For the most part, I believe the best way to safeguard the environment is by enforcing private property. People always take care of their own property better than they do others and there’s always the tragedy of the commons to consider. However, there are couple things, namely the air and oceans, that are difficult if not impossible to privatize. The only way I can see to deal with these issues is government regulation. Is there an Austrian response to such cases?
Yes, let people homestead the air and the ocean they use.
Rios, can your proposed regulators be financed through voluntary subscriptions from those people with an interest in seeing the resources in question being maintained in an orderly fashion?
You can privatize the oceans that has been done before. Either through having ownership in fish stock or property rights to ocean lots for fishing. The fish stock means you have a property right to fish a certain number of a fish species and you can buy and sell this stock. The Ocean lots means you have exclusive use of a certain area to fish in or dive in etc, etc. The Ocean lots can be bought and sold therefore follow market demands for fishing or other uses. Both these types of homesteading limit the number of fishermen and prevents overfishing and especially in the case of ocean lots limits water pollution. It worthy of noting though that few governments in the modern world enforce these property rights since they benefit from the crisis it creates
Well I’m not really proposing anything, just trying to see if there is an Austrian solution. For the oceans, I could see private property/homesteading being a viable possibility. The air is a bit more difficult though, given how the wind shifts. There may be some way to use perhaps a form of mediation between private property owners and factory owners to decide how much pollution the towns residents can tolerate and how much if any the factory should have to compensate them for it. That would be as close to voluntary as I could see it getting. However even then, there’d probably need to be some oversight and accountability, so a little coercion would be present even in that scenario. Something to think about at least.
Are you aware that old fashioned common law has developed rights of trespass and nuisance in regards to air pollution? The smaller the trespass goes such as on the invisible micro level the higher the standard is to show proof of harm. This has avoided silly law suits but also has kept Corporations in line with what they emit from their production or work sites. People have property rights to the air and environment around them.
Does the evidence claimed for anthropogenic GHGs causing most of global warming meet the common law standard for proof of harm?
Hypothetically it could if there was actual proof of harm and property damage. It could only work on a Class action level with many plaintiffs. I dont think the proof is strong enough if it was just one plaintiff dealing with their property, not unless they owned a huge amount of land and resources which would be unlikely. If you worried about a heavy handed ruling don’t, because though it sometimes happens courts have shown great leeway but firmness in air pollution cases. In once case called Georgia v. Tennessee Copper Company, a smelter was set up that harmed the plaintiffs property in Georgia so the United State Supreme Court had Jurisdiction. I will cut and paste the process of that ruling:
"An early case illustrating common-law protection against air pollution was Georgia v. Tennessee Copper Co.The state of Georgia, on behalf of its citizens, sued two companies that operated copper smelters in Tennessee near the Georgia border. Justice Holmes noted that a public nuisance had been created because the "sulphurous fumes cause and threaten damage on so considerable a scale to the forests and vegetable life, if not to health, within [several counties in Georgia]. Defendants argued that they had recently constructed new facilities that reduced the scope of the problem, but the Supreme Court held for Georgia. The Court gave the companies a reasonable time to build more emission-control equipment, but held that if such equipment did not reduce emissions enough to protect plant life in Georgia, the state could ask the court for an injunction to shut down the smelters.
In 1915 the parties returned to the Supreme Court. The companies showed that their new, expensive equipment cut emissions by more than half. Georgia argued that this was not enough and demanded that the smelters be closed. The chief justice appointed a scientist from Vanderbilt University to spend six months, at company expense, studying the emissions and the likely effect of new controls. In the meantime, the Court ordered the companies to cut back production to reduce emissions further. Based on the evidence presented by the scientist, the companies would either be allowed to continue operation with more emission-control equipment in place, or, if that could not reduce emissions sufficiently, would have to shut down. Finally, after following the guidance of the Vanderbilt professor, the firm satisfied the plaintiffs, and the Court ended its oversight of the case."
This is FAR from the only case of this kind. As the science and understanding of the environment increased more and more cases were brought to common law courts. But this was subverted by the legislative edicts using one size fits all solutions and by top heavy government agencies. The Common law is ruled by precedent but can change it’s course if new information is brought to light or evolving standards merit that change, so long as statutory laws don’t infringe on the freedom of the court’s discretion. That is why the common law with it’s case specific and non political evaluation of the facts at hand is far superior in dealing with environmental problems than the Enironmental Protection Agency or elected officials.
Check out the Property and Environment Research Center for more information. I work in a law firm so I know how the common law functions but they are where I got the quote I pasted above.
One thing about common law and global warming I left out is that is would be poorly equiped to deal with CO2 emissions from cars since individual cars emit amounts to small to be held liable individually. This could be solved though if the roads were private. The provider of the road would be held liable for the actions they allow and permit on their property. This would then have them demand a certain type of car for consumers of the road. Potentially the common law could demand that individual car owners (instead of the road owner) buy equipment in their car to reduce Co2 if they have a car and use it but how that Class Action lawsuit would develop I do not know and I have little idea as to how it would be enforced.
Sorry I am hogging this thread but here is another excerpt on a case dealing with a more modern environmental case:
" The Bradleys sued ASARCO in federal court in Washington for damages in trespass and nuisance caused by the deposit of airborne particles of heavy metals from ASARCO’s smelter. The smelter had operated since 1905. It was regulated by state and federal air pollution laws and was in compliance with all regulations. The gases that passed over and landed on the Bradleys’ land could not be seen or smelled by humans; they required microscopic detection.
The federal court, which would use Washington common law to determine the case, was uncertain as to what that law was, since there were few precedent cases. The court asked the Washington supreme court to instruct it on the status of the Washington common law of nuisance and trespass as it applied to air pollution.
The Washington supreme court held that ASARCO had the requisite intent to commit intentional trespass. Even though no harm was intended, and ASARCO was not aware of the Bradleys, the company knew particles were being emitted from its facilities. Secondly, the court held that “an intentional deposit of microscopic particulates, undetectable by the human senses, gives rise to a cause of action for trespass as well as a claim of nuisance.” Hence, the ASARCO emissions created a nuisance and a trespass. But the court noted that for a cause of action for nuisance or trespass to be successful, there must be “proof of actual and substantial damages.”
Upon return to federal court, that court applied the law as explained by the Washington supreme court. While the elements of a cause of action for trespass and nuisance existed, the case was dismissed because there was no evidence of damage or harm to plaintiffs or their property from the air pollution.This case, once again, illustrates the common law at work. Under common law, even difficult-to-detect emissions can be causes of harm but at the same time plaintiffs must prove damages. "
I think this case applies more to the concept of global warming since it is dealing with microscopic particles.
Good stuff, Deist! Common or customary law courts can more adequately and more fairly deal with these problems than legislatures and Congress can.
Haha thanks, macsnafu. I wish I could take credit for it but Murray Rothbard and especially Terry Anderson beat me to it.
My reading of common law comes from Charles Rembar and Bruce Benson. Rembar’s not libertarian, but did a pretty good job on the history of English and American law.
Bruce Benson is great I love his work on private roads. I don’t think I am familiar with his common law works though. I have also heard of Charles Rembar but once again I am sad to say I have not read anything by him in full, only excerpts dealing with obscenity. I did think what I have seen is good though.