted to treat pollution like a natural resource, abstracting its particular effects and "rationing" it in weird ways with cap-and-trade programs. Government resource management is compromised by capitalistic cronyism, by specifically national priorities (many of them related to the warfare state, and anti-environmentalist in their effects), and by their failure to engage much with the real environmental science that exists (since treating pollution as an abstract resource, etc., doesn't really address the environmental effects.) A cursory look at something like National Forest access and harvesting policy suggests that private woodlot management would have to work to be less coherent than US policy. As I've said in other threads, given the comparison between a propertarian, freed market society where owners cared about "their land" and shifting, compromised state resource management, the case against the state looks at least promising, if not exactly clear-cut. But the fact is that individual proprietors can care a lot about "their land" and still not care about "the environment" in any practically meaningful way.
If we go back to the environmental histories, despite the tiny impacts of colonial settlers in comparison to modern extraction industries (or just modern individuals with advanced technology), it appears that upstream clearing was causing regional flooding in New England in the early 18th century, and by the late 18th century deforestation was causing sufficient ground warming to permanently alter succession patterns and cause changes in seasonal high and low temperatures. Riparian law is certainly a good start at dealing with downstream effects, but we've gradually learned that there are an awful lot of downstream effects—and that downstream cam be a long, long way off. (I recall an old college geology example that tied silting in the Santa Barbara marina to water-flow changes in the Columbia River basin.) In fact, it appears that any significant intervention in local ecosystems is a vector for further change—and that these sorts of cascading changes don't respect property boundaries, or the rights of proprietors. This poses a variety of elusive, thorny, but ultimately practical problems for serious neo-lockeans. An ecological reading of the provisos at least clarifies what's at stake, but it isn't clear to me that any system of exclusive, individual property has made much headway in reconciling "natural property" with the ways in which "nature" is always already rather promiscuously mixed up with us.
I'm certainly aware, after all, that just appropriation is a big question, having gone so far as to suggest that, as Proudhon said, "property is impossible"—at least as we tend to imagine it—while, as presented elsewhere on this site, the Center's working consensus seems to be that appropriation isn't that critical an issue. Since the ecological model seems to imply that later homesteaders are at least likely to mix in with the property of (even distant) neighbors in proportion to the degree of transformation involved in the homesteading, there seem to be strictly propertarian reasons for concerning oneself with real ecological effects. And it isn't clear to me that private land and resource appropriation can avoid being a matter of common or public right.
I'm concerned that tort enforcement is not much more likely than centralized resource control to address the most critical, far-reaching of downstream effects (broadly defined.) If "the environment" is not understood as a common or public good (or, perhaps more accurately and usefully, a number of such goods) then it isn't at all clear to me on what grounds one could take action against any but the most serious sorts of ecosystem destruction, assuming that the costs associated with proving systemic sorts of property invasion were not, as Demsetz seems to suggest, prohibitively high.
Anyway, if market environmentalism is going to make claims to addressing these sorts of questions better than the state, it has some tough work ahead. And, honestly, the bar has not been set by the resource management agencies, but by those agencies which for a brief period—say, 1966-1981, from the passage of the "critical habitat" version of the Endangered Species Protection Act to the appointment of James G. Watt, and the beginning of the active dismantling of state-ecology in the US—attempted to address "the environment" as more than just the nation's woodlot.
If we are to believe that people have a right to sue because of pollution of the commons, such as the air and public waterways and the oceans, then the Industrial Revolution would not have occurred and we'd all living a primitive lifestyle. However, if someone has the right to complain "I don't like exhaust fumes" then what's stopping people from saying "I don't like the smell of manure and hay" and send people from a farming existence to a hunting and gathering existence?
There's something to said if everyone, in essence, "owns" the commons then people have the right to use it. If people are making use of the air by releasing exhaust fumes into the air then so what? It's not they're damaging private property. Similarly if the river is public and you complain you can't go swimming or fishing any more because of the pollution upstream then so what? It's not you're private river, you can't forbid other people from using it. And if you do use it and become ill then you only have yourself to blame.
Gil,
Remove all state intervention at all levels, return all actions of human nature to natural forces/natural markets e.g. freed markets and then ask again would there have been an industrial revolution at least in the sense that we know it today?
If really it is the case that without the state, everyone would kill each other as the anti-anarchism cliché says than the problem of environmental protection without a state may not be such a problem after all.
That makes no sense. If people have to right to sue polluters in a free market court then you back to Greenies halting all technological progress. If people don't have the right to sue polluters in a free market court then the pollution continues unabated.
It's akin to saying "the free market will solve the issue of animal rights" by saying "all free market courts will tell PETA to f*** off".
I agree with a lot of your sentiments Shawn, but I don't think that all the points you mention are uniquely contra market anarchism.
"In fact, it appears that any significant intervention in local ecosystems is a vector for further change" :
Ultimately, we STILL know so little about the interactions in our natural environment that it is extremely difficult to trace all the impacts we have on the environment just by breathing, for example. In fact, the most realistic models I've encountered posit a dynamic system with a pretty severe limit on what we can possibly know about it at any given moment in time, due to what is often vulgarly referred to as Heisenberg effects, among others.
Also problematic is the view taken by the federal agencies from 1967-1981 that the environment tends to exist in a stable equilibrium that must be maintained at all costs. This is a very flawed, dangerous model to pursue for many reasons. Real nature involves tremendous pressures that promote almost constant change. Even without human interference, extinction is common as evolution, as just one example, goes to work. Trying to "conserve" a current condition as "natural" is about as anti-environment as Love Canal.
Which isn't to say that there's nothing we can do to protect the environment, at the very least for humanity's own benefit; diversity of species IS an important facet of environmental robustness. The issue is in some ways similar to the question of just appropriation – it's much more difficult to identify what is a "good" environmental outcome than most people assume. There are some pretty easily identifiable "bad" outcomes, but outside of that, it becomes very difficult to trace out the relative worth of different value systems. I'm not even sure that, in the end, there is one objectively correct answer. Competition and true diversity are natural conditions that serve important purposes. Any attempt at a single environmental ethos is going to give too short a shrift to such conditions.
I agree that pure property regimes have unique problems in addressing fugitive and common resources. But it's also true that collectivist (widely defined) approaches have their own unique issues. Elinor Ostrom really has studied the issue to death and shown that appropriate scaling is a very important feature of any successful common resource management scheme, among other things. Most of the collective vs. individual debate that occurs is irrelevant according to what she's found. That tension is important, but not in the ways that most of the current debate focuses on.
In sum, I don't think the problems you highlight are uniquely problematic for market based systems. I think that given what we know about the natural world, market systems of some sort are a proper part of the ultimate balance, just like more socialist and communist systems. The diversity and competition engendered by their co-existence is the only way protect all the diverse values of nature. Nature is not a mono-culture, and in fact contains powerful pressures to avoid such results over anything larger than a micro-climate, and this serves important robustness values. I think the same is true of any sub-system of nature, and that includes human society.
If there were government agencies that took the view that "the environment tends to exist in a stable equilibrium that must be maintained at all costs," I'm not certain which agencies there were. There was certainly never legislative authority to do more than draw a fairly small number of lines in the sand—ecological triage, for the most part—but even those seldom trumped "multiple use" policies. In the end, we have already intervened so dramatically across so much of the globe that there isn't much left to us but a choice of management schemes. "Conservation" is indeed sometimes a problematic notion within dynamic systems, but the conservation of options (through preservation of biodiversity of various sorts) is probably among its least problematic applications. There are certainly environmental models—like some of the more naive "restoration" approaches—that seek to stop or turn back the clock, but even much of the serious restoration work is ultimately anti-monoculture, rather than anti-dynamic.
I don't think, for the record, that at any this in "uniquely problematic for market based systems." Honestly, "markets" are too vaguely defined in these circles to present much of a front to attack, provided I was so inclined. I *do* think that the issue of "exclusive, individual property" and its alternatives is significant. If you want to generalize my point about "significant interventions" as vectors for further change to breathing, I don't think it in any way diminishes the significance of "downstream effects" and their influence on the person and property of (potentially quite distant) neighbors. To say (though I assume you're not saying it) that because a breath can have some distant effect, a 100-acre clear-cut or species extinction is just like a breath (in terms of ecological robustness, effects on persons and property—pick your yardstick…) pretty obviously doesn't cut it. If you want to argue about what is or isn't "natural," then the extinctions caused by humans are small change—and every bit as "natural"—as those massive ones caused by comet strikes or algae blooms (or the Old Testament God, if you feel like going there), but presumably "stuff happens" is not the sort of naturalness on which we've built "natural property" or "natural law."
I think Kevin continues to pit an ideally "freed market" (which includes some more-or-less "natural" legal apparatus) against regulatory regimes that seems always already captured by outside forces (commercial forces, buying and selling regulation in those other markets whose relation to free markets is so hard to pin down.) It doesn't appear to me that mechanisms like riparian law were adequate to protect property, even as early as the 18th century, and it seems unlikely to me that they are adequate to a technologically advanced society where individual appropriation is likely to harness, and be magnified by, significant amounts of collective force. Indeed, much of my argument in this thread has been that if we care about individual property in the principled way that most individual property advocates will claim, then we need to confront—one way or another—the constant, unpredictable flux of the world across every physical or legal line we might draw.
I'm no fan of the project, but the TVA dam case with the ESA reveals quite clearly what my personal experience (having interned at several similar state agencies) told me about the mindset of the career bureaucrats in such agencies; namely, that "conservation" of the current status was what protecting the environment was all about.
As far as "legislative authority", well, that's kind of a pesky dodge, isn't it? Most environmental legislation is drafted more vaguely than the Constitution, because there was so little agreement on specifics by the legislators involved. RCRA is infamous for this (and for its "conservation" tilt). In most cases, this means the agency has tremendous power to determine just what exactly the legislature has empowered it to do. Of course, a right-wing SCOTUS stepped in to rein in this unfettered discretion a little, but of course they did it in equally ridiculous ways.
You're right, I don't equate breathing with clear-cutting. But at the same time, both actions contain both good and bad environmental consequences (again, I'll grant that the large scale clear-cutting is clearly on the bad side of the register overall, but that if contained in small scales, it often is a palliative (though not the best) to the damage caused by human fire control policies), and that we really know very little about long-term, large scale environmental processes that affect and are affected by both processes. As usual for me, the question of what is okay and what is bad can usually be approximately answered by determining the scale of the activity. Large scale activities or policies are almost always bad, while small scale are almost always okay (not necessarily "good," but not bad.)
And I'm no proponent of natural law, though obviously many here are. But even so, I can recognize that most natural law theorists here wouldn't call it "stuff happens," but that if one is talking about nature, and protecting it, one must recognize nature for what it is, and not anthropomorphize it or impose our own idealized visions of it. And nature IS dynamic, including extinctions and climate changes and etc. And as research has shown, these "bad stuff" things are just as important long-term as the stuff we romanticize.
I do agree that pure individualized law principles are fairly inadequate for commons and fugitive resource problems. Ostrom's research has gone a long way towards dispelling the libertarian myth of the tragedy of the commons. But at the same time, her work has shown that individual involvement and control is an important component of any even marginally successful commons or fugitive resource management system, and that such systems are very, very diverse in their ultimate configuration, although they tend to share several common elements.
Look, I think I've been pretty clear, and I have not anywhere—not one single, solitary place—claimed that nature is not dynamic, or anthropomorphized or idealized it. I have, in fact, been talking about scale-of-impact—although it *is* quite simply the case that *every* intervention is a vector for change, and as presumably responsible actors I think we ought, to the extent we are able, to take our personal "butterfly effects" as seriously as we take our property. I've made minimal claims for imperfect legislation, such as the ESA—which I will continue to maintain is a more useful mark-to-beat in environmental terms than something like cap-and-trade. Ideally, ESA should have been focused more on critical habitats, its mechanisms should have been better adapted to the agencies responsible for enforcement (or those agencies should have been given the necessary resources.) It's application should have been focused more on winnable battles. And, of course, there should have been a whole, wide range of efforts made to supplement the federal restrictions with local plans. In the very short period during which ecology as such had any sort of place at the table, that stuff couldn't get through the governmental processes. No big surprise. Those processes are, as we all seem to agree, most frequently captured—in whole or in part—before this sort of thing gets its first impetus. But, again, if the comparison is between freed markets and captured legislation, it's a bit of a sham.
Let's say that the real issue is "recognizing nature for what it is." There is a vision of nature implicit in the approach that says "we'll sue polluters after they pollute." And that vision, which has to distinguish between "pollution" and natural change, faces essentially the same problems as the most idealistic conservationism. We can move the debate to the realm of property rights, but the problems don't go away—and the potential invasiveness of "normal" resource use is constantly amplified by technological advances, so that we're back to some version of the original Boudreaux/Demsetz question about whether the transaction costs associated with connecting downstream effects to their sources will be too high to allow any but the simplest, most obvious cases to be addressed.
overexploitation is dealt with via the concept of what is called "the sustainable yield" and fits nicely – imho – within the Lockean proviso.
beyond the use of the sustainable yield of a common asset – not collective asset – we start creating negative externalities..and those negative externalities violate everyone (who is subject to them) absolute right of self-ownership – to the fruits of their labor.
I think at a very fundamental level people don't have an understanding of how they use the term "public" and what exactly they mean by that term…
there is a fundamental between the terms common ownership/rights and collective ownership/rights.
common means individual equal rights or simply – you can act without permission so long as you infringe on no other individual's equal right to the same.
collective means joint rights – you can not act without prior consent from ALL of the other owners or their delegated authority.