In 1982, Murray Rothbard published a lengthy article titled “Law, Property Rights, and Air Pollution” which laid out a free-market, private-property-based approach to environmental issues. Discussing air pollution Rothbard concluded:
If A is causing pollution of B’s air, and this can be proven beyond a reasonable doubt, then this is aggression and it should be enjoined and damages paid.
In his view, the legal system, not government regulation, is responsible for solving environmental issues because:
In libertarian theory, it is only permissible to proceed coercively against someone if he is a proven aggressor, and that aggression must be proven in court (or in arbitration) beyond a reasonable doubt. Any statute or administrative regulation necessarily makes actions illegal that are not overt initiations of crimes or torts.
In reality, there is no such thing as “environmental issues.” There is only human conflict over the use of scarce resources. For example, if I start dumping toxic chemicals into your lake, and you object to it, this isn’t really an environmental issue. Rather it is a dispute over the ownership of the lake. If I own the lake I can do with it as I please. However, if I damage a lake owned by someone else, I’ve damaged their property and should be held liable. This conclusion has far-reaching implications. Instead of relying on government regulation to somehow save a vaguely defined “environment,” it would be up to the victims of pollution to prove they were harmed in a court of law.
Fast-forward several decades and the new battle cry of environmentalists is “climate change.” Bernie Sanders would have us believe that it is in fact, the greatest threat to national security, and even moderate politicians propose policies that would plunge a large portion of the world into poverty. Whether or not one agrees with the underlying climate science, Rothbard’s analysis is useful in crafting a response to the presumed causes of climate change.
Theoretically, using this prescribed libertarian legal system, where property rights are upheld, the little old lady in Ft. Lauderdale suffering from tidal flooding could take one of the big hitters in carbon emissions to court.
For example’s sake, let’s pick on Chevron — the biggest private emitter of carbon in the world (although governments tend to be the worst offenders). Obviously, because of the cumulative nature of climate change, no single defendant could be held responsible for the full cost of fixing up poor Mrs. Jones’s ruined garden. But, if Chevron caused 3.5% of the effect, they should be liable for 3.5% of the damages. Case closed? Rothbard writes:
To establish guilt and liability, strict causality of aggression leading to harm must meet the rigid test of proof beyond a reasonable doubt.
A strict causal connection must exist between an aggressor and a victim. It must be causality in the commonsense concept of strict proof of the “A hit B” variety, not mere probability or statistical correlation.
Now, we often hear about the supposed 97% consensus among climate scientists, wouldn’t this constitute proof beyond a reasonable doubt? The problem with this consensus is that it only states “there is a global warming trend and that human beings are the main cause.” Even the most fervent climate scientist wouldn’t seriously claim that we could assign — beyond a reasonable doubt — blame for Mrs. Jones’s flooded garden on Chevron’s effect on the global temperature. Most climate research relies on statistical correlation, which would be almost meaningless in a court of law.
This doesn’t mean that victims of climate change could never receive damages. In fact, the stringent proofs required in a legal setting could conceivably spur the science forward to a point where we could prove strict causality, maybe not today, nor tomorrow, but a few years down the line. The point is that government regulation isn’t the only viable solution to fighting a warming planet; a libertarian legal system provides the means to combat climate change, without the onerous government overreach, and without punishing parties who have no role in the alleged causes.
This approach may seem ineffectual to the die-hard environmentalist, but rather than being weak on pollution, we’re actually if anything too tough on pollution — if and when the evidence warrants it. However, polluters, like all suspected criminals, must remain innocent until proven guilty. As Rothbard notes:
If we are unsure, it is far better to let an aggressive act slip through than to impose coercion and therefore to commit aggression ourselves. A fundamental tenet of the Hippocratic oath, “at least, do not harm,” should apply to legal or judicial agencies as well.
It is important to remember that there is nothing irreconcilable about a belief climate change and a belief in free markets. Rothbard himself has provided us with a general framework from which to evaluate complex environmental issues such as this. The requirement for proof beyond a reasonable doubt leaves room for a healthy dose of skepticism without outright denying the science. Libertarianism has nothing to say about the scientific debate over climate change per se, but it does have a great deal to add to any policy debates surrounding a correct government response (or lack thereof) to climate change.
