Law, Property Rights, and Air Pollution by Murray Rothbard
History on Coal in the US: How it was handled, and how it got distorted. A short summary:
A PRO-ENERGY PRESIDENT
As President, Ron Paul will lead the fight to:
Remove restrictions on drilling, so companies can tap into the vast amount of oil we have here at home.
Repeal the federal tax on gasoline. Eliminating the federal gas tax would result in an 18 cents savings per gallon for American consumers.
Lift government roadblocks to the use of coal and nuclear power.
Eliminate the ineffective EPA. Polluters should answer directly to property owners in court for the damages they create – not to Washington.
Make tax credits available for the purchase and production of alternative fuel technologies.
It’s time for a President that recognizes the free market’s power and innovative spirit by unleashing its full potential to produce affordable, environmentally sound, and reliable energy.
This all sounds pretty good to me. My only "complaint" is that Congressman Paul does not call for the imprisonment of those responsible for creating the unconstitutional and thus illegal EPA in the first place (they don’t call me Walter "Moderate" Block for nothing), but I’ll let that lacunae slip. You can’t have everything. Dr. Paul is, after all, a politician, and what can you expect from such people? That’s why I give him only a 97% libertarian rating.
In contrast to me, Farber is aghast, aghast I tell you. He is appalled that there should be any such thing as free market environmentalism (for the best publication on this subject ever written, the one that informs my own views on these matters, see here). Ecological concern, don’t you know, is a monopoly of progressives, socialists and liberals. Now, here are Farber’s comments, in italics, and my reaction is interspersed with his comments:
OK, what’s wrong with this proposal? Here are a few things:
1. Why just property owners? Why not other people with health effects? Is there some reason why a tenant with asthma can’t sue, but a company with paint damage can go to court? Because property values matter, but not human health?
There is a clear answer why Ron Paul specifies "property owners" not "tenants." This is because the property owner has the ultimate responsibility for the property in question. "The buck stops" with the property owner. And, you may well ask, who is the "property owner" in the case of tenancy? Why, of course, it is the tenant. It is the tenant who is the temporary "property owner" for as long as the lease contract is in effect. But, there is a complication. If a third party, the polluter, is bombarding the home in question with smoke particles, this not only affects the temporary property owner, the tenant (e.g., his lungs), it also negatively impacts the permanent property owner, the landlord (his property is being physically invaded and damaged, and as a result he will not be able to charge his tenants as much money compared to the situation where his property rights were sacrosanct). Both of them may, in the free society, obtain an injunction against the polluter, warding off future offenses, as well as seek damages for past wrongs. Does Farber really think it is fair to criticize a mere plank on a web for not engaging in this level of specificity? Evidently, all’s fair in love, war and politics, at least for this law professor.
Nor is his criticism of Ron Paul a fair one based on the claim that "property values matter, but not human health." Indeed, as we have seen, the two go together! Farber seems unacquainted with Adam Smith’s invisible hand; we are led through the market process to promote the general good. In this case the way to earn profits is by pleasing customers, not alienating them. Why else would the landlord want to sue the polluter apart from protecting his tenant from this nuisance, if not that the higher rents he can collect would reflect a more desirable pollution free environment? Why, to maximize profits, of course. (This is why the landlord has an incentive – in the absence of government interferences like rent control, to paint, to fix the plumbing, make other repairs, etc.). But these considerations lead precisely in the direction of "human health." This Berkeley law professor does not at all appreciate the benefits of the marketplace in protecting "human health." He seems to think that if the government doesn’t do it, then it doesn’t really count.
2. Who would be the defendants? If you live in a big city, how do you sue all of the polluters for damage? Do you sue everyone who has a car or truck for contributing to air pollution? How do you pay for the expert witnesses and legal fees?
The defendants would be the polluters, of course. Who else? No, you don’t sue all the polluters; only the ones who have actually trespassed their garbage onto your property (whether you own the property temporarily or permanently, see above, it matters not one whit). How would you determine who is who? Why, under free enterprise there would arise an industry composed of firms that engage in environmental forensics. We are all now fully well acquainted with ordinary forensics (the study of blood, semen, hair follicles to determine who has committed a crime) based on popular television shows. Environmental forensics would be carried on in much the same way. The victim would hire a company familiar with the chemistry of pollution. This firm would take samples from your property. Then, woe betide the company guilty of such trespasses.
No, no, you don’t have to "sue everyone who has a car or truck for contributing to air pollution." That is silly; it would be way too cumbersome. In the free society, all roads, streets, highways, avenues, thoroughfares, etc., would be privately owned. There would be many fewer street owners than motorists. You would just sue them (if your environmental forensics agent found evidence on your property of the end products of vehicle fuel); it would be a lot more efficient and reasonable that trying to take every single motorist in the big city to court.
But, to directly respond to Farber’s challenge, one way of financing such law suits would be on a contingency basis. Under proper libertarian law, the forensic firm would offer chemists, lawyers, etc. If they were convinced there was an actual case of pollution, they would likely go to court in support of their clients and initially bear these costs. We must not lose sight of the fact that many victims of pollution are very large corporations, some with thousands of tenants. Surely, they could self-finance any necessary lawsuits.
3. Why only damages? If he truly believed in property rights, he’d allow injunctions to stop the harm from continuing.
In the FME philosophy, there would of course be injunctions in cases of clear and present dangers. No person in a crowded city should be allowed to keep dynamite on his premises. If anyone did, an injunction against him would surely be justified. Just because this point is not mentioned in a very brief web site is surely not a valid criticism of the Paul campaign. These statements, by their very nature, must be brief. They cannot possibly cover all bases. I note that the web does not mention species extinction, either. Does this mean that Congressman Paul wants all species to disappear? Or is unconcerned with endangerment of elephants, rhinos? Of course not. Farber is a cheap-shot artist. In the libertarian literature on the environment recommended below the justification for injunctions is certainly included. The ethos of libertarianism opposes initiatory force, or the threat thereof. And, what is to be done, what is the only thing that can be done, about the latter? Why, injunctions, of course.
4. How would courts handle the immense body of litigation? The pollution suits would be the world’s biggest class actions, with millions of plaintiffs, swarms of defendants, huge fees for expert witnesses, etc. Is that really what conservatives want?
These questions and challenges assume that there would be any pollution under a regime of free enterprise with strict protection for private property rights. There would not be. If the law of the land was strictly enforced against the trespass of smoke particles, this practice would be virtually eliminated. Right now, the law of trespass against home invasions is strictly enforced. It is must be a rare thing indeed that someone goes on vacation, and comes home to find strangers living in his house. Why? Because such would-be trespassers know full well that if they tried any such shenanigan, they would be summarily removed from the premises, and face criminal charges. As a result, there are no "millions of plaintiffs, swarms of defendants, huge fees for expert witnesses" in these cases. But the same applies to trespassing dust, smoke and other pollutants.
We’ve already tried this approach, and it didn’t work. This is more or less where the law stood fifty years ago. We didn’t pass modern environmental laws because we loved regulation; we passed them because the old system led to massive air and water pollution. This isn’t a policy proposal. It’s a libertarian fantasy. And a callous one at that.
If this was truly the system we had "fifty years ago" then Farber should well know the answers to the questions he poses under his second point, above. Did we not have "big cities" in 1962, five decades ago? How did it work, then, Farber? Were there "millions of plaintiffs, swarms of defendants, huge fees for expert witnesses" in those days? Of course not.
This Berkeley law professor is off by a little bit more than one century in his charges; I guess they don’t teach history, or even acknowledge it, at this world famous university. ‘Twas not in 1962 that we had a legal system similar to the one Ron Paul is proposing and Farber apoplectically opposing. Rather, this took place, at least in proximate form, during the middle of the nineteenth century (see on this a very important work by historian Morton Horwitz). In that bygone era, people were allowed to sue for pollution. When the case of pollution victims, e.g., environmental plaintiffs, was demonstrated in court, they received damages after the fact, and/or injunctions beforehand. They didn’t always win, of course. The burden of proof always properly rests with the plaintiffs, not the defendants.
This property rights system had several very salutary effects. For one, manufacturers were led, by Adam Smith’s invisible hand, into substituting more expensive but cleaner burning anthracite coal for cheaper but dirtier burning sulfur coal. For another, the infant industry of environmental forensics was born. Someone, after all, had to testify, and demonstrate that this here particular dirt particle emanated from that there smokestack. Railroads were incentivized for similar reasons to capture the sparks from their engines, instead of allowing them to spread hundreds of feet from the tracks onto their neighbors’ property. The manufacturers of chimneys had reason to place meshes in them, to capture the end products of the burning process before they could land on other people’s lungs and physical property. Was this legal system perfect? No, of course not, no creation of man ever is. But it worked tolerably well, until the "Progressive" period at the end of the 19th century and beginning of the 20th.
Then, when the environmental plaintiff went to court, a new legal philosophy took place. We were not "number one," then, the leading hegemon, the most powerful imperialist nation in the world. No, that title belonged to England, at the time. But our political leaders had ambitions in that direction, and their views began to permeate the courts. So the next time a little old lady complained about a factory dirtying her washing on the clothes line, or a small farmer complained about sparks from a railroad burning his haystacks, the response was much more likely to be: "Yes, yes, they violated your private property rights, your stinking lousy selfish private property rights; but there is something more important, far more important, than them: the public good. And, in what does the public good consist? Why, in manufacturing, railroads, heavy industry. We’re not going to become the leading military power by taking the side of little old ladies and small agriculturalists." Here is an actual Supreme Court of Georgia opinion of this sort: "The pollution of the air, so far as reasonably necessary to the enjoyment of life and indispensable to the progress of society, is not actionable" (Holman v. Athens Empire Laundry Co., 1919, cited here). Not actionable? That means that environmental polluters cannot be sued. No one can be granted an injunction against them. They are liable for no damages when they rampage over other people’s property, with their pollutants.
http://lewrockwell.com/block/block189.html
(Although lewrockwell.com has several crazies in it, it does have its better moments).
A book on it here.
