Resources & Environment
"Natural Resources and the Environment: Individual versus Community Interests," implies a fundamental conflict between individual liberty and collective interests in environmental law. This misstates the fundamental issue. The most important conflicts that we face are those among different collective interests and values -- most fundamentally, those associated with activity on the one hand and security on the other. In conceptualizing the issue as it does, the panel title echoes the rhetoric of the current property rights movement, which opposes most environmental regulation on the ground that it illegitimately curtails individual liberty. To the contrary, properly designed legal measures for protection of the environment can enhance liberty. Conceptualizing environmental issues in terms of conflicts between individual liberty and the community will lead us astray from the important task of advancing liberty by balancing activity and security through the adoption of appropriate laws and institutions.
This essay first explains that liberty has two basic components, activity and security. The law must balance these twin elements of liberty at the collective, not the individual level. It then summarizes how the law, over the past 125 years, has come to given increased weight to environmental security and less to activity, explaining how this change has been accomplished by a shift from common law litigation to administrative regulation. Next, the essay address the normative question of how we should strike the balance between activity and security. It examines a number of potential principles for doing so, concluding that the divergent collective interests and values at stake must ultimately be resolved through institutions of democratic governance consistent with the rule of law. The essay then summarizes how, during the past 30 years, we have created a national "command and control" environmental regulatory state that has achieved significant progress in environmental protection, but has also had significant drawbacks. Our top-heavy system of environmental central planning has also eroded the rule of law, spawned a pernicious form of factional politics, created enormous economic waste, and hindered environmentally beneficial flexibility and innovation. This system has also been attacked by property rights advocates on the ground that it has been abused by environmental interests and their bureaucratic allies to confiscate private property values. Finally, the essay considers three types of proposed solutions to these failings. The first, championed by property rights advocates, is for the courts to apply the takings doctrine of the Constitution to require government payment of compensation for the economic losses suffered by property owners as a result of environmental regulation, and to substitute private litigation for administrative regulation as the primary legal mechanism for addressing environmental problems. The second proposed solution is to enhance judicial review and control of agency regulatory decisions through administrative law and to strengthen develop higher level administrative mechanisms to strengthen agency adherence to cost-benefit analysis and risk analysis. The third solution is to develop new, market-based regulatory instruments to achieve environmental objectives in place of command and control central administrative planning. The essay concludes that a combination of the second two mechanisms will appropriately enable us to promote environmental security while at the same time maximizing the benefits of activity.