An uneven and sometimes disappointing collection of essays on free-market environmentalism. The basic problem with the book is that simple slogans like “Save the Planet!” resonate a lot more than carefully reasoned discussions of opportunity costs and public choice theory. Further, there are some very poorly chosen examples; in a discussion of what’s supposed to be environmental bureaucracy gone amok, one of the essays cites the cases of Dennis Marchuk and Mariani and Weitzenhoff. As it happens, both of these are commonly discussed in environmental law courses, with a rather different spin than Re-Thinking Green puts on them.


In the Marchuk case, Dennis Marchuk was prosecuted for removing asbestos from buildings in an industrial park he owned and “stashing them in basement foundations, steam tunnels, and cavities under roads. Marchuk reportedly never suspected his activities exposed him to criminal prosecution”. Marchuk was a lawyer specializing in real estate development; claiming that he was unaware of asbestos regulations is ludicrously unbelievable (if he was unaware of asbestos regulations, why did he removed it in the first place, and “stash” it in out-of-the-way places?). Similarly, the case of Mariani and Weitzenhoff is similarly explained as wastewater treatment plant operators in Hawaii supposedly being unware they were violating their discharge permit by dumping activated sludge in the Pacific Ocean. The description of the case in Re-Thinking Green makes it seem like this was a simple case of mistaken interpretation of the regulations; the way I’ve heard it described in environmental classes is rather different. Regulatory violations can be “knowing” or “willful”. All violations are “knowing”; you “know” the regulations the instant they are published in the Federal Register or the state or local equivalent. “Willful” violations are what you thought “knowing” violations were; where it can be shown in court that you actually did know what you were doing was a violation. How could that be proved? Well, most environmental regulations require a subject entity to conduct employee training – certainly that’s a basic condition of a wastewater treatment plant NPDES permit. Sometimes the permit or regulation includes very specific training requirements; sometimes it’s more general “awareness” training; sometimes more or less detailed training records must be kept on file. What I was always told when taking a class and what I always told people in classes I taught is that if your name is on a class sign-in sheet, you are considered to know everything that class covered – and the class materials will include a bullet-point list of what has been covered. In the Mariani and Weitzenhoff case, the two treatment plant operators (according to what I’ve heard) went out of their way to avoid taking any training in wastewater treatment plant environmental regulations, thus assuming that if they were ever caught they could claim it was only a “knowing” violation, not a “willful” violation. The various courts they went through didn’t buy that argument; as a result the de facto definition of “willful” violation is now that you knew or should have known that a violation was taking place – i.e., that you were working in an industry at a position where the proverbial reasonable person couldn’t remain ignorant of environmental laws. Re-Thinking Green goes on to note that the actual harm done in this two and similar cases was minimal; well, that’s true; we all know that the hazards of asbestos are greatly exaggerated and the Pacific Ocean can probably absorb an awful lot of sewage sludge. That misses the point again, though; one of the reason Libertarians are supposed to dislike laws is that we feel compelled to obey them until they can get changed, not pick and choose to obey only the ones that are “reasonable”.


Some of the essays are more useful. At the time the book was published (2005), drilling for oil in the Arctic National Wildlife Refuge was a cause célèbre in American politics. An essay in Re-Thinking Green suggests ending the discussion by turning the ANWR over to one of the major conservation groups, noting that both the Audubon Society and the Nature Conservancy allow oil development on refuge land they own because the royalties they derive from it are substantial. This fits in with the general theme that private landowners protect environmental interests better than the public. A similar motif turns up in a discussion of the Endangered Species Act; it’s documented that private landowners go out of their way to destroy suitable habitat for species being considered for “threatened” or “endangered” status before the status change actually takes place, while if the landowners were offered compensation for the loss of their property peaceful coexistence could have been possible.


A long essay discusses the politics of the elephant ivory ban. Elephants were doing better in African countries that allowed controlled hunting and ivory sales than in those that had banned hunting or ivory use. The major conservation groups – the World Wildlife Fund is given as an example – were aware of this and either tacitly or explicitly endorsed it. However, the essay points out that conservation groups are just as subject to market forces as anyone else. A couple of new, “upstart” groups seized on banning ivory as a marketing tool and began to siphon funds away from the older organizations. As a result, in order to retain their “market share” the WWF and others had to endorse the ivory ban – to the overall detriment of elephants. (Added later: I believe there have been more recent studies that suggest elephants were not, in fact, doing “better” in countries that allowed legal elephant hunting. Not sure now).


Another essay discusses a regulatory even I was unaware of – shamefully so, perhaps, because it falls under the “should have known” category discussed above. The topic is “regulation by litigation”. Laws, statutes and ordinances are enacted by legislative bodies from Congress on down to town councils. However, a lot of the familiar environmental “laws” are actually brief paragraphs directing the Administrator of the Environmental Protection Agency or local equivalent to promulgate regulations to protect water or air or elephants or whatever. The EPA, in turn, has a regulatory procedure – the proposed regulations are published in the Federal Register for public comment. After the comment period – the EPA may actually make changes based on the comments sometimes – the final rules are published. Complicated rules often invoke court challenges by the affected parties; the particular case discussed here is the Diesel emissions rule (and because it involves Diesel engines is should have been more familiar with what happened). The EPA originally regulated Diesel engines under Clean Air Act rules (there were California and Federal rules in place even before the Clean Air Act or the EPA existed). Specifically the EPA developed a Diesel engine emissions test; however, the test was specifically designed for urban driving conditions – which, after all, is where most of the problems with Diesel emissions occur. Diesel engine manufacturers examined how the test worked and developed computer controls for their engines that allowed them to easily pass the EPA’s urban driving test, but which would then “retune” the engine to improve mileage at highway speeds. The Clinton EPA countered with what Re-Thinking Green calls “regulation by litigation” – a lawsuit against Diesel engine manufacturers charging them with building a “defeat device” into their engines – implying something like the equivalent of a catalytic converter cutout valve in a gasoline engine vehicle when what was actually being used was an engine control program that met the emissions test the EPA had devised. The case was settled for $1G split among Diesel engine manufacturers and the largest Diesel engine purchase in US history by truck manufacturers scrambling to buy engines before the 10/2002 date that engines had to meet the new rules; several manufacturers stopped taking orders for engines well before that date due to lack of capacity. The essay suggests there was no reduction in urban air pollution – because existing engines already met EPA requirements – and no overall reduction since so many older model engines were purchased.


An essay that resonated with me – because I had thought about the issue before – was one discussing the concept of “existence value” for natural phenomena. Environmental economics has been handicapped by assertions that “you can’t put a price on…” whatever phenomenon or feature or species is under discussion, and the obvious counter that if you can’t put price on it, it has no value, doesn’t work very well. That leads to a discussion of “existence value” – the idea that just knowing that something exists – the Grand Canyon or grizzly bears, for example – has value, even if the person involves never visits the Grand Canyon or sees a grizzly bear. The conclusion is not very satisfactory – and there’s a tone of apology about that – there is such a thing as “existence value” but it’s impossible to measure.


There are more essays not sufficiently interesting for me to feel like summarizing. A half-hearted recommendation, then – perhaps worth getting from the library and dipping into. ( )