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Review of Libertarianism and Pollution by Matt Zwolinski
Libertarianism is identified as a political philosophy by its commitment to strong rights of private property, free markets, and strictly limited government.  Though this is true to a certain extent of all libertarians, it is most clearly and consistently true of so-called “right-” or “market-“ libertarians, on whose thought this post will focus.  Left-libertarians such as […]

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Libertarianism is identified as a political philosophy by its commitment to strong rights of private property, free markets, and strictly limited government.  Though this is true to a certain extent of all libertarians, it is most clearly and consistently true of so-called “right-” or “market-“ libertarians, on whose thought this post will focus.  Left-libertarians such as Hillel Steiner, Michael Otsuka, Peter Vallentyne, and others, affirm libertarian rights of individual self-ownership but deny that self-ownership can yield full private property rights in external goods, and often countenance a significant scope for governmental activity in the realization of a broadly egalitarian conception of justice. See, for an overview, (Otsuka, 2003; Steiner, 1994; Vallentyne, 2000, chapter 2).

For purposes of this post, market libertarianism is understood broadly to include not just the minimal-statism of Robert Nozick (Nozick, 1974) and Ayn Rand (Rand, 1961, 1964), but also the anarcho-capitalism of Murray Rothbard (Rothbard, 1970, 1973) and David Friedman (D. Friedman, 1989), and the classical liberalism of Milton Friedman (M. Friedman, 1962; M. Friedman & Friedman, 1990) and Friedrich Hayek (Hayek, 2007, 2013). For overviews of market-libertarian thought, see (Mack & Gaus, 2004; Zwolinski, 2008; Zwolinski & Tomasi, 2015, chapter 1).

Most libertarians believe these institutions to be justified on both pragmatic and moral grounds. So, they think, free markets are to be praised not merely because they produce efficient outcomes, but because they embody respect for individual rights.

For libertarians, individual rights to private property and freedom of contract are thought to be relatively inviolable, and to place strict limits on the scope of permissible regulation by government.

My right to my justly acquired property does not give way merely because you happen to need it more, or even because the welfare of society as a whole could be greatly improved by overriding it. If seizing my land through the exercise of eminent domain is the only effective way of building a public highway then, libertarianism must conclude, so much the worse for the public. Or at least for its highway. (ibertarians, of course, deny the antecedent of this conditional. See (Block, 2006; Klein, 1990).

Because of its support for strong rights of private property and relatively unregulated capitalism, libertarianism is often perceived as being fundamentally incompatible with the kinds of policy goals demanded by a thoroughgoing commitment to environmentalism. And many libertarians themselves, by their often hostile rhetoric toward environmentalism, seem to have gone out of their way to confirm this perception. (See, for example, (Rand, 1999).)

Despite this common perception, however, a libertarian regime of strong private property rights might actually better serve environmental values than commonly proposed policies that undercut or infringe upon such rights. It is true that respect for libertarian property rights would in some cases serve as a block against certain forms of environmental regulation. Libertarians believe that government may not legitimately restrict what a company does with the land or natural resources in which it has a valid property right.

It is vitally important to remember, however, that it is not merely the property rights of business that libertarians are committed to protecting. Homeowners have property rights too. And by virtue of their self-ownership, libertarians also believe that they also have a kind of property right in their person that makes it impermissible to physically intrude against their body without their prior consent. Businesses have a right to do what they want with their own property, but they have no such right when it comes to the property of others.

This simple fact has profound implications for the libertarian position on environmental issues, especially when it comes to the issue of pollution. Indeed, the libertarian commitment to property rights is so absolute, and so far-reaching in its implications, that it actually flips our initial worry about the doctrine on its head. Once we consider the full implications of respect for libertarian property rights, it is clear that the real problem with libertarianism isn’t that it’s not sensitive enough to environmental considerations, but that it is too sensitive by far. (This is true, at least, with respect to the specific issue of pollution, which is of course but one environmental consideration among many.)

This paper will examine the implications of libertarian political philosophy for the problem of pollution. Its focus will be on the kind of rights-based libertarianism embodied in the work of Robert Nozick, Murray Rothbard, and Eric Mack, though the concluding section will also briefly discuss the more consequentialist libertarianism derived from the work of  Friedrich Hayek and Ronald Coase.

Section II will begin with a discussion of the libertarian emphasis on property rights, and the implications of those rights for environmental policy.

Section III will go on to explain why those implications are more radical, and more implausible, than they might at first appear.

Section IV examines various libertarian attempts to avoid those implausible conclusions.

And section V concludes with a discussion of consequentialist libertarian approaches to the problem of pollution, and how those considerations can and must be a part of, rather than a substitute for, a coherent libertarian theory of environmental justice.

II. Taking Property Rights Seriously

Among academic philosophers, the best-known version of libertarianism is that articulated by Robert Nozick in his 1974 book, Anarchy, State, and Utopia. In that book, Nozick defends a form of minimal-state libertarianism based on a roughly Lockean conception of individual natural rights. For our purposes, two features of that conception are particularly relevant: Locke’s commitment to each individual’s right of self-ownership, and his commitment to their right to acquire private property in external resources through a process of homesteading and voluntary exchange.

For Locke, the most fundamental sort of property right was each person’s ownership of his or her own person. “[E]very man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his.”5 Because each person has property in her own self, and because all are governed by a law of nature that “teaches all mankind…that…no one ought to harm another in his life, health, liberty, or possessions,” it follows that each person has a right against others not to have harms imposed on her body without her consent.6

Each person’s right of self-ownership also, for Locke, grounds their moral right to acquire legitimate property rights in external resources such as land, minerals, and crops. Because each individual owns the labor of her body, she can come to own these external resources by “mixing her labor” with them. “The labour that was mine, removing them out of that common state they were in, hath fixed my property in them.”7 But because God has given the earth to mankind for their common use, no individual may appropriate so much to herself that she fails to leave “enough, and as good…for others.” Subject to this proviso, however, private property in external resources is not only permissible, but necessary in order for individuals to preserve themselves and flourish.

For Robert Nozick, Lockean rights to self-ownership and private property take the more specific form of “side constraints” against aggression.8 These side constraints strictly limit the actions others may permissibly take in pursuit of either their own good, the good of the right-holder his or her self, or any conception of a greater social good.9

5 Locke, Second Treatise, Book 5, sect. 27. 6 Locke, Second Treatise, Book 2, sect. 6. 7 Locke, Second Treatise, sect. 28.
8 (Nozick, 1974, p. 33)

Predation, paternalism, and utilitarian trade-offs are thus prohibited in almost all circumstances, save perhaps for those (presumably quite rare) cases in which respect for rights would lead to what Nozick described as “catastrophic moral horror.”10

Nozick invites us to imagine individual rights as a kind of “line (or hyper- plane) [that] circumscribes an area in moral space around an individual.”11 Actions that “transgress the boundary or encroach upon the circumscribed area” are to count as infringements of those rights. And, in general, such infringements may be justly prohibited. Murder, theft, and assault all involve the crossing of an individual’s moral boundaries without his or her consent, and are all therefore properly criminalized by the libertarian minimal state.

The Nozickian theory of rights as side constraints is a controversial doctrine. Many theorists, including but certainly not limited to consequentialists, will worry that the absolutism of these rights renders them too incapable of responding to the kind of trade-offs that seem necessary in a morally complicated world.12 But at least a certain level of immunity seems to be an important part of our ordinary understanding of both rights in general, and property rights in particular. The common law tort of assault, for instance, prohibits others from touching your body without your consent, regardless of whether that touching

9 (Nozick, 1974, pp. 28-30)
10 (Nozick, 1974, p. 30)
11 (Nozick, 1974, p. 57)
12 See, for a discussion, (Arneson, 2011)

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causes you “harm” or not.13 And common law trespass prohibits anyone from entering your land, or causing some object or person to enter your land, without your consent.14 Neither of these rights is conditional on the cost-benefit analysis turning out the right way. The benefit you receive from touching me without my consent might be greater than the harm I suffer. And society as a whole might be better off if you could trespass across my land. But neither of these facts, even if uncontestably true, would serve as a valid defense against the tort.15

On its face, the libertarian commitment to strong rights of private property would seem to provide a strong basis for opposing environmental pollution. For many of the most worrisome forms of pollution can be understand as a violation of property rights. In the words of libertarian and former Reagan White House official Martin Anderson,

Just as one does not have the right to drop of a bag of garbage on his neighbor’s lawn, so does one not have the right to place any garbage in the air or the water or the earth, if it in any way violates the property rights of others.16

13 Technically, it is the common law tort of battery that prohibits unwanted touching, while the tort of assault prohibits acting in a way that causes a reasonable fear of battery. For purposes of simplification, I ignore this distinction in the present discussion and refer to both sorts of tort as “assault.” For a helpful discussion, see (Glannon, 2010, chapter 2). 14 (Glannon, 2010, chapter 3)
15 This should not be read as suggesting that the common law regarded property rights as absolute and inviolable. The common law doctrine of necessity, along with the concept of easements, can be seen as weakening owners’ rights in certain ways for the sake of the social good. But there is a great deal of difference between this sort of limited, narrowly- defined weakening, and the kind of radical weakening that would be involved in subjecting all property claims to a cost-benefit analysis.
16 (M. Anderson, 1989, p. 19), cited in (Block, 1990a, pp. ix-x)

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A pro-business conservative might be willing to tolerate some pollution of this sort. After all, pollution is often a byproduct of productive economic activity, and productive economic activity is the key to long-term economic growth. But a principled libertarian should have no truck with this argument. Just as property rights may not be sacrificed for government regulation that allegedly serve the public good, neither may they be sacrificed for business interests that do so. Taking property rights seriously means taking pollution seriously. Anderson thus has little patience for the policy of Tradable Pollution Permits:

Now some even seriously propose that we should have economic incentives, to charge polluters a fee for polluting – and the more they pollute the more they pay. But that is just like taxing burglars as an economic incentive to deter people from stealing your property, and just as unconscionable … What we need are tougher clearer environmental laws that are enforced – not with economic incentives but with jail terms.

In his rejection of economic cost-benefit analysis in favor of a principled opposition to pollution, Anderson mirrors the doctrine of Murray Rothbard. Rothbard, one of the most influential libertarian theorists of the twentieth century, frequently defined libertarianism in terms of its commitment to the “non- aggression axiom,” a principle which holds that “no man or group of men may aggress against the person or property of anyone else,” where aggression is understood as “the initiation of the use or threat of physical violence against the person or property of anyone else.”17

17 (Rothbard, 1973, p. 23)

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Like Anderson, Rothbard held that pollution was to be condemned as a violation of property rights. In his 1973 book, For a New Liberty, Rothbard wrote that the “vital fact” with respect to air pollution is that

the polluter sends unwanted and unbidden pollutants—from smoke to

nuclear fallout to sulfur oxides—through the air and into the lungs of

innocent victims, as well as onto their material property. All such

emanations which injure person or property constitute aggression against

the private property of the victims. Air pollution, after all, is just as much

aggression as committing arson against another’s property or injuring him

physically. Air pollution that injures others is aggression pure and simple.18

And like Anderson, Rothbard had little patience for the Chicago School argument that pollution could be justified by a kind of cost-benefit analysis, writing that such arguments are “as reprehensible as the pre-Civil War argument that the abolition of slavery would add to the costs of growing cotton.”19 For Rothbard, matters of basic moral principle trump merely pragmatic considerations. If stopping aggression sets back economic progress, then so be it. Such is the price of respect for human rights.20

In many ways, then, the libertarian commitment to strong rights of private property actually seems capable of providing much stronger grounds for opposing pollution than alternative political ideologies, such as Rawlsian liberalism, are

18 (Rothbard, 1973, p. 256)
19 (Rothbard, 1973, p. 259)
20 As seems to be typical of those who claim justice should be done though the heavens fall, Rothbard did not appear to believe that the heavens were, as a matter of fact, in any grave danger of falling. Greater respect for private property rights, Rothbard argued, would promote both environmentalist aims and economic growth. See (Rothbard, 1973, pp. 244-254).

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capable of providing.21 Insofar as industrial pollution violates the property rights of landowners downriver, nearby foresters whose trees are damaged by acid rain,22 or individual persons whose lungs are intruded upon by airborne pollutants, that pollution constitutes aggression and should be prohibited. Indeed, as long as we make the not unreasonable assumption that some of the harms associated with global climate change constitute a violation of property rights, there is no reason why the libertarian framework could not be extended to address even this most difficult and challenging of environmental problems.23