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Environmental Justice

by Peter S. Wenz

State University of New York, 1988
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Environmental Justice explores the philosophical background of questions on environmental justice. It focuses on theories of distributive justice, primarily those which concern the manner in which benefits and burdens should bea allocated when there is a scarcity of benefits and a surfeit of burdens. Since environmental concerns are uniquely global, theories of distributive justice are tested most thoroughly for their comprehensiveness when they are applied to environmental matters.

Praise for Environmental Justice

"This book is engaging, uses effective examples, and is informative to the lay reader. The breadth of the inquiry is quite astonishing, and the material is accessible." -- James E. Krier, University of Michigan Law School

Quotes from Environmental Justice

"[N]o one advocates injustice: yet complaints about injustice abound and disputes about justice are common. Many of these disputes are fostered by different conceptions of justice. Because people have different ideas about justice, a social arrangement or environmental policy that one person considers just will be considered unjust by another. . . .

"In addition to increasing self-understanding and freedom, an exploration about different ideas of justice helps people to better understand others. . . .

"This book focuses, then, on ideas that differ from, and are opposed to, one another. One line of thinking will be expressed, and then an opposite perspective will be presented. The opposite perspective will constitute a challenge to the first view. . . .

"My use of challenges and responses is not meant to convey the impression that the book contains nothing more than a back and forth dialog that goes nowhere. There is direction. After discussing the practical importance of justice (Chapter 1), the nature of principles of justice (Chapter 2, and the nature of theories of justice (Chapter 3), I explore several theories of justice and their related principles. Each theory contains something important, but those at the beginning are less persuasive or comprehensive than those considered later. There is a progression toward theories that are increasingly sophisticated and complex. Some later theories examine important assumptions that are embedded within theories discussed earlier. For example, the Human Rights Theory (Chapter 6), examines assumptions that underlie the Libertarian Theory (Chapter 4). Succeeding theories are thus deeper, as well as more complex, than those considered earlier. The final theory is a Concentric Circle Theory, which I believe to be more helpful than any of the others in ameliorating conflicts related to the protection and use of the environment."

. . .

"The Problem of Scarcity. We saw in Chapter 1 that issues of justice arise when people's needs or wants exceed the supply of things required to satisfy them. Relative scarcity is the context within which issues of justice arise. We see now that aboundance is the only context within which the original appropriation of private property is justified, according to the Libertarian Theory. So the original appropriation of private property can justifiably occur only when the kind of thing appropriated is, at the time of appropriation, so abundant that considerations of its just allocation are irrelevant.

"This presents the Libertarian Theory's justification for private property with some problems. There are some things that exist in aboundance whose abundance is unaffected by our appropriation of them. . . . [A]round the turn of the century, when gasoline was first being used in internal combustion engines, oil was plentiful. One person's drilling an oil well and extracting some oil from the earth did not at that time diminish the freedom of anyone else. Enough and as good oil remained for others. If no one had owned oil rights at that time, Locke's Labor Theory could have applied to anyone who was willing to go to the trouble of drilling for oil and pumping the oil that was found. . . . Such property rights would not have diminished anyone's freedom and would therefore have been consistent with the Libertarian Theory.

"Imagine, then, that my grandmother had drilled some oil wells eighty years ago. According to the reasoning above, she would have owned the wells and whatever oil she pumped out of them. Suppose that she did not pump much oil over the years, so the wells are still in operations, and I have inherited them from her. Now, however, oil is relatively scarce. When I pump oil, I do not leave behind as much as is good for others. There more I pump, the more I own, and the more I burn, the less there is for other people to pump, own, and burn. Under these conditions, my appropriation of oil does limit the liberty of others.

"What does the Libertarian Theory say about a situation like this? On the one hand, it could be argued that the oil that I pump is mine. My grandmother's original acquisition of the wells, and of the oil into which the wells are sunk, was perfectly consistent with the Libertairan Theory. The oil rights were not owned by anyone. My grandmother did the work herself to develop the wells, and she did not limit the liberty of others in the process. So the wells and the oil reserves were legitimately her property. . . . The fact that oil is now scarce, so that my ownership of the wells does limit the freedom of others, is unfortunate. But it is not my fault, nor the fault of my . . . grandmother. The scarcity is the reult of technological and social changes, such as the development and marketing of the automobile and airplane as major sources of transportation. These vehicles employ the internal combustion engine. That engine uses gasoline which is made from oil. I am not responsible for any of this, so it should not affect my property rights. I should continue to own the oil wells and the oil in spite of the fact that oil is now scarce.

:"On the other hand, however, the Libertarian Theory could be used to argue with equal cogency that the existence of scarcity abrogates my property rights in the oil wells and the oil. The idea that is central to the Libertarian Theory is the promotion and maintenance of liberty. Arrangements are good insofar as they promote individual liberty, bad insofar as they have the opposite effect. There is nothing sacred about private property. It is good because, for reasons already explained, it generally promotes liberty. But private property rights must be abrogated whenever they significantly undermine liberty. The extensive use of oil has become a necessity in our culture. Almost everyone depends on being able to consume oil. It is also scarce. So when it is privately owned, the owner, by restricting the access of others, limits the liberty of others to a considerable extent. Since the restriction of liberty is bad, my private ownership of oil wells and oil reserves is unjustified at this time. . . .

"The [Libertairian] Theory may not provide a cogent justification for property rights that is helpful in settling current issues of environmental justice because the justification may apply only to conditions of plenty, and we currently have conditions of scarcity.

"Unjust Acquisitions in Our Past. There is a second reason why the Libertairian Theory's justification of property rights is inadequate. The Theory endorses only those transfers of private property that are voluntary. Transfers must take place without force or fraud. My current ownership of something is justified only if its original acquisition conformed to the requirements of the Labor Theory, and all of the transfers between the original acquisition and my ownership took place without force or fraud.

Unfortunately, there are few, if any parts of the earth whose environmental resources have reached their current owners without force or fraud. . . . In general, the Libertairan Theory cannot be used by contemporary North Americans to justify their ownership of property, because the historical processes through which property was transferred to them included the use of force and fraud.

"North Americans are not alone in this regard. The history of South America is simiilar. So is the history of Australia and, if you go back far enough, the history of every other place as well. . . .

This flaw in the Libertarian Theory's justification of property rights is so obvious that one may wonder how libertarians could be unaware of it. Even if Locke missed it, how could a contemporary writer, like Robert Nozick, miss it? Nozick simply ignores the fact that this crucial objection renders this theory inapplicable from the start to any known society. . . . Why do Nozick, Branden, Machan, Rothbard, Hospers, and others study a theory that has no realistic application? The most plausible explanation, I suggest, refers to the Virtue Theory. The Virtue Theory endorses deference to the interests of wealthy people. The wealthier people are, the more it is in their interest that the past iniquities responsible for their wealth be forgotten or ignored. So we commonly ignore obvious facts that undermine the Libertarian Theory's justification of contemporary property rights. . . .

"None of these considerations implies that all private property is unjustifiable. Nonlibertarian justifications are possible."

. . .

"There are only two significant differences between the Efficiency Theory and the Libertarian Theory concerning property rights. One major difference is that laissez faire economists are committed to supporting private property in a free market only. So they endorse laws against price-fixing and agains monopolies. These laws are needed to maintain the competition that is required for market transactions to foster efficiency. Libertarians are characteristically opposed to legislation against price-fixing and against monopolies, because such laws constitute governmental interference with people's right to do as they please with their private property. The bottom line for laissez economists is efficiency, whereas the bottom line for libertarians is the individual's right to private property.

"This difference is related to another. According to the Libertarian Theory, property rights are a species of natural rights. They arise naturally, . . . , from the mixture of a person's labor with other aspects of reality. The state exists to protect such rights. The rights exist prior to the state's existence, and would exist in the absence if a state. According to the Efficiency Theory, on the other hand, property rights exist by convention or law rather than by nature. Law creates property. Things can exist whether or not there are laws. there can be trees and chairs, natural things and human artifacts with law. But these things become private property only when some individual or group has a valid legal claim to them. Then the state will protect a person's right to possess, use, enjoy, and transfer the things in question. The state provides this protection in order to promote efficiency. Creating and protecting private property rights is thus a means toward an end rather than, as libertarians maintain, an end in itself. . . .

"Property rights are justified not by the history of their acquisition, but by the efficiency that results now and in the future from human activities that the rights help to structure. So the sordid history of the acquisition of the property rights that we enjoy is beside the point. That history does not detract in the least from the legitimacy of our property ownership, so long as efficiency is not adversely affected. If the illegitimate acquisitions were very recent, like last week or last year, then efficiency would be affected, because people would remain insecure in the possession of their property. They would anticipate additional, massive, illegitimate acquisitions at any time. They would spend their time and energy protecting their property instead of employing it productively. So it is important that contemporary thieves be caught and prosecuted. It is important that property stolen recently be returned to its rightful owners. But thefts that took place a hundred years ago, or more, can be totally ignored. They do not adversely affect the efficient employment of property now and in the future. . . .

"A good argument can be made from the libertarian perspective that people should lose their property rights in such things as they become scarce, because these property rights limit the freedom of others just as much as an original acquisition of scarce resources would limit others' freedom. . . .[T]he Efficiency Theory can come to the rescue. As we saw in Chapter I, if an environmental resource that is in short supply is not privately owned, a tragedy of the commons typically results. A resource owned in common by more people than it can adequately serve is soon destroyed by overuse, as each person uses as much as she desires. The destruction takes place very quickly because each person realizes that other will probably soon destroy the resource through overuse. Everyone joins in as quickly as possible in order to enjoy at least some beneifts from the resource before it is destroyed by the goup. This use of resources is very inefficent. A pasture that could have supported indefinitely one hundred head of cattle is destroyed quickly by the grazing of twice that number.

"Private property preserves efficiency under such conditions of scarcity. If the pasture is privately owned, the owner will try to preserve it. . . . "

"Similarly, if oil reserves are privately owned, then as oil become scarce, the owners of the reserves will raise the price that they charge for oil. . . . The increased price will depress the demand for oil because there are substitutes for oil and because people have other things that they would like to do with their money besides buy oil. Decreased demand means that oil reserves will be depleted more slowly. This is conservation. . . In sum, whereas scarcity may be used to argue against private property from the libertarian perspective, it can be a powerful argument in favor of private property from the perspective of the Efficiency Theory. . . ."

"The goal of efficiency can also be used to define "abnormally dangerous conditions or activities." If the harm that is likely to occur from dangerous conditions or activities is greater than the probable benefits, then the conditions or activities in question are "abnormlly dangerous" and should be enjoined. If, on the other hand, the benefits outweight the harms, then these conditions or activities are not abnormally dangerous and should not be enjoined. In the latter case, because the conditions or activites promote more benefits than they produce harm, they increase the total supply of people-pleasing goods and services. Those who are harmed can, at least theoretically, be compensated for their inconvenience by those who reap the benefits, because there are enough benefits to go around. Under these conditions, it makes sense from the point of view of efficiencyt to allow the harms to occur and require those who reap the benefits to compensate fully those who suffer the harms. This way no one comes out behind and at least some people come out ahead. . . .

"But do those who engage in and profit from an activity that harms others automatically recognize and acknowledge the harm that they are causing: If they are trying to maximize their profit, as the Efficiency Theory recommends, then they will resist such recognition and acknowledgment. If they acknowledge the harm that they cause, then they have to compensate the people whom they have harmed. The expense of compensation reduces profits. So even if they really know that they have caused the harm, the Efficiency Theory suggests that they pretend that they do not know. It suggests that they require those who accuse them of causing harm to prove their case.

The requirement of proof may result in the denial of compensation to those who deserve it. Proof must be presented in the course of an expensive and time-consuming civil suit. As we have seen, those who are harmed may believe correctly that the expense of the suit is not worth what they are likely to gain. If those who are harmed either fail to sue or fail to win their suit, then there is, according to the Efficiency Theory, a misallocation of benefits. Some of the benefits of the activity in question should be used to compensate those who are harmed by it. But if those who are harmed fail to sue or lose their suit, compensation will seldom occur.

Things are even worse, however, from the point of view of the Efficiency Theory, if everyone does sue for the damages caused by the activities of others. The cost of all the suits, added to the damage caused by the activity in question, can easily combine to outweigh the benefits of the activity. Consider, again, Waschak v. Moffat. The benefits resulting from Moffat's coal mine may be greater than the harm it causes, including the cost of twenty-six paint jobs. But because Moffat is not willing to pay for the cost of having the twenty-six houses repainted, the twenty-six home owners sued him. Now, the cost of Moffat's activities includes not only the harm done to twenty-six houses, but the expense of twenty-six trials. The transaction costs represented by the trials, when added to the harm done to the houses, may well outweigh the benefits of Moffat's mining activities. The court, ignoring transaction costs, and using the Efficiency Theory definition of "reasonable," may declare Moffat's activities to be reasonable. But the activities are really unreasonable, from the Efficiency Theory perspective, because all costs must be included, transaction costs as well as harms.

"Even when the benefits of an activity outweigh the harm it causes plus the transaction costs of law suits concerning that harm, the settlement of questions concerning environmental justice by exclusive appeal to private property rights is not maximally efficient. There are methods less costly than multiple private law suits which can be used to settle such questions. These include, for example, government regulation of polluting activities and governmentally imposed surcharges on pollution. These methods are more efficient because they often allow the government to structure the situation so that harmful polluting activities are avoided. . . . Also, regulation and surcharges allow many cases of pollution to be dealt with simultaneously, in a single decision or piece of elgislation. . . Because these methods reduce transaction costs, they increase efficiency."

. . .

"Because the general air quality in an area is no one's private property, no one can sue for private nuisance or traspass when the activities of others cause the air quality to deteriorate [in a minimal state]. In a minimal stae, the government is restricted to the role of settling disputes between private parties. Without a party who can claim damage to individual property there is no state action. So in a minimal state, no one is in a position to halt the destruction of those aspects of environmental quality that are public goods. This result is unaffected by the existence of competition int he economy. Competition affects the allocation of private property. The problem here is that environmental public goods are no one's private property, so no one is competing to preserve or restore them."

"Those who degrade environmental public goods will not only be permitted to continue, but will also be allowed to escapte individual payment for the damage they cuase. Without private lawsuits, there is no mechanism in a minimal state for requiring polluters to internalize their externalities. Since they do not have to pay for the damage that they cause, they have no incentive to minimize their destruction of environmental public goods. . . .

"In sum, public goods are a commons. Their use is subject to the tragedy of the commons, which can occur under conditions of perfect compeition. Because many aspects of environmental quality are by nature public goods, the tragedy cannot be avoided by appeals to private property rights or by private lawsuits for nuisance and treaspass. Thus, the Efficiency Theory, because it endorses a minimal state, does not adequately address the problem of the tragedy of the commons."

"[Furthermore,] competition may prevent rather than promote maximum efficiency. When people compete, they pursue their individual goals of maximizing profit. . . The result can be lower levels of fulfillment for all conerned than would be possible if people cooperated with one another and renounced the pursuit of their most preferred outcomes."

"A Case Study--Automobile Emissions. . . . In our society at this time, curtailing emissions requires, among other things, employment of a catalytic converter and the use of unleaded fuel. The converter increases the price of cars. It also reduces mileage, requiring individual to buy more gasoline. Unleaded fuel is more expensive than leaded fuel. Thus, evenyone has an incentive to be a free rider. It is in the interestof each individual that everyone else use a catalytic converter and unleaded fuel while she does nto do likewise. That way, the individual has the benefit of the clearner air that results from everyone else's reduced auto emissions, and the benefits of lower costs for her own transportation. . . .[T] result is worse for everyone than the result of coopration. Coopertion would produce cleaner air, but higher operating costs for automobiles. Failue to cooperate results in so much air pollution that levels of emphysema, heart attach, cancer, and other maladies increase significantly. The costs of these maladies, in terms of paid and suffering, lost work days, premature deaths, and medical expenses greatly exceed the increased cost of automobile travel that cooperation would have entailed. Overall efficiency is, under these conditions, frustrated by people competing with one antoher to gain the most for themselves as individuals.

"This result can be seen clearly, also, from the perspective of competing manufacturers. In a minimal state, there would be no governmental requirement that cars be equipped with catalytic converters. Since these devices add to the cost of cars and since, as we have seen, few customers would voluntarily pay anything to preserve a public good like clean air, competition would make it impossible for auto makers to equip their cars with catalytic converters. In a competitive economy, everyone's profit margin is very small. Any auto maker who added pollution control devices as standard equipment would not, in a competitive economy, be able to absorb this loss by further reducing profit. So the auto maker would have to add the cost of the pollution control devices to the price of the cars. Since potential customers would not be willing to pay a higher price for a car with the equipment, the cars would not sell, and the auto maker would eventually go bankrupt. Not only is competition unhelpful to the provision of public goods, it makes the provision of such goods impossible in the context of a miminal state. Again, inefficiency is the result. Medical costs, and other expensive effects of the air polllution that automobiles create are much greater than the total cost of pollution equipment."

. . .

"Am I obligated to live life differently now that I have a heightened awareness of the extent to which my current life is entangled with injustice? Why should I? . . . If I should change my behavior, how much should I change, and what kinds of changes are required? These are questions addressed in this concluding chapter.

"I discuss and dismiss first the view that individuals have no obligation to respond to injustice (15.2). I then dismiss some extreme views about one's obligations (15.3), before introducing the view that I favor, which is captured in the Principle of Anticipatory Cooperation (15.4). I conclude with a few practical suggestions for people in the United States and other Western industrial countries (15.5)."

Table of Contents of Environmental Justice

PREFACE

INTRODUCTION

1 THE IMPORTANCE OF ENVIRONMENTAL JUSTICE

§1.1 Preview, §1.2 The Context of Justice, §1.3 The Free-For-All Response to Scarcity, §1.4 The Need for Coordinated Environmental Restraint, §1.5 The Necessity of Justice in Voluntary Groups, §1.6 The State Seems Not to Require Voluntary Cooperation, §1.7 The Vulnerability of Modern Societies, §1.8 The Necessity of Justice in the Social Order, §1.9 Education and Propaganda, §1.10 The Need for Environmental Justice

2 PRINCIPLES OF JUSTICE

§2.1 The Formal Nature of Justice, §2.2 Principles of Justice, §2.3 Underlying Agreement, §2.4 Why Agreements Become Obsolete, §2.5 Origins of Controversy, §2.6 The Sense of Justice

3 PROPERTY AND VIRTUE

§3.1 Property Right Principles, §3.2 Theories of Justice, §3.3 Preview, §3.4 Secular Puritanism, §3.5 The Theory’s Continuing Influence, §3.6 The Unacceptability of the Virtue Theory

4 PROPERTY AND LIBERTY; THE LIBERTARIAN THEORY

§4.1 Preview, §4.2 The Minimal State, §4.3 Private Property, §4.4 Libertarian Justice: The Entitlement Theory, §4.5 Nuisance, §4.6 Trespass, §4.7 Libertarianism and Pollution: A Critique, §4.8 The Original Acquisition of Property, §4.9 The Problem of Scarcity, §4.10 Unjust Acquisitions in Our Past

5 PROPERTY AND EFFICIENCY: THE EFFICIENCY THEORY

§5.1 Introduction, §5.2 Efficiency and the Free Market, §5.3 The Advantages of the Efficiency Theory, §5.4 Monopoly and Oligopoly, §5.5 Transaction Costs, §5.6 Externalities and Public Goods, §5.7 Tosca in the Prisoners’ Dilemma, §5.8 A Case Study—Automobile Emissions, §5.9 Summary and Conclusion

6 HUMAN RIGHTS

§6.1 Introduction, §6.2 Human Rights in Environmental Law, §6.3 Moral v. Legal Rights, §6.4 Human Rights and Self-Evidence, §6.5 Positive vs. Negative Rights, §6.6 Kant and the Categorical Imperative, §6.7 The Kingdom of Ends and Human Rights, §6.8 Objections and Replies, §6.9 An Application of the Human Rights View

7 ANIMAL RIGHTS

§7.1 Poisoning Pigeons in the Park, §7.2 Human Rights and Cruelty to Animals, §7.3 Retarded Humans and Endangered Species, The Possibility of Animal Rights, §7.5 Direct Duties to Subjects-of-a-Life, §7.6 The Argument for Animal Rights, §7.7 Conflicting Ordinary Moral Judgments, §7.8 The Implications of Regan’s Animal Rights View, §7.9 Differences between the Negative Rights of Humans and Non-Humans, §7.10 Animals and Positive Rights, §7.11 Summary, Conclusion and Prospect

8 THE UTILITARIAN THEORY

§8.1 Maximizing Well-being, §8.2 The Nature of Well-being, Pleasures and Preferences, §8.3 The Utilitarian Theory, §8.4 Utilitarianism and the Treatment of Animals, §8.5 Human Rights, §8.6 An Environmental Example—Reserve Mining, §8.7 Private Property, §8.8 Justifying Changes in Principles of Justice, §8.9 The Taking Principle, §8.10 Liberty, Equality and Justice

9 THE LIMITS OF UTILITARIANISM

§9.1 Preview, §9 2 Distributive Justice, §9.3 Immorality in Unusual Circumstances, §9.4 Due Process and Equal Protection of the Laws, §9.5 Artificial and Irrational Desires, §9.6 The Non-Sentient Environment, §9.7 Population Policies, §9.8 Factual Uncertainty, §9.9 Conclusion

10 THE NATURE AND LIMITS OF COST-BENEFIT ANALYSIS

§10.1 Introduction, §10.2 Legal Mandates for the Use of CBA, §10.3 CBA and Utilitarianism, §10.4 CBA and the Efficiency Theory, §10.5 CBA and Injustice, §10.6 Unreliability: Shadow Prices and Discount Rates, §10.7 Future Generations, §10.8 Distortions by Past Policy Decisions, §10.9 Negative Self-Reference, §10.10 Conclusion

11 JOHN RAWLS’ THEORY OF JUSTICE

§11.1 Preview, §11.2 Victims of Dioxin, §11.3 Pure Procedural Justice, §11.4 The Original Position, §11.5 Self-Interest, Primary Goods and Maximin, §11.6 Rawls’ Principles of Justice, §11.7 Two Applications of Rawls’ Principles, §11.8 Utilitarianism and Primary Goods, §11.9 Thickening the Veil for Foreigners, Future Generations, Animals and Mountains, §11.10 Moral Assumptions in Rawls’ Theory, §11.11 Conclusion

12 THE STRUCTURE OF INQUIRY

§12.1 Introduction, §12.2 The Objectivity of Scientific Observations, §12.3 The Basic Structure of Scientific Inquiry, §12.4 The Importance of Values in Scientific Inquiry, §12.5 Competing Values in the Choice of Scientific Theories, §12.6 Science and Good Judgment, §12.7 Similarities of Structure in Descriptive and Prescriptive Contexts, §12.8 The Structure of Inquiry Illustrated in a Prescriptive Context, §12.9 Conclusion

13 BIOCENTRIC INDIVIDUALISM AND ECOCENTRIC HOLISM

§13.1 Introduction, Biocentric Individualsm, §13.2 The Biocentric Commitment, §13.3 From Egoism to Anthropcentrism, §13.4 From Anthropocentrism to Biocentrism, §13.5 Arguments for Biocentrism, §13.6 Taylor’s Theory Requires Too Much, §13.7 Restitution, Ecocentric Holism, §13.8 The Ecocentric Holistic Perspective, §13.9 Epistle to the Almost Converted, §13.10 Epistle to the Fair-Minded, §13.11 Natural Processes and Harm, §13.12 Means and Ends, §13.13 Conclusion

14 THE CONCENTRIC CIRCLE THEORY

§14.1 Introduction. §14.2 The Problem. §14.3 Pluralistic Theories Defended, §14.4 The Concentric Circle Perspective, § 14.5 Concentric Circles. Preferences and Positive Human Rights, § 14.6 Negative Human Rights and Animal Rights. § 14 7 Our Obligations to the Non-Sentient Environment, §14.8 Private Property Rights, Efficiency, Future Generations and Government Subsidies, §14.9 Conclusion

15 THE INDIVIDUAL'S OBLIGATIONS

§15.1 Introduction,§15.2 Why Should I Be Moral?§15.3 Extreme Views about What Justice Requires, §15.4 The Principle of Anticipatory Cooperation, §15.5 What Should I Do?

NOTES

INDEX

About Peter Wenz

Peter Wenz is a Professor of Philosophy and Legal Studies at the University of Illinois at Springfield and Adjunct Professor of Medical Humanities at the Southern Illinois University School of Medicine.

He is the author of four books:

• Environmental Justice (1988)
• Abortion Rights as Religious Freedom (1992)
• Nature's Keeper (1996)
• Environmental Ethics Today (2001)

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