On August 5, agents of the Environmental Protection Agency were investigating an abandoned gold mine near the Animas River in Colorado. It had been leaking toxic water at a rate of 50 to 250 gallons a minute, and the agents were looking for a way to stop it. They did quite the opposite, releasing more than 3 million gallons of pollutants including arsenic, cadmium, and lead into the Animas River.
In response, the City of Durango and La Plata County have declared states of emergency, and Gov. John Hickenlooper released $500,000 in funds for assistance. Durango’s officials stopped pumping water from the Animas into the city reservoir in time to prevent its contamination, but the people there must now make do with water from an unaffected tributary of the Animas. Those who live outside the city and use well water may have to stop due to contamination. The river is closed indefinitely, and the pollutants have made their way from Colorado to New Mexico and the Navajo Nation.
While this event is a major disaster that deserves at least as much attention that it is getting from the establishment media, a government agency causing the very problem it is supposed to prevent should not be news to anyone, as this is the fundamental nature of the state. The state is supposed to protect life, but it has destroyed life to the extent of 370 million people in the 20th century alone. The state is supposed to protect liberty, but it has incarcerated millions of people for no legitimate reason. The state is supposed to protect property, but it violates property rights with taxation, eminent domain, intellectual “property” laws, civil forfeiture, and (somewhat ironically) environmental regulations. That a government agency tasked with limiting pollution would cause a massive toxic spill is par for the course; the real surprise should be that this does not occur more frequently.
Clearly, the environment needs no enemies when it has friends like the EPA. But how can the problem of water pollution be solved without government involvement? Let us examine how this might work within a libertarian framework, and how the incentives therein contrast with the incentives of a government agency like the EPA.
The first thing to note is that all property in a free society is privately owned, whereas the state currently claims ownership over all navigable waterways. But state ownership is not the same as private ownership. Whereas a private owner both exercises exclusive control over a resource and may sell either the resource or stock in it, government officials cannot generally do the latter. This means that government officials lack an important economic incentive to take care of the waterways. A private owner of a river who finds garbage or toxic chemicals therein would sue the polluter for damages, but no one reasonably expects the EPA to file a lawsuit against itself, and such agencies tend to block such lawsuits when filed by concerned citizens. This lack of incentive also leads governments to pollute lakes and rivers with municipal sewage, to the extent of more than 850 billion gallons of raw or untreated sewage that reaches American streams, rivers, and lakes annually.
The essential fact about water pollution is that the polluter adds harmful substances to the water against the wishes of those who are exposed to it, either through consumption, external contact, or soil pollution as the contaminants are left behind once polluted water has been used for purposes such as crop irrigation. When such exposure occurs, the pollution is not only an aggression against private property, but against liberty and life as well in the event of illness or death caused by the pollutants. This means that a polluter may be guilty not only of damaging property, but of assault or homicide.
It is clear that governments cannot be trusted to defend its citizens from such aggressions, but it has done worse; it has prevented free market solutions from being implemented. During the 19th century, people whose property was damaged by factory smoke took the factory owners to court, seeking relief from the pollution in the form of injunctions and damages. The government judges, realizing on which side their bread was buttered, sided with the factory owners, claiming that the “public good” of industrial progress outweighed private property rights. Such case law regarding air pollution applies to water pollution as well. Legislators, also knowing who was more capable of funding their campaigns and bribing them, joined in for the polluters and against the victims by eliminating the option of class action lawsuits against polluters who cause damage over a large area. As Frank Bubb writes, “It is as if the government were to tell you that it will (attempt to) protect you from a thief who steals only from you, but it will not protect you if the thief also steals from everyone else in the neighborhood.” That the government’s tax collectors are thieves of this nature is not unrelated.
Without government involvement, the provision of legal services and pollution remedies will be open to the market. As most people seek to avoid armed confrontations whenever possible, it stands to reason that they will create organizations to resolve disputes peacefully whenever possible and resort to force only when necessary. These dispute resolution organizations would combine the (legitimate) services currently monopolized by government police and courts. Some may also offer various types of insurance, military defense, and/or correctional facilities, while others may contract out such services to other companies. Such companies make possible a number of solutions to the problem of water pollution. Let us examine them.
The threat of water pollution is a situation in which costs are unpredictable and consequences can be severe, so a natural response in a free market would be to have insurance against pollution of one’s private property in a waterway. This benefits everyone because the insurer makes a profit as long as pollution stays below the level specified in the insurance policy and the policy holders get a payoff if pollution does exceed that level. The insurer is also incentivized to spend any amount of money less than what the payoff would be in order to keep pollution from occurring. This could include buying waterways or land near them that potential polluters seek to acquire, paying potential polluters to either go elsewhere or refrain from polluting, helping potential polluters to operate a more environmentally friendly business, helping victims of pollution in their efforts to sue and/or prosecute polluters, organizing boycotts of polluting businesses and those who associate with them, or aiding those who use defensive violence against polluters.
We may anticipate a few criticisms. In the system described, a company could threaten to pollute in an effort to receive payments and/or assistance from a pollution insurer, outbid any attempt to buy up land or waterways, ignore court decisions against them, or try to militarily defeat property owners who use defensive violence against them. These are serious problems, but each of these problems is as bad or worse in a statist system. Threatening people or businesses with harm unless payment is made to them is the definition of extortion. This problem is rampant in statist societies, as states are funded through taxation, a form of extortion. States are far more capable than private companies of making and carrying out such threats. If private property owners in a statist society wish to exclude a polluter from their neighborhood by buying up all of the land, the polluter can have the state use its powers of eminent domain to give them the property and use as much force as necessary to evict the current occupants. (And the state controls the waterways, so no luck there.) While polluters could try to ignore court decisions against them in a stateless society, this would be quite risky because such courts are not likely to hear complaints from people who have a reputation of ignoring court rulings, and other people are disincentivized to do business with someone who ignores court rulings. This fact is what allowed historical merchant courts to be effective though they lacked the power of enforcement. And as discussed earlier, governments have severely curtailed the ability of pollution victims to sue for damages, so whereas court decisions may sometimes fail to stop polluters in a free society, they frequently are not even allowed to try in a statist society. Finally, there is the use of force in self-defense against polluters. This must be a legitimate option in the event that nonviolent methods of preventing the aggression of pollution fail; otherwise, property rights are not rights at all, but limited privileges. It may be that a polluter has the resources to militarily defeat property owners who use defensive violence against them, but a person or business in a free society has only the military might that it can afford, not the military might of a nation-state. The private property owners also have a better chance in a free society because there would be no arms control laws to keep them from owning machine guns, rockets, tanks, missiles, or anything else they may want to use in their efforts. Let us not pretend that this option is off the table in a statist society; it is just monopolized by the state, in that a violator of government environmental regulations would ultimately be stopped by government agents with guns if nothing less were effective at bringing the violator into compliance. But if pollution victims in a statist society were to take up arms to stop a polluter by force, the state would use as much force as necessary to stop them, and the pollution victims are almost certain to lose that fight eventually.
It is obvious that a stateless alternative to the current system has much better incentives to reduce water pollution and protect the environment. The answer to the question of why private property, free markets, and non-aggression have not been permitted to solve this problem as described above is the same as always: the rational self-interest of powerful people is to keep things as they are and stand athwart true progress.