An interesting Planet Money podcast (link goes to the associated post) about how much a pelican is worth. That is, how much should BP have to pay, per pelican, for wrongfully killing pelicans? How do you estimate dollar damages in cases where there aren’t markets that could give you a reasonable ‘market valuation’ of some degraded environmental condition, and in which laypeople are sort of torn between ‘infinitely valuable’ and ‘I’d pay a dollar’ responses to a survey question? It turns out that the answer is ‘a pelican for a pelican’, at least according to the federal agency responsible for solving this problem. If BP killed 500 pelicans, they have to pay whatever it costs to save 500 other pelicans, or pay for a pelican nursery that will raise 500 pelicans, or something of the sort.
I have a somewhat more than passing interest in the history of lex talionis, so I’m struck by this reversion to what is generally regarded as an intolerably primitive, retributivist formula. An eye for an eye, a pelican for a pelican. Of course, the first thing to note about it is that here it isn’t functioning in a retributivist spirit at all. Quite the contrary, it’s a utilitarian kludge for handling a case in which calculating a util seems too fraught.
Note the oddity of the fact that at no point in the podcast does anyone ask how much a pelican is worth to a pelican [to the pelican that happens to be that pelican]. Suppose someone proposed that it is impossible to value human life in a wrongful death suit, say, because we’ve outlawed slavery (just as we’ve outlawed traffic in migratory birds). That would be a funny sort of argument. But it does show up how our intuitions about environmental value are an odd mix of absolutism (nature is infinitely valuable) and instrumentalism (nature is valuable for us).
Maybe that means we are just monstrously inconsiderate of [better: conflicted about] animal rights in our typical thinking about environmental damage. I actually kinda think so [most days], but I don’t think there’s much chance of a serious paradigm shift that would go deep enough to alter that. So, setting aside that possibility, and moving back down the scale to more practical questions, it seems to me that there might be a way to tweak the ‘pelican for a pelican’ lex talionis principle, to make it more flexible – to make the currency of pelicans more fluidly exchangeable and money-like, in a way that the average American might find intuitive and, if not satisfying, then at least as not-unsatisfying as any formula is likely to be.
Let’s suppose guilt is established, so we are in the penalty phase. Both parties should propose a qualitative remedy. Some specific set of restorative acts or projects the guilty party is to undertake, to make good the harm done. And an estimated price tag to go with. Plaintiff: ‘we propose that the defendant should pay for a pelican nursery that will operate for x years, raising the pelican population by y, at an estimated cost of z.’ If this would be really spectacularly expensive, per pelican, the defense might counter with a more practical, alternate environmental project. ‘We propose to spend an estimated x dollars to do y to improve the health of z square miles of degraded wetlands.’ A jury would get to pick which proposed remedy would stand as damages. The advantage of requiring both a dollar amount and a practical project would be to get you past the imponderables of ‘infinitely valuable’ and ‘I’d pay a dollar’, which they worry about in the podcast. You constitute a small market with two sellers (plaintiff and defendant) and 12 buyers (the jury). The plaintiff has a strong incentive to ask for a lot, but not too much, lest the jury find the proposed project disproportionate (it’s easier for a project to sound absurd than a dollar amount, I suspect). Likewise, the defendant would not want to make some insultingly lowball offer, would not want to offend the jury either with a bargain-basement price tag or a pitifully inadequate-seeming project.
One thing that would make this hard would be minting the required currency, as it were. Your coinage will be a grab bag of mutually incommensurable Things That Would Be Good, environmentally, and you need them in the proper region. It wouldn’t do to make good the damage BP did to the gulf coast by proposing good environmental works in the pacific northwest. But I suspect that environmental groups and agencies (both private and public) typically have a lot of things, large and small, they would like to see done – long wish-list that’s never going to be a to-do list – so they could do a lot of the legwork and paperwork in this regard. They could blueprint potential projects, large and small, and then plaintiffs and defendants could, as it were, select from the menu and present alternatives to the jury for a choice. Anti-environmentalists are always raging against stupid, wasteful, costly environmental measures. But this would get around a lot of that (not that I credit that sort of rage much, but I’m in favor of draining it off if possible). Everyone involved would be healthily incentivized to propose things that are plausible and worthy. Indeed, if there were any really good practical plans for doing something good on the cheap, both sides would be eager to find those things, to tempt juries. On the other hand, you would have to do something to prevent front groups from proposing unworkably inexpensive projects, with sky-high projected benefits, which defendants might want to dangle before juries, to keep their damage costs artificially low.
The biggest problem with this, ultimately, is the competence of juries to decide big, technical questions well. I don’t mean to insult the average juryperson, merely to acknowledge that environmental issues are expert issues. But this is a general problem with cases in which large damage determinations hang by the thread of opinion of 12 non-experts on an expert question.
(I’m sure there are crucial legal facts I’ve trampled in my ignorance. Kindly tell me what they are. I haven’t talked about the civil vs. criminal distinction because that doesn’t really affect my proposal. Obviously it’s perfectly consistent with what I propose to suggest that BP should pay stiff punitive damages, over and above making good harm done. I’m only addressing the question of how you might calculate the degree of harm, in a reasonable way, given the difficulties in doing so.)