As it could be determined that an individual’s pollution could do harm to some other individual’s property within a certain proximity, at what point would a private or state court rule that a plaintiff assumed the risk by living or maintain assets within the proximity of a polluter?
Clearly some pollutions constitutes aggression, but not all can be so assumed. If all pollution were aggression, exhaling would have to be illegal. There are the principles of demostrable harm and observable damage to refer to, but that must be a question for the courts to answer. Law must derive from a rational ethic, and it is best refined through judicial review.
If the person moved there before the pollution came about they would have a better complaint. However if they moved next to some Toxic dump and it was pretty obvious that this was a toxic dump they would have little standing in court. The courts also weigh the extent of trespass and damage pollution causes. The more microscopic we go the more demand there is to prove harm on top of trespass because if you spilt some microscopic bits of paint unto your neighbors yard it would be trespass but you could not be sued for it due to obvious reasons but also since it did not cause damage.
There’s an idea in the law called coming to the harm, which means that if someone is doing something dangerous, and you actively put yourself in a position where you are at risk (that is, the only reason you are at risk is because you put yourself in a position to be at risk), then you are responsible for any damage that results. Libertarian thinkers like Rothbard have accordingly argued that if someone started polluting long before you moved into an area, then you have no right to demand that they stop. However, one might coherently dispute that owning a particular tract of land doesn’t include a right to pollute the entire area around that piece of land. It really depends on your views about the nature of property rights and appropriation.
How is that appropriation determined?
Depends who you ask. It’s one of the most contentious areas of libertarian philosophy, if not the most contentious, and also perhaps the most important. Once property rights are established, our moral theories kick in, but the establishment of those property rights needs to be unproblematic for that to be a worry-free solution. While some are content to say “What’s done is done,” there are more than a few viewpoints which would find this stance unacceptable.
Peter Vallentyne does a decent enough job summarizing in his entry in the Encyclopedia of Philosophy, though he doesn’t cover all of the different ideas and doesn’t reach anything resembling a conclusion.
I agree that they should not have a right to harm the entire land and area. I was just using that as an example and how cases have standing in court. For instance the abutter to your property no matter who they are has what is called a duty of care in common law. This duty of care exists in other relationships as well. It is a well established part of the common law.
For instance if the property you buy next to this toxic dump has not been contaminated they cannot therefore go and pollute it. However if you know it is contaminated when you buy it then you have little standing in court but still they cannot continue to pollute on it after it has become your property. Of course lets say no one buys this property and the pollution eventually expands into someone elses lot. Then that toxic dump company can be sued.
These complex issues have been addressed in prior court cases where they balance the level of damage with preexisting conditions. For instance in a few cases courts have demanded that smoke stacks employ technology for lowering the level of hamrful emissions or face being shut down and this case was way back in the early 1900’s. Either way courts are much better organized to address these issues than is the legislature.
In cases where property rights are not clearly defined, the next best thing is to leave the decision to a free market in judicial services: basically I’m talking about the Anglo-Saxon tradition of Common Law made by court decisions. These decisions reflect the customs, the generally accepted common sense of a given place.
I don’t think they ever should. Because if they did, then polluters would adopt the tactic of Persist to pollute; rationalizing that if they could just get people to move away, then anyone who moves back in wouldn’t have a case in court, and eventually they may even be able to extend their “proximity,” spreading their pollution out even farther.
Courts should always defend a property owner against the polluters’ trespass; even if the porperty owner came after the polluter. If that were the standard protocol, eventually industries would find it in their interest to develop and adopt non-polluting technologies.
If the U.S. courts had taken to the strict defense of property rights a long time ago, then its very highly likely that we wouldn’t have a fraction of the pollution problems in this country today. Business always responds to what their incentives are. When courts started ruling that it was “in the interest of the public welfare” to allow industries to violate surrounding property with their pollution, the incentives for industry was logically to not bother spending the capital and resources necessary to develop cleaner technology. When, or if, property rights start being respected again, and industries are held accountable financially for violating surrounding property, then industries will have a financial incentive to develop cleaner technology, and before long, pollution would cease to be a problem of anywhere near the magnitude it is today.