Yesterday I breakfasted with a friend who manages a dock facility which loads wood chips onto large vessels for trans-Pacific export. He related to me the following true anecdote of their recent dealings with some bit players in what has, over time, metastasized into the current colossus of officialdom of the once-great State of Oregon. It all started with a random visit from a water quality bureaucrat, whom we’ll call “Mr. River,” who noted—with the overblown alarm typical of the lesser martinets of environmental enforcement whose subject matter jurisdiction tends to be exceedingly narrow and of a significance entirely incommensurate with their excessive power—that there were no structures or procedures in place to stop any spilled chips near the edge of the dock from ending up in the river. None actually had, mind you, but they might just. Hence a feature that had gone unnoticed for decades instantly attained the significance of nuclear brinkmanship. Left unexplained were a couple of matters I may have pressed had I been present, such as how 100% natural wood chips made from the same trees that naturally occur along its banks would, by falling into the river and floating to the Pacific, threaten water quality. Doesn’t wood fall into the river every day, eventually becoming the driftwood the very hippies who empower chuckleheads like Mr. River use for sculpting objects d’arses? Nor would it have likely occurred to this pointless occupant of otherwise valuable space that, inasmuch as the dock operators own the chips they’re loading onto vessels, they already have every conceivable incentive to prevent as much of this valuable commodity as possible from being lost to the river.
No matter, for preventative measures needed to be taken to address this heretofore undiscovered problem of earth-shattering gravitas. So a construction crew spent an entire weekend, at considerable overtime expense, affixing sheets of plywood to the end of the dock to catch any wood chips that might otherwise end up turning the river into a the next Chernobyl. This averted the crisis to the satisfaction of Mr River.
Not, however, to the satisfaction of the fisheries bureaucrat, “Mr. Fish,” who turned up some weeks later and asked the facility manager—ever so politely—if he’d obtained the required permitting for the plywood chip-catcher contrivance. “A permit for what, exactly?” the manager asked in earnest.
“Well, technically that’s an extension of your dock, which requires a permit because you’ve increased the amount of shaded area over the water. That concerns fisheries because increased shaded area gives predatory fish a larger place to lurk in wait of prey fish swimming by, which they ambush,” replied Mr. Fish.
The manager assured Mr. Fish he’d set upon the permitting process in the instant, but that just wouldn’t do. No, Mr. Fish insisted—albeit, again, ever so politely—he would need to tear out the plywood in the interim because the continued existence of the unsanctioned dock extension was actually a criminal offense that could result in the assessment of fines and even possible jail time for the dangerous malefactors responsible were it not immediately remedied, no matter that it would ultimately be permitted without too much hassle or delay (at least by government standards). When the manager protested that it had been costly to install, would be costlier still to remove and reinstall, and that the whole exercise was in any case undertaken at the insistence of yet another state official, Mr. Fish scratched his head thoughtfully and at length determined that perhaps the installation of electric lights under the dock might serve as adequate mitigation.
As my friend related the story, I felt myself transforming into one great varicose vein, as is my propensity upon being regaled with such tales. These are common conversational fodder among people in my circle—those who actually do or make things for a living, and who are interminably pestered by the regulatory state for having the effrontery to employ people, contribute meaningfully to the economy and otherwise serve a generally useful purpose. My facial tick kicked into high gear as cold fury set in at the thought of self-important, overblown clerks unfit to manage a corner taco stand arbitrarily pushing around productively occupied men of industry and substance in futile desperation to justify the former’s existence. Yet on reflection the story emerges as a teachable moment on at least a couple of particulars, to wit:
1. You WILL go through the proper channels. At English common law, which formed the basis for the Anglo-American common law for the first 150-odd years of the nation’s existence, there were very few behaviors legally recognized as crimes. These included a handful of felonies—crimes punishable by more than a year of imprisonment—such as murder, rape, burglary, arson, treason and the like, and a scattering of misdemeanors, these being crimes punishable by a term of imprisonment of not more than a year. Moreover, virtually all crimes were of the malum in se variety—actions prohibited and punishable because they were inherently wrong, as compared to malum prohibitum—things which are punishable not because they are necessarily wrong, but merely because they are prohibited. The mania to make laws more statutory and to grow the regulatory state begat an explosive growth in malum prohibitum proscriptions beginning around the New Deal era and exploding in the 1960s and 70s. Hence one now often hears libertarian types like me grousing about how it is possible in this age to quite inadvertently commit a half-dozen felonies before lunch in a given day.
An interesting offshoot of malum prohibitum mania has been the evolution of a new, hybrid category of offense which, since it doesn’t yet have a name, I’ll here dub malum prohibitum sine patior—actions which are neither inherently bad nor prohibited, but for which a permit is required and there shall be hell to pay and no pitch hot if it isn’t obtained. My Latin is all of a piece with my Serbo-Croatian, so it’ll have to do until someone straightens me out. It is here that the true Orwellian malarkey goes into warp drive. Never was it even implied in the least, for instance, that the chip dock operators would be denied the ultimate ability to affix the plywood to their privately owned dock that is attached to privately owned real estate. They just failed to secure the proper permit, and some vacuous dullard somewhere had actually adjudged failing to obtain a permit for something (1) not even prohibited, and (2) for which most people of ordinary knowledge and experience would not even realize a permit was required, to be a serious enough breach to warrant criminal liability.
As I listened to my chip dock friend with murder blazing deep within my soul, I was taken back to another anecdote—which I will recount here in a purely factual manner absolutely devoid of hyperbole—of some years earlier involving another friend who had foolishly endeavored to drain a pond without first performing the obligatory monkey dance for his Sovereign Lords. The pond, mind you, was 100% man-made, and 100% contained within the boundaries of his privately owned property. One day he decided that there might be a higher and better use for the land occupied by the pond than a place of happy fornication for mosquitos and ditch carp and for trespassing local anglers to deposit litter, so he set about draining it. No sooner had it been drained than the local environmental enforcement commissars caught wind of the project and insisted that he needed a permit to do it. When he pointed out that the pond was already drained and asked whether he could be issued a permit that would apply retroactively, they looked at him as though he’d told them he just finished a delightful lunch of boiled baby and declared that, no, he would first be required to refill the pond, then obtain the necessary permit before he would be allowed to drain it again. By now, dear reader, you’ll probably be less than shocked to learn that a separate permit would also be required to refill the pond, which actually proved more difficult still to obtain than a drain permit. All of these things he ultimately did, although it must have taken a heavy dose of elephant tranquilizers to restrain him from gutting and decapitating the officials where they stood.
Implicit, of course, in the very notion of private property is the ability to do what one wishes with it so long as one does not unreasonably interfere with others’ use and enjoyment of theirs. Refraining from creating a “nuisance” to neighbors was the only requirement of private property owners at common law, before the juggernaut of environmental regulations descended upon us all. Hence in what has been, depending how one looks at it, 239 years (since the Declaration) or 226 years (since ratification of the Constitution) of this nation’s existence, we’ve come full circle back to private property existing only nominally, and at the sufferance of the sovereign, rather than being an unalienable right affirmed in multiple clauses of our Constitution.
2. Officials of the regulatory state are utterly ignorant of economics, don’t know the first thing about cost/benefit analyses or the balancing of harms, and wouldn’t care a damn even if they did. Another thing that sets us libertarians to grumbling is the cost—largely hidden—of the regulatory state, and this anecdote serves as a small yet useful illustration. There have been voluminous studies and articles produced these past couple of decades attempting to pin down this cost—Google “regulation cost to United States economy” or similar query language and you’ll get a list as long as your arm. Suffice it to say it’s enormous, usually starting off around $100 billion per annum and, depending upon the metrics and variables analyzed, often doubling that. For obvious reasons, it’s not something altogether easy to track, since costs of the sort imposed at the whim of the Mr. Fishes and Mr. Rivers of the world as a result of their random drop-in visits aren’t recorded in any central database.
Regardless of the exact manner in which these regulatory costs are imposed, the common thread is the lack of any sort of requirement on the part of regulators—particularly those operating at ground level as compliance officers—to conduct a cost/benefit analysis, determine the best balance of harms (or make an evidence-based establishment of whether any harm is, in fact, occurring in the first place) or to in any other way take the economics of their often random and at times entirely unpredictable mandates into account. In an inversion of the ordinary dealings between state and citizen, the onus will be on the regulated party to prove the regulator is out of bounds. You will either incur the cost to comply, or incur great expense challenging their edicts, which challenge will likely fail as a result of mechanisms built into the various adjudicatory processes that stress “deference” to the “experts” employed by regulatory agencies in any grey area. And the greyness tends to be far more vast than the standards that are specific and quantifiable. The imposition of costs which must, after all, be borne using real money based solely on a compliance officer’s say so, and without any prior determination of liability through the sort of structured procedure designed to sort out such things, should strike anyone critically examining the situation as essentially the deprivation of property—money—without anything resembling due process. The Fifth and Fourteenth Amendments are now toothless tigers, at least where the cost of regulatory compliance is concerned.
In the present case, Mr. River demanded the construction of a costly (and apparently illegal) structure based on the possibility that chips might fall into the river, and was able to coerce compliance without producing any sort of proof that any had, that harm would have resulted even if they had, and certainly without any requirement that he consider the cost. Mr. Fish was likewise able to require the chip terminal operators to expensively chase their tails without producing any sort of proof that a few square feet of extra shade over a river nearly a quarter mile wide would have any measurable effect on fish, or that prey fish haven’t figured out how to steer wide of shaded areas. All sorts of costs, zero due process.
Short of violent insurrection, I should think tarring and feathering a few Mr. Fishes and Mr. Rivers is long past due. It shouldn’t take much more than a handful of these for the rest of them to get the message—at least for a while.