NBU: Fish vs. Men in the Supreme Court by Ayn Rand Institute: Thomas Bowden, 5/13/08

Irvine, CA--Forty percent of America’s energy comes from 550 electric power plants whose massive turbines and reactor cores are cooled with billions of gallons of water from nearby rivers, lakes, bays, and oceans.

The Clean Water Act requires these plants to use “the best technology available” to safeguard fish and other aquatic organisms swept up in the water flow. The Supreme Court recently agreed to decide, in the case of Entergy v. EPA, whether the Environmental Protection Agency can lawfully allow power companies to avoid hugely expensive “closed-cycle” cooling systems in favor of cheaper “once-through” systems that save fewer fish.

“This case requires the Supreme Court to pretend that the welfare of wildlife can be incorporated into a legal system designed to protect the rights of man,” said Thomas Bowden, an analyst at the Ayn Rand Institute. “The ‘best technology’--for whom? Fish or men? There is no rational way for a court to ‘balance’ a fish’s interest in living against man’s interest in producing electricity.

“The Founding Fathers gave us a constitutional structure of checks and balances, including judicial review by the Supreme Court. But for such review to be rational, the court must apply an objective standard in each case. The highest such standard--the individual human being’s right to life, liberty, property, and the pursuit of happiness--is implicit in the Founders’ recognition that ‘to secure these Rights, Governments are instituted among Men.’

“By the standard of individual rights, any law purporting to protect wildlife from men would be struck down immediately, as a violation of man’s right to sustain his life by exploiting nature. But America’s lawmakers have sunk to a level unthinkable to the Founders. Through such statutes as the Clean Water Act, the Endangered Species Act, and a variety of other environmental protection laws, Congress has conferred upon wildlife a legal status equal to men.

“This creates an impossible dilemma for judges. If fish and men are equal before the law, whose welfare should prevail when their interests conflict? There can be no rational answer.

“With standards out the window, it’s impossible to predict which irrational or subjective factors will end up controlling the outcome--the judges’ sentiments, their personal political views, or random outside pressures. All we can know for sure is that the result will be neither rational nor consistent with America’s founding ideals.”

Thomas Bowden is an analyst at the Ayn Rand Institute.