Pollution Ruling Means Only Lawyers Will Clean Up
by Christopher A. Hartwell
Published by Bridge News Service on March 1, 2000

LOS ANGELES--Conventional economic and legal wisdom holds that damages can be awarded or penalties assessed on an action only when a clear injury or disadvantage results.

The Supreme Court turned this wisdom on its head, however, when it ruled in January that citizen suits against polluters can be brought even in the absence of clear-cut damages.

This dangerous interpretation of environmental "damage" sends exactly the wrong message at exactly the wrong time. Rather than a "win for the environment," as The Washington Post touted, this precedent will discourage environmental improvement in favor of bean-counting.

Laidlaw Environmental Services was sued by Friends of the Earth, an international environmental activist group. Laidlaw owned of a wastewater treatment plant emitting pollutants into the North Tyger River in South Carolina.

Laidlaw had exceeded federal standards for emissions of some metals, but no one was harmed from this effluence. Indeed, a 1997 survey of the Tyger River the Centers for Disease Control indicated water quality on the river was good and nearby waterways were "not impacted by the facility."

The groups opposed to Laidlaw argued that the "reputation" of pollution had influenced their decision to not use the river for recreational purposes. The Supreme Court's interpretation upheld the right of the citizens to sue on these dubious grounds.

The case that's often made for regulating polluters is that pollution imposes a cost on the community (an externality, in economics parlance) that a firm or company fails to internalize; thus, a penalty imposed from outside will help the firm keep this cost in mind when it is formulating business plans.

Of course, businesses have their own self-interested reasons for abating pollution and often take steps to reduce pollution on their own. Minnesota-based 3M, for instance, spent $ 175 million between 1989 and 1996 for pollution-control equipment beyond what the state required and was known as a squeaky-clean company in the environmental world.

These programs present a more efficacious model of treating the supposed environmental problems on the Tyger River, a cooperative approach that would have involved the interested parties rather than marching to the courts.

The citizens involved in this suit could have utilized a different avenue for ameliorating the river's "reputation." Community involvement in watershed management has been burgeoning all over the United States, notably in the West.

Of course, the impetus for these community groups doesn't only come from the industries themselves. In California, groups such as the Feather River Alliance, which got its start around a concerned teacher's kitchen table, have been able to bring together disparate interests to craft plans for managing the waterways without federal or judicial involvement.

By involving all parties and sorting through the competing uses to the river, the community in Roebuck, S.C., could have reached a solution that both respected the community's concerns and Laidlaw's operations.

However, the Supreme Court's ruling threatens this evolving notion of civic and industrial responsibility, by shifting the focus back from environmental improvement to enforcement.

The pollution on the North Tyger was not harming the populace at large, and the issue of environmental impact was largely ignored. All that mattered to the environmental activists was the application of a federal regulation that may or may not have been applicable.

The reasoning behind the Court's opinion is disheartening for supporters of flexible environmental policies. Justice Ruth Bader Ginsburg's majority opinion accepts the old environmentalist belief that pollution, any pollution, is a sin.

The ruling suddenly makes the definition of "damage" more nebulous, and thus more open to manipulation. By allowing people to sue for some abstract notion of damage, rather than a tangible effect, the Supreme Court has opened a veritable Pandora's box.

Claiming a "reputation" has been established is a difficult process, and affords yet another outlet for useless lawsuits.

In fact, this ruling seems to pave the way for an influx of lawsuits similar to those brought against gun manufacturers and tobacco companies. Unable to win at the voting booth and in the legislative chambers of America, the command and control crowd is going to the courts.

Better ways exist for environmental improvement, involving a cooperative rather than adversarial approach. Unfortunately, the Supreme Court's ruling may inhibit the cooperative process, as citizens will find it easier to sue rather than involve themselves in a substantial manner.

CHRISTOPHER A. HARTWELL is a policy analyst at Reason Public Policy Institute, a nonprofit think tank based in Los Angeles.


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