A Simple Libertarian Argument for Environmental Regulation

Libertarians are often very hostile to environmental regulation. Why? Reflecting on the argument below should help us understand their grounds and whether the grounds are any good.

1. Pollution and other kinds of environmental externalities impose costs upon others. A polluter forces others to bear the costs of his activities. Pollution tends to violate people’s property rights, as well as certain rights they have over themselves (such as the rights against having their health compromised against their will).

2. Government regulation of environmental issues is USUALLY/OFTEN/SOMETIMES effective, and is USUALLY/OFTEN/SOMETIMES more effective than using courts to defend the rights mentioned in premise 1. Courts are SOMETIMES/OFTEN/USUALLY ineffective in protecting these rights.

3. Therefore, government should have the right to issue environmental regulations in order to protect property rights, rights to life, and rights to health.

I don’t see how a libertarian could deny premise 1. So premise 2 does all the work. Premise 2 is an empirical premise. We can debate which word (“usually”, “often”, or “sometimes”) belongs in each sentence to make premise 2 true. However, unless the libertarian believes we should instead have “never” in the first sentence of premise 2, then it seems the libertarian has a strong case for favoring some government regulation of environmental issues. Why then are some (non-anarchist) libertarians utterly opposed to all government regulation? (Do they really believe courts always work better? Do they believe government regulation is always ineffective, or not worth the cost? Why?)

(EDIT: Corrected a mistake)

  • Anonymous

    The inference from 1 and 2 to 3 seems very questionable. An analogous argument:

    1. Acts of murder impose costs upon others, in particular, such acts violate certain rights of individuals.

    2. A blanket government policy of incarcerating all males would be USUALLY/OFTEN/SOMETIMES more effective than using courts to defend the rights mentioned in premise 1. Courts are SOMETIMES/OFTEN/USUALLY ineffective in protecting these rights.

    3. Therefore, government should have the right to incarcerate all males in order to protect rights.

    2 is an empirical premise that strikes me as plausibly true. But clearly, one can accept 1 and 2 while reasonably demurring from 3. So the inference isn’t valid. Presumably the same move is possible with respect to your argument.

    • But you’re misstating the case in your Premise #2. Your analogy is so removed from reality that it’s useless. A better analogy is:  A blanket government policy of preemptively making all murders illegal would be USUALLY/OFTEN/SOMETIMES more effective than using courts to defend the rights mentioned in premise 1. Courts are SOMETIMES/OFTEN/USUALLY ineffective in protecting these rights.

    • Darrell Ross

      Straw man fail.

  • Hi Dan,

    Thanks: You drew my attention to a point I left out in premise 2. 

  • @Dan12345678:disqus , I think that your argument makes sense. Nevertheless, I guess that it is possible to draw a logical distinction on “the government regulation” as presented by you and by @facebook-1702318862:disqus  i.e. the selectivity of the costs imposed.

    Let me explain my point. We can suppose that there are agents of two kinds, polluters and non polluters (murderers and lambs). Government regulation is enforced on all agents, but might impose costs selectively. The antipodes are (a) same cost for everyone and (b) cost imposed only on polluters (murderers).

    Costs imposed on non polluters (lambs) should be taken into account in the cost-benefit analysis of a government regulations. Dan critics shows that a regulation whose cost for lambs outweight the premium of switching from courts to government enforcement might exists, but it as issue amenable of empirical analysis as the “premium efficacy” of governments vs courts.

    My two pennies worth.

    • Yes, costs will eventually filter from polluters to non-polluters because polluters’ costs will go up in order to pay for mitigation/remediation.   But non-polluters only pay to the extent that they consume polluting goods.

      In other words, I pay more for my chicken because the guy who raises the chickens can’t just dump untreated waste into the stream behind the henhouse.  This is preferable because I pay, but I can choose what chicken to buy, or to avoid buying chicken at all.  The guy who raises the chickens can decide whether or not to be in the chicken business.

      Otherwise, the costs are borne by property owners and residents downstream, who have no choice in the matter.

      Of course, some regulations cost more to murderers than they save the lambs.  We have a phrase for those – “bad regulations.”  Just because some regulations are bad doesn’t mean that the concept is somehow irreparably flawed.

      • GaffiGubbi

        If government regulation worked like this, I wouldn’t have a problem with it. However, regulations often impose costs that go beyond keeping the environment clean. For example licensure is meant to keep professionals in charge of things, but in reality it mostly protects the establishment, keeps costs high and restricts entry into marketplace. Mandates to use specific equipment are often too expensive for budding entrepreneurs, who IMO could be trusted to meet environmental standards with lower costs.

        Maybe these are present in only a few regulations – I’m not an expert on regulatory practices. As a libertarian, though, I take seriously the charge that cartelization and cronyism are inherent in regulatory agencies, thus indeed making the concept irreparably flawed.

        • I take seriously the charge that cartelization and cronyism are inherent in every agglomeration of humans.

          • Anonymous

            Inherent in every group of humans, yes. But not every group of humans wields the coercive power of the state, nor yet its pocketbook. These make government even more capable than private industry of operating massive public losses for small private gains.

  • The inference from (1) and (2) to (3) works only if one assumes consequentialism.  And even then it assumes that the negative side consequences are negligible.

  • It’s an enthymeme. The suppressed premise, that I assume more or less all non-anarchist libertarians believe, is that government should (one way or another) protect rights whenever it can do so effectively.

  • Anonymous

    What I find most interesting is the unquestioned assumption that government action of some type is necessary to prevent the injuries discussed in premise 1. The only question is whether the government  better acts through the courts or through regulations.

    There are a lot of questions you need to answer  before you can really gauge which mechanism is better, including transaction costs, the impact of precedent, the variation between different courts (or different juries) addressing the same questions, etc. Without addressing the relative strengths and weaknesses of regulations v. courts, there is not much of an argument to be made here. 

    • Damien S.

      Pollution control through regulations or taxes demonstrably works.  Reliance on pure court mechanisms, like class action suits, is speculation at best. (The People vs.  The People over distributed household pollution like cars or leaf fires?) AFAIK non-governmental mechanisms don’t even rise to the level of well-defined speculation.

      So yeah, there’s not much argument to be had, since one side has lots of real evidence for it and the other sides don’t even have clear theory.

      • Anonymous

        I don’t disagree with you. I was just surprised that a libertarian would put forth the unquestioned assumption that government interference is necessary in the first instance. 

    • Anonymous

      Your right that there are a lot of questions that immediately follow from your question about path of government action. One might ask if the more distributed past of courts — which directly involve the general public, the “peers” — has to be as inefficient, or actually is as inefficient, compared to a regulatory approach. 

      This is not entirely an empirical question that is obvious from current observation as Damien suggests.

      Seems to me that in the cases were clear rights exists then the court solution is non problematic in a fair and just court system. Given the recognition of knowledge issue confronting far away central planners versus the local population the regulatory approach appears to be one of higher risks socially — standard rent-seeking public choice argument here.

      If rights are not clearly defined, then the court approach is uncertain to satisfy the plaintiff. But in such a case, from a social perspective, that is what we want. The regulatory approach will quickly establish who has the right but it’s not clear that the regulatory approach will make the just assignment of rights. In some cases slower is preferable to “we have to do something big now”.

      • Anonymous

        Even where the rights are clear, the court system may be inefficient because of transactional costs. These need to be taken into account in order to evaluate which is most efficient. 

        • Anonymous

          What types of transactional costs are you thinking of?  There will also be transaction costs associated with regulatory solutions, and under the regulatory approach those suffering the damage from the externality are almost never compensated for the harm. 

  • @Dan12345678:disqus –

    Your analogy would be a good attack against command and control legislation but doesn’t to me seem to address having the state only punish actual pollution. Say you can have whatever kind of light bulb you want, drive whatever you want, but only have to pay for the externalities through a pollution tax…

  • 1. Politics is mostly about tribal affiliation, not reasoned consideration.
    2. Libertarians are not immune to #1.
    3. Environmentalism is very much a left/liberal cause.
    4. Libertarians are not liberals, and many are significantly right-wing or conservative.
    5. Hence, libertarians tend to oppose environmentalism.

    • GaffiGubbi

      The argument seems firsthand mostly sound, but there’s too many vague aggregates to pass as a good syllogism. Most libertarians here tend to lean left and thus take environmentalism seriously, mostly disagreeing with liberals about methods and not principles. Also, while premise 2 is true, I posit that philosophically-minded libertarians are far less tribal and knee-jerky than either liberals (“The Koch brothers want to destroy our planet!”) or conservatives (“Al Gore is a Communist!”)

  • Fritz Hayek

    To Joshua Holmes:
    1. Your point #1 assumes that tribal affiliation precludes reasoned consideration. But is it not a “reasoned consideration” (based on experience) that one is more likely to be respected and defended by members of one’s “tribe” than by outsiders?
    2. Non-anarchist libertarians therefore prudently seek the protection of the state for their “tribe.”
    3. Knee-jerk, interventionist, anti-growth environmentalism is “very much a left/liberal cause,” but that hardly commends the kind of environmentalism embraced by left/liberals.
    4. Almost of the self-styled libertarians one finds on the internet have strong “liberal” sympathies, which surface from time to time in expressions of hope for a liberal-libertarian alliance (“liberaltariansim”). I am in the distinct minority as a Burkean (conservative) libertarian (
    5. Libertarians tend to oppose environmentalism as it is practiced by the U.S. government because it imposes one-size-fits-all, anti-growth regulations that, on balance, may do far more harm than good.

    • Damien S.

      Ah, more inaccurate claims about liberal psychology.  They seem so common around here.

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  • William Schudlich

    I think the yes/no question to regulation is too crude a proposition.  From my libertarian perspective, I am very interested in the work of Elinor Ostrom and those working in new institutional economics on mitigating common pool resource problems.  It is not enough to just ask if we need some kind of regulation, you need to ask about the institutions that can best impose and enforce any regulation.  Often the answer lies in some place other than formal government.

  • C Cruz

    With a pragmatarian system this kind of debate would be irrelevant.  If you thought that the EPA produces results then you’d directly allocate a portion of your taxes to the EPA.  As Deng Xiaoping said…it shouldn’t  matter whether a cat is black or white…what matters is whether it catches mice.  It shouldn’t matter whether an organization is public or private…what matters is results.  

    • Anonymous

      Unfortunately form a pragmatic position we face the problem of different people/groups seeing conflicting results as preferable.

      • C Cruz

        That’s not a problem with pragmatarianism.  Taxpayers would have the option of directly allocating their individual taxes however they wanted among the various government organizations at anytime throughout the year.

        Imagine how absurd it would be to force donors to PETA and donors to the NRA to pool their donations and then elect representatives to decide how to split the money between the two organizations.   The outcome would certainly be less than optimal.  

        Allowing for a division of labor between taxpayers will lead to taxpayers joyfully writing checks to the government…

        • Anonymous

          I misunderstood your point. From that perspective then we would think about “government” not as a governance structure but as an infrastructure for reducing costs of donating to various causes.

  • The argument does not follow.  Your argument is of the form
    A is bad.
    B is a means to prevent A
    Therefore B is justified. 

    Me not having the neighborhood kids trample my flowerbeds is good.
    Shooting them would stop them from cutting through the flowers.
    Therefore it is morally justified for me to shoot a child who walks through my garden.

    Slight problem with this form of argument.

    • Vlad Tarko

      You’re not properly describing the form of the argument. Its form is:

      A is bad.
      B is the best way to prevent A.
      Therefore B is justified.

      However, even in this form, the argument is not very good. Not all bad things have to be addressed, it depends on the cost of doing so.

      The libertarian position against environmentalism takes the following incremental form:
      1. A does not happen.
      2. Ok, it happens, but it’s not that bad.
      3. Ok, it’s bad, but markets can solve it (the problem creates the incentive to solve it etc.).
      4. Ok, markets can’t solve it, but government can’t solve it either.
      5. Ok, government can solve it better than the market, but in the process of doing so it creates unintended consequences that are even worse than the original problem. (This includes slippery-slope arguments.)

      It’s this last step that Brennan’s argument does not address.

  • Anonymous

    I have often said that if government were used only sparingly and efficiently, with jurisprudence and with due respect for personal liberty, I would never have realized I was a libertarian. It is the friction of the machine that awoke my criticism. If you, Jason, or if, let us say, Richard Epstein, were in charge of a government regulatory scheme, then it would likely meet the requirements to keep my criticism dormant. It may not be perfectly efficient; may not perfectly capture a particular theoretical notion of justice; may veer more practical than principled. But it would be undertaken with due care toward personal liberty and with a keen understanding of the limits and dangers of government activity. If nothing else, you would succeed at landing your program at the bottom of the stack of things libertarians would like to see changed.

    Unfortunately, the regulatory schemes we have practical occasion to choose from are created and administered by people who think that when government fails, it is only because it was not powerful enough. People who are adept at totaling up the negative externalities of every enterprise except government itself. People for whom government is the first and last tool in their kit. We would not willingly cede even the most innocent regulatory power to such individuals, because we know exactly what it will become.

  • I have a major problem with the USUALLY/OFTEN/SOMETIMES classification of outcomes.  It is totally inadequate to the discussion of policy because any specific policy will ALWAYS have effects.  Some of these effects will be positive with respect to “rights” (e.g. a particular water supply is “cleaner”), some will abrogate them (e.g. a particular property owner’s land-use rights are compromised).

    It is a typically “leftist” reflex to seek to strike a “positive balance” for the effects of authoritarian pronouncements.   There are many problems with this attitude, not least being the definition of “effective,” and who gets to do the defining.  Another generic libertarian criticism of all such efforts, usually presented in an Austrian economic context, is that the world of human events is more complicated than any selection of government “experts” could ever manage.

    All human action boils down to individual people acting to maximize their well-being.  The competitive, collection-of-individuals dynamic that keeps prices low and quality high is the same as that which keeps pollution minimized.  All regulatory agencies end up doing is pick winners and losers administratively, rather than having the market pick them, which “socialization” ALWAYS results in there being more abuse and pollution than would otherwise occur.

    Socialist environmental regulation is the banker-bail-out approach applied to the environment.

  • Fernando Teson

    Hi, Jason:
    Here’s one problem. Suppose, as you say, we have an environmental externality E that cannot be solved by the market (it’s a market failure). Suppose further that we know that regulation R would solve the problem. It does not follow that we should grant the government the STANDING POWER to regulate: it may well be (and it often is) the case that the government will enact, not R, but R’, which does not solve E and imposes, therefore, deadweight costs. The problem the libertarian has with regulation, as I see it, is not that he doesn’t believe that E exists or that R would solve it. The problem is that enduring the government’s standing power to regulate is worse than enduring the market failure.

    • C Cruz

      That’s a good point but pragmatarianism (allowing taxpayers to directly decide how to allocate their individual taxes among the various government organizations at anytime throughout the year) would reveal the perfect balance between market and government environmental regulation.  If you perceived that the EPA was doing more harm than good then you just wouldn’t allocate any of your taxes to the EPA.  If your cost/benefit analysis was “correct” then certainly others would follow suit until the EPA either made the necessary corrections or completely lost funding.  

  • Paul Varty

    The government-run court system does a poor job at adjudicating property rights violations equitably and/or efficiently.
    So that justifies allowing the government to create more regulations that will somehow protect property rights.
    So where will the new regulations be adjudicated? In that same inept government court system!

  • C Cruz

    What’s strange is that I’ve NEVER observed any libertarians referencing ethical consumerism in any of their arguments for decreasing government intervention.  If any of the contributors to this blog know the Koch brothers then you should encourage them to spend a few bucks coming up with a site that tackles many of the same issues but from the consumer side.  The site would encourage people to post information on the unethical/extra-ethical practices of any businesses and people could vote the topics up or down.  The more exposure a company received on this site the more likely it would be that consumers would boycott/purchase  their products.

    The more consumer regulation there is the less demand there would be for government regulation.  

    Too many libertarians solely argue for getting rid of stuff and forget to consider replacements.  It makes it seem like libertarians are heartless…which is why this blog is really a breath of fresh air.

  • Tibor Machan

    I have but one thing to offer at this point–never even mind my most telling objection, namely, prior restraint: public choice theory.  The idea that regulators will actually do what is right is a myth.

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  • Well, coming from an environmental economics background, I wrote this blog post a while ago that may interest some of you: I’d welcome comments or thoughts on it…

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