Environmental Law in a Free Society

I do a lot of work with environmental issues, mainly with contaminated facilities and third party sites. Generally, the EPA or a state counterpart supervises the investigation and clean-up and allocates responsibility among potentially responsible parties. In a minarchist state, these agencies would no longer exist, and environmental contamination would be addressed as a property rights concern.

This might work if a right to remediation were recognized as a remedy in private litigation for nuisance and trespass. Traditionally, recovery is limited to the value of the property which remediation costs usually vastly exceed. This limitation on the remedy means that there would be insufficient disincentives to contamination which might migrate to the property of others.

A typical scenario involves contamination which enters groundwater and moves with its flow to neighboring properties, sometimes poisoning wells. The state is empowered to require clean-up without regard to the value of the neighboring property, and the property owners have no more input into the process than any other member of the public. The neighbors may sue for injuries, if they have any, and other damages, but the right to demand remediation "belongs" to the government. (There are some provisions for private actions where the government fails to act.)

In the minarchist system where contamination is dealt with by litigation, the property owners ought to be able to compel remediation. This would make the aggrieved party whole and provide disincentives to pollution. Perhaps the property owner should also be able to opt to keep the money rather than remediate under circumstances where other parties are unaffected and where health risks are minimal. Of course, where there is no solvent tortfeasor, the aggrieved party would be SOL unless he has insurance.