I have been asked a series of very interesting, important and challenging questions by a loyal reader of LewRockwell.com who will remain anonymous. My thought is that these queries of his, and my responses to them, might prove to be of interest to the general readership of this web site. My answers follow these marks (<<) and are in italics. He begins here:

The problem I have is Global Warming.

Let’s ignore any scientific debate and just accept, for the sake of the argument, that emissions of carbon dioxide cause changes to the climate and those changes cause things like rising sea levels that damage property and could potentially lead to the extinction of mankind on the Earth.

<< Ok. I’ll try to deal with this contrary to fact conditional, at least arguendo.

I have read your essay “Environmentalism and Economic Freedom: The Case For Private Property Rights”

<< Bless you, bless you. Those are the sweetest words an author can read. Here is the full cite on that publication, Block, Walter E. 1998. “Environmentalism and Economic Freedom: The Case for Private Property Rights,” Journal of Business Ethics, Vol. 17, No. 6, December, pp. 1887-1899, which can be found here or here.

I can see that if I were emitting a pollutant that caused damage to the property of another the case is quite clearly an invasion of property rights and easily dealt with.

<< Yes, yes, that is basic libertarian theory regarding trespass.

I am not so sure about carbon dioxide. Clearly this is not a pollutant per se and does not cause any direct damage to property. If emitting carbon dioxide onto another’s land was an invasion of property rights then surely we would all have to stop breathing.

<< Let me say at the outset that my mentor and guru on the entire issue of applying libertarian property rights theory to environmental challenges, as he is on so many other things as well, is Murray N. Rothbard. This article of his is, as far as I am concerned, THE best thing that has ever been written on this subject:

<<Rothbard, Murray N. 1982. “Law, Property Rights, and Air Pollution,” Cato Journal, Vol. 2, No. 1, Spring; reprinted in Economics and the Environment: A Reconciliation, Walter Block, ed., Vancouver: The Fraser Institute, 1990; see on this here or here. I agree with every single word of it, with great enthusiasm. I think this magnificent essay should be required reading for all of those interested in a libertarian perspective on the environment.

<<As to your specific question, there is in law a concept called de minimis: the law does not concern itself with trifles. Exhaling, on that ground alone, cannot be considered a trespass.

<<But there is another even more important reason we are all innocent when we breathe out: homesteading. Before there could be private property rights, there had to have been people. And, human beings, to the best of my limited scientific knowledge, always exhale. So, there was carbon dioxide being emitted from this source before there was any homesteading of land. (Exhaling creatures did the homesteading; but, first, they breathed. Both in and out.) Therefore, we inherited the right to exhale from our forebears. They exhaled rather promiscuously. They bequeathed this right to us. They did it; so may we.

As you quote Rothbard in your excellent essay “David Friedman & Libertarianism a Critique”

“…consider the case of radio waves, which is a crossing of other people’s boundaries that is invisible and insensible in every way to the property owner. We are all bombarded by radio waves that cross our properties without our knowledge or consent. Are they invasive and should they therefore be illegal, now that we have scientific devices to detect such waves? Are we then to outlaw all radio transmission? And if not, why not?

“The reason why not is that these boundary crossings do not interfere with anyone’s exclusive possession, use or enjoyment of their property. They are invisible, cannot be detected by man’s senses, and do no harm. They are therefore not really invasions of property, for we must refine our concept of invasion to mean not just boundary crossing, but boundary crossings that in some way interfere with the owner’s use or enjoyment of this property. What counts is whether the senses of the property owner are interfered with.”

My problem is that if emitting carbon dioxide is not a violation of property rights but excessive amounts in the atmosphere actually does cause climate change that damages property and perhaps eventually causes the extinction of mankind on the planet, is there any Libertarian solution to the problem ?

<< You mis-spelled “Libertarian.” Upper case means the Libertarian Party, lower case indicates the general movement or the libertarian philosophy. (Hey, I’m a professor; I have to be pedantic. Otherwise, they’ll kick me out of the profession.)

<<I don’t see the problem. Exhaling, like radio waves,”cannot be detected by man’s

senses, and do no harm.” So, no harm, no foul. So let’s forget about exhaling. Instead, consider massive outputs of carbon dioxide, so gigantic that they wreck the entire atmosphere, and kill us all. For example, some sort of super carbon dioxide generator. Now that is an entirely different kettle of fish. The problem with our leftist, progressive friends on environmentalism is that they never offer us a criterion on the basis of which we can infer rights violations. They blather endlessly about global warming, global cooling, climate change, ad nauseum. But they never state the criteria of success or failure. Is it the present temperature? Two degrees less? One degree more? However, with regard to this gargantuan carbon dioxide machine that kills us all, we libertarians would certainly admit that human rights (that is, property rights) have long ago been violated way before we died from it en masse. In the free or libertarian society, the owner of this machine would surely be enjoined from starting it up.

How can you prevent an action that is not a violation of property rights, without violating the rights of the emitter ?

<<There is a confusion here between the illicit super duper CO2 generator, and legitimate exhaling. The former is the only rights violator here, not the latter. So there is no “action that is not a violation of property rights,” (exhaling) that is being unjustifiably stopped by law. The only thing subject to an injunction would be the massive polluter.

Of course people could simply get together and agree not to emit, but as you say in your essay on environmentalism:

“For to engage in environmentally sound business practices under a legal regime which no longer requires this, is to impose on oneself a competitive disadvantage. Other things being equal, this will guarantee bankruptcy”

<<I do not at all resort to agreements. The massive polluter is a trespasser, and must be stopped by the force of law.

My questions boil down to:

1. 1. Is emission of carbon dioxide an invasion of property rights. (If so why, and what about breathing!)

<<Yes, GIGANTIC, MASSIVE CO2 emissions violate property rights; exhaling does not.

1. 1. If it is an invasion of property rights how can it be enforced? (There is no way of connecting individual instances of damage to specific emitters)

<< It is enforced the same way laws against murder and rape are enforced. If there is a (hopefully very limited) government, then its main, perhaps even only task is to stop such violations as murder, rape, kidnapping, arson, fraud, and, yes, trespassing massive (not teeny) amounts of carbon dioxide. If we live under free market anarchism, then the private courts-police will do this.

<<Perhaps you are uncomfortable with the notion that we would be putting in jail someone (the massive emittter), for doing something to a greater degree that we all do (exhaling) to a lesser degree. But there is precedent for this. We can all talk in a normal voice; but we cannot get a super bullhorn, and scream at people so loudly though it that we literally deafen them. We all smell a bit, even after taking a shower, but that is entirely legal. However, it should not be within the law to set up a pig farm or a tanning factory in a residential neighbourhood that was built in a relatively odor-free environment. It is quite all right to shine a flashlight at someone’s house. But not such a powerful one that burns down this dwelling.

<<There is too a “way of connecting individual instances of damage to specific emitters.” Consider automobile pollution. There are millions of cars out there, emitting pollutants into hundreds of millions of people’s lungs. Yes, yes, it would appear to be difficult if not impossible (transactions costs, beloved of the pinko Chicago School of economics, doncha know?) to handle this through law suits. But, as Rothbard says, that is because at present we have road and highway socialism. If these transit lanes were privatized (see my book on that subject, here or here), then victims of such pollution would take these owners to court, and there would be many fewer of them than motorists. It would be relatively easy to do so. Road owners would thus have an incentive to anticipate this risk to themselves, by, presumably, charging VERY high prices to polluting cars. Adam Smith’s “invisible hand” would thus lead us in the direction of air quality sanity.

1. 1. If it is not an invasion of property rights then how can we solve the problem of global warming without infringing the property rights of the emitter?

<<If we are still in arguendo mode, positing a vast polluter, then we are not at all violating his rights when we compel him to cease and desist. Hey, he is in effect a murderer. We stop him in self defense, just as we would a guy running at us, screaming and brandishing a knife or gun.

1. 1. It is theoretically possible for many de-minimis acts to collectively cause a problem. Take a smaller scale analogy. I own a river. A small boy urinates in the river. This causes no harm to the river or the fish in it, it is invisible cannot be detected by man’s senses and does no harm. However, if 1000 or 10,000 unconnected boys all urinate in my river at the same time then all the fish in my river will die and my property rights will clearly have been violated. However, on what basis do I have any right to stop any single boy whose individual actions are below any sensible de-minimis threshold and do not constitute a violation of property rights alone?

<< There is a disanalogy between urinating on someone else’s property and exhaling, when a few molecules of CO2 waft over onto someone else’s property. Forget about the “small boy.” The criminal law works differently for children than for adults. Also, unowned rivers present difficulties, so I’ll ignore them as well. If an adult urinates in my front yard with no permission, I can have him arrested, and properly so. I might well not do so, if the guy was desperate, there were no mens’ rooms around etc. But, if I knew that 1000 men were going to inundate my garden in advance, I would again have the right to stop them through force of law, and this time I probably would, otherwise I’d have no garden left. However, if there were one or 1000 men who exhaled near my property, and all of their CO2 “trespassed” on my garden, one, I would not know about it, and two, the law would properly defend their right to this “invasion,” not mine to stop them. Why? Because people have been exhaling from time immemorial; thus, our grandfathers have homesteaded this right for us, the present generation. Of course, they have been urinating too, for all these epochs. But, NOT on other people’s property. The homeowners, presumably, took sharp offense at THAT practice.

1. 1. Why is even a large emission of carbon dioxide a violation of property rights? As Rothbard says:

“The reason why not is that these boundary crossings do not interfere with anyone’s exclusive possession, use or enjoyment of their property. They are invisible, cannot be detected by man’s senses, and do no harm. They are therefore not really invasions of property, for we must refine our concept of invasion to mean not just boundary crossing, but boundary crossings that in some way interfere with the owner’s use or enjoyment of this property. What counts is whether the senses of the property owner are interfered with.”

The emissions of carbon dioxide, even in large quantities at say a power station, are “invisible, cannot be detected by man’s senses, and do no harm” themselves. It is only when these emissions join with other emissions from other sources and react with the other gases in the atmosphere that the alleged greenhouse effect takes place, which allegedly causes for example the sea levels to rise and damage another’s property.

The emitters’ actions only cause a violation of property rights if other people act in a certain way and the emitter has no control over the actions of the other people. How can it be a violation of property rights to do something that causes no harm itself, but leads to harm only if other people do something?

<< Let’s take noise as an analogy, here. I live next door to a sports stadium where thousands of people gather. I was there first. I homesteaded the rights to a reasonably quiet environment. I live in a large city, so there is always SOME noise about; it is not deathly quiet. My neighbour schedules athletic events at 4am, while I am trying to sleep. (I know this is unlikely, but work with me here.) Now, if there were one or two people talking, even loudly, downstairs, I not only would not object (I live on the 30th floor, and can hardly hear them), but the law would properly not allow me to protest, since small groups of people homesteaded such rights (there were doing that long before my building was constructed). But when tens of thousands of people cheer on for the home team, they keep me awake. So here is a case where “The emitters’ actions only cause a violation of property rights if other people act in a certain way and the emitter has no control over the actions of the other people.” Any one fan yelling in the stadium is de minimus. No one fan can control the yells of other rooters. And, yet, surely, I may enjoin the entire stadium from keeping me awake, whereas I cannot object to a few people screaming. Here, we truly have a case where it can “be a violation of property rights to do something that causes no harm itself, but leads to harm only if other people do something.”

1. 1. How does the analogy with private roads help with respect to the atmosphere?

I can see how a private road system could work (love your book!), but I don’t see how the analogy carries over.

1. 1. On what basis could ownership of the atmosphere be homesteaded ?
   2. Even if people owned specific tracts of atmosphere how could the person whose property was damaged link the damage to the tract of atmosphere that took the emissions. The system is fluid and it would appear impossible to draw back a chain of causation to a specific tract of receiving atmosphere any more than to a specific emitter. And as Rothbard said:

As Rothbard says, “Thus, a strict causal connection must exist between an aggressor and a victim, and this connection must be provable beyond a reasonable doubt. It must be causality in the commonsense concept of strict proof of the u2018A hit B’ variety, not mere probability or statistical correlation.”

<< a. I never said that the atmosphere could be homesteaded. I don’t think it can be, at least nowadays, since it is a superfluous good. It is not scarce. On the moon and Mars oxygen will be bought and sold like any other market commodity (or given away as a loss leader), but not here, not now. In talking about private roads I was merely demonstrating that transactions costs considerations would not preclude our society from viewing air pollution as a tort that could be dealt with by the courts. It is awkward in the extreme to have 300 million inhabitants of the U.S. sue some millions of car owners for pollution. But, if the nation’s highways were owned, say, by 100 corporations, it would be a lot more feasible.

<< b. Here is where environmental forensics comes in. If we had all along been dealing with the question of air pollution as we should have been, as a trespass of smoke or dirt particles, there would have also developed an industry devoted to demonstrating such rights violations. We have a profession that analyses semen, hair follicles, blood types, etc., because we properly see murder and rape as rights violations, and wish to determine “who dunnit.” We have no such accomplishments with regard to air pollution because, as Rothbard demonstrates, we have long lost out way on this matter, in terms of proper law.

Thanks for your assistance with this; it really helps me to appreciate the power of libertarianism by examining the problem cases!

<< You are entirely welcome. Your questions were very good ones. If we cannot answer the difficult objections, we must rethink our libertarian positions. I think it is crucially important that the challenges you pose be refuted, because Ron Paul is now being criticized by left-wing environmentalists for having either no views, or incorrect ones, on these important issues. See on this here. I don’t say, of course, that Congressman Paul would agree with every point I make above. But he and I are both followers of Murray N. Rothbard on this (and many other) issue(s), so I would not be totally surprised if he supported most of the analysis I offer.

The Best of Walter E. Block