November 2004 Archives

Even the most well informed citizen can’t evaluate every issue. And when experts disagree we naturally assume the majority is likely to be correct. This is a reasonable way to make sense of conflicting opinion and legitimate scientific uncertainty. But we should remember two important points.

First, science, unlike the race for homecoming queen, is not a popularity contest. While most unlikely in the climate change debate, scientific “consensus” may be overturned by a single experiment. When new results emerge and peers repeat them consistently, the old consensus crumbles. Here’s the process.

Developed in the 17th century, the scientific method is the foundation of modern science.

1) Observe some aspect of the universe.
2) Devise a hypothesis consistent with what you observe.
3) Use the hypothesis to make further predictions.
4) Test those predictions by experimentation.
5) Modify the hypothesis in light of your findings.
6) Go back to step 3 and repeat.

We use the scientific method to distinguish reality from fantasy and truth from propaganda. Appeals based on authority are especially suspect. For example, the Catholic Church condemned as heretics those who did not subscribe to their preferred model of the universe -- that the Earth, not the Sun, was at the center.

Here’s an irony: our knowledge of the world advances when we learn that something we believed to be isn’t true. For example, Aristotle asserted that heavier objects fall faster than lighter ones. This was the conventional wisdom for over 2000 years.

Galileo tested this theory by dropping different objects from certain heights and rolling balls down inclined planes. He formulated the law of falling bodies. Here it is: In the absence of air resistance, all objects accelerate at the same rate regardless of their densities. In 1971 Apollo 15 Astronaut David Scott offered a compelling demonstration when, standing on the airless lunar surface, he dropped a hammer and a falcon feather. I watched them hit at the same time.

Here’s the second point. Policy controversies involve tradeoffs among competing values. Responsible policy makers know that environmental quality is only one of several important and competing values. Just as people on fixed budgets must choose between buying medicine or more heat, societies must choose among competing goods and values (e.g., more open space, safer roads, or more funding for education). These tradeoffs are inescapable. It is irresponsible to pretend they don’t exist.

Some activists claim that “the science tells us” we must follow a particular course of action. They attack those who dissent as heretics -- individuals with suspect motives, industry flunkies, or simply reactionaries. Global warming is such a potentially important issue that it should not be hijacked by ideology of any stripe.

Recall the Russian experience under Lysenko. His pseudo-scientific theories of plant genetics where used to justify creating the “New Soviet man.” They set back Soviet science by at least a generation. His opponents were exterminated.

We count on science to help us assess whether the problems we’re told exist are in fact real and whether the solutions offered will do any good. With limited resources, choices must be made. Science can help to identify the tradeoffs, but does not tell us how to choose among them. Human values, not science, are required to rank the outcomes.

The global warming debate involves complex scientific theories supported by some good evidence. As our knowledge increases, we’ll be better able to choose a responsible course of action. We should resist being stampeded into public policies with huge immediate costs and few if any benefits.

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Professor Richard Daynard of the Northeastern University School of Law suggested that the common law has always involved the development of legal principles and the setting of new precedents. Litigation certainly has a regulatory impact, and it always has. Much of what is challenged today as regulation by litigation, such as the state attorneys general anti-tobacco litigation, involves little more than the application of settled principles of law to new sets of facts. Most of the radical innovations in these cases are not in the plaintiffs’ claims, Professor Daynard suggested, but in the defenses accepted by courts, such as preemption. Constitutional limitations on arguably innovative use of tort litigation should be of particular concern, Professor Daynard suggested, because such holdings (unlike common law innovations in tort law) cannot be overturned by the legislature.

Responding to concerns that regulation by litigation is undemocratic, and therefore a potentially illegitimate use of judicial power, Professor Daynard argued that he legislative process is corrupted by campaign contributions and “political muscle” and therefore should not be held up as a democratic ideal. Insofar as the legislature cannot be relied upon to adopt needed public protections – or at least those protections that Professor Daynard believes are necessary, such as more stringent tobacco regulations – he suggested there is nothing wrong with turning to the courts for the desired policy outcomes.

The Cato Institute’s Robert Levy responded to challenge regulation by litigation in all its forms. As currently practiced, Levy noted, government entities band together to sue private companies and effectively shake them down for high-dollar settlements. This problem is made worse by the use of contingency fee arrangements between government agencies and private attorneys. In the tobacco litigation, Levy noted, these factors were compounded by state legislative actions to remove traditional legal defenses that might have protected tobacco companies from Medicare recovery suits brought by state attorneys general. The resulting master settlement agreement (MSA) turns what had been a competitive cigarette industry into a government-monitored cartel that preserves the dominant market share of the largest cigarette companies – and at the same time jacks up cigarette prices and sends millions to state coffers. As comedian Dave Barry characterized the deal (and I paraphrase from Levy’s remarks): “The tobacco companies admitted that they were responsible for killing 400,000 people a year, and then pledged to keep on doing so under careful state supervision.”

Under the MSA, big tobacco, state governments, and plaintiffs attorneys (who get $0.5 billion per year in fees) are all big winners. The only losers are smokers – the very people the anti-tobacco suits were supposed to “protect.” Alas, Levy noted, the current Justice Department is compounding this problem by bringing an anti-tobacco lawsuit of its own. Professor Maynard acknowledged many of these critiques of the MSA, but nonetheless contested that the MSA has done more than anything Congress has enacted to combat the “public health menace” of tobacco. In effect, he argued that regulation by litigation was justified in the case of tobacco because it produced a desired outcome. Professor Maynard further suggested the courts were unprincipled insofar as they allowed states to sue as third-party plaintiffs but barred health insurers or other private parties from bringing similar claims.

The Manhattan Institute’s Walter Olson began wondering why Congress is not more jealous of regulation by litigation. As Olson notes, regulation by litigation is often defended as a de facto replacement for legislation. Insofar as legislatures and executives are unable or unwilling to adopt particular policies, they argue, there is nothing wrong with a handful of lawyers and a handful of judges imposing such rules in the courts. Congress, one would think, would defend its prerogative as the nation’s lawmaker to prevent this usurpation of legislative function. Instead, Olson noted, the U.S. Congress has largely abdicated this responsibility. With the exception of an almost-successful effort to preempt tort suits against gunmakers, Congress has largely ignored this wave or regulatory litigation. One reason, Olson noted, is the relative ineffectiveness and short-sightedness of the business lobby. When one industry is under attack, most other business groups are likely to look the other way and hope they won’t be next. Moreover, Olson notes, Congress increasingly avoids potentially controversial issues and is institutionally averse to taking on such fights. So regulation by litigation continues, and is expanding into new areas, such as health care and environmental protection.

Michigan Supreme Court Justice Robert P. Young, Jr. sought to offer the “big picture” from the perspective of someone who is “behind the bench.” Justice Young said that judges are now the “primary lawgivers” in American society, so the judiciary has become the “loyal opposition.” The judiciary has usurped the powers that the constitutional framework allocates to other branches. The judiciary is not just regulating, “it is governing.” This is true not only with economic and traditional regulatory issues, but also in the social context, as when courts declare gay marriage is not only permissible, but constitutionally required. The result of such judicial overreach, Justice Young suggested, is a public backlash – as can be seen by the adoption of ballot measures against gay marriage in eleven states. Judicial activism in such areas may be more obvious, Justice Young suggested, but it is hardly more prevalent – it has simply sparked more public outrage, at least thus far. Yet the underlying problem is the same. The political branches were designed to adopt policies after deliberation and debate once there is sufficient popular support for a given action. In most cases, however, our political institutions will do nothing – which is what was intended. Thus, Justice Young suggested, the failure of legislatures to adopt particular legislative measures provides no justification for the judiciary to enter the breach. Moreover, judges are poorly suited or equipped to consider the various trade-offs involved in any given policy decision, particularly in the context of a given case. “I find it shocking that anyone would want to make courts the central players in a regulatory enterprise,” Justice Young said. “It’s time for a family intervention . . . Stop us before we regulate again.”

Moderator Judge Jeffrey Sutton, of the U.S. Court of Appeals for the Sixth Circuit, asked whether the same substantive complaints made against judicial approval of regulation by litigation could be made against the Supreme Court’s decisions restricting the extent of punitive damages. Justice Young agreed, suggesting the Supreme Court’s limits on punitive damages were created out of whole cloth. Punitive damages need to be controlled, Justice Young said, but it must be done by the legislature. Bob Levy disagreed, suggesting that there is a constitutional basis for limiting damages through the due process clause, even if the relevant Supreme Court decision did not do so in a constitutionally sound way. Walter Olson added that judicial limits on punitives can be justified where state courts base such damage awards on a nationwide course of conduct, and thereby risk extra-territorializing state liability rules.

One question challenged Walter Olson’s suggestion that federal legislation is a suitable (if even constitutional) means to address regulation by litigation. Olson acknowledged that such legislation does implicate non-trivial federalism concerns. In nationwide class actions and other product liability cases with national implications, however, state courts are assuming disproportionate power beyond that which was traditionally held by state courts within the federal system. So there is ample basis to subject such suits to federal scrutiny in such cases, and Olson believes Congress has sufficient constitutional authority to intervene. In some other types of tort cases, such as traditional slip-and-falls, however, Olson acknowledged there may be more significant constitutional barriers to some proposed tort reforms. Bob Levy suggested the constitutional limits on tort reform are more significant. Levy argued that some measures, such as medical malpractice reform, would not pass more stringent commerce clause scrutiny, as states are quite active in this area.

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Leading off, Lewis & Clark Law School Dean Jim Huffman noted that the public trust doctrine, as initially conceived, was very limited. As developed under Roman law and later English law, the public trust only applied to very limited areas – navigable waters and submerged lands under the waters – and only protected a very limited set of uses, such as fishing, navigation and bathing. Government actions could not limit the public’s access to such areas for such uses, nor could the rights to such uses on these lands be privatized. As initially conceived it was a doctrine designed to prevent a despotic state from limiting the public’s liberties in the public’s resources.

In more recent years, however, environmental activists have sought to use the doctrine to control land-use – in effect using a doctrine designed to limit government power over private liberties to expand government power over private lands. By expanding the public trust doctrine to more lands and more uses, the doctrine has the potential to authorize land-use restrictions without triggering the Fifth Amendment. As Rhode Island Special Assistant Attorney General Michael Rubin commented, if land is covered by the public trust doctrine, it is by definition not within the protection of the Fifth Amendment’s takings clause. To claim that land is within the public trust then it cannot be taken, as it already belongs to the “public,” and the takings clause is irrelevant. According to Rubin, the existence of public ownership in some submerged lands – such as the land below open water – is undisputed. The real questions are how far such ownership extends, and what happens when land is converted from private land into public land, such as when private lands become submerged when coastlines shift over time. According to Rubin, the slow erosion of land due to shifting tides can well result in the shift of title from private to “public” hands by operation of law (yet should not occur due to a sudden “lurch” by state courts to redefine private rights).

Attorney Shawn Gunnarson of White & Case noted that property owners’ concerns about the operation of the doctrine are not purely theoretical. In McQueen v. South Acarolina Department of Health and Environmental Control (a case Gunnarson litigated), the South Carolina Supreme Court recently held that the public trust doctrine provides a categorical defense to Fifth Amendment takings claims. Although Sam McQueen’s property was rendered economically worthless by the government’s refusal to grant permits to develop to lots in North Myrtle Beach, and would therefore constitute a “total taking” for which compensation was required, there was no taking because the tidal wetlands on McQueen’s lots were within the public trust, even though all of the surrounding properties were already developed. In effect, the South Carolina Supreme Court expanded the public trust doctrine to cover unsubmerged lands and thereby allowed the state to evade its constitutional obligation to compensate McQueen for effectively taking his land. According to Gunnarson, this case demonstrates the threat posed by an expansive interpretation of the public trust doctrine to private property.

John Echeverria of the Georgetown Environmental Law and Policy Institute (subbing for Robert F. Kennedy Jr. who begged off) suggested there are two important aspects to the public trust doctrine. One aspect of the public trust doctrine suggests that the government has both substantive and procedural duties to protect the resources covered by the public trust. This is a problematic formulation, Echeverria suggests, as it lends itself to judicial activism. The other aspect of the doctrine is that it limits the scope of private property. This aspect of the doctrine is unproblematic, Echeverria argued, that fits comfortably within current takings doctrine insofar as it helps define the contours of private property under state law. It is a common law doctrine and, therefore, evolves over time. Thus, the doctrine could limit property rights in the present or future in ways that it did not limit private rights in the past. McQueen should not be a controversial case, Echeverria argued, as it was a “pedestrian” application of the public trust doctrine (a point seconded by Rubin given the nature of the marsh grasses growing on McQueen’s land). Nor would it be particularly controversial for the doctrine to continue to evolve and expand to cover additional environmental resources that are not easily amenable to private ownership, including air and wildlife.

The Justice Department’s Jeffrey Clark noted that most of the debate over the public trust doctrine has been a debate within the left over how best to expand regulatory control over private land. Whereas Joseph Sax called for using the public trust doctrine in the courts to defend – if not actually impose – land use controls, Richard Lazarus suggested democratically adopted land-use controls would provide more lasting environmental protections. Both assume environmental protection is best advanced by controlling land-use, a presumption that persists today. As framed by some academics today, Clark noted, the public trust doctrine potentially embraces any and all environmental resources in which the public claims a subjective interest, even if purely aesthetic or visceral. Also, Clark noted, while the contours of property rights may well change over time, it is not legitimate to engineer this process to produce predetermined regulatory ends. The common law may evolve, but state governments cannot simply redefine preexisting property rights by legislative fiat.

In comments, Huffman agreed that public trust resources are beyond the scope of the takings clause, but defining what is public and what is private “is the whole ball game.” Applying the public trust doctrine to, say, air and wildlife would have the potential of expanding it over all private land. At the same time, there is no reason to assume that certain resources, such as water or submerged lands, are by their very nature not amenable to private ownership. Expanding the public trust doctrine, as encouraged by some environmentalists and academics, effectively narrows the scope of private property and private ordering. Although done in the name of the "public," it transfers power to the government. "Public" properties, today, are political properties, which explains quite a bit about how they are managed.

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The real division in environmental policy is not between those who want cleaner air and water and those who want to despoil the earth. Rather, the real divisions are a) how to balance competing priorities, of which environmental proteciton is but one, and b) whether one has to endorse the modern, all-encompassing regulatory state to advance environmental goals.

On this latter point, many of the contributors to this blog have long argued that there are alternative means of advancing environmental protection that are more consistent with "conservative" principles of limited government, decentralization, market exchange, property rights, and the rule of law than the environmentalist status quo. No less important, polls seem to suggest the same thing. A large majority of Americans support increased environmental protection. At the same time, when pollsters bother to ask the question (which is rare), surveys show that significant pluralities, if not outright majorities, support advancing those goals through means other than additional layers of federal regulation.

The biggest problem at present is the complete paucity of political leadership on this issue. As Roberts acknowledges, there is little to no introspection from traditional environmentalist leaders -- and little willingness to consider alternative environmental strategies, even where current laws are failing. At the same time, among Republicans the alternatives seem to be reacitonary opposition to everything the Sierra Club or Al Gore would propose, on the one hand, and advocacy of the same policies as conventional greens but at a marginally lower cost ("Gore-Lite"). Neither is satisfactory, as neither offers a compelling environmental vision.

I've offered my own thoughts on what an alternative environmental vision might look like, as have other contributors to this list (see also here). Until the leaders of the political parties, or the current environmentalist establishment, join the discussion, little progress will be made.

UPDATE: Meanwhile, Joel Makower endorses yet another strategy to revive environmentalism by moving it further to the Left. No doubt this is what many environmentalists want to hear, but it's been tried before. There's a reason the late Warren Brookes called many environmental activists "watermelons" -- because they are often green on the outside and red on the inside. This may be ideologically satisfying to some, but it's not the basis of a more popular agenda.

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