On Air Ownership and Pollution
The question of how to deal with air pollution is frequently asked of libertarian theorists, as it is an issue which has been dominated by governments for far longer than a human lifetime. Accordingly, it may be difficult to transition toward a free market alternative to government environmental regulations. Several other attempts have been made to address this issue, but let us tackle the problem rigorously from first principles.
The starting point for all of libertarian ethics is self-ownership, that each person has a right to exclusive control of one’s physical body and full responsibility for actions committed with said control. Note that in order to argue against self-ownership, one must exercise exclusive control of one’s physical body for the purpose of communication. This results in a performative contradiction because the content of the argument is at odds with the act of making the argument. By the laws of excluded middle and non-contradiction, self-ownership must be true because it must be either true or false, and any argument that self-ownership is false is false by contradiction.
Because each person has a right to exclusive control of one’s physical body, it is wrong for one person to interfere with another person’s exclusive control of their physical body without their consent. This is how the non-aggression principle is derived from self-ownership. Because each person has full responsibility for the actions that one commits with one’s physical body, one may gain property rights in external objects by laboring upon unowned natural resources, and one owes restitution for any acts of aggression that one commits against other people or their property. But because the non-aggression principle and private property rights are derived from self-ownership, they are dependent upon it. That which is dependent cannot overrule that upon which it is dependent, therefore self-ownership takes primacy if there should be a conflict between the self-ownership of one person and the external private property rights of another person.
Now that a logical framework is established, let us consider the problem of air pollution through this framework. The essential fact about air pollution is that the polluter adds harmful substances to the air against the wishes of those who are exposed to it, either through inhalation, external contact, or ground or water pollution as the contaminants are left behind once polluted air has passed through an area. When such exposure occurs, the pollution is not only an act of aggression against private property, but against liberty and life as well in the event of illness or death caused by the pollutants. This means that a polluter may be guilty not only of damaging property, but of assault or homicide.
But what about the air itself? We can deduce what it means to own the air from what it means to own something in general, which has already been discussed. Given the above theoretical framework, a person may own land, but the air above the land is not labored upon and is not static upon the property. (One could gain ownership of some air by performing some labor upon it, such as enclosing in a container or pressurizing it therein, but this is mostly a separate issue from that of air pollution.) But a person must have some reasonable clearance above the land to be able to move freely upon it and generally enjoy the private property right in it. This clearance might also allow one to hunt game birds and to be free from spy drones flown by other people, but could not extend high enough to impede commercial air or space travel overhead. The extent of this clearance is impossible to determine a priori and must be dealt with on a case-by-case basis through negotiations and contracts.
At this point, one may be led to think that far from the leftist caricature that libertarianism is unconcerned with environmental pollution, this framework is actually too sensitive to pollution, as any amount of air pollution could be considered an act of aggression. If true, this would require a radical reorganization of society so as to eliminate all emissions. But this is where the Reecean proviso rescues libertarianism from a practically untenable position. Because self-ownership overrules external property rights, pollution that is required for survival is permissible. As Friedman points out[1],
“Carbon dioxide is a pollutant. It is also an end product of human metabolism. If I have no right to impose a single molecule of pollution on anyone else’s property, then I must get the permission of all my neighbors to breathe. Unless I promise not to exhale.”
Another example is the burning of wood in one’s fireplace or campsite to prevent hypothermia, cook food, sanitize drinking water, etc., as disallowing such activities (or their more modern equivalent of burning fossil fuels to generate electricity and heat) would result in a massive depopulation, which in turn would destroy the institutions of private property. But the Reecean proviso cannot defend non-essential pollution, such as that produced by modern transportation or tobacco smoke, as there is no self-ownership to weigh against private property rights. Fortunately, we need not alter civilization quite so radically, as there are other theoretical considerations which are somewhat more permissive.
The distinction between non-harm, non-violence, and non-aggression means that the maxim of ‘no victim means no crime’ is an oversimplification; the more accurate statement is that no victim means no restitution can be owed and no punishment beyond what is necessary to stop acts of aggression should be meted out. This distinction allows us to differentiate[2] between noticeable trespasses and unnoticeable nuisances, the latter of which are only actionable if some damage may be demonstrated. This is because a substance which cannot be noticed and does not demonstrably cause harm is functionally equivalent to being absent, and a lack of cause for restitution leaves a court with no sentence to impose.
The dispute resolution standards in use by the polluter and the pollutee also play an important role, as a different result will occur if both use a reasonable doubt standard versus a preponderance of evidence standard. Still another possibility is that the polluter will use a private court company with one standard of proof while the pollutee will use a different private court company with a different standard of proof. Such instances would need to be negotiated and contracted on a case-by-case basis, but any competent court company would be staffed by people who are aware of such problems and capable of performing such negotiations. Coase explained[3] that such negotiations will result in some level of pollution and some restitution that is satisfactory to both. Perhaps this is not ideal for nature, but it does minimize pollution levels beyond what alternatives to voluntary negotiations have produced thus far.
Another matter is that not all property claims are established at the same time. This means that it is possible for a right to pollute to be homesteaded, in that if all of the pollution generated by a property owner falls upon unowned wilderness and stays there, then anyone who establishes property in that wilderness tacitly consents to the current conditions of present and continuing pollution. Of course, another instance which would need to be negotiated and contracted on a case-by-case basis is that of a polluter ceasing operations for a time, as the newer property owners may come to expect this new, cleaner state of affairs and take action if the polluter resumes operations.
These deviations from a strict ban on air pollution still leave in place a far greater protection of the environment than do statist environmental regulations. Whereas a private owner both exercises exclusive control over a resource and may sell either the resource or stock in it, government officials cannot generally do the latter. This means that government officials lack an important economic incentive to take care of the air. A private owner of an airspace whose air becomes polluted would sue the polluter for damages and seek injunctive relief, but the Environmental Protection Agency or its state-level subsidiaries tend to block such lawsuits when filed by concerned citizens. This lack of incentive also leads governments to pollute the air, to the extent that the U.S. military is the worst polluter in the world.
It is clear that governments cannot be trusted to defend its citizens from such aggressions, but it has done worse; it has prevented free market solutions from being implemented. During the 19th century, people whose property was damaged by factory smoke took the factory owners to court, seeking relief from the pollution in the form of injunctions and damages. The government judges, realizing on which side their bread was buttered, sided with the factory owners, claiming that the “public good” of industrial progress outweighed private property rights. Legislators, also knowing who was more capable of funding their campaigns and bribing them, joined in for the polluters and against the pollutees by eliminating the option of class action lawsuits against polluters who cause damage over a large area. Rothbard recognized[4] that technology has therefore developed to produce air pollution because governments have interfered with private property rights in this area, and a society where this was far more restricted all along would have developed in a more environmentally friendly manner.
The criticism of libertarian theories of air pollution that is least addressed is that they do not effectively deal with situations in which responsibility is greatly dispersed, such as the pollution from driving automobiles leading to smog in large urban areas or places with geography that traps harmful particles. Pollution is no more acceptable if a million people produce it than if one person produces it, but the responsibility of each person becomes so small as to be unmeasurable for purposes of restitution. There is also the matter that crime consists of both an actus reus and a mens rea, and the everyday driver does not operate an automobile with the intent to harm the environment. As with individual cases, we may expect that a Coasean negotiation will occur to minimize both pollution and damages, but the major reason that theorists tend not to address this concern is that no theory can solve a problem of mass action; only a mass counter-action, such as driving less or using more environmentally friendly fuels, can solve such problems.
In closing, a libertarian approach to air pollution does not produce perfect results, but neither does anything else, and turning this problem over to the state has only produced and will only produce ecological disaster.
References:
- Friedman, David (1989). The Machinery of Freedom. p.168
- Rothbard, Murray (1982). Law, Property Rights, and Air Pollution. Cato Journal, p. 55-99
- Coase, Ronald (1960). The Problem of Social Cost. Journal of Law and Economics, p. 1-44
- Rothbard, Murray (1973). For a New Liberty: The Libertarian Manifesto. p. 317-327
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