Ron Paul is the most intelligent and ethical candidate in the republican presidential field. He understands the issues, knows what he wants to do about them, and his positions are based on principle, not on benefiting a campaign contributor. Unfortunately, most of what he wants to do is wrong because he has bought into the libertarian dogma that free markets are infallible and an every man for himself society will automatically create the best of all possible worlds.

For this post, I’m just going to respond to one of the points from his web site. Maybe this will become a series and I’ll talk about other points later. On the issue of energy, one of his plans is to:

“Eliminate the ineffective EPA. Polluters should answer directly to property owners in court for the damages they create – not to Washington.”

I once read something that I wish I could find again. It was by an epidemiologist describing the process of being an expert witness in a court battle against a polluter. There was some pollution and a cluster of cancers that are known to be caused by that kind of pollution. The cancer rate was orders of magnitude higher than the normal rate in the general population. The epidemiologist said it was a slam dunk, epidemiologically, that these cancers were caused by that pollution, but not for the law. The defense’s argument was that all of the evidence is statistical so how can you know with absolute certainty that this caused that? Basically, it is nearly impossible to draw the direct link required by tort law from action to harm when pollution is the vector of harm.

Should we expect that someone suffering from terminal cancer has the time, money, and emotional energy to fight a decades long legal battle against a giant corporation with plenty of resources to bully them? And even if they win, how can money fairly compensate them for losing their health or even their life? Think about movies like “Erin Brockovich” and “A Civil Action” for how difficult it is to sue a polluter. Now, in those movies the plaintifs did win in the end because hollywood wouldn’t make a movie out of it if they didn’t, but there are far more similar cases without a happy ending.

Sueing after the fact is an insufficient remedy to deal with third party harm from pollution.

As a corollary, why don’t we abolish the DMV? No driver’s licenses. No laws against DUI. If you kill someone with your car, well, their heirs can sue you. Would that be a good idea? No way! There are some things that have such an obvious potential for third party harm that society has a right to require reasonable preventative measures. Driving and pollution are two such cases.

This is an issue of individual rights, the rights of the third party who has no sufficient remedy after the harm occurs.

In addition, there’s another problem with letting tort law be the first, last, and only line of defense against being harmed by pollution. It would encourage frivolous law suits.

For all of the people harmed by pollution maybe 90% of them won’t even realize that their sickness is caused by pollution, and 90% of the rest won’t be able to find the link to the polluter, and 90% of the rest won’t be able to prove it in court. Maybe one in a thousand people actually harmed by pollution will be able to win a court case and get damages. That situation of a big corporation harming a little guy and getting away with it most of the time is the perfect storm for juries to award humungous punative damages. And when that happens lawyers will see dollar signs and there will be frivolous law suits. And if we change the law to prevent frivolous law suits it will make it that much harder for those actually harmed to get fair compensation, which is already a long shot.

If Ron Paul said that the EPA is overly bureaucratic and the required preventative measures aren’t reasonable and the EPA needs to be overhauled, I could agree with that. But when he says the EPA should be replaced with nothing but the right to sue he will never get my vote.