Kwong – An Environment of Freedom
An Environment of Freedom
by Jo Kwong
National Meeting of The Philadelphia Society,
Oak Brook National Meeting
April 24-26, 1998
This speech was subsequently published in the September 1998 issue of The
Freeman, The Foundation for Economic Education at 30 S. Broadway,
Irvington, NY 10533.
16 years, Wirthlin Worldwide has published monthly survey results to track
public opinion about environmental policy. Commenting on recent results that
show ever-higher support for continuing environmental improvements,
regardless of cost, the report noted that "environmentalism has become deeply
rooted in the U.S. national psyche. Since its extremist beginnings 30 years ago,
environmentalism has matured, gaining popular support and becoming a part of
the mainstream. In the process it has gained a great deal of momentum."1
Indeed, environmentalism has gained a tremendous amount of momentum, well
beyond what most people could have imagined 30 years ago. And that
momentum has important consequences, particularly for those who value a free
society. Thanks to the seemingly harmless and universal appeal of
environmental preservation, the issue offers an opening to areas with only
tenuous links to true environmentalism. There are indeed serious environmental
issues and each of these should be dealt with in the light of good science and
the inevitability of tradeoffs. But we also need to recognize the seriousness of
freedom as an ideal.
I am speaking about the insidious nature and the amorphous shape of what we
call "the environment." Environmentalism has come to mean anything and
everything that any social advocate wants it to be. And that, I contend, is
dangerous to the ideal of freedom. If we continue to embrace a way of thinking
that allows environmental values to trump all, we stand to lose many other
values, such as liberty, that are also vital to human flourishing.
What is at stake if we fail to clarify our vision of an environment of freedom? A
look at a few current stories will give us some idea.
Environmentalism Trumps All
In 1989, John Shuler, a Montana rancher who had been losing sheep from
wildlife attacks, heard the sounds of grizzly bears in his yard. He grabbed his
rifle and ran out near the pens, where he saw three bears within range. Shuler
fired some shots in the air and scared them off. As he turned to go back in the
house, he was confronted by another grizzly that rose on its hind feet, spread its
paws, and roared. Shuler did what most clear-thinking folks would do in that
situation. He shot and fatally wounded the bear.
Thinking he did nothing wrong, he notified the U.S. Fish and Wildlife Service. It
promptly charged him with violating the Endangered Species Act (ESA), which
makes it a federal offense to harm officially "endangered" plants and animals,
and fined him $7,000 ($5,000 for the value of the bear-even though the Fish and
Wildlife Service admitted that it would kill the bear if it killed livestock again-and
$2,000 for the federal government’s cost of investigating the incident). At a
hearing, an administrative law judge from the U.S. Department of the Interior
accepted Shuler’s argument that his life was in danger, but nonetheless declared
that Shuler could not claim self-defense under the ESA because he had
purposely "introduced himself into the zone of imminent danger." He fined
Shuler $4,000. This fine was upped to $5,000 by an ad hoc appeals board
employed by Interior Secretary Bruce Babbitt, which rejected the self-defense
claim because Shuler’s dog, by alerting Shuler to the bear’s presence, had
"provoked the bear."
Seven years after the attack, Shuler was able to file a lawsuit against Babbitt
charging that the previous holdings conflicted with well-settled principles of
law-self-defense and the right to carry weapons on one’s own property and use
them when one’s life is in danger.
Fortunately, this story ends in victory. With help of the Mountain States Legal
Foundation, in March 1998, the U.S. District Court in Montana ruled for Shuler,
vacating both his conviction and fine. But consider the costs in terms both of
money and anguish. To protect his basic right of self-defense, John Shuler had
to endure nine years of battle with the federal government. The story deserves
to be told over and over again, for it illustrates how environmental laws are
whittling away our most basic rights.
Another story concerns wilderness areas, but it’s not the typical battle over
whether mountain bikes, horses, or snowmobiles are trampling the wilderness
cathedral. In December 1996, Bobby Unser, three-time winner of the
Indianapolis 500, lost his way in a blizzard while snowmobiling. He was charged
with violating the Wilderness Act of 1964. Although it was sunny at the start of
the trip, a howling wind and blizzard engulfed Unser and a companion. They
became disoriented and lost, and eventually may have strayed into the San Juan
Wilderness Area. For a day and a half they wandered, surviving only by
resourceful use of a snow cave and other techniques. Eventually they found a
barn and called for help. When Unser approached the Forest Service for his
snowmobiles, it cited him for use of a motorized vehicle in a wilderness area, a
violation of federal law.
At a trial in Denver, Unser was found guilty and fined $75. According to the
Mountain States Legal Foundation (MSLF), the judge, alone in his chambers,
used a piece of picture-hanger wire and a topographical map to "measure" the
distance that the snowmobiles traveled, based on odometer readings. He
concluded that Unser was indeed inside the wilderness area. What’s interesting
from a rights-based perspective is that it made no difference to the judge
whether Unser entered the area accidentally in an emergency. As the foundation
points out, this ignores a centuries-old fundamental principle-that a crime
requires criminal intent. Incredibly, the government attorneys argued that the use
of a motorized vehicle there is a "public welfare offense," not requiring criminal
intent, because it affects people’s "primitive enjoyment of wilderness areas."
The MSLF has asked for oral arguments in this case, so stay tuned.
While these kinds of stories are often dismissed as right-wing jabbering, it’s
encouraging to see that they are appearing more frequently in the mainstream
press. The following story appeared recently in Newsweek magazine.
Although no adverse health effects have ever been traced to a Superfund
waste-dump site, 84-year-old Mrs. Scott of Oregon nonetheless received a
certified letter from the authorities informing her that a little building she bought
soon after her husband’s death 46 years earlier was potentially responsible for
contaminating the city’s groundwater.
The building opened in 1952 with a children’s clothing store on one side and a
dry cleaners on the other. The stores operated for 25 years until the owners
retired and were later replaced by a flower shop. All along, Mrs. Scott felt
secure that this building would provide retirement income. And this it did until
that letter came from the state. Although the dry cleaner had ceased operations
20 years ago, the state claimed that it was a likely source of water
With an appraised value of $70,000, Mrs. Scott’s building, plus her home and
savings, could not come close to covering the $200,000-plus that state
examiners warned her it would cost for testing and cleanup. Given Superfund’s
joint-and-several-liability provisions, she was advised to take action against the
dry cleaner and seek payment from companies that supplied his chemicals. She
could also attempt to identify the insurers of the building before environmental
hazards were written out of liability coverage. But she had to pay the costs
regardless of what action she took. Her daughter writes of the incident: "The
crippling realization that she could at any time be stripped of the means to
support herself financially seems to have invaded her very cells. Her legs ache.
Some days now, she leans on a chrome walker, unable to carry her own weight
for the first time in her adult life. Surely this was not what we intended when we
assessed the environmental transgressions of our past and set out to clean up
the errors we made as a society on our way to the American Dream."2
If there’s any sympathy at all for Mrs. Scott, it’s likely because she’s a little old
lady, or because she’s a lone human being. Substitute Wal-Mart or any other
symbol of corporate America, and preconceived notions of capitalism rise to
obscure the basic situation: a system of perverse incentives with little value in
Greens on the Green
On a trip a while back, I leafed through the airlines magazine Hemispheres. It
carried another article about one person’s shock at how environmental
regulations interfere with the right to build golf courses.
Golf-course developers are familiar with the battery of environmental
requirements dealing with wildlife habitats, wetlands preservations, water
resources and runoffs, and chemical usage and storage: environmental impact
statements, water catchment plans, U.S. Army Corps of Engineers approval
forms, contained runoff designs, and wetlands protection covenants-all of
which must be prepared and approved by local, state, and national agencies. As
usual, the regulations are not just a complex nuisance, they add millions of
dollars to the cost of development.
Even then, there are no guarantees. When Peter Dye built the Ocean Course at
Kiawah Island, South Carolina, for the 1991 Ryder Cup matches, he carefully
constructed several hundred acres of "new" wetlands areas. Yet two years later
the owners faced a court case in which environmental groups alleged that the
course harmed wildlife along the Carolina shore.
When John Naumann decided to build a golf course on Sanibel Island, Florida,
he knew he would face an uphill battle. He carefully routed his holes on the bay
side of the island, avoiding a gopher-tortoise site. But the worst wildlife situation
imaginable occurred: a family of bald eagles set up home in the middle of the
golf course. All kinds of agencies descended to prohibit construction during the
winter breeding. Bulldozers worked double shifts to try to get some fairways
completed before breeding. The city of Sanibel assigned a full-time nature
policeman to spend his days on the construction site watching every move.
Construction, originally budgeted for one year with $1 million for permitting,
turned into a three-year, $3.5 million permit project. Naumann had to fight over
zoning densities and agree to build a new $2 million sewage-treatment plant for
the city. He also pledged to set aside a permanent eagle boundary that cost $7.5
million in developable land and to donate 200 acres of waterfront land for a
federally managed preserve.
Some developers see such handovers as nothing short of extortion. One
developer decided to check a hunch. He set up a sting operation for
environmental groups protesting his plans to build a course in Purchase, New
York. When the "enviros" promised to help a fictitious investment group obtain
the property, in return for hefty donations, to deny it to the developer, he sued.
The enviros went away. Good intentions or just plain blackmail? Such stories
led to the title of the Hemispheres article, "How Green Are the Greens?"-a
growing question among people looking for solutions to real environmental
problems and who find themselves blocked at every step of the way by
environmental advocacy groups.3
Religion plays a growing role in the environmental movement as more and more
church leaders preach about the benefits of recycling or the need to boycott
industry. A brochure displayed in my church narthex, written by an author of
books on religious and ethical aspects of environmental responsibility, advised
parishioners to "Become an advocate for the earth." She continued, "I hope to
be a gentle advocate every day for the earth. I don’t want to be nasty or
preachy, but neither am I willing to stand silently by and say nothing to
merchants who use Styrofoam packaging or local manufacturing firms that burn
toxic wastes in their incinerators." She also advises that "If you interact with
children, take seriously the responsibility to raise a new generation of concerned
caretakers of the earth."
Last year, our litany for Independence Day asked God’s forgiveness for
pollution. We were to say, "O God, forgive our mindless exploitation of this
bountiful land. Forgive us for fouling our air, contaminating our water,
disfiguring our landscape. And grant us vision and courage to right these
An insert in another church bulletin asked, "Where on Earth Are We Going?"
and urged the congregation to attend programs on "Environmental Politics and
Justice" and "Sustainable Agriculture, Population, and the Environment" hosted
by the Worldwatch Institute. Sponsors, by the way, of the programs, included
the Community Ministry of Fairfax County, Virginia, the North American
Coalition on Religion and Ecology, the Green Coalition, the Sierra Club, and
Help Others Protect the Environment-a rather descriptive call-it-as-it-is name for
the local environmental club.
Moving a bit higher on the outrageous scale, let’s take a look at the freedom
currently being tested under the claim of environmental justice. How are
everyday choices of supposedly free men and women being interfered with?
Some black residents of Convent, Louisiana, are reportedly irate at the
Environmental Protection Agency for delaying approval of a proposed plastics
plant. In 1997 EPA, acting on a Clean Air Act petition, prohibited construction
of Shintech’s PVC facility. It was the EPA’s first ruling based on President
Clinton’s 1994 executive order challenging "environmental injustice," or
"environmental racism"-the notion that polluting industries locate in minority
areas because the residents are powerless to stop them.
The $700-million manufacturing facility would have hired 35 percent of its work
force, 165 people, from the predominantly black surrounding population at $12
to $16 dollars an hour. The local NAACP chapter conducted a poll and found
that 73 percent of the people in the communities near the proposed plant
favored it. All the town’s councilmen voted for the plant.5 Findings about safety
and job creation have been disputed by Greenpeace and other environmental
groups which argue that the facility threatens the people and local environment
through its production of vinyl chloride. Complaints also include the facility’s
high energy requirements, the potential for leaks, and high rates of
worker-related illnesses. But beyond the technical issues regarding pollutants
and toxics, the environmental-justice claims open up an entirely new can of
worms. Again, stay tuned to see if loosely defined community rights to justice
trumps everything else.
It Takes a Village
Hillary Clinton’s favorite phrase, "It takes a village," is catching on, though not
quite the way she means it. The Alliance for America’s newsletter reports that
since November 1997, over a dozen "They’re Taking Our Village" meetings
have been held throughout western Montana to discuss the impact of federal
land management on the social and economic well-being of the rural
resources-dependent culture. These meetings, hosted by county
commissioners, local businesses, chambers of commerce, and other grassroots
groups, have drawn hundreds of people united with a passion. As the Alliance’s
Bruce Vincent writes, "The policies of this Administration are not only ripping
apart our current village economic and cultural fabric; they are disempowering
local self-determination as we gallantly attempt to piece together the economic
and cultural jigsaw puzzle of our future."6
The umbrella of environmental issues is certainly providing a growing pretext
for curtailing our freedoms. Charles Murray recently wrote about some potential
consequences. As more and more regulations are imposed, he observed, just
about everyone is in constant danger of violating laws. We’ve seen it with
Shuler, Unser, and the people who care for their land in violation of wetlands
and endangered-species regulations. One result is the alienation of citizens from
their government. Murray writes, "Because so many regulations are so
unconnected to anything resembling right or wrong, people who want to be law
abiding find themselves picking and choosing the laws that they deem worthy of
respect. . . . People who feel compelled to judge laws on a case-by-case basis
have attached provisos to one of their most basic civil loyalties."7
Those who value individual liberty and a free society have reason to keep an eye
on environmental regulation. Fortunately, classical liberal principles offer a clear
vision of proper environmentalism, but it’s a tough message to communicate.
Nonetheless, it’s a vision of environmental freedom that entails the freedom to
protect, preserve, and enhance the environment in ways that reflect human
innovation and stewardship. Hopefully through this commitment, we can make a
difference in the environment, while at the same time preserving freedom and all
1. "The Wirthlin Report," August/September 1997, The Wirthlin Group,
2. Carolyn Scott Kortge, "Taken to the Cleaners," Newsweek, October 23,
1995, p. 16.
3. A.G. Pollard Jr., "How Green Are the Greens?" Hemispheres, April 1994,
4. "Litany for Independence Day," Lord of Life Lutheran Church, Fairfax, Va.,
July 5, 1997.
5. Henry Payne (Scripps Howard News Service), "Environmental Justice Kills
Jobs for the Poor," Wall Street Journal, September 16, 1997.
6. "With Road Moratorium, ‘They’re Taking Our Village,’" Trumpet Call,
Alliance for America, March/April, 1998.
7. Charles Murray, "Three Broken Compacts," American Enterprise Institute
for Public Policy Research, March 1998.