A Question I got via PM

[Borodog]

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Private lawsuits cannot effectively prevent air pollution. It is as simple as that. Let's say I step out on my porch and test for hazardous substances and find some cancer causing agent in the air. How the hell am I supposed to know who to sue?

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Call a lawyer. They will investigate. They would probably use an environmental forensics company to discover the source of the pollution. Perhaps they would employ computational fluid dynamics modelling. You know, like the EPA does.

Why does everyone assume that private individuals are too incompetent to figure anything out yet assume that bureaucrats are infallible?

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But if there are several companies which release that pollutant it is essentially impossible to prove which one released the particles that are in your yard.

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Sorry, but this is just wrong. Pollutants are not indistinguishable things; they have chemical fingerprints, and it is really quite easy to tell where they come from. Plus, if there are several companies polluting your property, you would just sue them all.

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Moreover, there is the problem of proving damages. Lets say you notice the pollutant really quickly and somehow are able to prove how released the particles that ended up in yard. How much money are you going to be able to collect for being exposed to a cancer causing agent for 1 week? Probably not much. And probably not enough to incentivize you to take up the costs of hiring a lawyer and filing a lawsuit. So the polluters will keep on polluting because of people catching them is so prohibitively high.

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You're totally ignoring class action suits, which bring transaction costs for individual claimants down to extremely low levels.

[slickpoppa]

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Private lawsuits cannot effectively prevent air pollution. It is as simple as that. Let's say I step out on my porch and test for hazardous substances and find some cancer causing agent in the air. How the hell am I supposed to know who to sue?

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Call a lawyer. They will investigate. They would probably use an environmental forensics company to discover the source of the pollution. Perhaps they would employ computational fluid dynamics modelling. You know, like the EPA does.

Why does everyone assume that private individuals are too incompetent to figure anything out yet assume that bureaucrats are infallible?

[img]/images/graemlins/confused.gif[/img]

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But if there are several companies which release that pollutant it is essentially impossible to prove which one released the particles that are in your yard.

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Sorry, but this is just wrong. Pollutants are not indistinguishable things; they have chemical fingerprints, and it is really quite easy to tell where they come from. Plus, if there are several companies polluting your property, you would just sue them all.

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Moreover, there is the problem of proving damages. Lets say you notice the pollutant really quickly and somehow are able to prove how released the particles that ended up in yard. How much money are you going to be able to collect for being exposed to a cancer causing agent for 1 week? Probably not much. And probably not enough to incentivize you to take up the costs of hiring a lawyer and filing a lawsuit. So the polluters will keep on polluting because of people catching them is so prohibitively high.

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You're totally ignoring class action suits, which bring transaction costs for individual claimants down to extremely low levels.

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Boro see my addition re: auto emmissions

Not all pollutants have identifiable fingerprints and you are either uniformed or being extremely disingenuous by using that as your trump card.

And for your solution of suing them all: That doesn't work because you cannot prove which, if any of the polluters is responsible for the pollutants in your yard. You simply cannot prove which Chinese guy's car produced the NO2 that is in your backyard.

Are you seriously suggesting that there could be successful class action lawsuits with literally hundreds of millions of defendants? Class action lawsuits are good when there is one defendant and a lot of plaintiffs, but not when every person who owns a car is a defendant.

[ALawPoker]

"How would an anarchist society deal with X" always seems like a silly question to me. Some of the answer is always gonna be "How the [censored] do I know?" Right? The whole point of anarchy is that unrestricted voluntary action is always better than manually determined action. In other words, the force of the market does things that we aren't capable of. So why then does it make sense to ask "How exactly would the market find a solution to THIS!?" If I could answer that, I'd probably think I should be dictator rather than think we should all trust voluntary action.

The point, partly, is that NOBODY KNOWS OR CAN KNOW what exactly the market would do. The market is better than us. It finds solutions that we can't. People can speculate pretty well on how the market might behave, but never having experienced a truly free market, there will always be some solution that we can't know or empirically prove. There has to be. Otherwise you don't believe in the free market in the first place.

The real question is what would YOU do (about this thing that you apparently care about). And then from there you can ask yourself whether centralized regulation would help you or hurt you. If it helps, your idea is probably a bad one. I'd ask why these people have to be forced into this idea of yours that is supposedly critical for their best interest. Doesn't seem to add up.

[iron81]

Most of this post will be a critique of the Rothbird passage. I will address a couple other of Borodog's points towards the end.

The reason it is unwise for Rothbird to rely on a case like Antonik is that most decisions are irrelevant to larger society. Basically, the only decisions that matter are 1. Decisions that are made by the SCOTUS that are binding and 2. Decisions that other courts have generally agreed with and cited frequently. The classic case regarding nuisance environmental law is [Boomer v. Atlantic Cement Co. (PDF) . Here's a little about the case's importance you can skip if you want:

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Boomer v. Atlantic Cement Co.1 has become an established part of
the legal canon. It looms large, not just in environmental law, but also in
property, remedies, and torts. Its lasting fame is reflected in a law review
symposium on the case some twenty years after the decision. The
introductory article to the symposium observed that ‘‘for many years the
case was taught in three first year courses—Property, Torts, and Civil
Procedure–and in two upper class courses–Remedies and Environmental
Law.’’2 On this basis, Boomer was called ‘‘the great fertile crescent of the
first year curriculum, and it seems that the whole first semester of law
school could be taught out of that one case.’’3 It is now fifteen years after
that symposium, making this Boomer’s thirty-fifth birthday. But the case
remains a staple of the law school curriculum and a constant preoccupation
of legal scholars.

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In this 1970 case, a cement plant had caused dust and vibrations to migrate onto many neighbors' property (i.e., an arguably public nuisance). The court held that the neighbors were entitled to damages in some cases exceeding the value of their property. The decision cited three other decisions awarding damages or injunctions against polluters. The bottom line is Rothbird argues that the public nuisance doctrine prevents private action on pollution problems, but it seems that if a pollution nuisance is deemed public it is likely such a broad problem that determining its source is impractical.

The doctrine that Rothbird calls "the public good" (known legally as "balance the equities") is sometimes used to throw out environmental suits. But this doctrine does not preclude the bringing of these suits, it merely requires that they be reasonable. Numerous common law nuisance suits have been successful, but if an injunction is required that would shut down a factory and put thousands of people out of work, that could easily be silly. The court may find for damages instead of an injunction if the nuisance isn't deemed public.

A problem with holding this discussion is that nuisance law is only one aspect of environmental law. There are many ways to sue polluters. For instance, trespass is another common law tool used to sue polluters:

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The Alberta Supreme Court held in 1976 that fly ash and sawdust from a lumber company constituted a trespass against a nearby motel. In a decision that should have sweeping implications for air pollution of all kinds, the court explained that it is a trespass to cause any noxious substance to cross the boundary of another's land. source

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It seems to me that these remedies have existed all along and Rothbird overstates his case when he argues that "balancing the equities" led to the elimination of environmental lawsuits. I wanted to investigate the sources Rothbird used, but they weren't immediately apparent in the link.

As for some of your other points, I absolutely think it is reasonable for the feds to get a size excuse when judging the quantity of pollution. I don't expect GM to emit the same pollution as a mechanic's shop.

Also, governments sell assets all the time. Two recent examples I can think of is portions of the broadcast spectrum and oil drilling rights off the coast of Florida. In the Florida case, the Bush Admin proposed leasing big chunks of the eastern Gulf of Mexico to oil companies to drill. However the Florida Congressional delegation blocked the plan (I love when I can make a point against libertarians and Bush in one swoop).

Also, I should point out that while under common law multiple plaintiffs could sue a defendant the idea of a class action lawsuit was created by statute. Other statutes allow individuals with minimal connection to a particular environmental problem to sue for the damage suffered by many or even for breaking environmental regulations where no damage is measurable.

I can also confirm Slickpoppas assertions that it is often impossible to trace the source of a contaminant.

[pvn]

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Not all pollutants have identifiable fingerprints and you are either uniformed or being extremely disingenuous by using that as your trump card.

And for your solution of suing them all: That doesn't work because you cannot prove which, if any of the polluters is responsible for the pollutants in your yard. You simply cannot prove which Chinese guy's car produced the NO2 that is in your backyard.

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How does government help in either of these cases? If a pollutant can't be identified, how is the government going to hunt down the polluter? If I can't prove which chinese guy is producing the N02 that's floating into my backyard, what is government going to do?

[pvn]

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"How would an anarchist society deal with X" always seems like a silly question to me. Some of the answer is always gonna be "How the [censored] do I know?" Right? The whole point of anarchy is that unrestricted voluntary action is always better than manually determined action. In other words, the force of the market does things that we aren't capable of. So why then does it make sense to ask "How exactly would the market find a solution to THIS!?" If I could answer that, I'd probably think I should be dictator rather than think we should all trust voluntary action.

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Exactly.

[iron81]

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If I can't prove which chinese guy is producing the N02 that's floating into my backyard, what is government going to do?

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Require the chinese guy to hook a NO2 monitor to his smokestack and require him to only emit so much NO2. This is extremely common for dischargers.

[slickpoppa]

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Not all pollutants have identifiable fingerprints and you are either uniformed or being extremely disingenuous by using that as your trump card.

And for your solution of suing them all: That doesn't work because you cannot prove which, if any of the polluters is responsible for the pollutants in your yard. You simply cannot prove which Chinese guy's car produced the NO2 that is in your backyard.

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How does government help in either of these cases? If a pollutant can't be identified, how is the government going to hunt down the polluter? If I can't prove which chinese guy is producing the N02 that's floating into my backyard, what is government going to do?

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Restrict the sale of devices which produce that pollutant.

Take a trip to Bejing and compare the air quality there to the air quality of even he worst city in the US and you will see how government regulation can be effective. And don't try to pretend that private lawsuits would solve the problems in Bejing if only the Chinese weren't getting in the way.

[WordWhiz]

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And for your solution of suing them all: That doesn't work because you cannot prove which, if any of the polluters is responsible for the pollutants in your yard. You simply cannot prove which Chinese guy's car produced the NO2 that is in your backyard.

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You wouldn't need to. See, e.g., the DES market share tort liability cases (Hymowitz vs. Lilly, 73 NY2d 487).

[slickpoppa]

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And for your solution of suing them all: That doesn't work because you cannot prove which, if any of the polluters is responsible for the pollutants in your yard. You simply cannot prove which Chinese guy's car produced the NO2 that is in your backyard.

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You wouldn't need to. See, e.g., the DES market share tort liability cases (Hymowitz vs. Lilly, 73 NY2d 487).

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Those cases are contrary to the libertarian norms of not being liable until proven beyond a reasonable doubt and strict causality.

"But the best standard for any proof of guilt is the one commonly used in criminal cases: Proof "beyond a reasonable doubt." Obviously, some doubt will almost always persist in gauging people's actions, so that such a standard as "beyond a scintilla of doubt" would be hopelessly unrealistic. But the doubt must remain small enough that any "reasonable man" will be convinced of the fact of the defendant's guilt. Conviction of guilt "beyond a reasonable doubt" appears to be the standard most consonant with libertarian principle.
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What the plaintiff must prove, then, beyond a reasonable doubt is a strict causal connection between the defendant and his aggression against the plaintiff. He must prove, in short, that A actually "caused" an invasion of the person or property of B."

http://www.mises.org/story/2120

If the market is going to bend the rules of libertarian justice anyway, why not just go all the way and allow the even more effective solution of preemptive regulation?