Re: Libertarian Environmental Policy Notes
Daniel C. Burton (dburton@ocf.berkeley.edu)
27 Jan 1998 02:59:24 GMT
Thomas E. Crebbs <crebbs@soda.CSUA.Berkeley.EDU> wrote:
: Daniel C. Burton wrote...
: >>
: However, "the environment" is
: really nothing other than the sum of all the property owned by
: everyone in the world, and the traditional legal system has always
: provided a remedy for harm to property.
: <<
: Both of these statements are incorrect.
: First, "the environment" is not "the sum of all property owned..."
: Nobody, so far as i'm aware, owns the air, the oceans and rivers (most
: large ones anyway) the clouds, the ants, nor most other non-stationary
: pieces of the environment. There is a reason for this:
: Property rights are a convention, a man made artifice, very
: useful, but artificial and not universally applicable.
I myself said later that property was not merely a form of physical
possesion but a series of rights that allow you to control resources.
However, just because a private party does not have those rights, that
does not mean they are non-existent. When government claims control of
those resources, it owns them; they are government property whether the
government would like to explicitly admit it or not. In fact, as long as
there is a government, no finite resource cannot be some form of property,
public or private, because ultimately the government has functional
control over it. I should have said that some things are not a form of
private property rather than they aren't a form of property at all. Even
in the theoretical sense that can happen only in a state of anarchy, and
even then, this will in reality only happen for transient intervals
before someone establishes continued control.
To say that certain resources cannot be a form of property because they
aren't stationary is to miss the necessary level of abstraction. Land
ownnership is not the right to control certain pieces of soil, but a
region of land, even if part of its soil runs off into a neighboring plot
or whatever. Ownership of part of a river is also control not of a piece
of water, but a region of a river. Similarly, we can give private
individuals ownership of pieces of airspace that give them certain rights
with regard to the airspace. Such property is quite stationary, aside
from any distortions in the fabric of time-space.
In an ideal market, it would be enough to divide up the airspace into
private "pieces" and give the owners the right to a complete injunction
against any detectable emissions that entered their piece. Private
ownership would insure that the air would be used in ways with the maximum
value to society because those who wanted to pollute would try to pay the
owners of the air for the right to do so, and the owners would only
accept if the pollutors could pay them more than the sanctity of the air
was worth to them.
Conversely, it would also be enough to say that anyone who wants to has
the right to pollute as much as they want. This would merely be a
different kind of property right, one where owning property includes the
right to send out emissions instead of block incoming ones. This would
also insure that the air would be used in ways with the maximum value to
society, because people who wanted clean air would try to pay producers to
pollute less, and they would only accept if the money was worth more to
them than the right to pollute.
The only reason either of these schemes might not work in the real world,
and something in between the two extremes might be needed is because too
many parties might be involved in the bargaining and people would have an
incentive to hold out and collect more/pay less money than their
neighbors. This would make it overly difficult to stop pollution in one
case and overly difficult to produce it in the other.
The best solution is what I said -- a scheme whereby someone only has an
injunction against pollution if it results in damage to the value of their
property. If this is unworkable, the next best thing is for the
government to set standards of exactly how much pollution you have a right
to prevent. In cases where we can't even figure out how to do this, we
should have a scheme where nobody has an absolute right to an injunction
against emissions or an absolute right to produce them at all, but
everyone who does produce them has to pay a uniform sum per amount of
pollutant produced to everyone within a certain radius. We should try
to keep this price somewhere between the value of polluting to
producers and the value of stopping the pollution to everyone else, so
that we simulate something close to bargaining on the ideal market.
The absolute last thing we should have to resort to is having them pay the
government rather than the neighboring property holders, because there are
too many different parties to pay, and even then we should try to put that
money into something that benefits those people directly like subsidies
for the local police force.
: Don't get me wrong here; i have supported market-based solutions to
: environmental problems for as long as i can remember. The air pollution
: market, in which companies get a certain "allowance" of pollution and then
: are free to buy and sell these (particular) property rights, is a
: brilliant idea. It must be noted, however, that the particular right
: granted (to pollute the air) is a tiny sliver of the rights that one
: associates with "ownership" of something and to actually sell the air,
: lock, stock and barrel (as they say) is unnecessary and absurd.
A transferable license to pollute is not the same thing as a form of
private property and does not behave in the same way. Such a scheme is
nothing more than a form of centralized economic planning in disguise. By
setting in advance the maximum amount of pollution (and very likely the
amount actually produced), it ignores the normal incentives of the free
market. If this amount is too low, it will discourage production when
society really values it more than stopping the negative effects of
pollution. If it is too high, it will allow environmental damage that is
not justified by peoples' desire for production. Even worse, this
eliminates all liablity for pollution -- If one factory chose to buy up
all the credits and emit all the pollution in one locations, the people in
the surrounding areas would have no recourse. This completely ignores the
fact that a little pollution everywhere is quite often better than a whole
lot in one place.
I did say later on that property was a bundle of different rights, and we
should try to stick the rights that most belong together together. I
wasn't talking about selling off air. Obviously the air right above land
you own should belong with that land. However, the only reason these
rights even need to be bundled together is again the problem with the
costs of bargaining for use of what you need. In some schemes even this
isn't so much of a problem, and there's no reason we couldn't do something
like sell off pieces of the upper atmosphere. (We might have to include a
right of passage to planes and spaceships, but it's workable.)
: As for the second the part of your statement, the legal system has
: Not always provided a remedy for harm to property. It has usually
: provided a remedy for some types of measurable, obvious and easily
: understood types of harm to property in the haphazard and unequal fashion
: common to "the legal system" (but that's another discussion).
: It has been specifically unable to deal in any kind of consistent,
: ethical or Constitutional manner with any number of the more complex, less
: tangible damages to property (often at the hands of the government).
: You are suggesting leaving up to them a whole new (many new) area(s) of
: contention, which by there very nature would involve the kind of
: subtleties and complexities which "the legal system" has proven entirely
: unable to deal with. (Note: this invariable leads to government expanding
: its own power with little regard for the rights of the citizens).
It is the job of the legislature to clarify and simplify when necessary.
If abstract principles aren't good enough, it should start mandating
specifics, and go through that whole list I made above until it arrives at
something workable, but the main thing is that decisions over resource use
should always be made by private parties and not in a monopolistic fashion
by the government -- it should just provide the framework for the
interactions between individuals.
As long as this happens, the government will never have a precedent of
imposing policies above and beyond the actions of individuals, and this
will make it harder for it to expand towards any such policies.
: >>
: For example, consider what would happen if your neighbor dumped trash
: on your front lawn. Clearly you would be entitled to some sort of
: legal remedy for this.<<
: Assuming you know who did it.
If you didn't know who did it, you would call the police, and they would
start looking for the person. This is exactly what should happen if some
unidentified source of pollution pops up (though it may be the state
police's special branch or something). When they catch someone and
convict this of this kind of criminal act, it is nevertheless a protection
of private property, a crime with a victim, not the policy of a government
bureaucracy. Criminal penalties are necessary for any full system of
property protection, and jail time might be needed for serious enough
infractions. (e.g. Jail time for a CEO who authorized incredibly high
levels of pollution that actually killed someone, just like for someone
who broke into a house.)
The difference between this and the bureaucratic legal framework is that
if someone somehow got your permission to dump the trash for a performance
art project, the government would have no jurisdiction, whereas the EPA
still has jurisdiction, whether the neighbors of a factory would be
willing to reach some deal to allow the pollution or not.
: >>
: The medium by which pollution harms you may be different, but there is
: no reason why this damage should be treated any differently.
: <<
: Except that it is that much more difficult to know who is to be held
: responsible. Which polluter actually caused the specifically noticed harm.
: E.g. three companies dumping into a river: The fish all die. Perhaps a
: good biochemist will be able to tell me which one to hold responsible (if
: i can afford to hire him) perhaps not.
If nobody is solely responsible, the best thing is to require them to all
pay for the fraction of the damages to property value they caused. If
it's three different pollutants or something and we don't know which one
is important, we should use the scheme where everyone has to pay for the
right to pollute (but pay the victim, not the government), and try to set
the price high enough to reflect the probable risk of damage.
: This also illustrates another important point. The companies all
: have a strong interest in being able to dump their pollution. I only have
: a very slight interest in stopping any single polluter. It is a standard
: case of a vested interest getting utility X while the people foot the cost
: Y (larger than X) but spread over so many that there is not a strong will
: to stop it.
That's what class action lawsuits are for. True, class action lawyers end
up keeping a large portion of the settlement, but they deserve this for
providing the valuable service of eliminating the transaction costs of
individual cases.
: ...
: >>
: Private property rights are in fact the mechanism for preventing water
: pollution in Great Britain and Canada. There, rivers and other bodies
: of water are owned just as land is. When someone upstream harms the
: quality of the waters downstream, the owners downstream can sue for
: damages.
: <<
: It seems to me that you are simply asking the courts to do what the
: EPA does. The courts will be prone to the same errors as the EPA but will
: be entirely unable to look out for some out of the way places.
: Furthermore, in densely populated areas (exactly where pollution should be
: expected) such as L.A., lawsuits will abound. Every fifth person will be
: involved in a lawsuit because the smell from the refinery/docks/whatever
: ruined their dinner one windy night, or because there is some dirty silt
: on THEIR beach. N.B.: They will win too. The juries will say "oh that big
: evil corporation has so much money and that family is so nice and much
: like me and hey, let's re-distribute a little wealth."
Not if rights are defined in a very uniform and objective manner. The
only problem I can think of is everyone with their car polluting. It
would be difficult to single out everyone polluting too much at once and
sue them all. This would be less of a problem if the roads were privately
owned, because then it would be their responsibility, and they would find
ways to deal with it. Even then, the scheme where you pay a certain price
for pollution to the government is not so unworkable. Just have people
pay in advance for each tank of gas they load in their lawnmower, reward
cleaner burning mowers with lower prices, and give the money to the local
police department or something.
: >> This is because when
: resource use decisions are made politically, special interest groups
: tend to prevail. Small, concentrated interests who have much to gain
: have much more of an incentive to become involved in the political
: process than large, unconcentrated ones who have less at stake
: individually.<<
: All right, that will teach me not to start blathering before i finish
: reading the post. I apologize for the unnecessary explanation of this
: type of thing above. But, i expect you to see my point then. It is one
: thing if the water is black and murky and i can't go swimming, it is
: another if some species of fish is being killed off. I probably don't
: care enough to do anything, but that doesn't mean it should be allowed.
: (This brings up a couple other problems but this post is already too long)
Again: Class action lawsuit.
: >>
: For example, the National Forest Service builds three times as many
: logging roads as public access trails. It has even been known to
: build these roads at a cost above the profit from logging. It gives
: companies short-term contracts to log trees, which gives them little
: incentive to worry about long-term conservation of resources. This
: amounts to nothing more than a subsidy for clear-cutting that runs
: contrary to the agency's mission of conserving our forests.
: <<
: This is all correct. However, It is specific to Real Property. Property
: rights work great for real property (imagine that) and government
: intervention WILL invariably do more harm than good. This does not work so
: well for other parts of the environment which are not so easily "owned."
: Obviously there should be no "tragedy of the commons" for things that need
: not be communally owned, (our problem is simply how to distribute property
: rights - and good luck with that. :) But this is not a solution. You
: still have the "tragedy" for those things not ownable (for lack of a
: better word). The solution, btw, is to distribute specific and individual
: (property) rights as in the case of the Smog-Market (TM ;). N.B. that
: requires government oversight, setting of quotas/allowances/whatever, etc.
Again, I responded to all this.
:
: >>
: Some government policies even run explicitly counter to protecting the
: environment. In the 1950's insurance companies would not insure
: nuclear power plants because of the enormous risk of accidents.
: Consequently, power companies refused to consider nuclear power. At
: least, that was until the government came along and fixed everything.
: It limited the amount of money nuclear disaster victims could collect
: in damages to $560 million, 80% of which would be payed by the
: government. Not surprisingly after this, nuclear power plants, and
: with them the risk of nuclear accidents, proliferated.[Ruwart]
: <<
: hmm. Sure. The "risk of nuclear accidents proliferated." Nuclear
: accidents didn't actually proliferate, but the risk certainly did.
: Are you seriously arguing AGAINST nuclear power? Am i really
: expected to believe that the growth in the use of nuclear power has been
: "counter to protecting the environment." You need to go back and study up
: a bit on nuclear power.
: The insurance companies wouldn't insure a safer and better form of
: power because they were stupid, or at best ignorant. Don't get me wrong,
: ignorance is a very good reason not to insure something, less info=more
: risk. The point though, is that on this one time the government did
: something right. Would you prefer we didn't exploit nuclear power? Are
: you some sort of Luddite?? So the government protected itself a little by
: capping the awards at 560 million. Like private insurance companies don't
: have caps (if the insured person doesn't have money and the insurance
: policy is only for X amount, the results are the same). Worse, private
: insurance companies can dry up and blow away when time comes for a big
: settlement, mining firms can declare bankruptcy. At least the government
: won't just declare bankruptcy. So the (nonexistent, btw) victim gets a mere
: 560 million, oh darn.
: Governments have a long history of supporting new industries and
: despite my professed libertarianism, i have to tell you all, it's a good
: thing. (well, unless your a Luddite. In which case i can respect that :)
Nuclear power is certainly safe enough that it would be insured today. I
really don't know if it was that safe back then, but that isn't the issue
at stake. The real issue is that society had decided the risk of
accidents was so high that no one was willing to provide that insurance,
and I certainly think the whole of society is a lot more qualified to
evaluate risks than the government. They might have been wrong this time,
but from the point of view of the time, it was most likely that the public
was right and the government was wrong, as it would be in any such
situation. Imagine what could have happened if the insurance companies
actually were right and our technology was as dangerous as Russia's.
Allowing such risks to be taken is counter to protecting the environment.
Besides, the rationale of the government wasn't "Oh, those insurance
companies are wrong;" it was, "Let's win the cold war at any cost."
As far as escaping through bankruptcy, that simply should not be allowed.
The gross irresponsibility that leads to such a disaster should be pinned
down on somebody somewhere and criminal penalties (including jail time)
should be pushed on them personally. I would say authorizing something
with an enormous risk of irreparable damage to other peoples' health and
not enough insurance to cover it is grossly irresponsible, and the CEO and
anyone else involved should spend time in jail. If the accident killed
people, manslaughter charges should be in order. That would put a damper
on using bankruptcy or corporate responsibility as a shield.
The same, by the way, goes for government officials involved in the same
thing.
: All right, that little nuclear power thing was a little off topic.
: I want to conclude by saying that, despite the contrary nature of this
: post (group-think, even libertarian group-think, is never good).
: We agree on more than we disagree. My primary comment is that promoting
: litigation to solve the environmental problems is not the answer.
: It will require the invention of new institutions and those will,
: unfortunately, will require some government involvement.
Of course, but there's a difference between government involvement in
protecting individual rights and government using its power at the expense
of individual rights.
: You pointed out that Gov't ONLY exists to do those things that we
: can not do ourselves as individuals. Insuring that private companies do
: not pass on egregious environmental cost to us in order to obtain a
: relatively small benefit (though large to them), falls exactly into that
: category.
We also cannot force people to pay above-market prices or rob them of
their home and livelihood through the free market, but that doesn't mean
government should help us do this. Even libertarians who are the most
optimistic about the government's ability to pass good laws, only think it
should provide for situations where people want something, they're willing
to pay for it, and government can deliver it at a cost people as
individuals would be willing to pay, but somehow they can't buy it as
individuals on the free market.
Nuclear power in the 50's did not qualify, because society had already
decided the risk was too high for anyone to want to pay for it.