RMA REPLACEMENT: The good, the bad, and the cattle

Chris Bishop has finally announced his chosen groups' recommendations to replace the RMA.

There's a lot to think through, so here are my first thoughts on their recommendations ...

The good (or not-so bad)

• Property rights gets precisely zero mentions in the RMA, and even less recognition. Here in this report however its gets exactly 25 mentions — a decent number — the first appearing almost as point one, after talking about how the two new Acts would be split up, and even before a section on Te Tiriti [Contents]

• That same hierarchy appears to be reflected in the "Goals." Remembering in law that earlier stated paragraphs/sections/clauses take priority over those stated later, the hierarchy given here is: property rights > separation of incompatible land uses > well-functioning urban and rural areas .> development capacity > infrastructure > natural hazards and the effects of climate change > public access > Māori cultural matters. So if property rights were well-defined and well-protected, that might be sufficient. But see below for the devil ...
• The two replacement Acts (one for environment, one for central planning) are said to "both ... be based on the enjoyment of property rights" [emphasis in the original]. This is stated as "the guiding principle." Good.
• "Both Acts," says the recommendations, "will include starting presumptions that a land use is enabled, unless there are minor or more than minor effects on either the ability of others to use their own land." Good. The devil, of course, is in the detail of how those "effects" are defined, and by whom.
• The RMA was said to be "effects-based," and so are these two replacements. So prepare to be underwhelmed. Yet whereas the RMA looked at ill-defined and undefinable "effects" like "amenity values," "natural character" and "such as the architectural style or colour of a neighbour’s house," this seems to be somewhat more objective. Somewhat. (The problem here being these "externalities" that they talk about, about which see more below. And the all-but certain prospect of regulatory creep to protect "heritage" suburbs and areas of particular "character.")
• "Better recognising property rights," says the recommendations, "requires a more certain regulatory environment so people can know as far as possible what they can and can’t do with their land." The intention is good. 
• It looks like long-existing activities to which new neighbours chose to come (such as speedway at Western Springs, for example) will now be protected. "That is, those that come to the nuisance should not be able to complain about it." Great news, if that's properly done.
• Providing a low-cost tribunal to whom to object to a council's decision is good. (But may not stay low-cost.) And providing "for rapid, low-cost resolution of disputes between neighbours" also sounds good. And that's all that we do need. Maybe a kind of "Disputes Tribunal" or "Small-Consents Tribunal" staffed by experienced part-timers to adjudicate simple no-bullshit disputes about rights to light, to air, to support and so forth based on earlier precedent. In other words, much like an early common-law court ...

The bad (or not-so good)

• The so-called "Expert Advisory Group" delivering these recommendations was established only in September 2024, and given only three months until Christmas to do their job — giving, as they themselves say, only a "short time ... for what is a very substantial task." Given that National in both government and opposition have been talking about "reform" for decades, it seems almost impossible to believe that's when this work first began. And yet, there's no hint from either Bishop or Simon Court (his ACT associate) of any earlier thinking around this. Which would be incredible, right?
• So no wonder "Further detailed policy work will [still] be needed to fully develop our proposals and address outstanding issues and areas of detail." In other words, don't get excited yet. Details .. devil ... etc.
• The Planning Act's purpose is not "protection of property rights" (i.e., part of the very purpose of government); nor yet is it "allowing property owners to exercise the peaceful enjoyment of their property while recognising that same right in others" (i..e, a recognition of where right-based boundaries lie, rather than some subjective "balancing" of rights). So whatever the press releases say, it's not a bottom-up law based on property rights. Instead, the stated purpose is: "To establish a framework for planning and regulating the use, development and enjoyment of land." In other words, it's top-down planning. As will be the related Natural Environment Act.
• The RMA was said to be "effects-based," yet we see how well that turned out! These replacement Acts are also said to be effects-based, with the effects this time "regulated ... on the economic concept of externalities." [Executive Summary, Recommendations, 5b]
• externalities, however, are essentially an anti-concept, i.e., an unnecessary, approximate, and and rationally unusable term designed to replace and obliterate some legitimate concept (much like "stakeholders" or "opportunity cost" are also); in this case it's an economists' way to avoid talking about property rights. And the real cause of many “externalities” is generally that private property rights have not been adequately defined, nor sufficiently well protected! (For example, if property rights are well-defined and well-protected, a downstream landowner could sue in a court of law for an upstream farmer’s action in dirtying the waters.)
• the presumption of the proposed Planning Act
• While both replacement Acts are said to "be based on the enjoyment of property rights," these rights appear to come as  gifts from the state, subject to "approaches to regulation standardised at the national level" and requiring a "justification report" if the"approach" has any departure from that. [Executive Summary, Recommendations, 5c]. And the refusal to recognise or allow ownership of Crown "resources," but only a license, give little motivation to protect that resource, while limiting the ability of these limited license-holders to sue in common law if the resource is damaged by others.
• In a sense this whole thing is irrelevant, since the whole country will still be zoned anyway — zoned according to town planners' predilections, with their own additional "overlays," "areas" and "precincts."  So fewer zones, to be sure: but does it really matter how many principalities it takes to make up a whole kingdom — the fact is that you still have to make obeisance to a prince. (Note here that town planning (with its zones) has only been around here since 1928, and you'll notice that most of those in that alleged profession prefer to live in places built before then. Ever asked yourself why that is?)
• Whatever the headlines might say, the recommendations here still favour inclusion of a Treaty Clause. Less ill-defined than before, to be sure, listing what is said to be "relevant aspects of the statute enacted in light of Treaty obligations." But still there, poisoning all objective law. 
• One of the worst part of the present RMA is the scope given to objectors from anywhere to "submit" on a resource consent application to oppose/delay/kill it off. It's not only unjust, it's illegitimate — only those with standing, in a common-law sense, have the right to object to any "effects" on their property rights (hence the importance of well-defined and well-protected rights.)  That focus on proper standing would, on its own, limit objections to those with a right to mount one, and also kill off the potential for illegitimate objections by trade competitors. But I see nothing here to substantially change this situation. And they still explicitly allow for "public notification" of activities or effects along the lines of the existing Act.
• Providing "for rapid, low-cost resolution of disputes between neighbours" sounds good. So why involve councils at all in disputes between neighbours? (And you can complete the thought by realising that's the only common-sense part of any "planning application.")   Since these Acts still call for council, however, their halfway-house proposal of a "Planning Tribunal" to site between council and Environment Court might at least save some applicants some money. (Unless of course it becomes just another layer in an already lengthy process, or so popular and so necessary — and staffing of these "expert" bodies so difficult — that the delay in being heard becomes unconscionable.)
• Finally, one of the many uncertainties under the present RMA regime is the uncertainty faced by land-owners when "ancestral lands, water, sites, waahi tapu, and other taonga" no longer owned by iwi or hapu, but foisted on present land-owners on the basis of often non-objective oral histories or other unsubstantiated accounts. See for example Auckland's "Taniwha Tax," and other councils' "SASMs." The report nonetheless recommends "that future legislation should retain the existing RMA mechanisms for Māori participation and make further provision for Māori engagement." (The only improvement might be a recommendation for better record-keeping of the decision-making processes around these impositions.

The cattle

So they weren't given much time, and arguably in that short time came up with something better than decades of earlier meddlers and "taskforce" writers did. But who exactly wrote this report? 

We have, to list them all with their chosen "professions":

• an "environmental planner,"  
• an economist "with expertise in natural resource and environmental economics"
• a "resource management practitioner"
• the general manager of Tauranga City Council (infamous for their ill-named "Smart Growth" strategy that made the small city one of the least affordable in the country)
• and a "professional director" who chairs the kingitanga.

Nice. All folk who've made piles of money out of this ill-defined and poorly-written pile of excrement.

Chairing the group is a barrister, who's also made her career from that ever-giving trough labelled "resource management law." ( I was reminded again of Mencken's famous saying that All the extravagance and incompetence of our present Government is due, in the main, to lawyers, and, in part at least, to good ones. They are responsible for nine-tenths of the useless and vicious laws that now clutter the statute-books, and for all the evils that go with the vain attempt to enforce them. Every Federal judge is a lawyer. So are most Congressmen. Every invasion of the plain rights of the citizens has a lawyer behind it.")  

I looked in vain for someone in that list, anyone at all, who might be a business owner or developer who's had their balls in the planner's vice, or a land-owner begging for permission from these grey ones to use their own land. Not a hint of it. Just folk who've been making a killing over many years from their snouts being in that same trough. (There is one bureaucrat who's a policy chap from Federated Farmers — not a farmer although he grew up on one' —who's issued his own minority report essentially arguing for better definition and clarity, to limit the possibility of regulatory creep. )

So what to expect from that group?

To be fair, it's better than I'd expected.

But given how many decades it's taken to start turning this ship around, and this will be the one chance in all that time, it's not as good as it could be.

And there's still plenty of work to do (which is to say too much) for the various species these authors represent.

Furthermore, with the legislation not to be passed before the next election, I'd expect it only to get worse rather than any better. This, you'll realise, is the high point.

Here's the group's own table summarising their main recommendations:

NB: For a more mainstream view (some might say a "less-jaundiced" one) here are the initial reaction from planner Stu Donovan, who is focussed on affordable housing. And some short common-sense thoughts from Matt Prasad.

 

If there's one religion that most EnZedders subscribe to, it's this one: recycling. Putting on his economist's hat for a moment, Bruce Rottman uses this Guest Post to examine whether it's worth the sacrifice, and if so, for what ...

Reduce, Reuse, and…Refuse?

Guest post by Bruce Rottman

IF THE DEFINITION OF a “religion” is a set of beliefs, oriented around a faith, involving some sacrifice, taught to people with the goal to change their behavior, what is one ascendent religion today that nearly everyone agrees with?

It’s recycling.

It’s hard to find anyone who admits to being against it. Their recycling habits might occasionally lapse (like their prayer life), but they usually admit their error, with a little shame. Those blue recycling bins are omnipresent, it’s taught in schools, and we’re reminded to do it religiously by just about everyone.

So, is it a false religion? Should we recycle?

Yes and no.

That is economic talk for, “It’s complicated.” In economics, the initially correct answer typically is, “It depends.” Recycling can save resources, but often it is a psychically pleasing but utter waste of resources. How are we to decide?

One easy litmus test is this one, suggested by economist Dr. Dan Benjamin. Take your “should I recycle these?” items, place them in a transparent plastic bag, and set them on the curb. If they are gone tomorrow, you should’ve recycled them. If they are still there in the morning, they belong in a landfill. Your aluminium cans would likely disappear, but not your used Kleenex collection.

Try it again with your car: leave it out overnight unlocked with the keys on the seat. Chances are it will be long gone by morning. That's the reason we have car yards lining some of our major thoroughfares: because it's worthwhile to recycle cars.

But is recycling everything worthwhile?

THESE SIMPLE TESTS ASSUME a deeper dive into the economics of recycling. Consider two very opposite extremes:

1. You hear of a stray 7-UP can on an alleyway in Calcutta, so you hop on a 747, fly there, pick it up, toss it into a blue bin, and fly home. You have indeed saved minuscule resources (aluminum, energy) at the expense of immense amounts of non-renewable resources (oil and time being the biggest two). Your recycling clearly wasted resources.

More realistically, I did a personal test: I saved every aluminium can and glass bottle for months, put them in plastic bags on my patio, and drove them down to our city’s recycling facility. Was it efficient?

We cannot value efficiency too much, by the way, because it is a ratio of output and input values; one cannot value values too much. So everyone should agree: we should do things only if they are efficient, comparing the output vs. the input values. Seeing choices as a series of cost/benefit ratios isn’t “just an economic” view of life; it’s the view of life for all people. Economists might disagree with non-economists on how to calculate values (does a series of prayers have diminishing marginal returns?), but it’s all about subjective costs and benefits.

In doing this experiment, I spent additional time (though not much) walking to the patio to toss cans and bottles there, some petrol (maybe half a gallon), a few plastic rubbish bags, and of course, the 45 minutes of back and forth time to recycle three large bags of nonrenewable resources. I got a bit under $5 for those (each aluminium can contains just $.02 of aluminum).

Was that efficient? Not really. The cost in resources expended included the petrol — probably $3, oil to make the bags (the bags cost about $.25), and 45 minutes of my time, which, at our minimum wage of $22.70/hour, cost me $17.02. (An aside: I certainly hope my time is actually more valuable than that.) Admittedly, it turned into an economics lesson, which might have been worth, say, $20 to me. So maybe it was efficient. I did it, so yes. But only once.

2. On the other hand, in theory, nearly every good can be efficiently recycled (meaning: it saves resources) if conditions are right.

I once worked at a large school that recycled cardboard. Normally that’s just silly. Parents dropped off flattened cardboard boxes, where retired volunteers working in a large metal shed bundled them to be picked up in trucks and transported to a recycling facility 20 miles away. For a while, it was a good fundraiser for the school.

The snarky economist in me notes a few facts:those calculations don’t include the grandpas’ gas used to drive to the center, nor do they include the opportunity costs (i.e., implicit wages) of those volunteers, nor do they include the opportunity costs of the heat, the electricity, and the building itself: if the building cost $100,000 to construct, at an interest rate of 5 percent, that is $5,000 per year.

But to the school it was, or seemed, efficient. Perhaps the building had no alternative use; maybe the grandpas enjoyed both the scenic trip to the recycle-fest and the camaraderie with their buddies.

So it was efficient. Until it wasn’t. Eventually, the price of cardboard collapsed, and even with those “free” inputs, it no longer made sense, and the school stopped that fundraiser.

PRACTICALLY, SHOULD WE USE a (plastic coated) paper cup for coffee, a styrofoam cup, or a ceramic mug?

Here’s my honest and simple rule: do whatever is cheaper, assuming no negative externalities.

Which just refers to pollution, or “spillover costs.” Unless you litter, both the cardboard and the styrofoam cups will be buried, and both will last centuries, bothering no one in the oxygen and light-deprived landfill void. As long as nothing bad seeps into someone’s water supply, landfills are quite benign and we’ll never run out of them. The ceramic cup option could very well be better. Yes, its initial cost is much higher, you use energy to clean it, and it might be a pain carrying it to and fro. But the cost of each additional cup you drink will likely be lower, and perhaps it gives you not only hot coffee but warm fuzzies.

I generally put all of my paper in the rubbish, which I admit, is conveniently right next to the recycle bin. I happen to know that recycling paper is costly (involving bleaching of the pulp) and since it’s usually subsidised by governments, the true recycling cost is underestimated. Besides, tossing old paper into a landfill means buying more virgin paper, which increases the demand for pulp wood, which increases the amount of pulp wood grown in plantation forests, which helps the environment in all sorts of ways. [Unless you live near Gisborne - Ed.]

What about recycling bottles? Especially ones that are washed clean? Generally a hard no. They are made out of sand, and, of course, energy, but it seldom saves energy, and I think we have plenty of sand.

And plastic? Since 93 percent of plastic can’t be efficiently recycled, that’s another hard no, again, depending on the volume and the circumstances -- and on whether or not your plastic is barged to South-East Asia and dumped into rivers, and thence, the sea.

Certainly, batteries? I don’t know. As with most cases, it depends a lot on the scale involved, how impervious landfill linings are, the value of what we’d receive (lead, possibly cobalt), and a host of other options. Recycling Tesla batteries? Possibly. Your dead button battery? I doubt it.

The last thing we want is to make our virtue-signalling-but-inefficient recycling the modern equivalent of buying indulgences to atone for alleged environmental sins.

SO WHAT ARE WE left with?

1) If recycling makes you feel good, do it. Normally I never say that previous phrase, especially to teenagers. It might originate from the Italian late Renaissance poet Torquato Tasso, who wrote in 1573, in an eerie premonition of the 1960s, “What pleases is permitted.” Perhaps, in this situation, it’s an acceptable mantra.

But recycling doesn’t give us permission to subsidise either recycling or landfills.

2) If your neighbour tosses that polystyrene cup or dirty peanut butter jar into the rubbish, don’t tell him he’s going to NonRecycling hell. Just smile, assume he is an economist who argues that recycling usually wastes resources, and toss your own IKEA polystyrene peanuts mixed with broken wooden slats into the blue bin. Just don’t think about how much labour it will take to pick them out of the recycling conveyor belt to be tossed into the landfill.

Or place them in a clear plastic bag, and see if anyone picks it up. You never know.

* * * * 

Bruce Rottman has taught economics in secondary schools for over 40 years, and is currently Director of Brookfield Academy’s Free Enterprise Institute, in Brookfield, Wisconsin.

His post first appeared at the American Institute for Economic Research blog.

The state can't protect the environment – markets can

 

Unfortunately, mainstream ­­economists of the progressive era became enamoured of making economics a quantitative “science” and forgot the role of institutions, argues Fred Smith in this guest post. Thus environmental issues were relegated to the category of “market failure,” and the role of economists to that of commissars of rules and regulations designed to correct these failures. With lawyers and regulatory law invoked instead, the institutions necessary to allow environmental market transactions to solve the problems were simply not allowed to evolve. And today, instead, we are faced with political stoushes over water aquifers and mongrelised “legal fictions” manufactured giving “personhood” to rivers …

As Joseph Schumpeter noted, free markets had a good first century. That century was the 1750s to 1850s: A market economy produced massive improvements in the quality of life, and that gained it general legitimacy. But, as he also warned, as wealth increased and this wealth generation became increasingly taken for granted, markets and the prerequisite institutions for markets to exist (specifically property rights) came more and more under attack.

Markets were good at producing wealth but, if tweaked by political intervention (it was thought), would achieve even more benefits. Progressives in the United States and socialists in Europe both championed political control of markets and, perhaps more strategically, both blocked efforts to allow markets to expand into new areas of concern, leaving these new areas exposed instead to intervention.

Those policies are now being reconsidered, but the one area where many, perhaps most, still believe only government can operate is that of environmental protection. This essay argues that classical liberals should challenge this view and seek to evolve a free market environmental programme based on the expansion of property rights and associated legal protections. There are indeed environmental concerns, but these reflect failures to allow markets and their prerequisite institutions to evolve, rather than “market failures”.

Market Institutions

Economic liberals have long understood that free markets evolve and are dynamic, and the appropriate price/demand terms for today will continually vary as consumer tastes and producer technologies evolve. But classical liberals also understand (although they devote less attention to) the fact that markets don’t operate in a vacuum, but rather are embedded within a necessary institutional framework. That framework entails a system of extensive private property, a rule of law outlining how contracts and liability issues are to be resolved and, finally, a culture that recognizes that voluntary exchange can increase wealth. Environmental issues arise in a situation where one or more of these requisite institutions don’t exist, where voluntary arrangements for resolving them have been denied.

Ludwig Von Mises summarised this position:

It is true that where a considerable part of the costs incurred are external costs from the point of view of the acting individuals or firms, the economic calculation established by them is manifestly defective and their results deceptive. But this is not the outcome of alleged deficiencies inherent in the system of private ownership of the means of production. It is on the contrary a consequence of loopholes left in the system. It could be removed by a reform of the laws concerning liability for damages inflicted and by rescinding the institutional barriers preventing the full operation of private ownership.

Policy makers have failed to recognise the relevance of such institutions and that time may be required for them to evolve. This neglect stems in part from the fact that these requisite institutions had evolved, in many areas, long before the Industrial Revolution. Those established institutions were stressed by the different challenges arising from the Industrial Revolution.

As the Nobel Laureate Ronald Coase notes, as the Industrial Revolution developed and environmental concerns (sparks from early rail locomotives, river damage from early industrial processes, the need to locate and develop oil resources), institutions did develop. Nuisance law was applied to pollution, and subsurface property rights were established. But then that process was stopped in its tracks.

Legislatures eager to promote economic growth granted railroads and many industrial plants pollution privileges. Subsurface property rights in oil pools and reserves did evolve, but they were not extended to aquifers, groundwater, and other liquid underground resources. And most mainstream environmental resources, such as wildlife, springs and brooks, airsheds and bays, remained as unprotected commons. Normal market processes were blocked from addressing these emerging areas of social concern. Thus, overuse and pollution – not addressed at the margin – were neglected until they grew to critical levels. A similar problem occurred in the failure to recognise the efforts of radio pioneers to homestead the electromagnetic spectrum.

Institutional evolutionary history has received too little attention because for much of history it had happened incrementally, slowly and largely out of view. Some newly discovered resource or some emerging value raised interest in providing or obtaining that resource, but interested parties found the transaction costs of achieving such exchanges excessive. But, viewing the potential of reaching a mutually beneficial wealth-enhancing agreement, the potential buyers and sellers as well as those brokering such transactions, would seek ways to lower these costs – via institutional and/or technological innovations.

The more successful of these innovations would be integrated into the established institutional framework. In effect, over time this would civilise these novel frontier exchanges, extending the market so that it could make “sweet” commerce available there also. The growth of the institutions of liberty would permit the expansion of the market.

Why didn’t this process occur as environmental values moved into prominence? Why were markets blocked from playing a creative role in nurturing and advancing economic values as they had long done in more traditional economic areas? Why are environmental resources rarely available as ownable private property?

Although the history of early environmental concerns has received little attention, Coase among others has examined how environmental concerns were addressed at the dawn of the Industrial Revolution. Early forms of pollution – primitive charcoal production that produced noxious smoke, say, or sewerage that dirtied water – would likely irritate downwind or downstream parties. Communal norms would discipline to some degree such “pollution activities” as they threatened the communities’ “proper enjoyment of their property”. But such low levels of pollution, especially in small cultural enclaves, could readily be handled: community pressures could encourage charcoal operations to relocate to more remote woodlands. Homeowners could be shamed into building clay-lined privies.

"Excuse Our Dust, But Grow We Must"

But with the dawn of the Industrial Revolution, the quantity and nature of materials processed and the quantity of residuals increased. The power of communities to address external and large enterprises weakened; moreover such enterprises brought benefits as well as nuisances.

Yet weak property rights and a liability system dealing with water and air did exist, building blocks for a more robust market in these areas. And efforts were made to adapt them to these new challenges. Coase notes that farmers filed suits against railroads when the sparks from these first-generation locomotives set fire to their crops. Fishing clubs moved to enjoin corporate disposal practices that harmed the fishing in areas where they held rights. And these early “free market environmental actions” had impact – firms did respond and, it appeared, that the Industrial Revolution would consider all values (addressing the challenge posed by Mises).

But, while there were some concerned about environmental values (initially mostly those enjoying those resources or harmed by a firm’s negligence) many, especially socialists in Europe and progressives in America, championed “Progress” – a policy of “Excuse our Dust but Grow We Must!”

Politicians in Britain responded by granting licences to pollute to industries and firms seen as especially important to such growth. Rather than integrating environmental resources into the market economy, they were locked out.

And, perhaps more importantly, the concept of private property as a valuable institution to disperse power, encourage a variety of experiments, allow diversity in use, Progressives viewed resources as better protected by politics – vast tracts of Australia, North America and New Zealand have been transferred to governments over the last century. Moreover, the process by which newly valued resources slowly gained the status of private property, allowing them to become managed by the market, stopped totally in the late 19th Century. No resource that was not in private hands in 1890 is today.

The shift was sometimes abrupt. The electromagnetic spectrum which became a valuable resource at the turn of that century was initially being homesteaded with rules to separate one bandwidth user from another. Then Congress created the precursor of the Federal Communication Commission to own and manage this valuable resource. Subsurface resources such as minerals, oil and water all gained protection in America in the 19th Century by the innovation and legitimisation of the concept of subsurface mineral rights. Yet aquifers (the most abundant source of potable water) remain common property resources, lacking the institutional benefits of ownership.

Environmental Politics

To reiterate: free market environmentalism argues that current environmental policy took an unfortunate path. Rather than realising that the more worrisome forms of external impacts happened incrementally, that we should encourage a vast array of experiments about how best to reconcile (indeed integrate) environmental concerns with economic ones, the “market failure” model presumes that all environmental issues are inherently political.

Such environmental events happen somewhere and at some time before they happen everywhere and persistently. Thus, some individuals will be affected initially and will seek redress while the impacts are still small. Coase finds that the common law was often receptive to such requests, leading firms to reduce the nuisance: relocation, changing time of operations, acquiring buffer zones or even negotiating with the harmed party to permit future emissions. Firms and impacted parties might well innovate – impacted parties “fencing” themselves off from the nuisance, firms adding settling and treatment ponds, and so forth.

In brief, classical liberals would expect a period of confusion and adaptation as the parties encountering such-extra market costs and benefits evolved means of integrating those costs and benefits into the market structure. These would include extending property rights to the new resource (clarifying the right of owners to prevent this new form of trespass), legitimising new contract instruments that would permit the parties to agree to a risk-sharing arrangement (the plant agrees to hold its effluents below some harmful level and agrees to compensate the property owner if those protections fail), cultural change (recognising that air and water transgressions – transferring one’s residuals on to the properties of others without their permission – is a trespass, a “pollution”).

Since environmental issues will happen in many areas over time, classical liberals would expect the discovery process to provide a number of competing environmental response strategies and for those which proved most effective to gain dominance in the courts and in practice. Moreover, given the dispersed nature of these initial events, we would expect the initial respondents to be those most adversely affect or those most sensitive to nuisances, or those who value aesthetic more (modern environmentalists). If the culture viewed polluting activities as “necessary”, such individuals might well use their own resources within the restricted institutional framework to protect those environmental resources they valued.

Moreover, since those early events would affect relatively few people there would be less urgency to solve such problems immediately, politically. Over time, as the legal rules and property rights evolved, the nuisance would integrate into the standard market framework.

Endangered Animals

There is much to say about this process but an illustrative example can be drawn by concern over endangered species (and more broadly biodiversity). Efforts to protect such species politically – making such species a ward of the state – have not fared well. Too often the reaction of property owners faced with laws banning them from encroaching (on their own land) on the habitat of such species is: “Shoot, shovel, and shut up.”

That’s a description of how many American landowners have reacted to the burdens of the Endangered Species Act. Those burdens are substantial – finding that an endangered species is using your land as its habitat will preclude any further development or use of the land. The result has been that landowners have an incentive to kill any endangered species they find on their land, remove all traces of it, and keep quiet about it. Can there be a better way?

Classical liberal economics suggests that the answer is yes. The reason why the landowner disposes of the endangered species is not simply because the species imposes a cost, but also because the species has no economic value to him. If we can find a way of providing value to the landowner in having the species on his land, then the incentives towards destructive behaviour will be removed (or at least lessened).

One way to do this would be through ownership of the animal(s). Having a property right in the members of the species inhabiting his land would give the landowner an incentive to protect his property and its habitat. Moreover, the landowner could realise that value by selling his property right to someone else, thereby allowing the landowner to “cash in” his ownership stake.

The new owner might then pay the landowner to maintain the habitat, thereby providing an income stream associated with the species. Moreover, ownership in wildlife – like ownership in commercial and pet species – encourages the developing of a wide array of supporting institutions: pet stores, veterinary science, licenses, and pet adoption agencies.

To initiate this process one might leave in place the current government ownership of wildlife but create a process that would allow individuals or groups (those having a special interest in that species) to petition to acquire ownership of a suitable population of that species. As in the case of human adoption, the petitioners might have to demonstrate their ability to manage the species and be monitored until that was proven. Different petitioners might experiment with different approaches and, over time, one would expect a wide array of management practices. All this would open the market to Green experiments and innovation just as has long happened in conventional areas.

Every party would benefit from such a market arrangement. The landowner would get a continuing income from land that would otherwise have been worthless, the new owner would get a property right in something he regards as valuable, and the endangered animal gets a chance to live in a maintained habitat. Such a market arrangement of winners is clearly preferable to the current regulatory arrangement, which produces losers.

Even a market arrangement short of outright ownership would be better. For instance, crowdfunding could be used to compensate the landowner for his foregone income from his land. People who value the endangered species could pool their resources to provide this benefit. Again, this would be a market transaction.

‘Externalities’ and the Market Process

The problem is that market solutions like these are currently made very difficult by the nature of environmental regulation. Environmental regulation generally depends on bans, caps, and mandates that restrict the possibility of market transactions. Why should people who value the spotted owl send money to a landowner to protect it when the landowner is theoretically banned from doing anything to harm it or its habitat? They get far more “bang per buck” from funding environmental groups that lobby for more bans, caps, and mandates.

Regulation evolved this way because the economists of the progressive era viewed environmental degradation as a social cost. Landowners, factory owners, utilities, and so on were viewed as imposing costs on the rest of society and had to be prevented from doing so by legislation.

This imposition of regulatory law derailed the process by which market institutions could have evolved to solve the problem. As Coase revealed in his essay The Problem of Social Cost, such “externalities” are actually the manifestation of differing priorities between people that, if the transaction costs are low enough, could be painlessly resolved by market transactions .

Coase therefore did not support government intervention (at least, not initially or permanently) but rather argued that the potential wealth-creating opportunity would engage entrepreneurs to devise ways of reducing such transaction costs, to realise that wealth. The possibility of transactions creating value for both parties would create the “inventive-incentive” necessary for creating a framework for these transactions to happen.

In particular, proper institutions can lower transaction costs. For example, the rule of law makes transactions more likely, as parties to the transaction can be certain that disputes will be resolved fairly. The institution of property rights provides a vehicle for a whole swathe of transactions. These institutions are essential and evolving prerequisites to markets. This is a central insight of classical liberal economics.

Unfortunately, mainstream ­­economists of the progressive era became enamoured of making economics a quantitative “science” and forgot the role of institutions. Thus environmental issues were relegated to the category of “market failure,” and the role of economists to that of commissars of rules and regulations designed to correct these failures. The institutions necessary to allow environmental market transactions to solve the problems were simply not allowed to evolve.

A Path Forward

In many ways, environmental regulation is the last bastion of central planning. It is remarkable that even as Europe has realised the folly of central planning in so many other economic areas, it has actually doubled down on it in environmental regulation, and has indeed sought to export it to other nations. In this, it has found a willing ally in recent years in the United States, whose environmental policy is also largely a product of progressive era thought.

In that framework, the role of government should be to stand ready to facilitate proposals to expand and refine property rights and contracts, to ensure that liability laws encourage rational exchanges.

Perhaps the simplest example of this thinking would be to encourage experimentation with subsurface ownership of suitably isolated aquifers. The history of mineral and oil and gas policy suggests the value of linking ownership and natural resources. Does anyone really think that water availability would be a problem if such a policy were in place?

The term “the environment” has become a synonym for “everything” – but central management of everything is foolish. Allowing private parties to pioneer extending the institutions of liberty to environmental areas would begin the exploration and discovery process that has been suppressed for the last century. It is overdue.

A property rights approach would allow those closest to a polluter the right to enjoin that nuisance. The polluter could bargain and compensate to gain operating rights, with penalty fees for accidental discharges. That would create incentives for an array of ameliorative innovations: settling ponds, treatment diversion to other media (via incineration or land disposal).

Moreover, as such policies became widespread, firms would locate in areas where non-industrial uses were rare or where dilution potentials were high. In effect, externalities would be internalized while they were minor, and readily addressed, rather than waiting till there was a crisis.

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Fred L. Smith, Jr. is the founder of the Competitive Enterprise Institute. He served as president from 1984 to 2013 and is currently the Director of CEI’s Center for Advancing Capitalism.
His post first appeared at CEI and FEE.

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Markets mean a cleaner environment

 

I frequently hear the refrain from people who should know better that capitalism is bad for “the environment” – that markets cause pollution: and more markets, more pollution.

And yet as philosopher Stephen Hicks points out, when you look at the actual facts nothing could be further from the truth:

Here is a list of the 30 most polluted cities on Earth. Per country, here’s where those cities are located:
    India: 14
    China: 6
    Saudi Arabia: 3
    Pakistan: 2
    Iran: 2
    Bangladesh: 1
    Cameroon: 1
    Uganda: 1
All of them are clustered in the bottom half of rankings for economic freedom…

Compare those cities (as he does) with cities in the most economically-free nations (as measured by these rankings): Hong Kong, Singapore, Auckland, Sydney, Geneva, Zurich, Tallinn, Vancouver, and Toronto, for example.

So it seems that far from being the case that more freedom is bad for the environment, the correlation points very strongly the other way.

This shouldn’t be a surprise.

After all, the very purpose of all that market activity is to improve the human environment – which means making the natural environment more hospitable not less. Which generally means cleaner.

And the very activity of producing for profit demands one do the most with the least: taking things of measurably lower value and transform them into things of objectively higher value. Every voluntary market action is thus an improvement.

When a country is freer and more prosperous, it can also afford to be cleaner – a clean environment, it turns out, looks like a luxury good when all you have to cook the evening meal is dried buffalo dung and some rice.

And when a country has stronger rather than weaker property rights, its people their own actions reflected back to them, and are in a position to protect their own patch from others.

Because all in all, most people when they can afford it prefer cleaner to dirtier.

And that’s why most places that are freer are generally the places that are cleanest – and why “free markets correlate with clean, and the lack of free markets correlates with dirty.”