Abstract
Two recent significant actions, a court of appeals decision and interim permitting guidance issued by the Environmental Protection Agency (EPA), have created dangerous waves in the turbulent waters of environmental permitting for plant sites. Unless reversed, they forecast a regulatory nightmare for American industry that will result in a dramatic increase in the legal and economic risks associated with siting of industrial facilities. One important question is whether individuals or environmental groups have an implied private right of action in federal court to challenge the permitting and permit renewal process without exhausting available remedies before state or federal permitting agencies. As we shall soon see, the answer is probably yes. The fact that, when Title VI of the Civil Rights Act is considered, all three branches of government are involved gives considerable impetuous toward future unfettered filings of private causes of action in environmental justice cases.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Public L. 88-352, 76 Stat. 241 (1964).
- 2.
According to some commentators, this law has a “noble purpose” behind it: an end to discrimination. For an alternative view, one which maintains that people have a right to interact with whomever they please on a mutually voluntary basis, that is, they have a right to discriminate (e.g., the right of free association), see; Levin, 1987. 1997. Block, Walter E. 1992. “Discrimination: An Interdisciplinary Analysis,” The Journal of Business Ethics, Vol. 11, pp. 241–254; Rothbard, Murray N. 1998 [1982]. The Ethics of Liberty, New York: New York University Press; Epstein, Richard A. 1992. Forbidden Grounds: The Case Against Employment Discrimination Laws, Cambridge: Harvard University Press; Levin, Michael. 1987. Feminism and Freedom, New York: Transaction Books; Levin, Michael. 1997. Why Race Matters: Race Differences and What They Mean, New York: Praeger.
- 3.
Chester V. Seif. No. 97-1125 (3d Cir. Dec. 30, 1997).
- 4.
U.S. Environmental Protection Agency, Interim Guidance for Investigating Title V Administrative Complaints Challenging Permits, February 5, 1998.
- 5.
For Coase, Ronald H. 1960. “The Problem of Social Cost,” Journal of Law and Economics, 3: 1–44; Posner, Richard A. 1986. Economic Analysis of Law, third ed., Boston: Little Brown; Posner, Richard A. 1987. “The Law and Economics Movement,” American Economic Review, 77(2): 2–13; and, Demsetz, Harold. 1979. “Ethics and Efficiency in Property Rights Systems,” in Time, Uncertainty and Disequilibrium: Explorations of Austrian Themes, Mario Rizzo, ed., Lexington Mass.: D.C. Heath and Co; this would be an impossibility. In their view whether I should have the right to silence the airport the right to make noise depends upon who values it more. For a critique of this position see, Block, Walter E. 1977. “Coase and Demsetz on Private Property Rights,” The Journal of Libertarian Studies: An Interdisciplinary Review, Vol. I, No. 2, Spring, pp. 111–115; Block, Walter E. 1995. “Ethics, Efficiency, Coasean Property Rights and Psychic Income: A Reply to Demsetz,” Review of Austrian Economics, Vol. 8, No. 2, pp. 61–125; http://www.mises.org/journals/rae/pdf/r82_4.pdf; Block, Walter 1996. “O.J.’s Defense: A Reductio Ad Absurdum of the Economics of Ronald Coase and Richard Posner,” European Journal of Law and Economics, Vol. 3, pp. 265–286; Cordato, Roy E. 1989. “Subjective Value, Time Passage, and the Economics of Harmful Effects,” Hamline Law Review, Vol. 12, No. 2, Spring, pp. 229–244; Cordato, Roy E. 1992a. “Knowledge Problems and the Problem of Social Cost” Journal of the History of Economic Thought, vol.14, Fall, pp. 209–224; Cordato, Roy E. 1992b. Welfare Economics and Externalities in an Open-Ended Universe: A Modern Austrian Perspective, Boston: Kluwer; Krecke, Elisabeth. 1996. “Law and the Market Order: An Austrian Critique of the Economic Analysis of Law,” Journal des Economistes et des Etudes Humaines 7(1), March, pp. 19–37; North, Gary. 1992. The Coase Theorem, Tyler, TX: The Institute for Christian Economics; North, Gary. 2002. “Undermining Property Rights: Coase and Becker,” The Journal of Libertarian Studies: An Interdisciplinary Review, Vol. 16, No. 4, Fall, pp. 75–100; http://www.mises.org/journals/jls/16_4/16_4_5.pdf.
- 6.
We are assuming, but only for the sake of argument, that there is a case for plant siting; for example, a system whereby firms must first obtain the permission of the state to erect buildings. For the view that this is in effect prior restraint, that factories should be able to locate wherever their owners wish, subject only to a lawsuit if they violate the rights of others (e.g., pollute) see, Rothbard, Murray N. 1982. “Law, Property Rights, and Air Pollution,” Cato Journal, Vol. 2, No. 1, Spring; reprinted in Economics and the Environment: A Reconciliation, Walter E. Block, ed., Vancouver: The Fraser Institute, 1990; http://www.mises.org/rothbard/lawproperty.pdf; http://mises.org/story/2120; Block, Walter, ed., Zoning: Its Costs and Relevance for the 1980s, Vancouver: The Fraser Institute, 1980; Block, Walter, “Zoning: A Tragic Public Policy,” The Freeman, August 1981, pp. 470–477.
- 7.
Dr. Benjamin Chavis, Testimony before the U.S. House of Representatives Committee on the Judiciary, Subcommittee on Civil and Constitutional Rights, Oversight Hearing: Environmental Justice, March 3, 1993.
- 8.
Remember, we are now talking about environments which, although they may be less desirable, are not rights violating. This is the difference, for example, between a house in a valley, with no view, and one on top of a hill, looking down upon a spectacular panorama.
- 9.
Again, it is not that their rights are violated, only that their surroundings are not as desirable as richer, on the average, whites.
- 10.
For an economic analysis in support of this contention, see Becker, Gary. 1957. The Economics of Discrimination, Chicago: The University of Chicago Press; Sowell, Thomas. 1975. Race and Economics. New York: Longman; Sowell, Thomas. 1981. Markets and Minorities, New York, N.Y.: Basic Books; Sowell, Thomas. 1982. “Weber and Bakke and the presuppositions of ‘Affirmative Action,’” Discrimination, Affirmative Action and Equal Opportunity, Walter E. Block and Michael Walker, eds., Vancouver: The Fraser Institute, pp. 37–63; Sowell, Thomas. 1983. The Economics and Politics of Race: An International Perspective. New York, Morrow; Sowell, Thomas. 1984. “Civil Rights: Rhetoric or Reality,” New York: William Morrow; Sowell, Thomas. 2000. Basic Economics: A Citizen’s Guide to the Economy. New York, N.Y.: Basic Books; Block, Walter E. 1992. “Discrimination: An Interdisciplinary Analysis,” The Journal of Business Ethics, Vol. 11, pp. 241–254; Block, Walter and Williams, Walter, E. 1981. “Male-Female Earnings Differentials: A Critical Reappraisal,” The Journal of Labor Research, Vol. II, No. 2, Fall, pp. 385–388; Epstein, Richard A. 1992. Forbidden Grounds: The Case Against Employment Discrimination Laws, Cambridge: Harvard University Press; Levin, Michael. 1987. Feminism and Freedom, New York: Transaction Books; Levin, Michael. 1997. Why Race Matters: Race Differences and What They Mean, New York: Praeger. Williams, Walter, E. 1982. The State Against Blacks, New York, McGraw-Hill; Rothbard, Murray N., For a New Liberty, Macmillan, New York, 1973.
- 11.
Of course, using international comparisons, poor people in the United States, white and black, live immeasurably better than their counterparts in many areas of the world. Virtually everyone in America now has air conditioning, color tv, refrigeration, a telephone, an automobile, and so on. The same, unfortunately, cannot be said for even the middle class in most countries on the globe.
- 12.
Here is a parallel to the blackmail literature. An act can be considered blackmail no matter who initiates the threat (usually to release secret and embarrassing information) coupled with the demand (usually for money, or perhaps sexual services). This to say the least is an anomaly, at least compared to the way we treat murder, rape, and robbery. It is part of the case for the legalization of this activity. On this, see Block, Walter and David Gordon. 1985. “Extortion and the Exercise of Free Speech Rights: A Reply to Professors Posner, Epstein, Nozick and Lindgren,” Loyola of Los Angeles Law Review, Vol. 19, No. 1, November, pp. 37–54; Block, Walter E. 1986. “Trading Money for Silence,” University of Hawaii Law Review, Vol. 8, No. 1, Spring, pp. 57–73; reprinted as Block, Walter E. 1987. “Trading Money for Silence?” Economic Imperialism: The Economic Approach Applied Outside the Traditional Areas of Economics, Peter Bernholz and Gerard Radnitzky, eds., New York: Paragon House, pp. 157–218; Block, Walter E. 1997. “The Case for De-Criminalizing Blackmail: A Reply to Lindgren and Campbell,” Western State University Law Review, Vol. 24, No. 2, spring, pp. 225–246; Mack, Eric. 1982. “In Defense of Blackmail,” 41 Philosophical Studies 274; Rothbard, Murray N. 1982. The Ethics of Liberty, Humanities Press, Atlantic Highlands, N.J. pp. 124–126, 245–249; Rothbard, Murray N., Man, Economy and State, Auburn AL: Mises Institute, 1993.
- 13.
Not libertarian ones. On this, see Rothbard, 1982, ibid; Hoppe, Hans-Hermann. 1989. A Theory of Socialism and Capitalism. Economics, Politics, and Ethics, Boston: Kluwer Academic Publishers; Hoppe, Hans-Hermann, ed. 2003. “National Defense and the Theory of Externalities, Public Goods and Clubs.” The Myth of National Defense: Essays on the Theory and History of Security Production, Hoppe, Hans-Hermann, ed., Auburn: Mises Institute.
- 14.
Wilson (Wilson, William Julius. 1987. The Truly Disadvantaged: The Inner City, the Underclass, and Public Policy. University Of Chicago Press) is entirely mistaken in thinking that firms would leave the inner city out of a racist desire to exacerbate black unemployment. They relocate out of these areas, on the contrary, because union-inspired minimum wage laws render such operations unprofitable (Becker, Gary. 1995. “It’s simple: Hike the minimum wage, and you put people out of work.” Business Week. March 6, p. 22; http://www.bloomberg.com/bw/stories/1995-03-05/its-simple-hike-the-minimum-wage-and-you-put-people-out-of-work). Often, they relocate to the south or to third world countries which are relatively free of such obstructions to enterprise. A high incidence of crime in these areas provides another disincentive.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2019 The Author(s)
About this chapter
Cite this chapter
Block, W.E., Whitehead, R. (2019). The Unintended Consequences of Environmental Justice. In: Philosophy of Law. Palgrave Studies in Classical Liberalism. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-28360-5_8
Download citation
DOI: https://doi.org/10.1007/978-3-030-28360-5_8
Published:
Publisher Name: Palgrave Macmillan, Cham
Print ISBN: 978-3-030-28359-9
Online ISBN: 978-3-030-28360-5
eBook Packages: Economics and FinanceEconomics and Finance (R0)