Libertarians for Environmental Red Tape!
Libertarians have long castigated environmental review statutes, such as NEPA and CEQA, for trampling private property rights, the theory being that they make developing property so difficult and expensive that they are tantamount to disrupting those right.
That’s why it was so odd to see the Pacific Legal Foundation advocating for more prolix environmental review in Save the Plastic Bag v. Manhattan Beach, a case decided a few weeks ago by the California Supreme Court.
Plastic Bag‘s facts are pretty straightforward: the City of Manhattan Beach banned the use of “point-of-sale carry-out bags”, and issued a negative declaration for the action, arguing that the ordinance would have no significant negative impact on the environment. A coalition of companies, plastic bag manufacturers and suppliers, sued and demanded a full EIR. The California Supreme Court quite correctly upheld the use of a negative declaration.
Now, you would think that an ostensibly libertarian outfit like PLF would advocate for less environmental bureaucratic red tape. But no: it filed an amicus brief on behalf of the plaintiffs. Why that could be?
Well, there was an important subsidiary issue in the case, viz. whether the group of companies suing had standing. PLF focused on this aspect of the case, and argued that the form of a plaintiff — individual, unincorporated association, corporation, LLC, whatever — should not be the touchstone of whether a plaintiff has citizen suit standing (which under California law is much broader than Article III standing).
The Supreme Court very rightfully agreed, but pointed out that PLF’s argument was irrelevant: this wasn’t a citizen suit at all but rather a suit brought by companies with financial interests in plastic bags that would be adversely affected. That’s garden variety standing, and the Court quite properly held that the companies had it. PLF now inaccurately claims that this case means “Obligations To Do Environmental Reviews Can’t Be Imposed or Withheld Based on Ideological Bias,” but of course it is nothing of the kind.
Again, this seems odd: why would libertarians, who claim to oppose environmental regulation, attempt to expand citizen suit standing in a case where it didn’t apply?
So what we have is PLF deciding to invest resources to expand environmental red tape and allow more citizen suit standing, two positions that they usually oppose. I’m sure the fact that the plaintiffs were powerful corporations attempting to continue pollution had absolutely nothing to do with it.
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About Jonathan
Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…
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Jonathan —
A few questions.
First, do you have any citations to support your claim that “libertarians” have attacked NEPA for “trampling private property rights”? I know some libertarians believe NEPA unduly inhibits economic activities (a view I don’t endorse) but this is not the same as “tramplng private property rights.”
Second, why should a libertarian necessarily want less review of governmental actions? As one of your more (most?) libertarian readers, I would be inclined to think the opposite: that libertarians are sufficiently suspicious of governmental action that they would want to require a wide-ranging holistic review of the potential consequences of governmental actions. (I don’t know whether PLF takes this view, but PLF is also not a consistently “libertarian” organization.)
Third, as a public interest legal organization that regularly files suit, why wouldn’t PLF seek to expand citizen suit standing for non-environmental interests? It would seem to me that self-interest alone would counsel for that position.
JHA
Jonathan A: I’ll leave it to Jonathan Z to answer your specific questions to him. But in my experience, self-proclaimed libertarians in California generally abhor CEQA because of its use as a tool to delay or derail land development.
My observation about PLF in particular is that it has taken both sides in CEQA/NEPA disputes, depending on which position it believes supports more unfettered commerce. It has supported robust NEPA review of, for example, ESA critical habitat designations, and has supported weakening of environmental review where a public agency decision has imposed burdens on, for example, mining, oil refining, or timber harvest. I’m not sure if I would call them “consistently libertarian,” but they certainly proclaim support for “economic liberty.”
Jon — What Sean said, basically: recall that CEQA also applies to private development projects, so the more CEQA review there is, the more it ties up private property owners in environmental reviews, regulations, and costs.
As for the “public interest standing” argument, then, consider the implications. If PLF succeeds in establishing more standing for “non-environmental interests,” that means that there will be more lawsuits against project proponents on the basis of these “non-environmental interests,” which will often be just private business interests who want to stop other projects. So PLF has a choice: it can either 1) try to increase these lawsuits, burdening private property owners and helping more well-heeled corporate interests trying to stop projects; or 2) not try to increase them (and if anything, try to decrease them) which will burden more well-heeled corporate interests but help private property owners.
PLF chose to burden private property owners but help corporate interests trying to block competition. That just shows once again that self-styled paladins of “economic liberty” are basically just serving plutocratic interests and claiming that they are helping the poor, poor private property owner who just wants to build on his property.
Just consider the implications of PLF’s argument that business interests opposed to a project on the basis of their economic interests should have “public interest” standing: that means that all private economic interests are in fact in the “public interest.” But if that is true, then it casts doubt on the whole public/private distinction that serves as the basis for economic libertarianism. It opens the door for more government regulation of private property: “well, you yourself said that private economic interests are the public interest; so why can’t it be regulated in the public interest?” And PLF did it anyway, to serve bigger corporate interests! Once again, in the contemporary United States, so-called “libertarianism” is simply a species of plutocracy.
This may be the basis of your claim that PLF isn’t “really” libertarian. That’s a sort of internal ideological argument reminiscent of the Stalinist/Trotskyist/syndicalist battles on the Old Left.
Thanks for the attention! Perhaps you would like PLF’s explanation: http://plf.typepad.com/plf/2011/08/vituperation-watch-legal-planet.html
See http://www.slate.com/id/2263943/pagenum/all for another article, different context, pointing out that conservatives “usually cheer for narrow standing requirements.”
The League of Women Voters submitted an amicus brief on the narrow standing side of the issue there (Prop. 8), because the League supports same-sex marriage. I’m not saying that I agree with the brief.
And oh, I thought conservative libertarians considered any restriction on the use of private real estate to be a “taking,” or a trampling of private property rights, so I don’t know why there was any debate above about that.
Regarding just one controversy surrounding the proposed Keystone pipeline–A foreign-owned company strong-arming landowners and exercising eminent domain for a project without permits or approvals–the PLF doesn’t seem overly concerned about the property rights of individuals:
“Timothy Sandefur, a lawyer with the Pacific Legal Foundation, a nonprofit advocate for property rights issues, said that if the project is approved, the company will be on firmer ground. As unfair as the laws might seem, he said, the right of way of pipelines and railroads as public goods has been well established, regardless of whether they are foreign-owned. “Property owners almost never win these suits,” he said.”
http://www.nytimes.com/2011/10/18/us/transcanada-in-eminent-domain-fight-over-pipeline.html?_r=1