TT's Lost in Tokyo — by TokyoTom

A few items of interest have come to my attention regarding the TVA’s massive spill last December 22 of wet coal fly-ash into a lovely river area near Kingston, TN (about 35 miles west of Knoxville, at the junction of the Emory and Clinch Rivers).  The collapse of a retaining wall released over five million cubic feet (more than a billion gallons) of wet coal ash
flooded nearly 400 acres of land adjacent to the power plant and into the nearby
Clinch and Emory rivers, filling large areas of the rivers, damaging homes and property, rupturing
a major gas line and damaging a
railway line.

– according to a report in the Tennessean, the TVA was long aware of the possibility of a release from the Kingston site, but elected not to proceed with any costly fix – the most expensive fix apparently in the ballpark of $25 million – because it didn’t want to set a precedent for spending similar sums at its other wet ash storage sites.  Penny wise, pound foolish – how often that happens when decision-makers don’t face personal responsibility for the downsides (yes, my “limited liaibility breeds moral hazards” meme)!

– in response to the accident, the EPA announced on Monday that it will: request electric utilities
nationwide to provide coal ash impoundment information (the EPA estimates there may be as many as 300 coal ash impoundments across the US
); conduct on-site assessments to determine structural
integrity and vulnerabilities; order cleanup and repairs where needed; and develop new regulations for future safety.  Said administrator Lisa Jackson: “Environmental disasters like the one last December in Kingston should never happen anywhere in this country.”  Not only are such regulations too little too late and probably unneccesarily costly, but one wonders why in this case she fails to note that as the TVA is wholly-owned by the US government, in this case the government did this to us itself.  The industry must be really grateful to TVA for leading the way to more regulations!

– The TVA is spending $1 million a day on the cleanup, and estimates final recovery may cost $525 million to $825 million.  This is just the cost for recovering the spilled ash, which could take two years or more, and does not cover long-term mediation costs, or litigation expenses, fines or any settlements
from the accident or the extra cost of upgrading coal ash ponds at
other TVA plants, or costs being borne by local, state or other federal agencies.  So we could be easily talking physical damage of a billion dollars or more, and decades before local homeowners can start enjoying the rivers again.

– The TVA announced in February that TVA it lost $305 million in the fiscal quarter
ending Dec. 31 2008 due to the $525 million charge the utility took for the
estimated cost of the ash spill.

– In response, TVA president and CEO Tom Kilgore, who earned $2.2 million in FY2008, saw his base and incentive compensation for FY 2009 cut by about half.  Said Kilgore, who had outraged ratepayers in October (on the heels of rate increases) by taking large compensation increase for FY2009 (in a package worth up to $3.275 million), “I’m at the point in
my career where it’s not all about money.” 

– The fly ash poses health risks, both as the small particle dust can affect the lungs and since the ash contains elevated levels of heavy metals that were left behind from the combusted coal.  A Tennessee Department of Health survey indicates that a third of the people living near the toxic coal ash spill are experiencing respiratory problems, and about half
have increased stress and anxiety.  

According to TVA President Tom Kilgore, TVA and the state Department of Environment and Conservation have tested the water and believe there’s “no reason to believe that the water is not safe,” but “water quality tests conducted by environmental activists showed arsenic
levels as high as 48 times the primary drinking water standard in river
water nearest the spill. Coal industry watchdog United Mountain Defense
and Washington, D.C.-based Environmental Integrity Project said January
levels of arsenic, lead, selenium, cadmium, beryllium, antimony and
copper violated water quality standards and exceeded primary drinking
water standards.”

State senator Tim Burchett (a Republican) characterized TVA officials as “arrogant clowns” on March 10 as he presented legislation on coal ash storage to a Senate committee.  “I want to assure my colleagues that any offense (to TVA) is intentional,” he said. “I have little faith in what TVA is telling us.”

More on water testing results and on health, safety and environment impacts is here.

– the TVA is naturally trying to buy out residents, both to cut future losses and to limit coverage of the affected area. Apparently these buyouts require the sellers to waive all future health claims against the TVA.

– On top of such purchases, though, TVA – through its own police department – is trying to make it difficult for residents to remain and to prevent full disclosure of health risks, by restricting access to public roads and to the homes of residents, requiring any who receive medical checkups from TVA doctors to waive health claims and by hassling volunteers who, at the invitation of residents, do ash, water and air testing, deliver bottled water, and assist some residents with the transportation needs.   In two recent incidents, the TVA police have gone onto private property to detain volunteers and force the removal of private air quality monitoring devices, and arrested, shackled and jailed on March 6 a driver who had used a public road – now restricted by the TVA – to drop off a two grandmothers (one elderly and vision-impaired) at their homes after a town meeting – and who had written permission from residents to visit at any time.

According to one group, volunteers “have relatives in the Swan Pond Community and have an
open invitation to visit residents or their property near the disaster
site at any time day or night.”   The volunteer who was arrested reports the following, entirely believable – conversation with a TVA officer when he was being booked:

So as I was escorted to the Roane County Jail for processing I was informed by the TVA officer that he was “protecting the residents” of the Swan Pond Community from “people like me.”  When I questioned him further about this he stated that he meant onlookers and sight seers and people taking video while disrupting vehicle traffic and impeding the cleanup of the disaster site.
 
Well if TVA has any video proof of me personally disrupting vehicle traffic or impeding the cleanup of the disaster site I would like to see it, please post it to YouTube; show the world exactly what I am doing, PLEASE.    When I stated,” why would the residents need to be protected from someone who is delivering water, taking people to the grocery store, hospital, doctor, not trespassing, monitoring air/ water/ coal ash, helping facilitate trainings and organize with the local community, and sit at the Harriman American Legion building for more than 20 hours helping with heavy metal exposure testing,” he could not answer.

– So far, one lawsuit against the TVA has been filed in federal court in Knoxville on
behalf of 109 citizens.  The TVA harassment policy may be aimed in part at preventing residents from gathering independent evidence to support their claims.

– The TVA is governed by a nine-member board of directors, all current members of which were appointed by nominated by former President Bush (on
the approval of senators from the region) and confirmed by the Senate. 
Over the objections of the current chairman and two others
(Republicans),former national GOP committee chairman and former TVA board member was reappointed in February as chairman.  Since the TVA board has two vacancies, will
have two members terms expire in May and another in 2010, President Obama will have the opportunity to take control of the board.

– Photographic and video images of the impact of the ash spill are here:

– by renowned photographer Carlan Tapp

– by local residents (first three minutes are home footage before the accident)

– More information by the enviro group doing testing and resident support work

– the TVA’s home page, etc.

Where is anyone calling for the privatization of the TVA?

[Update:  Links fixed]

Bloomberg reported on March 6 that Former Fed Chairman Paul Volker, in proposals to the Obama administration regarding financial regulatory reform that were included in a January report he wrote with the “Group of 30”, commented that:

the financial industry’s problems stem from larger issues. “I don’t think this is just a technical problem, it’s a societal problem,” he said. He cited bankers on Wall Street receiving multimillion-dollar bonuses for engineering failed mergers.

“There’s something wrong with the system,” Volcker said. “What are the incentives, what’s going on here?”

 But it seems that Volker can`t quite put his finger on the core of the moral hazard problem.  Do any of my readers have any ideas?

Tom Woods, in his recent “Another “Free Market” Intellectual Has Second Thoughts” post at the Mises Economics Blog, notes with great disappointment that Richard Posner is about to publish a book that will apparently abandon the free market and call for greater government intervention.

While I share Mr. Wood’s disappointment that Posner and others are not more vigorously defending free markets, I suggested in comments on Mr. Wood’s post that perhaps free market intellectuals are not yet really pulling their own weight in examining and describing the flaws in the market system that contributed to the current financial crisis, or in explaining the types of reforms that would actually be appropriate.  In particular, it seems to me that the role played by the state grant of limited liability to corporate shareholders in facilitating flawed and irresponsible risk-taking by executives and traders, as well as in perversely fuelling a vicious cycle of rent-seeking and further counterproductive regulation, should be much more seriously examined. 

In short, I believe that, as argued by James Glassman and William Nolan in a recent Wall Street Journal op-ed, unless and until owners and executives have “more skin in the game”, we will continue to ride a tiger of selfish risk-shifting, moral hazard, and ever more disruptive government regulation.

I copy below my comments on Tom Wood’s post:

Tom, it’s hard to judge an unpublished book, but I suspect you’re
right to do so. Has Posner given any more solid clues as to where he’s
headed?

However, as it’s clear that things went wrong, I can’t help but
wonder when can we expect to hear more from you and others on what
government factors (besides the Fed, Freddie and Fannie) “fatally
deformed” the financial markets, and laying out a “new, genuinely
free-market paradigm for the economy”. Isn’t there a good book or two
in there from Austrians?

It seems to me that that James Glassman and William Nolan have a key
insight into the type of reforms needed in a WSJ piece that refers to
von Hayek. They argue that “an irresponsible attitude toward risk led
to terrible mistakes in judgment” and conclude that “bankers need more
skin in the game”. How to move in that direction?  Glassman and Nolan
point to the success of the Brown Brothers Harriman partnership, which
lacks the limited liability feature of modern corporations, and specifically recommend that governments recognize (by less burdensome laws and regulations) that entities like partnerships where owners face unlimited personal liability are more responible risk managers.

As I have argued in a series of posts, starting with my review of
Huebert and Block‘s criticisms of Long, the state grant of limited
liability to shareholders (in particular the grant vis-a-vis those
injured by corporate acts and involuntary creditors, which is a pure
grant from the state and cannot be contracted for) has led to a number
of perverse results, which can be fairly clearly seen in the financial
crisis:

TT

In a series of posts at the self-declared “free market” blog of the fossil-fuel energy industry funded Institute for Energy Research, energy expert  Rob Bradley (former Ken Lay speechwriter and Enron policy wonk) explores his dark forebodings that the “Malthusian wing” of the Obama administration and the environmentalist Left are actually enjoying and welcoming the present economic predicament.  Says Bradley, putting words in the mouth of his Malthusian stalking strawman:

“The economic recession/depression is good, not bad. It lowers our carbon footprint in countless ways. It saves resources. It throttles back industrial society to sustainable levels that were exceeded long ago. Let the downturn continue to get us out of the growth mentality. Let rising expectations fall! Less is more!”

[From: The Malthusian Wing of the Party in Power: When Will They Speak Up?; see also Beware of the New “Limits to Growth” (and looking for ReaganVision to CarterVision).]  Bradley will apparently be transported by paroxyms of self-satisfied delight/misery if a lefty, particularly one inside the Administration, ventures to say something like this.

Bradley may very well prove to be right that someone on the left may assert that an end to the “growth is good” mentality may be a silver lining in our recession.  But in his focus on prognosticating what plots the “Malthusians” may be hatching, Bradley simply refuses to actually engage the “Malthusians” on either their premises or their proposed solutions – namely, that there are real and serious problems that our societies must address and that more government is needed.  Indeed, Bradley doesn’t even venture to explain why he considers the Malthusians to be wrong, apparently assuming that this is self-evident. 

But as I have noted any number of times, there is indeed a wide range of very real and serious issues to be discussed, both as to problems AND to proposed “solutions”, such as I have noted in these two posts:

Too Many or Too Few People? Does the market provide an answer?

Food shortages: Ron Bailey takes up the cry, are Malthus and “Green fascism” on the march?

As a result, Bradley does not appear to be interested in the slightest in engaging productively with the Obama administration or the Left, and so in effect uses the term “Malthusian” as a type of shibboleth (or even an article of faith?) among supposedly “right-minded” people, and as an ad hom against the left.  In this, Bradley echoes others such as George Will who, in a recent editorial about climate change, warned of “dark green doomsayers”.

While I do not agree with the Left that more government is always the right solution, those on the right cannot win these arguments simply by name-calling or by trotting out – as George Will did in his editorial – the 1980 bet that Paul Ehrlich and others lost to Julian Simon over the future prices of minerals and commodities.   But the Ehrich-Simon bet was well-known; why not use it?   Because those who do so have ignored the reason why the Simon triumphed and Ehrlich lost, which was that because people own mineral resources, markets functioned to both to change demand and to provide incentives for future supply (and Ehrlich was no economist).  But none of this logic holds true for unowned or “public”, open-access resources – like the acidifying oceans, tropical forests and the global atmosphere and the climate it modulates – for which there simply are no effective property rights or functioning markets.  Instead, we continue to see see destructive exploitation (and kleptocracy in the countries where powerful elites elevate their interests over those of citizens). 

So, in the context of the issues that the “Malthusians” are now raising – in this case, the atmosphere – the Simon-Ehrlich bet stands for a propositions whose conditions clearly at present are not fulfilled, and which will not be fulfilled without hard work.  Until that hard work of establishing property rights or other effective governance institutionsis completed, people with legitimate preferences as to such resources and who are concerned about the effects of modern market demands on them have little ways of expressing those preferences other than through pressure on policy makers and attempts at moral suasion.

As an aside, let me note that nowhere does Bradley acknowledge that the Obama administration and Left inherited our economic shambles from freedom- and market-loving Greenspan/Bush/Bernanke/Paulson and the Right.  In this, Bradley resembles NRO commentator Henry Payne, who recently was so quick to lay all of the woes of the US automakers at the foot of the Obama administration and Washington Dems.  It’s sad that what may otherwise be legitimate commentary is so skewed by such transparent partisan bias and inconsistency.  Such reflexive partisanship also ignores not merely the responsibility of the Right, but also ignores what appear to be fairly significantly weaknesses in the structure of Western capitalism, which have been commented on by Michael Lewis, Joe Nocera and James Glassman and William Nolan at the WSJ; viz., weaknesses stemming from the weak governance and moral hazard (and strong rent-seeking) that is encouraged by the state grant of limited liaibility to corporate shareholders.

In other words, there are lots of real issues to discuss, from difficult resource issues that require collective action to address to public choice problems inherent in the use of government.

Those who profess a love of reason should turn to it, and not hobble themselves by a reliance on facile assumption and shallow ad homs.  Unless, of course, the aim is not to resolve underlying issues of appropriate institutions, but either to “win” the argument by wresting control of policy (and of related rents) from perceived competitors or, if winning is not likely, to at least satisfy emotional needs by railing at foes while surrendering the field (and the selection of policies) to them.

Let me close with a note of one small irony:  while Bradley is expecting that the Left will embrace the recession as a way to deliberately slow growth, Bradley’s own associate at IER, Austrian economist Bob Murphy has just put up on his personal blog a “wonderful clip” by comedian Loius C.K., who comments:

“Those were simpler times, I think; I just feel that we may be going back to that, by the way.  In a way, good; because when I read things like, “the foundations of capitalism are shattering,” I’m like, maybe we need that; maybe we need some time where we are walking around with a donkey with pots clanging on the sides.  … Yeah, because everything is amazing right now, and nobody’s happy.”

Seems like even Malthusian-haters will only be happy if we’re all more miserable!

The February 25 Wall Street Journal carries an insightful piece of commentary by James K. Glassman (president of the World Growth Institute and a former undersecretary of state) and William T. Nolan (president of Devonshire Holdings and former associate at Brown Brothers Harriman & Co. in the early 1970s) .

The Glassman and Nolan piece, entitled “Bankers Need More Skin in the Game; Partnerships may be a more trustworthy business model than corporations,” echoes in the context of Wall Street financial institutions the theme of inappropriate managerial risk-taking that I have previously blogged on a number of times regarding the consequences of  the “limited liability” corporate form.  Glassman and Nolan point to the sterling performance of Brown Brothers Harriman & Co., the oldest and largest partnership bank in the U.S., founded in 1818.

The Glassman and Nolan editorial is worth reading in whole, for purposes of discussion I excerpt portions here (bolding is mine):

“Of all the causes of the financial meltdown of the past few years, the easiest to understand is that an irresponsible attitude toward risk led to terrible mistakes in judgment. But where did this casual approach to risk originate?

“A major culprit, we believe, is a change in the way Wall Street financial institutions are organized. During the late 1970s and ’80s, much of the responsibility for risk was transferred away from the people who made the financial decisions. As a result, leverage rose from 20-1 to 40-1 or higher, creating shaky towers of debt, which, as we know, eventually collapsed. …

“The trick is to find a way to encourage sensible risk-taking, while dampening the impulse to take chances that can throw an economy into recession and force taxpayers to bail out a banking system.

“Can government accomplish this feat through rule-making and regulatory oversight? It is unlikely. As the Nobel Prize-winning economist Friedrich von Hayek correctly emphasized, no one — not even a politician or a bureaucrat — can gain the broad and deep knowledge necessary to make wise enough rules. Moreover, in a $14 trillion economy, you can’t hire enough overseers to pore over everyone’s books.

“There is, however, a better solution: expose players in the financial game to greater personal loss if their risk-taking fails. When you worry that a mistake will cause you to lose your second home, your stocks and bonds and your club memberships, then you’re less likely to take the kinds of risks that expose the rest of society to your failures.

“A simple mechanism exists to achieve this purpose: the private partnership. Partners face liability that extends to their personal assets. They aren’t protected by the corporate shield that limits losses to what the corporation itself owns (as well as the value of the stocks and bonds the corporation has issued). Unfortunately, the partnership is a legal form of business organization that was largely abandoned by banks over the past quarter-century. Our advice is to bring it back. …

“Even John Gutfreund — the man who kicked off the dramatic change in investment-banking culture and structure when he took Salomon Brothers, a longtime partnership, public in 1981 — confirms our thesis. Michael Lewis wrote in the December issue of Condé Nast Portfolio that Mr. Gutfreund now believes “that the main effect of turning a partnership into a corporation was to transfer financial risk to the shareholders. ‘When things go wrong, it’s their problem,'” said Mr. Gutfreund.

“But when the personal wealth of executives is put at risk, as it is in a partnership, their behavior changes. Risk aversion increases. Few partnerships would leverage themselves to the hilt to load up on risky subprime loans.

“How do we know this? Luckily, for this financial experiment, there is a control case: Brown Brothers Harriman & Co. ….

“Some would say that BBH is sui generis. Would its structure work more broadly for financial institutions? It already is. As large brokers merged into huge corporations with greater concentration in real-estate finance, corporate finance migrated to private equity firms and hedge funds, which are generally structured as partnerships. While many of these new engines of finance have suffered in the recent meltdown, they generally didn’t engage in such extreme risk-taking and thus haven’t become wards of the state.

“We know from Alfred Chandler, the great business historian, that “strategy determines structure.” Similarly, structure determines behavior — in this case, a healthier attitude toward risk. It is unlikely that a partnership will grow to the size of a Bank of America or Citigroup, but, while size can boost efficiency, it also poses systemic risk. As partnerships — and corporations with partnership attributes — replace behemoths, the current crisis will spawn structures for future success.  …

We do not believe that government should require banks to be partnerships. Rather, investors — and governments — should recognize the extra safety inherent in doing business with partnerships.“

I have previously argued that one of the key state interventions that has fuelled the rent-seeking and risk socialization that we see today is the grants of blanket limited liability to shareholders, along with the grant of legal personhood (with unlimited purposes and life and Constitutional rights) to corporations:

Limited liability has enabled corporate managers to act without close shareholder oversight and management; this I believe has played a key role in the vast misalignment of incentives that Michael Lewis and David Einhorn describe at the NYT, and in the risk mismanagement that Joe Nocera of the NYT describes at length in the NYT Magazine.  Those taking large bonuses (whether in the financial industry or large corporations) were essentially playing with OPM – Other People’s Money – and capturing the upside of short-term gains while leaving shareholders and taxpayers holding the bag for loses.

I hope that you and others here will look more deeply at the role of the state in the problem of misaligned incentives that continue to corrupt American capitalism.

It is not clear what Glassman and Nolan intend with their reference to “corporations with partnership attributes”, but I would note that corporations that make use of an unlimited liability structure (as American Express once did) share the main “partnership attribute” – that the owners of the firm may be, if the assets of the firm are insufficient, personally liable to creditors for all debts of the firm (other than those whose creditors agree in advance to limit recourse), particularly for torts to involuntary third parties.  The availability of the unlimited liability corporate form in various jurisdiction should be further investigated.

I agree with Glassman and Nolan that governments should recognize the better risk management that partnerships are likely to conduct, but not merely in the financial sector but in other industrial, commercial and professional fields as well.   Such recognition could take the form of eased regulations, for example.  I favor aggressive pursuit of this “carrot” approach to encouraging better risk management and less shifting of risks to shareholders, government and citizens generally.  However, this fails to consider what should be done about existing public companies and other limited liability corporations.  I would urge more aggressive veil-piercing, both judicially and by statute.

In any case, it is gratifying to see this topic getting some of the attention that it deserves.

There’s an interesting article in the Feb. 22 Times Union on the ineffectiveness of the New York oil spill fund:

Oil polluters pass on spill costs to public

The New York Environmental Protection and Spill Compensation Fund pays to clean up oil spills if polluters won’t handle it themselves. While the state is supposed to get that money back, it is owed millions by companies that won’t settle up. In more than 1,100 cases — some dating back to the early 1980s — the state has recouped just 17 cents on every dollar it spent.

As I’ve noted previously on several occasions, the limited liability that states grant to owners of corporations means that owners of polluting firms can walk away, leaving citizens and states holding the bag for risks and clean-up costs; this is true not only for the New York emergency oil spill clean-up fund, but for ordinary pollution damages where individuals are seeking compensation.  This problem is manifest in, and has been compounded in, New York, where the gas tax-funded clean-up fund system is clearly not working; not only has the fund been bailed out by general taxes, but the gas tax being used to fund it has been increased eight-fold since 1978, and the fund argues that it lacks sufficient enforcement tools.  At least part of the problem may be that the fund administrators find it easier simply to clean up and increase taxes than to try to pursue polluters.

As New York ponders reforms, the New York legislature ought to consider explicitly “piercing the corporate veil” by providing that the owners and executives of polluting firms – including shareholders of public companies – have direct personal liability for clean-up costs.

That may do wonders in incentivizing them to make sure that the firm that they own and/or manage (or an insurer on its/their behalf) promptly reimburses the fund for clean-up costs.  One suspects it might even cut down on the number of oil spills!

In an earth-shaking 😉 essay in today’s Human Events, CEI‘s Chris Horner comes clean and acknowledges that climate denialists and alarmists are peas in the same rent-seeking pod. 

We have encountered Horner,  former lawyer and now full-time scourge of envirofascists on behalf of the firms that fund the Competitive Enterprise Institute (and author of “Red Hot Lies: How Global Warming Alarmists Use Threats, Fraud, and Deception to Keep You Misinformed), a number of times here previously.  I consider Chris to be very knowledgeable and insightful, but it seems to me that his passion paints him into a corner as a spokesman for one side of the commercial interests seeking to influence policy, hinders a broader self-awareness, and leaves him with little ability to reach out to persuade others.

Says Horner:

Further, the premise behind most alarmist slurs, of the “tobacco scientist” variety and the ritual claims of “ties” to “big oil” or “industry,” is that a scientist’s convictions and those of other dissenters are for sale. Yet it is illogical to assume that dissenters can be bought but alarmists cannot. Looking at the balance sheets on both sides, their logic would conclude that the greatest amount of corruption occurs on the alarmist side.

With federal expenditures on climate-related research soaring above $5 billion annually – more than we spend on AIDS or the National Cancer Institute – and hundreds of billions in “rents” to corporations pushing these schemes should the alarmist campaign succeed, the potentially corrupting factor of money cannot be ignored.

Someone saw a good investment in giving Al Gore $300 million for his “climate crisis” re-branding campaign. Gore’s advisor (and, officially, NASA astronomer) James Hansen and other activists receive enormous sums of money underwriting their alarmist activities, sums that no “skeptic” has ever been accused of receiving. Meanwhile Gore—the king of claiming that those who disagree are merely in it for the money—makes millions annually from all manner of enterprises premised upon the climate crisis, and his lucre will increase several fold upon passing the laws his alarmism demands.

The difficult truth is that the alarmists cannot logically fault the skeptics’ credibility without also faulting Gore’s credibility, and that of their heavily compensated alarmist mouthpieces. Yet no “skeptic” receives as much as Gore or even Hansen from shouting falsities about the issue.

The delicious irony found in the global warming alarmists’ claims is that it is they who closely resemble the “tobacco scientists” they accuse those who oppose them of being, and are quite plainly the ones stuck on “denial”.

Several thoughts occur to me:

First, most of Horner’s points are perfectly fair, but it’s interesting that he can make them while ignoring what they imply about himself and others who are denialists (since Horner calls those concerned about the effects of releasing all of the fossil carbons “alarmists”, for the sake of balance, let’s call him and others “denialists”, as opposed to “dissenters” or “skeptics”).

Second, Horner fails to distinguish between amounts spent by governments and amounts spent by rent-seekers directly.  While large government expenditures are “potentially corrupting”, such expenditures clearly do NOT directly corrupt the results of scientific investigations, nor do they directly influence decision-making by government, politicians or others.  As a result, such expenditures are certainly in a different class than direct and indirect rent-seeking (via paid mouthpieces, contributions to think tanks, campaign contributions, junkets and the like) by special interests.

Third, while Horner is right to note that there are large amounts flowing to support rent-seeking via alarmist mouthpieces like Gore, there is nothing really new here – this is just plain old garden-variety rent-seeking of the same type that we have seen from the denialists (fossil fuel interests and others who have different preferences regarding rights to the atmosphere and science/defense-budget priorities).  In one sense this is a relief – as it clarifies that the chief financiers of the alarmism are not out to destroy capitalism – but  one is left wondering WHO, precisely, is doing the funding and what precisely are their objectives.  While some may be looking for favors from government, others may be sincerely concerned about the potential consequences of releasing all of the fossil carbon stored up since the Age of Dinosaurs and the lack of any market mechanisms to express their preferences.

Fourth, while more information on rent-seekers is needed, it’s clear that most of them are commercial interests, whom our laws say are legal persons and our courts have declared to have the same Constitutional rights to spend freely to influence government via “free speech” as do you or I.  While a discussion of the merits of legal personhood is beyond the scope of of this post, I wish to draw attention to the role of limited liability, in fuelling the growth of (i) the corporate form, (ii) rent-seeking (at all branches of government) by corporations, and (iii) public pressure by citizens’ groups (and faux-citizens’ groups) to fight over the wheel of government.

Finally, Horner oversteps when he argues that the alarmists’ views must be based on a premise that “scientist’s convictions and those of other dissenters are for sale”. I think a little more nuance is called for.  We are cognitively wired as tribal animals.  That means we are inclined to see “our side” as right, and the other side as lying and scheming. While very clever rent-seekers know this and try to use it to jerk us around, this does not mean that any particular group – or its spokesmen – has consciously sold itself out.  Rather, as William Butler Yeats famously noted, “the worst are full passionate intensity” – and each of us is good at the self-deception needed to provide the requisite conviction and self-righteousness.  Perhaps not only Al Gore, Jim Hansen and Horner’s frequent sparring partner Joe Romm share this quintessential human trait, but also Chris Horner himself?

William Anderson (an adjunct scholar of the Mises Institute and economics prof. at Frostburg State University) has a thoughtful New Year’s Day post, pointing out how Paul Krugman fails to understand the causes of ouir economic stagnation and financial meltdown.

I posted the following comment, in which I argue that the state grant of limited laibility (which I have discussed in several recent posts) is a key to understanding the Great American Ponzi scheme:

Bill, I agree with the thrust of your criticisms of Krugman, but have a few small quibbles.

First, while you rightly condemn “most economic regulation … of the command-and-control variety”, you blame all of this on “the whims of bureaucrats and environmentalists” and completely fail to note that state and federal environmental regulation (i) initially responded to real environmental problems and (ii) also represents the successful efforts by established firms to raise barriers to entry and to cartelize their industries.  See Roger Meiners & Bruce Yandle, Common Law and the Conceit of Modern Environmental Policy, 7 Geo. Mason L. Rev. 923, 926-46 (1999), and Walter Block, Environmentalism and Economic Freedom: the Case for Private Property Rights..

Second, while you are correct that Krugman fails to understand the role of the state in creating the distortions that underlie our current problems, it seems to me that you have neglected one of the key state interventions that has fuelled the rent-seeking and risk socialization that we see today – the grants of legal personhood (with unlimited purposes and life and Constitutional rights) to corporations and blanket limited liability to shareholders.

Limited liability has enabled corporate managers to act without close shareholder oversight and management; this I believe has played a key role in the vast misalignment of incentives that Michael Lewis and David Einhorn describe at the NYT, and in the risk mismanagement that Joe Nocera of the NYT describes at length in the NYT Magazine.  Those taking large bonuses (whether in the financial industry or large corporations) were essentially playing with OPM – Other People’s Money – and capturing the upside of short-term gains while leaving shareholders and taxpayers holding the bag for loses.

I hope that you and others here will look more deeply at the role of the state in the problem of misaligned incentives that continue to corrupt American capitalism.

Yes, I’m referring to the bursting of the TVA holding dam in Kingston, TN a few days ago, leaving a Christmas Eve present of millions of cubic feet of wet fly ash several feet deep over hundreds of acres downstream, including now valueless private homes and property, and flowing into the Clinch River and Tennessee, where fish kills have been reported.  A video from a helicopter fly-over here; local coverage is here. 

Enviros and the press were fairly quick to point out that the federal government has declined, under industry pressure, to more strictly regulate the disposal of fly ash (replete with heavy metals and arsenic, and which has been captured in increasing amounts as clean air regulation requires greater “scrubbing” from power plant emissions) – but I’d like to make the point that this is the kind of faceless tort that we get from limited liability corporations, including federally-owned ones like the TVA , where shareholders have little interest and zero practical ability to monitor the risks created by the corporation. 

Further, this type of rent-seeking and money-influenced political balancing is
par for the course, and is a natural outcome of the replacement of the pro-industry, “pollute for free” era with the “government regulates industry” era that Walter Block speaks of.

Limited liability:  a gift of the state that keeps on giving!

In my recent post on limited liability, I argued that one of the perverse consequences of limiting shareholder responsibility for corporate torts was to create the moral hazard by which investors could capture the upside of risky activities that imposed costs on others, without having to worry about whether the harms such activities may impose on others exceeded the benefits to the firm. 

This dynamic can be clearly seen in the historical growth of various environmental torts, which expanded as courts, taking a signal from government policy to favor industry, turned away from a strict enforcement of property rights.  The result was massive pollution, which enriched corporate owners while transferring costs to others.  The further result?  The massive resort to federal regulatory approaches that further undermined property rights, not only by dictating to industry but by giving firms that complied with regulations a “right to pollute” within such bounds, regardless of harms caused to others.

Walter Block captures some of these dynamics in his excellent piece on the need to return to a property rights approach to environmental harms,  “Environmentalism and Economic Freedom: the Case for Private Property Rights”, Journal of Business Ethics 17: 1887–1899 (1998).  An excerpt is below (emphasis added):

But then in the 1840s and 1850s a new legal philosophy took hold. No longer were private property rights upheld. Now, there was an even more important consideration: the public good. And of what did the public good consist in this new dispensation? The growth and progress of the U.S. economy. Toward this end it was decided that the jurisprudence of the 1820s and 1830s was a needless indulgence. Accordingly, when an environmental plaintiff came to court under this new system, he was given short shrift. He was told, in effect, that of course his private property rights were being violated; but that this was entirely proper, since there is something even more important that selfish, individualistic property rights. And this was the “public good” of encouraging manufacturing.

Under this legal convention, all the economic incentives of the previous regime were turned around 180 degrees. Why use clean burning, but slightly more expensive anthracite coal rather than the cheaper but dirtier high sulfur content variety? Why install scrubbers, and other techniques for reducing pollution output, or engage in environmental research and development, or use better chimneys and other smoke prevention devices, or make locational decisions so as to negatively impact as few people as possible? Needless to say, the incipient forensic pollution industry was rendered stillborn.

And what of the “green” manufacturer, who didn’t want to foul the planet’s atmosphere, or the libertarian, who refused to do this on the grounds that is was an unjustified invasion of other people’s property? There is a name for such people, and it is called “bankrupt.” For to engage in environmentally sound business practices under a legal regime which no longer requires this is to impose on oneself a competitive disadvantage. Other things equal, this will guarantee bankruptcy.

From roughly 1850 to 1970, firms were able to pollute without penalty. This is why “there is no way to force private polluters to bear the social cost of their operations” a la Pigou; this is why there was a Samuelsonian “divergence of social and private costs.” This was no failure of the market. It was a failure of the government to uphold free enterprise with a legal system protective of private property rights.

In the 1970s a “discovery” was made: the air quality was dangerous to human beings and other living creatures. Having caused the problem itself, the government now set out to cure it, with a whole host of regulations which only made things worse. There were demands for electric cars, for minimal mileage per gallon for gasoline, for subsidies to wind, water, solar and nuclear power, for taxes on coal, oil, gas and other such fuels, for arbitrary cutbacks in the amount of pollutants into the air. The nation wide 55 mile per hour speed limit was not initially motivated by safety considerations, but rather by ecological ones. “Rent seeking” played a role in the scramble, as eastern (dirty burning sulfur) coal interests prevailed over their western (clean burning anthracite) counterparts. The former wanted compulsory scrubbers, the latter wanted the mandated substitution of their own coal for that of their competitors.

FN 23. From 1845 to 1970, approximately, polluters had a free run of the atmosphere, other people’s property and their lungs. From roughly 1970 to 1995, and counting, there was concern for invasive air and water borne pollutants, but only command and control (and in the last few years tradeable emissions rights schemes) regulations. Provision for environmental lawsuits is still, as of this 1995 writing, virtually nonexistent. See Horwitz (1977), Block (1990, pp. 282–285).