In Part 1, we examined the tragedy of the “commons.” In that post, the argument for government regulation was presented. In this post, we will examine how property rights can be applied to air and water. The following is an excerpt from my book, The Innovator Versus the Collective
Just as you cannot damage the automobile, home, or other property of someone else with impunity, damaging another’s waterway would carry legal penalties. In short, if waterways were privately owned, you could not morally pollute in a way that damages the property of others:
If an individual (or a corporation) dumps toxins into a river, thereby killing fish stocks or vegetation, or making the water unsafe for human or livestock consumption or for human recreation, he violates the rights of property owners in or along the waterway. Even in unowned waters, one may pollute only if and to the extent that one can do so without (demonstrably) damaging another’s property. But, given water’s free-flowing nature, the ability of individuals and corporations to pollute a waterway without violating another’s property rights is quite limited. Those who do harm another’s property—whether on land or in waterways—risk prosecution and punishment by a government dedicated to protecting its citizens’ rights.[1]
The recognition and protection of property rights allows individuals to act according to their own judgment and use their property as they judge best. If they take actions that damage the property owned by others, a proper government would hold them responsible. Recognizing and protecting property rights provides us with the principles required to have clean air and water.
I hasten to add that there are many technical and legal issues involved, and I am not claiming to present detailed solutions. I am merely indicating how property rights can be applied. The specific details would require the input of competent and rational experts in both the philosophy of law and the relevant technical fields.
In the case of air, nuisance laws provide one way to apply property rights. With roots in common law, a nuisance “is an interference with a person’s enjoyment and use of his land. The law recognizes that landowners, or those in rightful possession of land, have the right to the unimpaired condition of the property and to reasonable comfort and convenience in its occupation.”[2] You have a moral right to use your land without being subjected to loud noises, nauseating fumes, or similar conditions that interfere with your “comfort and convenience.” However, creating loud noises or obnoxious odors does not necessarily violate the rights of anyone, and therefore, nuisance is highly contextual. A property use that constitutes a nuisance in one context may not be a nuisance in another context. Nuisance laws recognize a property owner’s right to use his property as he chooses, so long as his use does not interfere with the mutual rights of others.
As an example, if you use your grill on your back patio, you will generate smoke. But the amount of smoke that you create is unlikely to impact your neighbors. However, if you build a bonfire in your back yard and send plumes of smoke over your fence, your actions could pose a threat to the welfare of your neighbors. But, if you build a bonfire in the middle of your thousand-acre ranch, nobody is likely to be impacted by the smoke. In each instance, you have generated smoke, but your action is a nuisance only when that smoke prevents others from using and enjoying their property. You have a right to use the air that is on your property, just as your neighbors have a right to use the air that is on their property. If you wish to fill your air with smoke, you have a moral right to do so. However, if you fill your neighbor’s air with smoke so that he cannot use and enjoy his property, you have violated his right to use his property.
In the case of air, property rights are applied to the use of a parcel of land. Because air is an integral part of that use, airborne impediments to the “comfort and convenience” of the owner, such as smoke or loud noises, constitute a violation of property rights.
Again, there are complexities that are beyond my knowledge or expertise. For example, the emissions from a factory might cause damage miles away. Or, the emissions from a single plant may not cause harm, but the cumulative emissions of many factories might do damage. But such claims must be proven with objective, scientific evidence, not the type of hysterical predictions and data manipulation that characterizes so many claims by environmentalists.
[1]. J. Brian Phillips and Alan Germani, “The Practicality of Private Waterways,” The Objective Standard 5, no. 1, (Spring 2010), pp. 57-58.
[2]. “Private Nuisance”, TheFreeDictionary.com, accessed February 1, 2011 legal-dictionary.thefreedictionary.com/nuisance.