In Part 1, we examined the “tragedy of the commons.” In Part 2, we examined how property rights can be applied to water. In Part 3, we will examine how property rights can be applied to air. The following is an excerpt from The Innovator Versus the Collective
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.”[1] 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]. “Private Nuisance”, TheFreeDictionary.com, accessed February 1, 2011 legal-dictionary.thefreedictionary.com/nuisance.