Environmental regulations are intended to minimize human impact on nature. But we must transform nature into the values that sustain and enhance our lives. Minimizing our impact on nature means minimizing our pursuit of values, our quality of life, and individual flourishing. It means reducing our ability to live.
Nature has value, but only in regard to promoting human values. Scenic vistas, hiking trails, and wild rivers can be valuable as a source of contemplation, relaxation, and recreation. But in and of themselves, they have no value. The value of nature comes from their contribution to human well-being.
Certainly, polluted air and water do not contribute to human welfare. But we do not have to choose between pollution and freedom, or clean air and water and government control over our use of property. We can respect and protect property rights while also having clean air and clean water.
Air and water are considered a part of the “commons”—unowned resources available for all to use and regulated by government. Pollution is a classic example of “the tragedy of the commons.” As Garrett Hardin noted, a factory owner has no motivation to clean up polluted water before dumping it into a river when the waterway is a part of the “commons.” However, if we attached property rights to air and water, then addressing pollution becomes an issue of enforcing property rights.
Garrett Hardin rejected property rights in air and water because they can’t be fenced. While it is true that air and water cannot be fenced in a literal sense, it can be done figuratively—we can apply the principles of property rights to air and water. The ability to build a fence around something is not an essential characteristic of property rights. For example, we can’t build a fence around an automobile, but we recognize automobiles as private property.
Property rights in water can occur in many different ways. For example, a fisherman may improve the habitat in an area of a lake or the ocean in a way that increases the number of fish in that area. He would have a rightful claim of ownership to the area of his improvement. Similarly with other improvements or uses—offshore oil wells, wharves and piers, beaches, or dredging a river to allow larger boats to use it. Each has transformed the waterway into a greater human value.
In these instances, property rights are not extended to the water itself, but to the waterway. Others remain free to use the waterway, so long as they do not interfere with the use established by the owner of the improvement. For example, if a company dredges a river to permit larger boats to use it, others may still use the river. But they cannot impede the first company’s use of that river by building a dam that blocks the river. In other instances, property rights could be extended to the water itself.
For example, a farmer might divert water from a river to use for irrigation. Or a water company might drill a well into an aquifer to supply water to the residents in a community. In these cases, they would have a claim to a specific amount of water, and later users could not interfere with their use. That is, others would be free to also divert water for irrigation or drill a well. However, they could not divert so much water that the first farmer or water company could not obtain the amount of water that he had claimed a right to. To do so would be to interfere with his property—his irrigation system or well.
But what about pollution? Hardin claimed that a free market encourages pollution true. Is this true?
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.
The recognition and protection of property rights allows individuals to use their property to promote their flourishing. If they take actions that damage the property owned by others, a proper government would hold them responsible. We readily accept this principle in regard to other forms of property, such as automobiles and buildings. Recognizing and protecting property rights provides us with the principles required to have clean air and water without pre-emptive and intrusive government controls and regulations.
In the case of air, nuisance laws provide one way to apply property rights. Founded 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.” 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 others, 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 rights of others to use their property.
As an example, if you use a grill on your patio in a subdivision, 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, nauseating fumes, or loud noises, constitute a violation of the owner’s property rights.
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.
For example, the emissions from a factory might cause damage many 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.
What is important to recognize is that we can respect and protect property rights without encouraging pollution. We can protect the freedom of each individual to use his property in the manner he thinks best. We can respect property rights and have clean air and water.