A Wetlands Victory (For Now)
At the age of 70, writes Mila Cobanov, John Rapanos has finally ended his 18-year battle with state and federal environmental regulators, and has come out on the winning end. He faced a conviction of 63 months in a federal penitentiary and approximately $13 million dollars in civil and criminal penalties. It all began when Mr. Rapanos decided to start moving some sand. FULL ARTICLE
Comments (41)
Thanks for the update. I've been following this case for a while. It's very sad to see the decline in property rights in the US.
Published: July 18, 2006 8:57 AM
If we follow the logic of the Corps of Engineers, urinating in your toilet could be construed as being under their jurisdiction. I probably shouldn't give them any ideas, though.
Published: July 18, 2006 11:52 AM
If we are realistic, we will soon realize that all land rightfully falls under the jusrisdiction of the Corps of Engineers. After all, any time it rains, water touches _everything_, right?
Imagine all those poor little rivulets of water honorably trying to find their way to their mother stream only to encounter man-made structures that they—{gasp}—must flow around. This is clearly tyranny of the worst sort by evil Man on poor little Dihydrogen monoxide.
Published: July 18, 2006 12:46 PM
Well since the human body is technically 70% or more water (correct me if im wrong), we're all under the jurisdiction of the corps according to this law! So that means no self-ownership by government edict. That, ofcourse, is no surprise because if the government had even had a slight respect for self-ownership, there would be no "environmental policy" at all.
hmmm we could use this law against the government. One could argue that the amount of flourine in the water is an "unnatural manipulation" that flows in the juridiction of the corps of engineers and even in some "wetlands". One could sue the government for illegal flouride dispersement in "natural waterways". If it pulls through none of us will have to be forced to drink cancerous water, filter the water ourselves, even move for the privitization of water!
Published: July 18, 2006 1:44 PM
Die-hard pro-Americans, who will never admit to the fact that tyranny does in fact take place here, love to vaunt how Our Fearless Leaders still allow the common man to fight back against unjust acts of government. This case starkly points out how even in the rare case that you do defeat the government's attempt to usurp you of your land, you have still been usurped of a large chunk of your life.
Even when you win, you lose. The one thing hard-core tyrants in foreign lands have going for them is that they at least can admit to being tyrants... they give the citizens no illusions of being able to fight back. Then the people don't waste their time trying.
And Som, as much as I appreciate your reasoning, and know that you're joking, I still find it prudent to be sure that the human body does not fall under the jurisdiction of the ACoE via CWA. If it does, then government's constant declarations of what is and is not allowed to enter the human body will be legislatively legitimized... and their disastrous War on Drugs, as well as their anti-economic system of agricultural subsidies, will have yet more legal precedent backing up their unjust nature.
Just thought I'd mention that.
Published: July 18, 2006 2:32 PM
Congratulations and best wishes to John Rapanos on his victory. Thanks to Mila Cobanov for her fine article, and to M. Reed Hopper and the Pacific Legal Foundation for their excellent representation of Mr. Rapanos.
I also like your blog commentary, but Som should be serious about the toxic fluoride issue -- see this website:
www.gjne.com/fluoride/fluoride%20apathy.htm
Published: July 18, 2006 3:16 PM
This is a well written article. I may have my adult daughter read it. She is registered as a Green Party voter. At a recent meeting with her, she pointed out that Bolivia had nationalized their oil fields, taking them by military force from international investor-owners. Her comment was, "Ignoring property rights is no way to attract foreign capital." I was pleasantly shocked and suspect she'll be picking a new party before the November elections.
Published: July 18, 2006 3:39 PM
Not a legal scholar, I can only assume that the Supreme Court made the correct decision in terms of interpreting the statute as it exists - the "navigable waters" distinction, and the distortion thereof that occured in the case at hand. However, there is validity in what I would call the "intention of the corps" with regard to the term that the author was unable to fathom - "hydrologic connectivity".
The hydrologic connectivity in question is that which unites surface water, permeable soils, ground water, and ultimately, navigable waters. In this hydrologic connection the wetlands provide an invaluable service, in terms of removing excess nitrogen from the infiltrating water and preventing eutrophication in streams and estuaries. This removal of nitrogen (and potentially other harmful pollutants) has direct impact upon the productivity of estuaries in their use as fisheries, and therefore becomes more than simply a matter of property rights. Over-abundance of nitrogen in estuaries has a direct and measurable economic impact on fishery productivity, and in times such as these this may impact our national food security - hardly a matter to be dealt with flippantly. Additionally, depending on soil type and composition, drying a seasonal wetland can release quantities of metals and other pollutants into groundwater that were previously sequestered due to the unique chemical and hydrologic properties of these wetlands, which can further contribute to estuary and human water supply degradation.
While I am not a member of the Corps of Engineers, I have contact with their members and find them to be highly educated and generally interested in promoting the welfare of the United States citizenry as a whole. I would caution persons who are experts in law to restrict their analyses to their area of expertise, and in times when they are befuddled by the actions of others who are experts in areas such as hydrology and environmental impact (such as the Corps), to solicit this expert input to help them to better understand the scope of the problem at hand, rather than to simply dismiss that which confuses them as lunacy or overzealous governing.
I applaud the Supreme Court for pointing out the weaknesses in our current regulations.
Published: July 18, 2006 8:55 PM
The supreme court didn't rule in the unfortunate soul's favour, they only sent the case back down to the lower court with instructions on how to properly decide the case.
I hope the lower court now rules in John Rapanos' favour, but it isn't known that they will.
The article is very misleading. The following quote is not true: "At the age of 70, John Rapanos has finally ended his 18-year battle with state and federal environmental regulators, and has come out on the winning end when the US Supreme Court ruled in his favor on June 19, 2006."
When you go to the decision you'll read that the lower court's decisions have been "vacated" and the case is "remanded." That means the case is sent back to the lower court and they have to decide again. It's not over.
I come here every other day, and this is the first sloppy piece of work I've noticed. If I see more untruths like this I will lose faith in this website. I want to be libertarian, but this doesn't make it easy.
Published: July 19, 2006 12:46 AM
Dochadzkove systemy
Pristupove systemy
Identifikacne systemy
Parkovacie systemy
Published: July 19, 2006 4:03 AM
Michael,
I come here every day and I enjoy reading the articles. If this is the first sloppy piece of work you have noticed, you need to read more carefully. I would say about half the articles posted are pretty poor in content and quality. But I like reading the ideas and getting new perspectives. Don't believe much of what you hear or read, even here :)
Published: July 19, 2006 2:14 PM
Dear Michael,
I am sorry that you felt misled by what I had written; indeed in hindsight perhaps I should have added that the Supreme Court remanded the case to the 6th Circuit Court of Appeals in order to use the correct legal standard in interpreting whether the Corps had jurisdiction over Mr. Rapanos’ property. I am of the opinion that if the Court of Appeals had to make its decision on nebulous “hydrological connections� and a policy of deferring to the agency’s say-so, then there wasn’t a good enough case of jurisdictional right over Mr. Rapanos’ land.
Thus far, the Court of Appeals has claimed that hydrological connections are enough to establish the Corps’ jurisdiction over wetlands, and the definition of what hydrological connections are is determined with entire deference to the Corps’ conclusions. In order to come to the same end-result as it previously had, the Court of Appeals will have to follow the Supreme Court’s present rule that “the adjacent channel contains a ‘water of the United States,’ (i.e. a relatively permanent body of water connected to traditional interstate navigable waters); and second that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.� Mr. Rapanos’ wetlands are connected to drains that lead to creeks that lead to rivers. After the majority’s scorching indictment of the Corps’ overreaching, coupled with the requirement or rule (above), I think the Court of Appeals will have an incredibly difficult time trying to justify the Corps’ exercise of jurisdiction. It would seem to be a repeat of its other incorrect readings of prior case law, which is quite deferential and overbroad in its interpretations of the Corps’ authority.
I don’t see how the Court of Appeals could interpret the majority’s opinion in good faith by validating the Corps’ jurisdiction on Mr. Rapanos’ land. Perhaps I am being too idealistic in my assessment, but my point was not an “untruth� when I said Mr. Rapanos was victorious: he had a majority of the Court declare (quite forcefully) that the Corps has repeatedly expanded its powers even after the Court’s decisions expressing the limits to those powers. And a remand it may be, but it is a remand from the U.S. Supreme Court that carries with it significant restrictions on analysis that will surely restrict the conclusions the Court of Appeals would hope to entertain.
Interestingly you claim that I am misleading, sloppy, and untruthful. I think your focus on the fact that we have a remand takes away entirely from the entire majority opinion’s very strong points against federal government regulators’ overreaching—it is more misleading to miss the entire point or big picture of my article and the majority opinion in Rapanos.
Published: July 19, 2006 2:45 PM
I think our cause would've been better served if we had kept this story under wraps until the lower court ruled in favour of Mr. Rapanos.
If you go to digg.com you'll see that someone pointed out this error. A Wetlands Victory.
Libertarianism is a tough sell currently, so we must have perfect credibility.
Published: July 19, 2006 11:41 PM
Michael, for those who argue (like that individual on the discussion board) that the way in which the case will be decided hinges on Kennedy:
I must reiterate: In order to come to the same end-result as it previously had, the Court of Appeals will have to follow the Supreme Court’s present rule that “the adjacent channel contains a ‘water of the United States,’ (i.e. a relatively permanent body of water connected to traditional interstate navigable waters); and second that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.� Mr. Rapanos’ wetlands are connected to drains that lead to creeks that lead to rivers. If the Corps is vindicated at the appeals level once more, the 6th Circuit will have to state that the drains the wetlands are connected to are a relatively permanent body of water, and further that the creeks the drains lead to are considered "traditional navigable waters." I don't see how someone could seriously entertain this argument.
Kennedy chose to concur because he creates his own test, different from that of the four dissenters and the four in the majority. Unlike the dissent, he thinks that the Corps may have jurisdiction, based on his test. The majority rejects Kennedy's analysis; the dissent rejects it as well. To suggest that the 6th circuit can be permitted to use his test despite the majority's (and dissent's) vehement objection is ridiculous. That would essentially mean that one justice's opinion overrides the other eight--this is not how the Court functions. Kennedy is concurring because he agrees with the result (remand) -- but that doesn't mean that it is his test that may be employed by the 6th circuit. I reassert: just because the majority decided to remand to the Court of Appeals doesn't mean that the Court of Appeals is free to employ any analysis it wishes.
I think I made the appropriate decision in writing on this issue now, rather than waiting for the final Court of Appeals decision. It is the importance of the U.S. Supreme Court's decision in rejecting the Corps' excessive power that is essential; and if all goes according to plan (i.e. the 6th Circuit respecting the rule that the Supreme Court has established), then that decision will be affirmed. It is the U.S. Supreme Court decision that is paramount here, not its reaffirmation at the lower court level.
Finally, libertarianism (like any non-mainstream view) is always a tough sell; it is interesting to review some of those comments on the discussion board, many of which are unsympathetic to Mr. Rapanos' cause because he knowingly sought to avoid getting a permit. Some comment that all individuals should be subject to zoning ordinances, and can rightfully lose their right to use their property as they wish at the will of the state! I find it incredulous that you are much more inclined to critize me on the point of the Court's remand and find nothing shocking about the way in which the individuals on that discussion board are analyzing this issue. Libertarianism is a tough sell because people are so eagerly willing to tear it down in any way they can - even if it means making superficial arguments that don't address the substantive merit of what libertarianism promotes.
Published: July 23, 2006 3:31 PM
This: "If I see more untruths like this I will lose faith in this website. I want to be libertarian, but this doesn't make it easy."
--needs to be reviewed. Nears the subversion of the meaning of the pronoun, I. That the actions of others can change one's personal view of a construct predicated upon the belief in Individual is curious, if not spurious.
With that, Mila, I wouldn't exercise myself to the point of: "I find it incredulous".
Your article and post were very well done. More than evidence enough of a sound grasp, of a complex topic, by a sound mind.
This: "Libertarianism is a tough sell because people are so eagerly willing to tear it down in any way they can - even if it means making superficial arguments that don't address the substantive merit of what libertarianism promotes."-- is more accurate than I wish, though, True nonetheless. "tear it down in any way they can", is yet more evidence of the Bull Market of dishonestly seemingly everywhere extant.
Those, thus charging, are not want to grasp the tab of an ideology that puts themseves to pasture.
Simply, "consider the source" & keep thinking~
Published: July 23, 2006 5:11 PM
Dear Ms. Cobanov:
You've done a creditable job here and I commend you. Beside the nit that others have picked (that this is not done yet, but a remand), please allow me to make a few comments on your conclusions.
You state that (1) the decision "reflects a pyrrhic victory for society as a whole", since "As soon as Congress gets the political muster and statutorily enacts protection for all the nation's wetlands, the Supreme Court will most likely uphold the Act as constitutional," and (2) "the Supreme Court's reverence for establishing precedent always supersedes the Commerce Clause limitation." I beg to differ.
First, the penchant of Congress is to rather sloppily create federal agencies and the laws that they enforce, but legislators are timid bunch and unlikely to approve something that is strongly opposed by a segment of the public (unless there are also strong countervailing views). It is the agencies themselves that are anxious to expand their authority, frequently far beyond what Congress can be fairly argued to have anticipated, much less intended. If the courts ultimately reject the expansive assertion of jurisdiction by the ACOE, I suspect it is unlikely that Congress will be anxious to step in and revise the Clean Water Act to explicitly provide the expanded jurisdiction that the ACOE desires. As a matter of politics, there is no strong constituency that would support the ACOE's position, and Republicans in particular would be loath to be seen as attacking their own constiuents by undermining private property rights. The Kelo decision may have been correct constitutional law, but in order to curry favor with voters the Republicans and Democrats have been quite busy around the country revising eminent domain laws to limit the potential damage.
Second, even if the Congress were to so act, a little research would show you that the Supreme Court recently has breathed new life into the limitations of the Commerce Clause (except in "law and order" cases like medical marijuana), so there is a good likelihood that an expanded jurisdiction might be struck down.
So let me throw a little water on your worries about the possiblity that this decision is a phyrric victory for Rapanos.
Published: July 24, 2006 3:14 AM
Dear TokyoTom,
My qualm is not with Congress, but with the Supreme Court. As I stated:
"this reflects a pyrrhic victory for society as a whole. As soon as Congress gets the political muster and statutorily enacts protection for all the nation's wetlands, the Supreme Court will most likely uphold the Act as constitutional."
Our property rights shouldn't depend on whether it is politically popular to protect them. The Commerce Clause restricting Congressional power shouldn't depend on whether the majority wants to uphold that limitation over Congress. Kelo might gain protection by state legislatures (and even congressmen), but should it have come to that? Doesn't the Constitution clearly state that property takings by the government can only be effected for public purposes? Likewise my problem with the U.S. Supreme Court is their willingness to uphold precedent which gives Congress almost unlimited authority in the name of "interstate commerce." The Supreme Court's definition of what it means to regulate interstate commerce is so broad that there are but few instances where Congress could go beyond their power in this area.
Published: July 24, 2006 8:27 AM
"To suggest that the 6th circuit can be permitted to use his test despite the majority's (and dissent's) vehement objection is ridiculous."
Mila:
If you'd like, I can find for you instances in which the analysis promulgated in a 4-justice majority opinion have been overtaken by the analysis of a single justice writing separately. Justice O'Connor's concurring opinions in Supreme Court Establishment Clause jurisprudence come to mind.
From one law student to another, I found your piece a laughable characterization of the law and of the facts in Rapanos.
-Daniel Adams
Published: July 26, 2006 2:41 PM
Mila:
You find it "ridiculous" that the opinion of single justice might circumvent a plurality opinion?
I find it ridiculous that a law student hasn't read at least one Supreme Court case in which the analysis adopted by the swing vote is adopted in later cases. If you need me to cite to a few, I'll look them up. But I shouldn't have to.
I find it ridiculous that you'd characterize this as a victory for property owners when, so far as I'm aware, most legal scholars have abstained from predicting how this will ultimately play out. As Michael pointed out earlier, its very misleading to characterize this decision as a "victory" for the respondents when the case was remanded. But more than that, it isn't entirely clear how the plurality's reasoning will be adopted in future cases (if lower courts choose to adopt it at all) or how the EPA and Army Corps will choose incorporate the decision into the regulatory process.
I think its ridiculous that you characterize the prosecution of Rapanos - a man who willfully broke the law - as a "witch hunt." Tell me: How is Mr. Rapanos' age connected with his sentence - a sentence which, I might add, was no doubt a product of the deliberate manner in which his crimes were committed?
Finally, I think its ridiculous that you characterize Rapanos has having had broadbased support, writing "Before the case was heard before the Supreme Court, Mr. Rapanos amassed support from the general public and various special interest groups that sought to curb the Corps's regulation-wielding authority. Indeed, Mr. Rapanos did not just have the support of average American citizens and special interest groups." His support? "[T]he largest urban water district in the nation, the largest coalition of public water agencies in the nation, and a coalition of water agencies that provide clean water to more than 30 million citizens in six states in the Western United States."
Among those "special interests?" The petroleum, agriculture and contruction industries. One of their briefs, if I'm not mistaken, actually urged the court to reverse so that it could pollute more. At least that's honest, I suppose.
On the other side? A diverse coalition that included private citizens, four former EPA administrators, multiple current and former U.S. Congressmen, dozens of environmental groups representing millions of Americans (the Sierra Club and Audubon Society among them), and, not least of all, the states New York, Michigan, Arizona, Arkansas, California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Vermont, Washington, Wisconsin, and the District Of Columbia. Oh, and the City of NY.
Published: July 26, 2006 4:14 PM
Hi Daniel,
I don't think anybody here holds a brief for polluters (Tokyo Tom, call your office, LOL).
What we oppose is positive law that abrogates property rights not, as you claim, by restraining polluters, but by defining pollution in such a way as to arrogate the benefits to government and favored businesses.
Nothing Mr. Rapanos did was criminal (though technically illegal). He did not trespass with pollution on anyone else's property, including that of the state governments listed. His actions created no victim or tort. In short, what he did on his own property was his own business, and any law that purports to interfere with that is invalid on its face.
The fact that the government entities you listed opposed his position is, in my opinion, a very powerful reason to favor it.
Published: July 26, 2006 4:33 PM
"Nothing Mr. Rapanos did was criminal (though technically illegal). He did not trespass with pollution on anyone else's property, including that of the state governments listed. His actions created no victim or tort. In short, what he did on his own property was his own business, and any law that purports to interfere with that is invalid on its face."
What do you mean not "technically illegal?" I believe that Rapanos violated a provision of the Clean Water Act - a law which was inacted to prevent the continued deterioration of a resource (wetlands) that is critical to water management and water quality. Thus, his actions not only affected the community - they affect the nation. The law is invalid? Only if I accept your definition of property ownership. By this standard, we'd have no environmental protection at all. Right?
Published: July 27, 2006 6:26 AM
Correction: "criminal," not "technically illegal"
Published: July 27, 2006 7:51 AM
TokyoTom:
"Second, even if the Congress were to so act, a little research would show you that the Supreme Court recently has breathed new life into the limitations of the Commerce Clause (except in "law and order" cases like medical marijuana), so there is a good likelihood that an expanded jurisdiction might be struck down."
A little research would show you that the two cases that you're referring to - Lopez and Morrison - had to do with gun control and gender-motivated violence. These activities are distinguishable from regulating the nation's navigable and potable water supply - a legislative action which clearly bears a substantial relation to interstate commerce.
Published: July 27, 2006 9:13 AM
Dear Daniel,
I think you might agree with me that a legal education is excellent not only in teaching general rules and codes but more importantly that it drills an individual in legal analysis and interpretation. What it cannot do is provide you with your own set of values and beliefs. Are your values and beliefs reflected in every law that is enacted? In every way in which the Court interprets (and gets reinterpreted itself by the lower courts) the law?
I call the prosecution of Mr. Rapanos a witch hunt because I 1) disagree with the federal government's role over his property in the first place and 2) recognize that the Corps has been relentless in its pursuit of making an example out of him. The comment about his criminal sentence is not a good enough criticism of my article, because my article is based on my values and beliefs, not any sort of “Sentencing Code & Guidelines.�
Your "it's the law, thus it must be followed" approach has the sort of blind loyalty we see in a fascist allegiance to the state - however I'm sure you think this assessment is unfair. In fact, I wonder if you would be so unbending in this allegiance to law enforcement if the criminal act involved sodomy in one's home or the dispensation of contraceptives. I don’t know what your position on personal rights and freedoms is, but mine is broad enough (and consistent enough) to be suspicious of the government not only when it regulates speech and privacy but also the individual’s right to his own property.
Regarding the remand issue: I tried to stay away from excessive legal analysis in this article on purpose. A concurring opinion usually has the most force in future cases dealing with different facts (e.g. 4th Am search & seizure decisions are a good example). Accepting Kennedy’s concurrence as the standard means assuming that his opinion is set on the narrowest grounds (questionable), and further that this is still the legal standard (equally questionable). What legal standard the 6th Cir. decides to employ now has no bearing on how ridiculous I think it is. Even still, I have already apologized for omitting the fact that the case has been remanded; it certainly doesn’t take away from the message of the article – which is in fact that property owners are not victorious; Rapanos is a mere dent in the regulatory regime – and as you point out it may not even be a good one at that.
Finally I agree with Vince: “The fact that the government entities you listed opposed his position is, in my opinion, a very powerful reason to favor it.� Your latest comment at least directly attacks the point of the article (and the values espoused), and at least you’re willing to express your argument on the basis of your values. I suspect we probably have strongly differing views on the role of the government and an individual’s rights and freedoms under government (and how they can be best protected) - whether or not we can have a true debate in this regard depends on how willing you are to share your views on this issue.
Published: July 27, 2006 9:22 AM
Daniel Adams;
"I believe that Rapanos violated a provision of the Clean Water Act - a law which was enacted to prevent the continued deterioration of a resource (wetlands) that is critical to water management and water quality."
Misesians generally believe that laws that compromise property rights are bad. In this case, the Clean Water Act operates on the presumption that anything Mr. Rapanos did with his property involving water is inherently pollutive, by definition.
"Thus, his actions not only affected the community - they affect the nation. "
Another good point - the act also creates a duty for Mr. Rapanos to maintain a "wetland" on his property for the purpose of filtering pollution (presumably generated by others, say, coal-fired power plants).
"The law is invalid? Only if I accept your definition of property ownership."
And, exactly what is YOUR definition of property ownership? All of these things violate Mr. Rapanos' property rights, without even the pretense of showing that his actions caused harm, or that his failure to act caused less benefit. It's his property, not the Army Corps'.
"By this standard, we'd have no environmental protection at all. Right?"
Wrong. Full property rights mean polluters can be hauled in front of an arbitrator and made to pay restitution. Anything less abuses both the environment and property rights.
Published: July 27, 2006 10:47 AM
Vince:
"Another good point - the act also creates a duty for Mr. Rapanos to maintain a "wetland" on his property for the purpose of filtering pollution (presumably generated by others, say, coal-fired power plants)."
Generated by others? Rapanos drives a car, right? He uses a toaster, right?
You might argue that Rapanos is bearing more than his share of the costs of local pollution. But Rapanos was aware of that burden when he chose to purchase heavily-regulated land. He likely paid reduced rate for it.
Moreover, it is impossible to spread the costs of wetlands preservation across all land owners and preserve 100% of your right to use your land.
"exactly what is YOUR definition of property ownership? All of these things violate Mr. Rapanos' property rights, without even the pretense of showing that his actions caused harm, or that his failure to act caused less benefit. It's his property, not the Army Corps'."
Without pretense? Read the case Vince. The process of denying a dredge and fill permit is a multi-stage process involving impact statements, public hearings and a weighing the pros and cons of the project. Where a permit is denied - which happens in only about 3% of all cases - the Army Corps has to show why. They did in this case.
"In this case, the Clean Water Act operates on the presumption that anything Mr. Rapanos did with his property involving water is inherently pollutive, by definition."
No, the CWA required Rapanos get a permit before he dumped sand in his wetlands. T
Published: July 27, 2006 4:59 PM
Daniel,
I believe, as did Mises, Rothbard, and any number of free-market economists, that the Army Corps of Engineers, the USEPA, and any other government or regulatory agency have no property rights in property owned by others (we are speaking from principle here, not arguing from authority). They have no MORAL right to tell Mr. Rapanos, or any other person, how they may use their own property. The law in this case is irrelevant - it violates (trespasses) upon private property, therefore it is an immoral law.
By the same token, Rapanos IS morally enjoined from trespassing on the land of other property owners with pollution. The Army Corps hasn't shown proof of this, only that he violated an immoral law.
Pollution, correctly viewed through the lens of property rights is simple trespass - and so is regulation. Mr. Rapanos didn't trespass - he simply prevented trespass on his own property. He has a better moral claim than the ACOE or the EPA does. Regulations of this type are not about morality, they are about control.
Just what part of this argument don't you understand? I'd be happy to explain it to you.
Published: July 27, 2006 5:24 PM
Daniel;
"Generated by others? Rapanos drives a car, right? He uses a toaster, right?"
What if he buys energy from a solar power producer, and drives a hybrid car? Does that exempt him from tyrranny?
If you buy electricity, who is primarily responsible for the pollution generated in its production - you or the power plant?
If you pay a private toll road operator to allow you to drive on his road, he accepts that your car has some impact on his property, and that he is responsible for keeping that impact from trespassing on the property and the bodies of others. So again, who is responsible for the pollution going off the highway, you or the highway?
"
You might argue that Rapanos is bearing more than his share of the costs of local pollution. But Rapanos was aware of that burden when he chose to purchase heavily-regulated land. He likely paid reduced rate for it."
How do you know? He may have inherited the land - the article doesn't say. How does that justify the federal trespass?
"Moreover, it is impossible to spread the costs of wetlands preservation across all land owners and preserve 100% of your right to use your land."
Whose cost? As far as I can tell, the government created the duty, Rapanos has no duty. If he wanted a wetland, he'd keep it a wetland. He wanted a dry land, so that's what he did - dried it. Just because someone else wants you to do something doesn't create a duty for you to do it.
Published: July 27, 2006 5:36 PM
Mila:
You can hardly fault me for expecting you to inject more than your "values" into commentary on a complicated legal issue.
Your values may have told you that "witch hunt" was an appropriate term to describe the government's prosecution of Rapanos. You'd have done better to consult a dictionary. Witch-hunt: An investigation carried out ostensibly to uncover subversive activities but actually used to harass and undermine those with differing views.
Do you think that's what went on here? If so, I'd like to see your proof. Some internal memos or statements by local Corps/EPA officials that they wanted to screw Rapanos? Anything?
My "its the law, it must be followed approach" happens to be how most people - facists, communists, democrats, etc - look at the law. Are you calling me a facist? Sticks and stones. You're a law student that doesn't seem to respect the law and who obeys her values instead of logic.
"What legal standard the 6th Cir. decides to employ now has no bearing on how ridiculous I think it is." You didn't call the legal standard ridiculous. You called the suggestion that Kennedy's concurring opinion would become the legal standard ridiculous: "To suggest that the 6th circuit can be permitted to use his test despite the majority's (and dissent's) vehement objection is ridiculous."
Just like the witch hunt comment, that's a inaccurate characterization of the facts. Kennedy's opinion might very well be adopted as the standard by lower courts.
My position on property rights and personal freedom is perfectly consistent. Laws are meant to be obeyed. Property rights are not absolute. If you're arrested on a sodomy charge, you have the right to contest that charge in court. If your dredge and fill permit is denied, you have the right to contest that in court.
I'm not aware of any society - past or present - in which property rights were absolute. Vince's response to my question about whether there would be effective environmental law in a society with unabridged property rights is wholly inadequate. People shouldn't have the right to pay their way out of environmental regulation. Not only is that inequitable, but it probably won't work in actually saving threatened resources - resources which are invaluable and, when gone, irreplacable. How much does one wetlands cost?
Published: July 27, 2006 5:39 PM
Vince:
"Whose cost? As far as I can tell, the government created the duty, Rapanos has no duty. If he wanted a wetland, he'd keep it a wetland. He wanted a dry land, so that's what he did - dried it. Just because someone else wants you to do something doesn't create a duty for you to do it."
Whose cost? The costs to the community and to the country of having another wetland bulldozed. Again: Your logic leads to the abolition of meaningful environmental protections.
"If you buy electricity, who is primarily responsible for the pollution generated in its production - you or the power plant?"
We both are. I benefit from the power plant. But I can't just pay the power plant more to compensate for the societal damage of the pollution, nor can the power plant just pay more in federal taxes. Same thing with the toll booth: He may have agreed (or not) to keep the pollution on his road. He may even pay for the inevitable trespass when the smog leaves the road. But wetlands are critical to pollution control and to flood management, and when destroyed they are virtually irreplacable. In your system: Wetlands are plowed over and we all lose. A society shouldn't be a suicide pact.
Or, the government buys the wetlands from the people and property rights are violated through the inevitable exercise of eminent domain. You choose.
Published: July 27, 2006 5:57 PM
I'm glad you clarified the definition of the term "witch hunt" for me. Could you cite it for me as well (blue book only, please)?
Private property rights are the best and most effective ways of protecting "the environment" - even when the government has a noble effort in mind (e.g. TSA, FEMA), it is never a good alternate to the market (good example: speech censorship). What the government does best is self-perpetuation through the political rather than economic process - and the only way it can do this is exertion or threat of force. I'm a law student that knows the difference between learning the law and accepting its tenets. We'll see how much you care and respect the law when you have to defend someone for violating a statute; maybe it's best if you choose to work for the government, because then you're always on the side of "the law" (as you seem to define it). The state is an entity that uses force--either against a majority or minority; either way, it exercises force over individuals that do not initiate any force in the first place. Because I have a healthy sense of respect for individual rights and freedoms, I certainly reserve the right to question statutes that get enacted and the standards that are created by the state's bureaucratic agents. Obeying my values instead of logic? Take a look in the mirror. This:
"My "its the law, it must be followed approach" happens to be how most people - facists, communists, democrats, etc - look at the law."
speaks for itself.
If you would like to branch out a little and gain a better grasp of an entire way of thinking different from your own (and unlike you I'm not trying to be disparaging), you might want to read this article as a starting point: The Idea of a Private Law Society
“Life, liberty and property do not exist because men have made laws. Rather, it was the fact that life, liberty and property existed that caused men to make laws in the first place.� – Frederic Bastiat
Published: July 28, 2006 9:23 AM
Mila:
Your welcome. In the future, you can look up your own words at www.dictionary.com. Teach a man to fish...
"Private property rights are the best and most effective ways of protecting "the environment" - even when the government has a noble effort in mind (e.g. TSA, FEMA), it is never a good alternate to the market (good example: speech censorship)."
I love it! Mila, I am unaware of a study in a reputable journal which makes the case that, empirically, the market would do a better job than the government at regulating the environment. The work of Hardin and his successors on tragedy of the commons would seem to refute this argument directly. Hell, many scholars doubt that even decentralizing environmental regulation and giving it back to the states is a good idea (see: Kirsten Engel and others). But who needs empirical support when you have "values," right?
"Obeying my values instead of logic? Take a look in the mirror. This: 'My "its the law, it must be followed approach" happens to be how most people - facists, communists, democrats, etc - look at the law.' speaks for itself."
You're unbelievable. You asked me for my position on "personal rights and freedoms!" I gave it to you.
Contrast that with your article on the Rapanos case, which is essentially a piece of legal analysis which misuses language, mischaracterizes the facts and substitutes values in place of sound legal reasoning.
Published: July 28, 2006 11:14 AM
Daniel,
"I am unaware of a study in a reputable journal which makes the case that, empirically, the market would do a better job than the government at regulating the environment."
Well you must not have looked very hard (or at all). First off, many works have been done on this subject. Environmental Economics is a very big feild of study today. PERC http://www.perc.org/, Stroup, Lomborg, and many others. Just look at the publication page on the PERC website. The free market works for the environment works just like in any other area.
Published: July 28, 2006 11:53 AM
Also see Rothbards Law, Property Rights, and Air Pollution:
http://www.mises.org/rothbard/lawproperty.pdf
Published: July 28, 2006 12:21 PM
Nick:
My comment was an admission of ignorance on the matter and an invitation for Mila to introduce a little substance into her arguments. I'm not going to do her research for her.
Also: I don't know what your definiton of "reputable journal" is, the publications of a small think-tank in Montana don't fit the bill. Peer review is the standard in academic circles.
I will, however, review some of the Stroup and Lomberg material. BTW: Isn't this the same Lomberg who's the climate change skeptic?
Needless to say, it'll be interesting to see how these guys deal with the fact that when markets have been the most free (say, 1865-1900?) the environment suffered terribly.
another post later
Published: July 28, 2006 12:41 PM
While this is true that PERC's published material is not a "reputable journal", I find it difficult to believe that no one associated with PERC has not published at least some "reputable journals" (and of course on this topic). Now maybe I am wrong and if I am I apologize but I doubt it.
Published: July 28, 2006 12:47 PM
Briefly reviewed some of the literature.
I imagine that 19th and early 20th century communists read the tracts of Marx and Lenin in much the same way that late-20th and 21st century libertarians cling to these market-oriented tracts on how markets will save the failed centralized regulatory state.
Just like socialism, the theory is good - mostly. As James Krier points out:
"Private property depends on a means to set up and run the system, and ultimately that means is the government. Some agency has to figure out the contours of the rights and then distribute the rights by one or another set of criteria. Once the rights are defined and distributed, they must be protected, by the courts or otherwise, against boundary crossings, involuntary transfers, externalities, or whatever one wishes to call invasions of property rights. Even at its simplest, then, a private market founded on private property is elaborate, public, and expensive."
Ultimately, for such a system to work, it would have to overcome the very sorts of failures that characterize the current system, ie: the State would have to control "the free riders, holdouts, transaction costs, externalities, and governmental malincentives." Traditionally, however, proponents of free markets (in most contexts) fail to say how and why their government would be able to overcome these problems when the governments that characterize the status quo have been totally unable to do so. Inevitably, the answer would have to be, "Well, we would resolve to fix the problems." If it were that simple (or difficult), couldn't we simply resolve to fix the free riders, externalities and hidden costs within the current system? Why endure the start up costs associated with the change when it promises more of the same with no guarantees that it will be any better.
And then you're back to square one: Two flawed systems, one real and one the utopic golden child of the modern libertarian/fiscal conservative movement. Why do I prefer the latter and not the former? How does the old saying go? The devil you know...
Published: July 28, 2006 1:25 PM
Daniel - you did not advance a single argument to support your contention that the free market is "flawed".
The socialism, on the other hand, was logically proven to be unworkable, by von Mises, as early as in 1922.
Sorry, but your handwaving and repeating groundless nonsense does not convince anyone. Before you, like the hordes of etatists before you, go arguing for the need for some "third way" (which always turns out to be a lightly camouflaged socialism) - you have to offer valid argumentation on why the "first way" is broken.
Lacking such arguments, no rational person sees any need to fix it.
Published: July 28, 2006 8:25 PM
“Just like socialism, the theory is good – mostly�
NO. The theory of socialism is flat out wrong - that's why it doesn't work in practice. Socialist philosophy is an attempt to refute the value of money. Money is an expression of the value of your work, and what you contracted for it. Valuation can never be precise because we all have our own subjective determinations of how much something is worth (e.g. the employer would wish to pay the employee less, the employee thinks his work is worth more, the clothing designer thinks his clothes are worth more, the customer less, etc.). Money is a signal of those value judgments and gives us an aggregate impression of how people are valuing products. The socialist desires to take the superficial aspect of money - it's purchasing power value - and expects it to function as it does in a free market. Money is a signal, but only in a society that is willing to accept that it is a tool of exchange. Only then will the tool provide the value of information, and only then will it have purchasing power value.
The quote from James Krier:
As I suggested, read Dr. Hoppe's article that I have linked. Also the "Enterprise of Law" by Bruce Benson. Krier starts his argument by assuming the necessity of government, therefore the conclusion that “a private market founded on private property is elaborate, public, and expensive� does not follow.
“Mila, I am unaware of a study in a reputable journal which makes the case that, empirically, the market would do a better job than the government at regulating the environment. The work of Hardin and his successors on tragedy of the commons would seem to refute this argument directly.�
I just googled Hardin and found this article at the top of my search: ">http://dieoff.org/page95.htm
1) "Population, as Malthus said, naturally tends to grow "geometrically," or, as we would now say, exponentially."
I am not saying Hardin’s entire theory should be refuted on the basis of this, but I am still amazed that people cite Malthus as factually accurate when he has been refuted by reality time and again (reminds me of religious cultists who claim a Second Coming by Jesus Christ in year X, and once that year passes they shut up for a bit only to make another prediction within a few months). Yes, if we lived in a static world where nothing changed and people kept reproducing at the same rate, population would be an issue. However, this is completely out of touch with reality. What accounts for greater reproduction in the 3rd world than 1st world countries like the US? Greater economic prosperity leads to greater technological advancement; it leads to specialization. People naturally slow down average reproduction within a family because 1) infant mortality goes down and 2) you no longer need children to assist in labor-intensive work.
2) "Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit -- in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all."
True. Our world and everything that it provides is limited. The tragedy of the commons argument strongly advocates private property in order to internalize the costs of using the property. Of course that leaves us with a troubling question about what to do with air and water pollution. First, there is a stronger argument here for intervention on behalf of air pollution than water pollution: particles in air move more freely away from their source and it would be difficult for a property owner to argue that his property rights were damaged (if the damage is negligible or whether you could actually point as the source of the pollution Company X).
This is not as difficult with water pollution. Although pollution can run downward and into different rivers and lakes, finding the source of the pollution is not nearly as difficult as it would be with air pollution. If anything, the argument for selling lakes and rivers into private ownership is strengthened in order to avoid a tragedy of the commons situation.
The fundamental assumption you make is that no one would have enough incentive to act against excessive pollution – particularly not factories which would produce the pollution without suffering expense, thus we need the government to create an agency to regulate industry and punish violators. There is an interesting leap in logic here (as there always is when someone advocates that the solution must be government regulation). Why must there be government regulation? For example, why can’t laws be reformed, and courts more willing to accept statistical probability analysis as proof that a pollutant harmed a property owner’s land? I can imagine without government intervention that through increased alarm by property owners, legal institutions would evolve in recognizing these property rights and how those rights were trespassed, and furthermore there would be an increase in companies that would specialize in producing and analyzing data on pollution, expert investigators as we have today summoned to analyze property damage, etc. Yes, this route is undoubtedly difficult and would take time to evolve, but it certainly isn’t impossible (in fact it exists in a way but under the regulatory umbrella of the EPA).
Even if you disagree with this possibility, an interesting question to ask is, if tragedy of the commons is a bad thing and leads to bad results, why should we be so trusting of the government when we give it regulatory authority over the air and water, especially when the government then is permitted to substantially limit or terminate the breadth of your power over your own property. The tragedy of the commons doesn’t only occur in scenarios where no one explicitly has title to land, but also when you permit a regulatory regime to strip away any meaningful rights associated with owning that land. Property is de facto public when the government establishes its dominion over it and its uses.
I think we should always be careful in how we define the role of government, especially when it propagates “harm to society� arguments where it lacks an actual victim. I know you believe the government must step in to prevent the harm that is occurring to society. All I ask of you is to consider that any time we say that the government must protect society, we permit the government to define the terms of the harm, who the victim is, and consequently the lengths that the government may go to in order to remedy the harm that it has defined.
Published: July 28, 2006 9:03 PM
Averros:
I believe that I made an argument re: free market approaches in environmental regulation.
I was quite clear. Re-read it.
Published: July 30, 2006 4:01 PM
Ms. Cobanov:
Thanks for your comment, but when you say that your problem is "not with Congress, but with the Supreme Court" and then fault the Court for not standing up to Congress, then I have to say that I think your hope that the Court will play a consistent, counter-majoritarian role on the question of property rights is unrealistic (even as I may share your hope).
First and foremost, the blame for legislators violating property rights (by enacting legislation that asserts broad authority) should be lodged with the legislators, not the courts. One may hope that the Supreme Courts and lower courts will find Constitutional grounds to clearly circumscribe legislative authority, but Justices and judges are aware that they have limited abilities to resist majoritarian pressures.
I agree that "Our property rights shouldn't depend on whether it is politically popular to protect them", but the simply truth of the matter is that property rights and other rights very much depend on the views of legislative majorities. Courts might provide a limited check, but the end of the day, responsibility for defending property rights lies with voters, who may be stirred to anger in particular cases, such that legislators may choose to limit their own actions - as we see now in reaction to Kelo.
I do see the state legislative reactions to Kelo as quite healthy and helpful, and am also encouraged that the Courts has decided to breathe more life into the Commerce Clause.
Published: July 31, 2006 2:27 AM