Horror Stories About Eco Laws
Connect With Everyday People

By William Perry Pendley

(Editor’s note: William Perry Pendley is president and chief legal officer for Mountain States Legal Foundation, a public interest law firm specializing in issues of private property and individual liberty.)

Recently The Philadelphia Society, which seeks to "deepen the intellectual foundations of a free and ordered society," devoted its thirty-fourth annual meeting to "The Environmental Revolution." During "An Environment of Freedom" panel, Dr. Jo Kwong, of Atlas Economic Research Foundation, opened with two "horror stories": the impact of environmental laws on John Shuler of Dupuyer, Montana, and race car driver Bobby Unser.

Shuler is the rancher who killed a grizzly bear when attacked just outside his house. His claim of self defense was rejected by the federal government, which charged him with violating the Endangered Species Act and fined him $8000. The good news is Shuler won; the bad news is it took him nearly nine years to do so, he could not have fought back without free legal help, and the government should never have brought the case.

While Unser is famous for racing, it is his victimization by the federal government that is making news today. Unser, who nearly died in a Rocky Mountain blizzard, was charged with operating a snowmobile in a wilderness area. Unser believes he wasn't in the wilderness; if he was, he was there by accident, or out of necessity or emergency, meaning he could not have formed the mens rea, or criminal intent, necessary to commit a crime. Bill Clinton's lawyers say wilderness is so important that mens rea, required for almost all crimes, need not be proven in Unser's case.

Dr. Kwong's remarks were greeted by the nearly 300 conservatives and libertarians with shock. "How can we get these stories out?" asked one attendee. Others voiced similar distress that environmental laws are being misused to deny the guarantees of the Constitution and that Americans are blissfully unaware.

The panel's response was markedly different. Lynn Scarlett of the Reason Foundation criticized Dr. Kwong for her "doom and gloom" perspective, echoing a call by the panel chairman, Richard L. Stroup, of Political Economy Research Center, that panelists keep presentations "positive."

This disagreement among philosophical friends reflects more than that the world is divided into those who call a glass "half-empty" or "half-full." For among those opposed to environmental laws are people who believe it is unwise to discuss the experience of folks like Shuler and Unser. For them, prevailing in the battle for the hearts and minds of the American people requires a "positive" message.

There are several problems with that approach. First, it is only half a message. Most believe, "if it ain't broke, don't fix it." How environmental laws are applied to real people show conclusively that it is "broke!" Second, we speak of "winning hearts and minds" because people's first response on learning the plight of others is an emotional one; the intellectual response follows later. Third, environmental groups recognize that emotional appeals win; that is why they use them. However, in a compassion contest with environmental groups, those who speak for humans hold the trump card.

The effectiveness of "putting a human face" on this debate is shown by how the media and environmental groups respond. As for the media, Shuler's incredible tale has appeared in nearly every newspaper in the country and has been featured twice in Reader's Digest. And in January 1998, Reader's Digest carried a lengthy cover story on Unser's experience.

As for environmental group leaders, when compelled to respond publicly, they say either that the story is apocryphal ("You're making this up!"), or it is an anomaly ("This kind of thing rarely happens!") What environmental groups say in private is even more instructive. They admit that tales of people like Shuler and Unser present "compelling vignettes of the little guy versus the powers of government/environmentalism," which have "seized the moral and rhetorical high ground."

Why cede that "high ground" by abandoning the human face of environmental policy for a "positive" message that ignores harsh human reality? The only thing "positive" about that approach is that it is positively wrong!