Cato's Jerry Taylor -- a smart, no-nonsense fellow -- comments about a current environmental lawsuit:
We don’t need no stinkin’ environmental regulations to save the earth — all we need are well functioning property rights for environmental resources and common law courts to protect that property against trespass. Pollution is simply a neighbor’s garbage dumped in your backyard without permission. If we simply recognize and enforce property rights for nature, the need for most environmental regulation goes away.
That’s the libertarian pitch anyway, and it goes by the moniker “Free Market Environmentalism,” or “FME” to its acolytes. FME was given a firm theoretical foundation by Ronald Coase, embellished and blessed by libertarian economist Murray Rothbard, given academic life by the Political Economy Research Center and the Foundation for Research on Economics and the Environment, popularized in Washington by the Competitive Enterprise Institute, and even pitched by yours truly to the Board of Trustees of the Natural Resources Defense Council about nine years ago.
Alas, there has never been much evidence to suggest that libertarians were making much headway with these arguments and I have come to believe that they have less promise than I had once imagined. But what do you know? FME is now all the rage amongst environmentalists who have discovered that suing polluters for tresspass is easier than passing satisfactory laws against the same.
Jerry nevertheless finds a glimmer of hope in the case at hand, in which
eight states, New York City and conservation groups pressed for reduced greenhouse gas emissions from the nation’s five largest electric utilities.
Jerry concludes with this:
Sure, one can argue that the plaintiffs don’t have proper standing, that there is really no nuisance here to begin with, that the tort system is so messed up that employing it in such cases is problematic, etc. But nonetheless, this is a growing trend and libertarians seem surprisingly ambivalent about it.
You said it, Jerry, the plaintiffs don't have proper standing. The case has nothing to do with FME. It's just another attempt to legislate through litigation, which has been tried in the case of tobacco (with success) and gun control (without success). FME is about private parties seeking redress under the common law. That's not what's happening here. Find a better example -- if you can.