Lasley, Jonathan G.

English

Duke Law Scholarship Repository

ENVIRONMENTALREGULATION: ANEXAMINATION OFJOHN LOCKE'SORDERED LIBERTYAND GOVERNMENTINTERVENTION[Man] is willing to joyn in Society withothers ... for the mutual Preserva-tion of their Lives, Liberties and Es-tates, which I call by the generalName, Property.The great and chief end there-fore, of Mens uniting into Common-wealths, and putting themselvesunder Government, is the Preserva-tion of their Property.--John Locke, Two Treatises ofGovernmentWe hold these truths to be self-evi-dent: that all men are created equal;that they are endowed by their cre-ator with certain inalienable rights;that among these are life, liberty &the pursuit of happiness: that to se-cure these rights, governments areInstituted among men ...-Thomas Jefferson, United StatesDeclaration of Independence2This article seeks to promote a dialogueon the role of environmental regulationbased on the core principles of Americandemocracy. By approaching what seem tobe Intractable differences between thosewho oppose all forms of regulation andthose who would have government regulateevery aspect of our environment in this light,we may arrive at a concept of the role of gov-ernment that protects both the environmentand liberty.It is axiomatic In America that liberty isbest protected by limited government.However, as the influence of the UnitedStates government has spread to most areasof public and private life, it seems that expe-dience has overcome liberty. Many Ameri-cans perceive that an all-pervasive govern-ment is eroding individual freedom. 3 Thus,those who oppose the expansion of gov-ernmental influence most effectively wieldthe rhetoric of liberty.Nowhere is this more true than in thearea of economic regulation where "thenatural operation of the free market' '4 re-mains the clarion call for Reagan era conser-vatives. The operation of market forces issubtle and difficult to discern in activities thataffect our environment. Environmental dam-age is hard to quantify and assign to a spe-cilic individual or firm. While the market natu-rally imposes costs on firms for the new ma-terials purchased for use in manufacturing, itdoes not naturally impose the costs associ-ated with air or water pollution, the effects ofwhich may be felt thousands of miles away.When subjected to environmental regulationby the government, an industry can cry foulbecause the nexus between costs to theenvironment and industrial acitivity is notreadily apparent. Thus, it is easy for conser-vatives to characterize environmental regu-lation as overly burdensome by playing toAmericans' unusual suspicion of intrusivegovernment. In this vein, columnist GeorgeWill has included environmentalism in hisdepiction of a leftist agenda that "evolvesover time but has one constant: the expan-sion of state direction over society, and theexpansion of control of the regulating stateby a clerisy claiming privileged insights intothe unfolding future. 'This type of assertion, conjuring up Im-ages of failed Communist systems, leavesproponents of environmental regulation onthe defensive in a society that is trumpetingthe triumphs of its ideas In the Cold War. Inone sense, this is deservedly so: just sayingthat some activity is bad for the environmentshould not be sufficient to force its regula-tion. On the other hand, by leaving Amer-ica's national rhetoric to the opponents ofenvironmental regulation, society fails to dojustice to the legitimate values of the envi-ronmental movement-values which arewholly consistent with ordered liberty.The ideas of John Locke, expounded inhis Two Treatises of Government, are gen-erally cited as the foundations of the Ameri-can concept of ordered liberty and govern-mental responsibility.6 Thus, to locate envi-6ENVIRONMENTAL LAW & POLICY FORUMronmental regulation in the American politicalscheme, one must consider this source.THE STATE OF NATURE ANDTHE DUTIES OF GOVERNMENTLocke begins his argument in the TwoTreatises of Government by examining thecondition of humankind in a pre-societalstate of nature. In this circumstance hu-mankind is at liberty, but this liberty is circum-scribed by the caveats that a person is"bound to preserve himself, and ... when hisown Preservation comes not in competition... to preserve the rest of Mankind."7 Inother words, in the state of nature a person'sduty is to herself and, as long as it does notjeopardize her own existence, to the rest ofhumankind. What is more, in the state of na-ture, each individual has the right of en-forcement to the extent that it will deter vio-lations of the rights to personal and speciespreservation.8As an example of this right of enforce-ment, imagine a society in the state of na-ture. Two people are living near each otheron a stream; one has an oil well. If the oil wellowner releases oil into the stream, herneighbor will have the right to stop the pollu-tion on two counts: first, the contaminationof the source of drinking water threatens herown existence; second, the same contami-nation also jeopardizes the existence ofother humans living downstream. Thus, en-vironmental regulation of a personal sort isjustified in the state of nature.How does this justification effectuate it-self in a society under a duly constitutedgovernment? In Locke's view, people wouldnot enter into government if it were to theirdetriment, "[f]or no rational Creature can besupposed to change his condition with an in-tention to be worse." 9 Therefore, govern-ment bears the same duties as the individ-ual: the preservation of the self and of thespecies. It may not act contrary to those in-terests and its power "can never be sup-pos'd to extend farther than the commongood."10 The only difference between theduties of a government and the duties of anindividual lies in the order of their priority.Whereas an individual's duty is first to herselfand then to the species, a government'sduty is first to society as a whole and then tothe people as individuals: 'he first and fun-damental natural law, which is to governeven the Legislative itself, Is the preserva-tion of the Society, and (as far as will consistwith the publick good) of every person init."" Governments are formed by people topreserve their "Lives, Liberties and Estates,"which Locke combines Into the generalcategory of "Property."12PROPERTY AND GOVERNMENTREGULATIONThe areas In which a government mayact, consistent with Its defined duties, de-pend on the definition of property. The ba-sis of Locke's concept of property Is the self.We all own our bodies and our abilities. It Isonly when one mingles his labor with re-sources that he may gain property externalto himself. 13 A farmer who cultivates landmakes it his own just as someone who drillsgains ownership of the oil. Locke, however,places limits on the extent of accumulation:"[a]s much as any one can make use of toany advantage of life before It spoils; somuch he may by his labour fix a Propertyin." 14 Thus, one violates natural law whenone's accumulated property goes to waste.A thing of vast durability such as gold may beaccumulated without violating natural law. Ina pre-mercantile economy, when resourcesbecome scarce, people substitute durableitems that have no direct value In terms of,sustenance for perishable property gainedthrough their labor. This scenario leads tothe rise of money and trade.' 5The concept that the wasting of propertyis a violation of natural law Implies that onewho earns property bears some responsibil-ity for It. One who produces property need"only to look that he use fit] before [It]spoil[s]; else he took more than his shareand robbed others."16 The robbing ofothers is an act against the common good,and therefore comes within the purview ofgovernment, which Is charged with the pro-tection of society at large.Locke's definition of property and theresponsibilities that stem from ownershiphave profound implications for environmen-tal regulation. As illustrated above, govern-ment has the duty to protect property for the"publick good." Thus, government bears apositive duty to protect the basis of all prop-erty-the self-and consequently, to pro-tect an individual's labor. Moreover, consis-tent with its primary duty to society at large,ENVIRONMENTAL REGULATION 67government should act to prevent thewastage of property-a violation of naturallaw.The application of the first point is obvi-ous. If the activity of any member of societyso harms the environment as to endangerthe health-and thus the most fundamentalproperty--of any other member, that activityis subject to regulation. Regulation stemsnot only from the concept of property, butalso from the natural law right to self-preser-vation. Government bears a positive duty toprotect its individual citizens-as long as thatIs consistent with the common good.However, government's role in protect-Ing the environment extends beyond pro-tecting individual health. It must ensure thatresources are not wasted through spoilageor mismanagement. If a member of societypollutes the environment despite the avail-ability of preventative measures, he is wast-ing resources and robbing from society as awhole. Furthermore, Locke's doctrine im-plies that good resource management Is in-cumbent on a producer. The wasteful use ofresources robs society as much as allowingresources to spoil altogether. It is the duty ofgovernment to ensure that each member ofsociety fulfills his obligation to use resourcesprudently In the development of his prop-erty.The political argument regarding the re-sponsible use of resources significantlyparallels the economic concept of external-ity. An externality 'isan effect of [a] firm's ac-tivities on people's well-being that is nottaken into account through the normal oper-ation of the [market]." 17 When a firm pro-duces an externality, neither the firm nor theconsumers of its products bear the external-ity's cost; rather, it is born by society as awhole. Those who are responsible for theexternality, the producer or the consumerswho demand the product are, in effect, rob-bing society at large for their own short-termbenefit.It is here that government's duty toensure the responsible use of resourcescomes Into conflict with the argument ofmodern conservatives that, "the natural op-eration of the free market" 18 will achieve themost efficient and hence responsible use ofresources. In fact, the free market does notalways promote the efficient use ofresources, particularly in environmental ar-eas. The mismanager of resources imposesa cost on society because the market cannotinternalize that cost. In the absence of regu-lation, society subsidizes the mismanager'swaste of resources by allowing him lower di-rect costs that result in higher profits. Whereresources, such as clean air or water, are noteasily measured, the "free market" ensuresthat they will be used inefficiently to theshort term benefit of those who mismanagethose resources and to the long term detri-ment of society.The "free market" argument finds its ori-gins in the thought of Adam Smith. Smith'sthought follows in the tradition of Locke andforms the cornerstone of the American eco-nomic system just as Locke's thought did forthe political system.19 Smith asserted that, ifsociety's members were left to their own self-interest, the "invisible hand" of the marketwould lead to Increased wealth for all ofsociety.20 Yet Smith saw dangers from un-bridled self-interest--especially from distinctclasses of economic activity: "The interest ofthe dealers, however, in any particularbranch of trade or manufactures, is always insome respects different from, and even op-posite to, that of the publick."2 1 As didLocke, Smith recognized the duty of gov-ernment to protect the common good as wellas "the duty of protecting, as far as possible,every member of the society from the injus-tice or oppression of every other member ofit ....,22 By creating externalities, a memberof society places the burden of his activity onsociety as a whole. Locke would call thistheft, Smith injustice. By either name, itsregulation is government's responsibility. Byharming the environment, a member of soci-ety burdens us all with his actions. Onlythrough regulation can the responsibility beplaced on the proper shoulders.CONCLUSIONSIn Democracy in America, Alexis de Toc-queville points out that in a democracywhere government is essentially "humaneand gentle" to its citizens,23 members ofsociety will tend to sacrifice their freedomsand allow government to take responsibilityfor them. If government tends to people'sneeds and ensures their happiness, abenevolent despotism will arise with thecomplete acquiesence of the people.24 Thistendency to tolerate government pa-63 ENVIRONMENTAL LAW& POLICY FORUMternalism has manifested itself on both sidesof the debate surrounding environmentalregulation.There can be no question that when theFounders of the United States constructedour government they meant for it to be lim-ited. It was meant to protect, among otherthings, "life, liberty & the pursuit of happi-ness"--a clear embodiment of Locke's ideason limited government. 25 Therefore, thosewho advocate an increased government rolein any area must show that it falls within thelegitimate powers of government. Muchenvironmental regulation clearly meets thisrequirement. However, it is not a sufficientjustification for regulation merely to say thatan activity is bad for the environment.Environmentalists bear the burden ofshowing that a given problem is such that itcannot be rectified without some form ofregulatory interference. To use governmentresources when they are not absolutelyneeded is as much a waste as pollution.The opponents of environmental regu-lation, however, bear an even heavier bur-den of proof. In many cases, if not most,they attempt to impose upon society the billfor environmental abuse that is the fault ofthat part of society that they represent-apart that absorbs no direct cost. By avoidingregulation they abrogate responsibility fortheir actions to government. Yet ironically, ifgovernment accepts this responsibility, it isthis same group that is most resistant to thetaxation necessary to its fulfillment.Intractable idealism on either side of theenvironmental debate will accomplish noth-ing. The government America's Foundersbuilt on John Locke's principles works onlywhen competing interests are properly bal-anced.26 Thus, groups wishing to affectgovernment action must participate respon-sibly in the debate. Immoderation or ex-ploitation on either side will open the door totyranny: a demand for too much regulationrisks de Tocqueville's paternalistic despot-ism, and too much exploitation risks thedespotism of an increasingly uninhabitableworld. All members of American societymust remember their responsibility to protecthumankind for, when we forget our respon-sibilities, we open the door to tyranny.-Jonathan G. Lasley1. John Locke, Two Treatises of GovernmentII § 123-24, (Peter Laslett, ed) (Cambridge,1988).2. The Declaration of Independence P.S177.3. See, for example, Excerpts from the 1984Republican Party Platform, Dally Report forExecutives (BNA) No 162 at X-1 (August 21,1984), which states In pertinent part: "excessiveregulation ... continues to stifle private Ini-tiatives, individual freedom, and State and localgovernment autonomy."4. See Barry Goldwater, The Conscience of aConservative 42 (MacFadden, 1963) amongothers.5. George F. Will, Suddenly 8 (FeePress,1990).6. See, for example, Robert A. Goldwin, JohnLocke, In Leo Straus & Joseph Cropsey, eds,History of Political Philosophy 510 (U Chicago,3d ed 1987).7. Locke, Two Treatises of Government II § 6at 20-25 (cited in note 1).8. Id, 1§ 7.9. Id, II § 131 at 6-8. For the purposes of thisargument, it will be assumed that any governmentstems from the consent of the governed Inaccordance with Locke's concepts.10. Id, II § 131 at 8-10 (italics removed).11. Id, II § 134 at 5-8 (italics removed). Lockerecognized legislative power as the supremepower that could be delegated by the people.12. Id, II §§ 123-24.13. Id, 1 § 27.14. Id, 11 § 31 at 7-9.15. Id, 11 §§ 48-49.16. Id, II § 46 at 14-16.17. Walter Nicholson, Intermediate Micro-economics and its Application 521 (Dryden, 4thed 1987).18. Goldwater, Conscience of a Conservative42 (cited in note 4).ENVIRONMENTAL REGULATION 6919. See Joseph Cropsey, Adam Smith inStraus & Cropsey, Histoty of Political Philosophyat 635 (cited in note 6).20. Adam Smith, An Inquiry into the Natureand Causes of the Wealth of Nations IV, ii at 456(R.H. Campbell, A.S. Skinner & W.B. Todd, eds)(Clarendon Press, 1976).21. Id, I, ix at 267.22. Id, IV, ix at 687.23. Alexis de Tocqueville, 2 Democracy inAmerica 317 (Vintage, 1990).24. Id at 316-21.25. The Declaration of Independence (US1776).26. See, for example, Federalist 35 (Hamilton)In Clinton Rossiter ed, The Federalist Papers215-16 (Mentor, 1981).

Environmental Regulation: An Examination of John Locke’s Ordered Liberty and Government Intervention

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Environmental Regulation: An Examination of John Locke’s Ordered Liberty and Government Intervention

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