Can Private Property Rights Protect Nature?
Two Women Disagree and a Man Explains
A common criticism of Western civilization is the emphasis on economic growth. Hasn't it resulted in environmental degradation? Don't capitalism and climate change go hand-in-hand, ask neoliberals and leftists?
Without waiting for an answer, they say yes, it does. Neoliberals want to impose new taxes and regulations and centrally plan a "green" economy based on discredited economic theories. While the leftists wish for a radical transformation of the economy based on similar discredited theories.
And it's irrelevant whether or not anthropogenic warming turns out to be another Scientific™ scam. One does not have to be left-wing to want clean air and water. The difference between "us" and "them" concerns private property rights. A proper Canadian Tory understands that private property protects nature.
But am I overstating the case?
In pursuit of entertaining ideas I disagree with, I found this critical book review. I have not read the book Property Rights in Defence of Nature by Elizabeth Brubaker, but she sounded like she was making a similar argument. The critic, Arlene J. Kwasniak, is a lawyer with the Environmental Law Centre.
Brubaker's book sounds more "statist-libertarian" than the true anarchist philosophy of Murray Rothbard and Hans-Hermann Hoppe. And Kwasniak seems to sense this. She calls Brubaker's book "somewhat entertaining" but a "trying book to read for anyone with any familiarity with property law."
For argument’s sake, I'm assuming she's correct. Brubaker's book does not offer serious solutions to Canada's environmental problems. However, as I'll argue here, the book's "underlying libertarian ideology" was clearly not radical enough. When we account for the shortcomings of common law, we're left with statist solutions.
But the State – whether intentionally or not – will create more environmental problems and settle according to its interests. Even Kwasniak admits, "a substantial part of my legal career involves pointed criticism of governments' legislation, policy, or enforcement" and recommending how they can do better.
But they can't do better. Even if they wanted to, which is a bold assumption.
Civil Suits vs. Statutory Law
Brubaker argues for civil suits under the common law instead of state enforcement. Civil suits require fewer standards of proof compared to the statist alternative. Therefore, common law rights through civil suits are preferable.
You can't dump garbage on my lawn; thus, you can't burn it on your property and have the smell cross over. I'll go to a judge and get an injunction. You'll be fined thousands of dollars daily or thrown into a cage if you don't stop.
Kwasniak says wait a minute. Civil suits aim to stop interference with property rights, not pollution per se. You have to show immediate damage. This was the issue in the 19th century when the railways were leaving soot on farmers' fields, and smokestacks were dirtying the air.
Individuals would turn to litigation, but judges, like Upper Canada Chief Justice Robinson, would argue that these arguments had no basis unless they could demonstrate specific, distinguishable damages.
Suppose common law courts did protect private property rights in an absolute sense. And this happens everywhere, so the Industrial Revolution occurs with cleaner smokestacks and trains. The costs of fossil fuels inspire electrical invention and innovation, massive dams are built much earlier, and by 1900, the industrial economy is electric-based.
What about the period when greenhouse gases were being emitted? And suppose China develops its coal. Its dirty air doesn't affect Europe or North America, but its greenhouse gases could theoretically. What then?
Kwasniak says common law addresses property rights, not broader environmental concerns. And one actual flaw of the market is that it results from imperfect human action.
For example, experts say wireless technology is harmless, and they could be correct, but suppose fifty years from now, we discover that 5G wasn't completely safe and has specific, distinguishable damages.
What Kwasniak fails to consider is that the market is all we have. Suggesting a monopoly on violence will be more effective than the creative engine of humanity's natural order is preposterous. This isn't "libertarian ideology," it's common sense.
I suspect Kwasniak sees markets as "chaos" and government as "order" despite its admitted inefficiencies. That monopolistic aggressive force is a blunt but effective tool to wield. This is the "common sense" of the Western democratic order, and most people, especially lawyers, believe it.
Yet, this viewpoint is not rooted in history or facts. A close examination of the State and an "Austrian" understanding of markets correct this misunderstanding.
Problem of Causation
To demonstrate this, let's examine Kwasniak's argument for why Brubaker's book is inadequate. Kwasniak mentions causation. The challenge of civil suits is proving causation between property damage (including health issues) and pollution.
This is what Chief Justice Robinson meant by specific, distinguishable damages. There must be a direct link between the defendant's actions and the harm suffered. This is a complex task.
In the past, people tried using the common law, and the judiciary sent the problem to the legislature. The legislature has since responded with "strict liability" offences.
"Strict liability" includes offences like improper waste disposal, exceeding emission limits, and other activities bureaucrats have decided harm the environment.
This offence doesn't require the defendant to have a guilty state of mind (mens rea) or criminal intent. The Government of Canada often imposes "strict liability" provisions in its environmental laws and regulations.
Brubaker suggests civil suits under the common law are preferable since they require lower standards of proof. Kwasniak argues that Brubaker has framed the argument to support her thesis. And it does appear that way.
Most environmental offences are "strict liability," so the argument that common law requires fewer standards of proof compared to the statist alternative is incorrect. If that is the crux of Brubaker's book, then it sounds like an argument for classical liberalism.
Not having read the book, there could be a section dedicated to private property anarchism that Kwasniak glossed over for her review. But assuming there isn't, I'll provide one now.
Private Property Anarchism vs. Statutory Law
In private property anarchism, the discovery of law and its enforcement are driven by a decentralized web of private property owners, like nodes in a network. Each individual comes together to make a whole greater than the sum of its parts.
This already exists in civil society and the market; it's merely a matter of extending the logic and morality of consent to all our relationships. To our broader communities, what we may traditionally consider the "nation" as opposed to the machinery of the State.
In private property anarchism, property owner associations, even associations of associations, establish and enforce rules regarding acceptable behaviour.
Contractual agreements specify rules and standards. Some of these agreements will be, no doubt, environmental, addressing potential liabilities for damages caused by specific actions.
Disputes arising from alleged "strict liability" offences would be resolved through private arbitration and enforcement. Individuals and companies agree to use third parties to assess the situation, interpret contractual agreements, and determine liability.
Under private property anarchism, insurance coverage would mitigate the risks associated with potential liabilities. They'd establish standards and incentivize policyholders to adopt practices that minimize the risks of causing harm.
A private property anarchist society could treat "strict liability" offences in multiple ways. I've only touched on a few here.
On the other hand, the monopolist of protection and justice has all the wrong incentives. It is shielded from competition. It unilaterally sets the price we are forced to pay. As a compulsorily funded monopolist, the State raises its price while declining the quality of its supposed justice and protection.
Can private property rights protect nature? Compared to what? The State? Is this a serious argument? Kwasniak's book review is perhaps convincing for a person who is unfamiliar with Rothbard and Hoppe or for someone who has already bought into the review's underlying statist ideology.
But if, in the 19th century, pre-industrial conceptions of private property had won over commercial interests, the common law justice systems of the British Commonwealth and the United States would have evolved very differently. Today, we'd be a much freer society with cleaner air and water.
Kwasniak has made the case that Brubaker's common law argument, as presented in Property Rights in Defence of Nature, is flawed. But can private property rights protect nature? Yes, of course. They're the only thing that can.