At the centennial of the 1912 election, pundits and politicos tell us, we again confront a constitutional moment. For the Right, the existential choice is between entrepreneurialism or social democracy, America or Europe. For the Left, it is between the 99 and 1 percent or, in President Obama’s less unhinged version, between a common future that’s “built to last” and unbridled, destructive capitalism.
Economist Benjamin Zycher’s Liberty Forum essay shows how the National Environmental Policy Act, through its cost-shifting and completeness requirements, combined with the due deference doctrine established by the Chevron decision, allows ambitious bureaucrats substantial leeway in setting policy largely free of congressional oversight. And as he acknowledged, his essay only scratches the surface.
Consider other environmental legislation such as the Federal Land Policy and Management Act of 1976 (reminiscent of Soviet-style five-year planning); the Endangered Species act of 1973, various clean air and clean water acts, and the Water of the United States Act proposed by President Obama and now under review by the Trump administration. The effect of all of these is that the actual conduct of public policy drifts away from the constitutional order of a free society.
As I wrote once, in a somewhat different context: “Through a creative interpretation of NEPA in conjunction with other acts, amendments, administrative rulings, and judicial decrees, the use of American public lands is probably ‘planned’ more than any other natural resource in the world. The program is slow, awkward, expensive, inefficient, and uncoordinated, with some goals of the process at odds with others . . . But the planning process is in place whatever the outcome.” This thought could be directed at other environmental regulations as well.
Zycher’s Instructive Parable
The essayist, in a sly manner, while paying homage to the theories of his profession—public goods, externalities, cost-benefit analysis, and environmental quality—undermines their usefulness in carrying out the stated purposes of the law. There is not a clear collective good. The bureaucrats have interests of their own—“the budget is a function of itself,” as he says—and they are not “disinterested enforcers of the relevant statutes.” Different people, different groups have competing interests and conflicting views about public policy outcomes and environmental “enhancements.” Marginal costs and marginal benefits are not easily calculated and offset. The effort to do so is expensive in itself and there is no one sure answer. Even to undertake the effort of calculation is “heavily a function of aggregate wealth,” Zycher writes.
Surely his strange little parable of the caveman environment is meant to demonstrate this point. Hardly anyone wants to live as a caveman. Therefore, there is not really a “certain decline in environmental quality” in leaving behind the life of the caveman. From the human point of view, this is an environmental enhancement. Humans have been trading pristine natural environments for comfort since before recorded history began.
As I have long maintained (alas without persuading many), this state of discussion on environmental policy has come about in part from a misunderstanding of the very concept we are attempting to talk about. There is in truth no such thing as the environment. Therefore there is no “environment” needing protection. There are many environments, or surroundings, that are in constant flux. Some favor one biological entity, type, or individual; others are hostile; others neutral. What we should be primarily concerned with are those environments that are best for humans. Environments in which humans have survived and flourished have varied vastly over time and space. The question is, is there an environment out of many possible environments that is best for humans? People differ in their beliefs, tastes, and desires. Is there an environment that would protect these differences while encouraging human flourishing?
What We Agree on About Human Betterment
I think that to a certain extent the answer to this question is yes. Within limits, most people agree that human betterment entails peaceful living free from the ravages of war and interpersonal violence; material improvement; longer lives; success, however defined, for their children; and with the increase in aggregate wealth, expanded cultural opportunities including religious practices, widely shared personal liberties, and high quality environmental amenities.
For the most part over the millennia, humans have not been particularly good at producing and then defending environments that promote effectively these common desires. Peoples, cities, nations, empires have come and gone. Ruling dynasties and classes have been short-lived. Cultural achievements have disappeared from human memory. Long-term increases in per capita material wealth have been nearly nonexistent.
Then from the 17th century on, first in the northwestern corner of Europe, and then spreading elsewhere, humans began to discover what the economic historian Deirdre McCloskey calls the Bourgeois Enrichment, or what I have called the Environment for Liberty. This environment is characterized by well-defined, extensive, and well-protected rights to property including land, chattels, and (as James Madison said) rights themselves; common law, a wide array of practical personal liberties; and republican government with limited powers used primarily to protect this environment itself (a different sort of environmental protection agency). This environment has produced unprecedented human material progress over the last few centuries and given many millions of peoples better opportunities in their lives. It has been hard-won. It is an “endangered species” itself. It requires constant protection from human depredation.
Human nature requires us to modify our local environments to suit our needs and interests. As human longevity increased, under the influence of the environment of liberty, and with that an increased world population, humans began to modify the natural world in new and significant ways. With the luxury of newfound wealth and leisure stemming from the work of people living in the environment for liberty, some theorists began to worry that the environment was itself endangered by human achievement.
Common Law Solutions Were Already Available
To Zycher’s credit, he does not use the term “the environment” anywhere in his essay except in the caveman parable. Instead he writes about environmental measures and protections, clearly arguing practical public policy questions rather than fretting over a reified environment that needs protection. Some of the new efforts at environmental control might be seen as legitimate efforts to better define property borders and tort law. But the institutions of common law were well-suited to deal with these sorts of problems. In combination with new technical abilities to control materials and effluents, changes in aesthetics, and the increase in wealth created by the expansion of the environment for liberty, we could have dealt with these environmental issues as they arose. There was no need to create massive new bureaucracies with growing budgets and powers and interests of their own.
Zycher’s case study of NEPA is one apt example of such a bureaucracy run amok and, as he shows, it works at times against its own central purpose. Other such studies, as I indicated, could have been written. He mentions problems with the Endangered Species Act. Another is how environmental activists have used regulatory roadblocks to hamper fracking to obtain natural gas. Still another is opposition to nuclear power, which only increases the use of carbon-heavy fuels. Nor should we leave out how government-imposed automobile fuel mandates have led to lighter cars and more highway deaths.
The environment of liberty is resilient and can survive many such assaults. But the federal budget is one common pool resource that narrowly defined interest groups can and do exploit to their own purposes. Efforts to use new national agencies to protect the environment have proven to be one successful means of such exploitation. Friends of the environment for liberty should resist such measures.