Sunday, March 08, 2015

Sorry conservatives, the free market allows for damages from pollution

Conservatives like to paint themselves as champions of the free market. I see it all the time, yet, when someone damages the environment, they are quick to forgive. For some reason, they have a hard time acknowledging the fact that adequate damages should be sought in the case of environmental damages. Here is a great example floating around on social media this morning:


Sure enough, newswires and papers are running with the story, showing a suspicious conflict of interest between an attorney working on the settlement and Exxon, the oil company at issue. The attorney was appointed by Chris Christie and that attorney had partial ownership in a mutual fund that owned about $100,000 in Exxon stock.

Even if there is no conflict of interest, the settlement was negotiated in secret with no public oversight. In other words, the stakeholders, the public, were not informed of this work until after the deal was done.

The Christie Administration of New Jersey, and Governor Christie in particular, are quick to recite the virtues of a free market in defense of their action. You know, "limited government"? Here, we see that the governor has taken his own initiative to shield one of the largest oil companies in the world from a wrist slap by reducing it to a caress, without acknowledging the costs to other people.

I know, it's hard to believe, but the free market actually contemplates damages to the environment. Don't believe me? Check out the book, Takings: Private Property and the Power of Eminent Domain, by Richard A. Epstein. It's not a very big book, but it's a treasure trove of legal history surrounding the power of eminent domain. It's not even a new book, and at $30 for a Kindle edition, it's still very much in demand.

The takeaway I got from the book is a concept called riparian rights. What are riparian rights? They are landowner rights for those who live along a river. But I take riparian rights to mean anyone downstream or nearby to a polluter. Epstein is still floating around at Forbes, I see. Even in this article on the Deepwater Horizon oil spill, he points out that in cases of environmental damage or pollution, strict liability should be assigned to the polluter and someone has to sue for damages to the property that has no owner, the property we all share in the state. That would make the people the stakeholders, too.

The secrecy of the settlement by Christie's administration seems to be intended to preclude any recourse for the People in his state. Indeed, under Epstein's analysis, the secret settlement is akin to a violation of the Takings Clause of the 5th Amendment to the Constitution. What does that clause say again?

"nor shall private property be taken for public use, without just compensation."

In addition to the direct harms caused by the oil company, the settlement burdens the state with the costs of cleanup rather than Exxon. With such a fire sale of a settlement, taxpayers will probably see an increase in taxes to cover the cost of cleanup. But don't worry. Some New Jersey Republicans will be happy to avoid raising taxes and to let the pollution languish in the environment, instead. Even if taxes were raised to cover the cost of the cleanup, you can be assured that the richest among us will get the legal assistance needed to avoid the bump.

This is not an isolated example. From Deepwater Horizon to the housing bubble of 2008, it is hard to find and example where the executives of the richest corporations go to jail for their wrongdoing. There are even some who would identify this sort of behavior as a part of the Conservative Nanny State. The contempt for the People of New Jersey in that settlement is palpable. But at least conservatives can sleep at night knowing that the market remains free when it suits them. Just ask Tesla Motors, a company blocked by Gov. Christie from making car sales in New Jersey.
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