Letters to the Editors (Jan. 1980)

To nuke or not to nuke, continued

I feel compelled to comment on the recent discussions of nuclear power. None of the people expressing opinions has presented a coherent position, from a libertarian standpoint or otherwise. The discussion has not yet raised the issue properly, and the arguments advanced miss a great deal of significance.

The nuclear industry (reactor operation and design, mining, reprocessing, etc.) is domestically unique, and the manner in which the federal government has intervened on the industry’s behalf is also domestically unique. The system of nuclear legislation — Price-Anderson and the “safety”/ secrecy legislation — established and maintains a band of literal outlaws-for-profit.

In foreign lands the government’s policies are enforced by the war makers and international wheeler-dealers. Even after the War Crimes Trials, there is no legal liability for their misdeeds. In “our” country, Natives are oppressed by the Interior Department and various other governments, again without accountability. But domestically, as regards ordinary citizens, very few “entrepreneurs” have received legislative exemption from responsibility for their actions which cause harm to people and things. Nuclear “entrepreneurs” have demanded and received this type of exemption. Just as you can’t sue the Mad Bomber, or government land thieves, or state kidnappers of Native children, you cannot sue the nuclear industry for damages or restraints. Roads, the Postal Service, and nearly all government activity are subject to accountability for injury or damage. A lot of “the King can do no wrong” has been abolished in recent years.

There is a distinction in the law between a “cause of action,” or the right to seek redress, and when that cause accrues, or when the cause becomes de facto rather than merely de jure. For example, all auto drivers are potentially, de jure, liable to people for careless driving. The cause accrues when the driving causes injury, and the driver is liable de facto when no defense is proved. The Price-Anderson Act abolished the de jure liability. The right to de jure liability is much more than a right in some property, especially since the right to hold others responsible cannot be transferred to another person, it can only be affirmed or denied. This de jure right has been extinguished by Price-Anderson, not stolen. Only property rights can be transferred.

The Price-Anderson Act is more than insurance legislation. There are several very important legal roadblocks to nuclear development that have been wrongfully removed by Price-Anderson. The most obvious things removed were the common law tort causes of action. Instead, the government has established a federal nuclear tort and severely restricted the victims rights to recovery. The common law torts that were abolished as regards radiation harm include: negligence, strict liability, nuisance, product liability, fraud, trespass, assault and battery, escape of dangerous instrumentalities, and wrongful death. Other lawyers could probably add to this list.

The government’s intervention on behalf of the nukes goes beyond merely limiting aggregate money recovery. At the common law, some torts would be remedied by restraints, if, for example, the tort was a continuing one. Nuisances are a very good example: if there is a constant invasion by pollutants, the law courts would enjoin the activity. Price-Anderson and the legislative safety/secrecy system was relied upon by the U.S. Supreme Court to uphold Price-Anderson in the Duke Power case. No constitutional impediment was found to the abolition and limitation; and licensing equals safety guarantees.

Price-Anderson intervention affects more than the nuke operators. By abolishing de jure liability, it included in that abolition liability of the manufacturers of components — pipes, valves, etc. — for defective manufacture, installation or design. But licensing provides safety, saith the Nine. The components “entrepreneurs” are among the loudest advocates of Price-Anderson exemption, and they have even inserted contract clauses that release the manufacturers from the contracts if Price-Anderson expires or is repealed.

Fiduciary investors and investments are protected by Price-Anderson in at least two ways: Trustees, such as banks, insurance companies, pension funds, or any board of directors, are handling other people’s money and property. If a trustee invests trust property in an uninsurable risk, the trustee commits a breach of trust, and at common law, the trustee committed an act of bankruptcy and a fraud on creditors. If the trustee does not disclose that act to beneficiaries, it could be fraud on them, and if the trust solicits investments in the trust and does not disclose the risk to investors, it could be a fraud on them. Appropriate legal remedies in this situation include replacement of the nefarious trustees, reimbursement for a loss — from the trustees’ pockets — turnover of profits, punitive damages, and restraints. Price-Anderson and the licensing system constitute a declaration that nukes are not uninsurable risks. This grants to trustees the authority to commit other people’s property to nuclear development.

With one legislative act, the Congress swept away all these obstacles to the nukes. They knew what they were doing.

If an economic analysis of the nuclear industry is desired, I suggest the following: nuclear legislation, by exempting this “entrepreneurial” activity, and by setting an aggregate recovery amount, has a particular effect on nuclear “entrepreneurs.”

Prices for goods and services are more than money quantities, they also function as transmitters of consumer desires and information. Any government interference with the price mechanism will interfere with the accurate transmission of this information. Put concretely, an insurance premium is more than an invoice or a check made out by the business, more than a footnote to the firm’s balance sheet or income statements. The “price” that the firm gets — what is bought by the firm — is safety information. The “cost” imposed on the firm by the insurance policy is product and worksite safety. These prices and costs change the way the business is run. The enactment of Price-Anderson and the licensing system censors this information. It’s another penny-in-the-fuse-box. The nuclear legislation is more than a money subsidy, and the issue involves more than government domination of an industry. What has been done to economic behavior is much more serious.

Investors and suppliers serve consumers generally by transmitting safety information. With the nuclear industry, it is not that the potential liability amount is huge that causes problems with actuaries. It is that the potential liability is uncertain, the likelihood of an accident is unknown. That is a very significant piece of information and a very significant market “cost.” What are the unintended consequences of censoring that information?

Placing an arbitrary aggregate recovery amount on an accident affects the nuke operators and suppliers in this way: Most commercial insurance policies contain a restriction that obligates the insurance company to pay only for claims up to a certain amount. If a claim is made that exceeds that amount, a different lawyer must be retained by the firm to defend against the excess. The threat of excess claims impels the entrepreneur to “self-insure,” either by setting aside reserves, or by ingenious operating practices that assure (“insure”) safety. The nuclear legislation abolishes that contingent liability. What are the unintended consequences of abolishing excess claims?

My training is not in medicine, physics or engineering, but in philosophy and law. I do not rest easily, though, knowing that the nuclear bureaucracy is “guaranteeing” my health, safety and property. The frightening thing is that no entrepreneur can possibly know that the nuke is being operated safely, because of the censorship imposed by the government.

My objection to the nuclear industry is regardless of whether the industry commits random harm. The system of nuclear legislation removes legal responsibility from the industry. Just as I do not favor auctioning or abandoning government weaponry, mental prisons or tax-collecting agencies, I do not favor “privatizing” the existing nuclear industry. The moral equivalents of the war machine are civilian nukes. the existing reactors and their cohorts are aggressors and oppressors of every human being in America. What the industry is doing now must be stopped and the current reactors decommissioned. If people decide to build nukes after the repeal of the nuclear legislation, I would not stop them.

State solutions — judicial, legislative or executive — are not the answer. Aroused citizens are reasserting their rights at Seabrook, Shoreham, General Public Utilities, Wall Street, and wherever the nuclear criminals are. These people are not “trespassing,” but resisting aggression. Barry Commoner, Jane Fonda/Tom Hayden and Jerry Brown can’t be relied upon to give us back our rights, and plenty of people in the anti-nuclear movement know that. The strong-armed, clubbed and maced occupiers at Seabrook especially know that. The occupiers were even charged by out-of-state troopers and beaten and gassed, even after they had retreated off the Seabrook private property! The whole anti-nuke movement watches what happens at Seabrook.

Libertarians are authority-questioners. So is every movement person I have heard or talked with. Libertarians resist aggression and oppression. Likewise with every anti-nuker I know. The anti-technology people are a part of the movement, but are nowhere in the majority or even a substantial portion, except in a few organizations and affinity groups. All these statements are based on my personal experience and participation in the movement.

The “leadership” of the movement is an entirely different matter. First, the media have by and large created these “leaders.” The choice of whom to publicize is made with the idea of selling the media product. There were plenty of boos and heckling of Fonda, Abzug, Commoner, et al. at the September 23rd New York rally. I might also add that that rally was not organized by the grassroots anti-nuclear groups. The only local New York group that had representatives on the rally committee was Friends of the Earth. SHAD Alliance was not represented. Neither was SEA Alliance, from New Jersey, WESPAC from upstate New York, Clamshell, etc.

Who have the libertarian critics spoken with in the movement? Do they get their information and make their evaluations based on what is really go on, or are they based on magazine and other media reports? Sources are very important, because the anti-nuclear movement is a movement from below — a grassroots movement. There are no “leaders,” only individuals and affinity groups. In many organizations, and all the alliances I know about, decisions are not imposed from above by an elite cadre. Decisions are made by consensus, and all participants have their concerns and views considered. This movement is the exact opposite of a typical Leninist organization. That has been the source of the anti-nuke movement’s strength.

Concentrating on scientific, engineering or medical issues obscures the other evils of the nukes, and such concentration also diverts people from radically questioning what is being done to them right now. By exempting themselves from the responsibility for their actions, the nukes are literally claiming to be outside moral law. Any profits or property acquired as a result of such activity are illegitimate. The illegitimacy is not transformed by purchase-and-sale, homesteading, or mere repeal of all nuclear legislation. If tyranny, oppression, and submission are crimes, who are the nuclear criminals?

The libertarian nuke position can be stated easily: Resist Nuclear Aggression; Free People, Not Nukes!

MICHAEL FIESCHKO Campaign to Repeal Price-Anderson North Arlington, New Jersey

I am vastly amused to see that the three long letters by the gang of nineteen and two other libertarian theoreticians in the October issue equate government-and-nuclear-utilities to government-and-post-office. This is ridiculous. A far better equation, in the light of my own experience, is government-and-nuclear-utilities to government-and-army. In the sixties I was in the post office for a short time, where I sorted magazines and packages; I was afterwards in the army, where I shuffled paperwork dealing with the peacetime arrangements of nuclear weapons, and contingencies in which the cold war might turn hot.

The concept of Fail Safe is not a postal worry: the crowded rewrap table for busted packages is always a low priority. I imagine some people may possibly have died because of late delivery of government mail; but we know very definitely that a hell of a lot of people have died because of nuclear power wielded by the American government in an act of war that was strategically unnecessary. Slow mail is not equivalent to ongoing radioactivity leakage; even lost mail is not equivalent to craters. We know that moral unconcern and incompetence often go hand in hand; apparently we need a little more perspective to be able to estimate the relative consequences of a mail jam and a meltdown.

What we have in the government-and-nuclear-utilities complex is undeclared cold war in our own neighborhoods, complete with callous nuclear brinksmanship. The more the planners escalate, the more people can hide under their school desks from radiation, and wait for the inevitable prosperity. We know that one large bank failure will wipe out the Federal Deposit Insurance Corporation—another vaunted safeguard that turns out to be a myth when you need it. Yet who is going to insure the survival of the only congenial biosphere in the immediate vicinity? Perhaps the leaders who brought us a whole generation of fear tempered by war will pray for us. What is unutterably chilling is the not-quite-dismissable possibility that we may already have lost this cold war at home, that we may already have lost the whole future.

ROBERT WILFRED FRANSON San Diego, California

Your October issue of LR is excellent. As a long time advocate and ardent supporter of nuclear power, I have been forced to reevaluate my position and arguments. The crux of my pro-nuclear arguments were based on the thesis of Petr Beckmann, ie., no form of massive power generation is safe but nuclear energy is by far the safest.

The first broad and general libertarian argument against nuclear power states that nuclear power is not the safest form of massive power generation. On the contrary, it argues, there is no safe level of radiation and any increase in radiation exposure bears a direct and linear relationship to the number of cancers observed in those who are exposed. Often those exposed are innocent bystanders who have not consented to the increased risks and are truly unknowing victims of radiation aggression. The second argument claims that the nuclear industry is a feeble offspring of government which has never matured enough to live by its own merit and is nothing more than a massive welfare recipient existing at the expense of the taxpayer for the benefit of corporate state capitalists. Both Milton Mueller and John Gofman have made that point quite lucidly and I now must agree. For libertarians, that argument in itself should sound the death knell for the nuclear power industry as it exists today, but not necessarily for nuclear power per se.

The first argument a-gainst nuclear power raises other legitimate questions with far reaching implications and repercussions for libertarians. First, we should try to determine which claim is true, Beckmann’s (nuclear power is the safest), or Gofman’s (nuclear power presents a health hazard far greater than any conventional form of massive power generation). While I’ve never seen Gofman explicitly make this claim, it’s certainly implicit in his October LR interview. I would like to see an LR interview with Beckmann in order to present his rebuttal to Gofman and I’d suggest LR attempt to publish the results of a panel discussion or debate between these two gentlemen. Are they both open, honest, sincere and big enough to face each other in open debate to help the concerned and open-minded layman determine all the facts and truths of the nuclear issue? While such intercourse might not answer the question conclusively, it would certainly be a giant step in the direction of an answer. (Mr. Gofman and Mr. Beckmann, if you are reading this, you might be interested to know that you’ll probably get a more objective and impartial hearing from libertarians than from any other ax grinding group that you’ve ever encountered).

However, the implications for safety of both nuclear and conventional power generation open the door to another crucial libertarian sociological question: the question of unknown and/or unaccepted aggression. Whether nuclear energy is safe, safest, or unsafe, another factor is indisputable. Namely, conventional fossil power generation is not safe, and in fact can be held responsible for untold deaths and disease to unwitting Americans every year.

For example, four separate studies indicate between 10,000 and 50,000 excess deaths per year in the U.S. due to respiratory diseases caused by air pollution from fossil fired generating plants. This does not include deaths due to induced cancers. These deaths are all to the innocent and unsuspecting public. Add to these the deaths of workers in related industries, and we must include death in coal mining (average 246 per year for accidents and 4,000 per year for black lung disease), oil and gas production, transportation and storage. (Libertarians will be particularly interested to know that the U.S. taxpayer presently pays $1-billion a year to support some 50,000 black lung victims).

This issue is part of the environmental issue, but it pertains to more. It’s a clear and blatant example of state capitalism aggressing against unknowing and unwitting victims in the name of the common good. While the environmental issue has been addressed by Libertarians and the L.P. platform under the plank labeled “Pollution,” the existing rhetoric is grossly inadequate. For example, in today’s America, our economy is dependent upon massive energy generation, which in most cases can be shown to directly aggress against individual rights. Ending the aggression would catastrophically affect our economy and create massive and inhumane dislocations for a huge majority of the American public. Again we are faced with a state created dilemma with no apparent immediate solution.

The nuclear debate has opened Pandora’s box and this reader rejoiced in being finally forced to come face to face with the demons, for it was only after the release of all the ills of the box that hope escaped. The debate and controversy is welcome.

I would merely add that we must all agree to disagree as mature adults. Vendettas and character assassinations are statist and collectivist ploys that only degrade the debate and the debater. Milton Mueller’s labeling of Bill Evers as Murray Rothbard’s clone was an ugly blot on an otherwise excellent article and rebuttal. We’re all libertarians and we’re all fighting a common enemy as best we each know how. Let’s all clean up our act and enter the debate as libertarians, respectful of each other’s efforts in the cause of liberty.

JOHN H. BALL Hurley, New Mexico

Your nuclear power stance seems to be based primarily on the non-aggression principle. Namely, that “no one has the right to take another person’s life, or otherwise to physically harm, rob, coerce or aggress against another.”

If these same standards are applied to other power sources, I defy you to name a power source that would remain.

Natural gas and liquified natural gas (L.N.G.) pose explosion and fire threats that are not limited to those voluntarily using the supplies, and many of the pipelines used for distribution of these products have been taken under force of law. Oil and petroleum distillates not only pose similar threats to those of natural gas, but they pose greater pollution hazards. Coal is generally acknowledged as more dangerous than nuclear power, if one is willing to accept the various studies documenting this fact. In fact some studies show that coal poses a greater radio-logical threat than does nuclear. Hydropower similarly poses problems because no one accepts the responsibility for dam failures, and dam building usually requires the taking of private lands via force of law. Similar rationalizations can spread to all energy systems, including all of those advocated. While energy conservation is not an energy source per se, increased conservation creates similar problems due to radon retention in highly airtight buildings being enhanced. If such a building were open to the public one would be aggressing unless patrons signed voluntary disclaimers upon entrance (it would also require a viable alternative to those who would not sign). But applying this principle wouldn’t stop here. The power grid would have to be abandoned because it aggresses in that it has to be taken under force of law. Such applications may sound excellent to The Libertarian Review. They make absolutely no sense in real world application. I agree with the non-ag-gression principle but find it necessary to temper that principle with reality. The outright banning of anything that aggresses would lead to unnecessary hardships. Government, even the limited variety libertarians want, could in no way prevent coercion or aggression unless it was given powers that would lead to its being banned.

Realistic principles must take reality into account. In this context the non-aggres-sion principle has minimization of aggression as its goal. For such a goal a reasoned debate is required. That is, a debate that presents both sides of the argument and includes documentation (for scientific and technical data for support and rebuttal purposes). The Libertarian Review has not lived up to either prerequisite for a reasoned debate.

CARL GAUSEWITZ Magnolia, Ohio

Abortion and freedom of choice, continued

Leslee J. Newman’s article, “Abortion: The Battle Over Freedom of Choice” is, unfortunately, a collection of one questionable statement after another. For example:

The battle is not over “freedom of choice” but over a particular choice: to kill unborn children. As Ms. Newman herself wrote, pro-lifers “claim that they are protecting the life and rights of the unborn.” She replied, “But what about the rights of the living?“—as if the unborn are not yet living —and never came to grips with the central, underlying question of whether the unborn have rights. She merely took it for granted they don’t.

The Supreme Court never decided this question, either. Instead, it begged the question by deciding Roe v. Wade on an irrelevancy: privacy. However, if the child is a person, then abortion is not a private act but a conspiracy between the woman and her abortionist against a child.

She said the Court would allow abortion in “the last trimester — only if the mother’s life were in danger.” However, in Roe the Court said “life or health” and in Doe v. Bol-ton it defined “health” as including “all (relevant) factors — physical, emotional, psychological, familial, and the woman’s age.”

She predicted if abortion were to become illegal, “our already crowded courts would be required to hold hundreds of thousands of inquests to determine the cause of ‘death’”. This doesn’t happen in other countries where abortions are illegal, nor did it happen here when they used to be illegal, so isn’t she exaggerating a bit?

She said abortion is not a ““major medical procedure.“” However, the hysterotomy abortion is, for it is similar to a Caesarian section. No abortion is a trivial operation, and women continue to suffer ill after effects from them, sometimes even death. This is why some would regulate the abortion clinics. The actual number who suffer is not known, for the problems are not necessarily reported as abortion-related, and some effects don’t become obvious until much later.

She said, “[T]here really are no alternatives to abortion except suicide and motherhood (and, some would add, madness).” However, some women see and choose another: adoption.

She said pro-lifers are “pro-slavery,” but if mothers (and fathers) have an obligation to care for their children, as Libertarians for Life argues they do, then parenting is not slavery but honoring one’s obligation. Also, pro-abortionists are not necessarily anti-slavery. E.g., the ACLU and NOW have endorsed abortion and drafting women as well as men.

She said, “[E]very major twentieth-century dictatorship [has] outlawed abortion.” However, Nazi Germany forced abortions upon non-Aryans; the Soviet Union has permitted it for years; and China has supported abortion and infanticide for centuries. The U.N. supports abortion, for it is a favorite tool of the population planners and people controllers all over the world.

She said pro-lifers would “do away with sex education” because it “makes teenagers sexually active.” However, she failed to show where sex ed, as taught in the public schools, promotes chastity, which it doesn’t. Libertarians should cheer when people challenge the state as a molder of children’s minds and values. Many now shun the public schools and some even advocate separation of education and the state.

She said a human life amendment would legally enshrine a religious belief. However, isn’t opposing wrongful homicide libertarian? If religious beliefs are out of place here, why did she use Father Joseph O’Rourke’s opinions to support her position? And why didn’t she mention the Religious Coalition for Abortion Rights and rebuke them for even existing?

Ms. Newman said pro-lifers are an “unaccepting minority” and act “in defiance of... the wishes of the majority.” Tsk, tsk, just like those awful libertarians. Whatever our numbers, they are increasing. As more and more thoughtfully examine the pro-abortion arguments and find them wanting, they give us their support.

Despite the above criticism, we at LFL wish to express our appreciation for the continued interest LR has shown in the abortion issue and for Ms. Newman’s efforts. We hope LR will continue to explore the topic.

Also, LFL wishes it to be known that our commitment is not to any particular conclusion on abortion but to libertarianism; i.e., the non-aggression principle. If a proper case can be made for abortion on demand, and we can see it, we will be pleased to acknowledge this.

DORIS GORDON Coordinator Libertarians For Life Wheaton, Maryland

Newman replies

I am pleased that Ms. Gordon read and scruti-

COMING

SOON IN LR

Bill Birmingham on Nixon, Kissinger, and Cambodia Doug Bandow on Trucking Deregulation nized my article so carefully as to arrive at such a number of refutations. Many of her comments, however, are incorrect or quoted out of context.

I did not know that the Soviet Union, China, and the U.N. should all be characterized as dictatorships, as Ms. Gordon implies by her comments. The Soviet Union and China are often described as totalitarian states, rather than as dictatorships (though Ms. Gordon’s obvious dislike for nice distinctions, such as that between a fetus and a human being, will probably indispose her to this one), and the U.N., unlibertarian though it is, is surely guilty of less evil in its efforts to teach the Third World about population control than are the various advocates of abortion laws in their efforts to enslave the female population.

She characterizes as specious my claim that inquests might be held in the future, because they have not been held in the past. She doesn’t bother to recognize that my predictions are based on the implications of passage of a human life amendment. Abortion has never been murder in this nation because the fetus has never been granted personhood. The human life amendment would make abortion murder, and suspected abortions the subject of inquests.

The statement about there being no alternatives to abortion was not a quotation from me, but from a study group ordered by Former Secretary of Health, Education and Welfare Joseph Califano. Adoption is certainly a viable alternative to abortion, but it must not be the only alternative. Adoption in the U.S. is controlled and complicated by the workings and bureaucracy of the state. Also, if abortion were made illegal, and adoption were the only alternative, would there suddenly be 1 to 2-million new homes available each year for unwanted babies? (Close to 1 1/2-million abortions are performed each year.) As to the libertarian obligation that parents should take care of their children, libertarian principles dictate that parents take responsibility for their actions. If a couple has children, they should care for their offspring. But in the real world, many responsible married couples conceive accidentally—the ACLU released a report showing as many as one in three couples over a five-year period. Should these people be coerced by the state to have unwanted children? Such coercion is slavery.

Finally, the two grossest errors in Ms. Gordon’s refutation of my article include her contention that I failed to show how sex education promotes chastity, and her claim that abortion is a major medical procedure. Of course, the ideal method of teaching children about sex is by direct communication by the family or parents, not by the schools. However, in practice many parents do not communicate well with their teens, and neglect to talk to their offspring about the birds and the bees. Thus, many teenage girls conceive without knowledge of their actions. And the taking away of any sex education—public or private—would only aggravate an already overwhelming ignorance. A recent article in the Oakland Tribune describing a special education program for high school teenage mothers brought out the fact that a majority of the girls actually did not know they could have a baby from sexual intercourse. So sex education, any sex education, may not stop a teenager from engaging in sex, that’s not the point. Sex education helps to inform teens about the consequences of their actions.

Finally, the claim that abortion is a major medical procedure is a resort to fear tactics by Ms. Gordon. Doctors will tell you that any medical procedure, no matter how minor, bears some risk. But let’s look at the facts about abortion. The most prevalent form of abortion is the vacuum aspiration method which takes an average of 5 minutes to perform and is used during the first trimester of pregnancy when 89.4% of all abortions occur. Ms. Gordon’s hysterotomy abortion example is outdated, obscure, and almost unheard of anymore. Very simply, abortions are safer than live births—3.2 deaths occur per 100,000 abortions while there are 12.3 deaths for every 100,000 live births.

I would like to thank Ms. Gordon’s sharp eye for finding my unintentional error that abortion was only to be permitted by the Supreme Court during the last trimester of pregnancy if the mother’s life were in danger. She is correct that court protection in Doe and Roe was not so extreme. The high court stated that abortion should only be allowed “to preserve the mother’s life or health.” Yet such liberalization has not greatly increased the number of abortions being performed in the last three months of pregnancy. In practice only 0.1 percent of all abortions actually take place during this period.

I simply question how Libertarians for Life and Doris Gordon with their presumed hatred of the state can support the prohibition of abortion which would invest the state with coercive power to force the carrying of unwanted fetuses to term.

LR welcomes letters from readers. Letters intended for publication should be typed, double-spaced, and addressed to: Letters to the Editors, The Libertarian Review, 1620 Montgomery Street, San Francisco, California 94111.