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What’s Wrong with Libertarian Environmentalism

In an essay in Critical Review a
few years back, Jeffrey Friedman had a go at explaining what’s wrong with
libertarianism. His sixty-page argument can be summed up in a single sentence:
“Philosophical libertarianism,” he wrote, “founders on internal contradictions
that render it unfit to make libertarians out of anyone who does not have
strong consequentialist reasons for libertarian belief.”

The
conflict between the philosophical and
consequentialist sides of libertarianism is nowhere more sharply on display
than when applied to environmental issues. This commentary explores the dilemma
of libertarian environmentalism and the ways–none of them entirely
successful–in which its practitioners try to escape it.

What kind of libertarianism?

The
kind of libertarianism that Friedman had in mind is the orthodox version that finds
its clearest expression in the works of Murray Rothbard. In his 1973 manifesto For a New LibertyRothbard explains the essence of the doctrine:

The libertarian creed rests upon one
central axiom: that no man or group of men may aggress against the person or
property of anyone else. This may be called the “nonaggression axiom.”
“Aggression” is defined as the initiation of the use or threat of physical
violence against the person or property of anyone else.

Rothbard’s
“nonaggression axiom” is now more commonly called the “nonaggression
principle,” often shortened to “the NAP.” The NAP is an unequivocally deontic principle in that it defines actions as
permitted or forbidden without reference to their consequences. Nonetheless,
Rothbard wants to assure us that everything will work out for the best if we
scrupulously adhere to the NAP. If we honor the non-aggression axiom, the
result is a free market economy. And,

it so happens that the free-market
economy, and the specialization and division of labor it implies, is by far the
most productive form of economy known to man, and has been responsible for
industrialization and for the modern economy on which civilization has been
built. This is a fortunate utilitarian result of the free market, but it is
not, to the libertarian, the prime reason for his support of this system. That
prime reason is moral and is rooted in the natural-rights defense of private
property we have developed above. Even if a society of despotism and systematic
invasion of rights could be shown to be more productive than what Adam Smith
called “the system of natural liberty,” the libertarian would support this
system. Fortunately, as in so many other areas, the utilitarian and the moral,
natural rights and general prosperity, go hand in hand.

Half
a century later, the belief that free markets lead to prosperity remains strong
among orthodox libertarians. “Freedom of exchange and market coordination
provide the fuel for economic progress,” we read in the first paragraph of the
website for the Cato Institute’s Economic Freedom of theWorld project. “Libertarians believe that people will be both freer
and more prosperous if government intervention in people’s economic choices is
minimized,” Writes David Boaz in a 2019commentary for the Cato Institute“Advancing
economic freedom is the imperative for dynamic economic expansion and true
progress, no matter what a country’s current level of development may be,” we
read in an introduction to the Heritage Foundation’s 2020 Index of EconomicFreedom.

With
this in mind, then, let’s turn from libertarianism in the abstract to
libertarian environmentalism.

Principles of environmental libertarianism

Here
is how Rothbard explains the principles of libertarian environmentalism in a
section devoted to air pollution in For a New
Liberty
:

The vital fact about air pollution is that
the polluter sends unwanted and unbidden pollutants — from smoke to nuclear
radiation 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.

And
what is the remedy?

The remedy is simply for the courts to
return to their function of defending person and property rights against
invasion, and therefore to enjoin anyone from injecting pollutants into the
air.

Reduced
to a syllogism, the orthodox libertarian doctrine is that aggression is forbidden, pollution is aggression. Therefore,
pollution is forbidden.

This,
like the rest of orthodox libertarianism, is a deontic doctrine. There is no
balancing of interests here between the harm done to the victim and the benefit
(in the form, say, of lower waste-disposal costs) received by the polluter. The
only question before the court is whether an aggression occurred. If you accuse
me of polluting your property, I might offer the defense that I did not do it,
or that you cannot prove that I did it, or that what I did was so trivial that
a reasonable person would not consider it an aggression at all. But if the
court does not accept my contention that no aggression occurred, then I can,
regardless of the balance of costs and benefits, properly be enjoined from
continuing to pollute.

Rothbard
is very clear about this. The courts must defend persons and their property
against invasion and must therefore “enjoin anyone from injecting pollutants
into the air.” As for concerns that such an injunctive remedy would be a brake
on progress or would drive up costs, Rothbard replies,

The argument that such an injunctive
prohibition against pollution would add to the costs of industrial production
is as reprehensible as the pre-Civil War argument that the abolition of slavery
would add to the costs of growing cotton, and that therefore abolition, however
morally correct, was “impractical.”

That brings us to the central problem: Self-identified
libertarians often stand in the front ranks of those who oppose regulatory
limits on pollution or effective action against climate change. Yet, if they
followed their professed moral beliefs to their logical conclusion, it seems
they should instead be among the most zealous in campaigning against all
pollution, and damn the cost. As philosopher 
MattZwolinski writes in a draft entry for the Routledge
Handbook of Environmental Ethics
: 

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.

We
see here the environmental manifestation of the clash between the philosophical
and consequentialist sides of libertarianism described by Friedman. The
philosophical libertarian says, “Pollution is aggression. No pollution!” But
what is to be done when zealous enforcement of property rights threatens to
undermine that other cherished doctrine, the belief that free markets promote
prosperity?

Wriggling out from the libertarian dilemma

I
have identified five ways in which various writers try to resolve the tension
between the deontic and consequentialist sides of libertarian environmentalism.
One is to blame government failure, rather than market failure, for observed
environmental problems. A second is to deny that the apparent victims of
pollution are actually the owners of the property rights they claim to be
violated. A third approach is to erect procedural barriers that make it
impossible, in practice, for pollution victims to obtain redress for the harms
they suffer. A fourth is to fall back on consequentialism. And a fifth is to
argue the validity of the science behind the claim that harm has occurred. Here
are some examples of each of the modes of escape.

Blame the government. In a chapter contributed to Economics and the
Environment: A Reconciliation
Walter
Block explains several ways in which the government either causes pollution or
short-circuits potential private remedies. At the top of the list, he points to
the “The defanging of nuisance laws, to which property owners historically
could appeal if they were polluted or in other ways interfered with.” Among the
justification for the weakening of the common law regarding nuisances, he
points to the doctrine that individuals cannot obtain relief for nuisances
caused by entities like railroads that operate under government license or for
nuisances that are necessary concomitants of economic growth or progress.

As
another example, the free market environmental organization PERC campaigns
against what it sees as poor environmental stewardship on public lands. While
not completely rejecting government ownership, PERC advocates market-oriented
management techniques such as charter forests, conservationleasing, and “pay-to-play”
fees for hikers and campers.

There
is a valid point here. Making the government responsible for environmental
protection is no guarantee that the environment will actually be protected.
Government failure is a reality, and corruption of public institutions by
private interests is a problem throughout the world. On the other hand, the
alternative of leaving environmental protection to a set of common law courts
acting under the common law doctrines of trespass and nuisance is not a sure
guarantee of protection either, as the next mode of escape shows.

Procedural barriersAs we have seen, Murray Rothbard’s 1973
manifesto For a New Liberty identifies pollution as a
violation of the non-aggression principle. Victims are offered remedies under
the common law doctrines of trespass and nuisance. That would seem to make
Rothbard a firm ally of environmentalists. However, in a more detailed 1982paper, Rothbard adds a number of procedural hurdles that effectively eviscerate
tort law as a remedy to environmental harms:

  • In the case of pollutants like
    carbon dioxide or methane that are not detectable by human senses, plaintiffs
    must prove not just that an invasion has taken place, but that it has caused
    actual harm to the plaintiff.
  • Plaintiffs must prove a strict
    causal connection between any harm they suffer and emissions from a specific
    source. For example, proving harm to crops from acid rain, in general, is not
    enough; the plaintiff would have to prove that the harm is caused by emissions
    from a specific power plant or steel mill against whom a tort action is
    undertaken.
  • Joinder on either side of a
    pollution case is strictly limited. Each polluter must be sued individually
    unless it can be proved that several of them acted in concert. Rothbard also
    places strict limits on the ability of plaintiffs to join together in class
    actions.
  • The burden of proof rests with
    plaintiffs, and proof must be beyond reasonable doubt, not merely by the
    preponderance of evidence.

Rothbard
acknowledges that these restrictions would make it next to impossible for
pollution victims to prevail in court in many cases. But, he approvingly quotes
a source saying that if there is any way out, “it must not come at the expense
of throwing out proper standards of proof, and conferring unjust special
privileges on plaintiffs and special burdens on defendants.”

Argument from ownership. In a paperon the nonaggression principle, Zwolinski notes that the NAP is not really
a stand-alone principle since it presupposes a theory of property. In the
simplest case, if you jump out from behind a bush and grab someone by the
collar, it makes all the difference in the world whether you are a property
owner apprehending a trespasser or a trespasser assaulting the property owner.

What
is more, Zwolinski continues, a legal title registered with the state is not
enough for a libertarian. What matters is who is morally entitled
to claim ownership over what. For example, suppose that an authoritarian
government conducted a program of ethnic cleansing and then distributed the
property of the outcasts to cronies or to landless peasants of the favored
ethnic group. In such a case, the new “owner,” title or no, would have no moral
right to defend the property against trespass should the rightful owner return.

The
question then becomes, how can one gain a morally legitimate title to real
property? For Rothbard, that can happen either by purchase from a previous
legitimate owner, or by Lockean homesteading — a process by which one “mixes
one’s labor” with previously unowned property.

Although
the term “homesteading” calls to mind the appropriation of unused land for
farming or grazing purposes, Rothbard extends it to more subtle kinds of
property rights. In his essay on air pollution, he writes:

It should be clear that the same theory
[i.e. homesteading] should apply to air pollution. 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 accordance with strict
liability, unless A had been there first and had already been polluting the air
before B’s property was developed. For example, if a factory owned by A
polluted originally unused property, up to a certain amount of pollutant X,
then A can be said to have homesteaded a pollution easement of a certain degree
and type.

This
approach makes a certain degree of sense in cases where the scope of the
pollution is limited. For example, suppose I establish a pig farm in a sparsely
populated area, where there is no one around to object to the aroma. Years
later, you build a house on land that you buy from a nearby farmer. My
first-in-time rights to raise smelly pigs are considered a reasonable common
law defense (“coming
to the nuisance”) against any nuisance suit that you might bring.

Can
we stretch this defense to pollution on a larger scale, such global warming
caused by carbon dioxide emissions? As far as I know, Rothbard, who died in
1995, never addressed that issue directly. In the years since, those who have
applied a Rothbardian or a Lockean property-rights framework to climate change
have come to differing conclusions. JohnathanAdler has argued that if property rights are to be taken seriously, legal
action under tort law will not be enough. Luc Bovens, without
specifically citing Rothbard, asserts that carbon emitters’ Lockean rights of
first use should be given due consideration in setting climate policy. Still,
he thinks the remedy should be sought through some form of emissions trading
rather than through tort law. Hardcore Rothbardians remain unconvinced,
however, as Block explains in response to
one of my articles on the subject.

Retreat to consequentialismBoth Rothbard’s procedural restrictions on
environmental tort suits and his doctrine of pollution homesteading are
implicitly consequentialist. Both appear to stem from the fear that making it
too easy to enjoin environmental aggressions would impose costs on polluters
and the consumers of their products that exceed the harm suffered by pollution
victims. Other libertarian writers, however, embrace consequentialism more
explicitly.

In
fact, libertarian environmental consequentialism is far from uncommon, even in
settings where pledges of allegiance to the NAP are otherwise de rigueur. For example, RyanMcMaken, a senior editor at the Mises Institute, frankly urges a
cost-benefit approach as an antidote to what he sees as the extremism of those
who warn of a climate apocalypse. Putting words in the mouths of climate
activists, he has them asking, “what use is cost-benefit analysis when you’re
faced with the apocalypse?” He answers, “In real life, where more rational
heads–on occasion–prevail, the costs of any proposed government action must be
considered against the costs of the alternatives.”

In
another example, IndurGoklany, in a policy analysis for the Cato Institute, argues against
aggressive climate action because “either focused adaptation or broad pursuit
of sustainable development would provide far greater benefits than even the
deepest mitigation — and at no greater cost than that of the barely effective
Kyoto Protocol.” So it might. But, if anthropogenic emissions and the resulting
sea level rise harm even a few people, such as those who live on low-lying
Pacific islands, they constitute a violation of the NAP. That would be true
even if there were positive net benefits
for the world’s entire population in pursuing the “warmer but richer” strategy
that Goklany advocates.

Even
Block, usually a NAP hardliner, lapses into cost-benefit mode when it suits
him. Writing of the Exxon Valdez disaster in Economics and
the Environment
, he says “The obtainable ideal is to reduce the
incidence of disasters of this sort to optimal levels. … It is not efficient to
decrease oil spills to such a degree that this process actually costs more than
it saves.” What happened to the Rothbardian dictum that holding down the cost
of growing cotton is not an adequate defense of slavery?

Argue the science. A final way to resolve the tension between
the deontic and consequentialist sides of libertarian environmentalism,
especially common in climate change, is to argue the science. If it can be
shown that human activity is having no effect on the climate or that its
effects are not harmful, then there is no tension to resolve. With that in
mind, some free-market organizations have gone so far as to maintain full-time
climate scientists on their staff. Patrick J. Michaels,
a climatologist who serves as Director of the Center for the Study of Science
at the Cato Institute, is an example.

In
an April2020 analysis, Michaels presents a scientific case for vacating the EPA’s
2009 “endangerment finding.” That finding, which determined that the buildup of
greenhouse gases (GHGs) in the atmosphere endangers public health and welfare,
was used during the Obama administration to support various regulations of
emissions. Michaels’ reanalysis of the models and data used to support that
finding concludes, instead, that increased GHG concentrations have a “negative
cost,” that is, a net benefit, “under almost all modeled circumstances.”

Michaels
makes three main points in his critique of the endangerment finding. First, he
argues that widely used climate models, especially some of the 2000-vintage
models used to support the EPA’s original finding, overstate the amount of
warming that would occur from any given increase in GHG concentrations. Second,
he argues that the EPA understates the beneficial effects of increased
atmospheric carbon dioxide on plant growth, including rice, soybeans, and
grassland. Third, he favors the use of a higher discount rate than that used by
the EPA. A higher discount rate would mean giving higher weight to near-future
benefits and near-term avoided costs of climate mitigation and less weight to
further-future harms from sea-level rise or droughts.

There
is nothing wrong per se with
arguing about climate science, which is, after all, not a monolith. The widelyquoted claim that 97 percent of scientists agree about climate change
pertains only to the low-threshold proposition that human activity is, to some
degree, contributing to global warming. That question would be like asking
economists whether they think prices to some degree influence consumer behavior.
The question leaves plenty of room for disagreement about the speed of change
and its effects on specifics like crop yields, storm intensity, and sea-level
rise.

But
libertarians, like anyone else, need to be careful. For one thing, they need to
guard against confirmation bias. Consider, for example, Michaels’ analysis of
the EPA’s endangerment finding. Key parameters in his analysis — the
sensitivity of climate to changes in GHG concentrations, the benefits of CO2
for plant growth, and the appropriate discount rate — are all subject to
uncertainty. Reputable, published, peer-reviewed research includes substantial
ranges of values for each of them. Behind those key variables are other studies
that give ranges of values for the inputs to the models from which estimates of
the key variables are derived, and so on.

The
suspicion of confirmation bias arises whenever a researcher consistently
emphasizes values that lie near the convenient tail of each distribution — the
high end or the low end, whichever strengthens support for the desired
conclusion. In judging whether confirmation bias is present, it is also fair
for a reader to ask whether a given analyst’s conclusions might be influenced
by the source of funding for the research in question. Of course, the same
cautions that apply to libertarians also apply to climate activists on the left
or journalists who write about climate, none of whom are immune to confirmation
bias.

Still,
some objections to arguments from science apply more strongly to libertarians
than to others. In particular, anything that science has to say about whether
the costs of mitigating climate harms are greater or less than the benefits is
irrelevant. For example, suppose Michaels is right that benefits from increased
crop yields outweigh harm done by sea-level rise in the near term. Even so,
flooded-out Pacific islanders would still have a valid case against
methane-emitting Chinese rice farmers in a common-law court that operated under
orthodox libertarian principles. Appealing to science is no excuse for letting
consequentialism back in the window after having thrown it out the door.

Conclusions

Libertarians
can run from the dilemma they have constructed for themselves, but they can’t
hide. To stand true to their commitment to the non-aggression principle, they
would need to snuff out environmental externalities more aggressively than the
most fervent Green New Dealers. Libertarians can legitimately blame some
environmental destruction on the government. However, once they have curbed those
abuses (and more power to them), they still have to confront private pollution
from steel mills, mines, agricultural pesticides, cars and many other sectors
of the market economies they know and love.

Hiding
behind legal formalisms like homesteading of pollution easements and strict
rules for proof of causation amounts to preserving the letter of the NAP while
abandoning its spirit. Retreating to cost-benefit analysis means discarding the
distinctive deontic absolutes of libertarianism in favor of garden-variety
utilitarianism. Scientific arguments are admissible as long as they are
credible, but grasping at fringe theories just because they are convenient is
not playing by the rules.

And
where is a libertarian environmentalist to go, once the Rothbardian orthodoxy
is revealed as untenable? The obvious fallback is a less dogmatic classical
liberalism. The liberalism of, say, Friedrich Hayek. Hayek maintained a strong
presumption in favor of free markets, but acknowledged that they do not offer
the answer to every problem, including that of environmental externalities, and expressedwillingness to consider alternatives.

In
short, when faced with something like climate change, it is better to seek
effective solutions, even solutions that call on help from the government, than
to pretend that no problem exists.

Previously published by Niskanen Center. Photo courtesy of Pixabay.com.

 

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