It is often claimed that the libertarian conception of property rights is so stringent as to make it impossible for holders of this view to formulate plausible rules for regulating environmental pollution. In a recent essay, Matt Zwolinski summarizes the problem as follows:
On the libertarian view, property rights can be justifiably overridden only in very unusual situations and only by the very weightiest of competing moral concerns, if at all. Libertarians hold, for instance, that a person’s property right in his justly acquired wealth is so strong that it would be impermissible to steal (or tax) even a nickel from him, no matter how great a social benefit we could produce by doing so. But this seems to commit libertarians to the extremely demanding view that it is equally wrong to impose a nickel’s worth of damage on one’s neighbor through pollution. In the same way that the libertarian’s property absolutism leads her unable to recognize any morally significant difference between excessive and acceptable levels of taxation, so too is she unable to distinguish between relatively serious and relatively trivial forms of pollution. (footnotes omitted).[1]
In reviewing Nozick’s treatment of this issue, Professor Zwolinski notes an apparent contradiction between his conception of rights as side constraints, and his willingness to endorse the use of cost-benefit analysis (“CBA”) for purposes of determining what forms of pollution should be permitted. According to Zwolinski, “Nozick’s position seems to abandon the intuitive idea with which he began that individuals are ‘inviolable,’ and replace it with the idea violating individual rights is perfectly fine, so long as you are willing to pay the price.” (footnote omitted). Zwolinski, 13-4.
It is quite true that Nozick says in this regard that, “Presumably, [a society, socialist or capitalist] should permit those polluting activities whose benefits are greater than their costs.” (ASU, 79). Although I don’t regard Nozick’s brief remarks regarding pollution to be complete or wholly satisfactory, I don’t believe his two positions are inconsistent.
I note at the start that in Nozick’s above-cited discussion, his initial focal point is on those “making the sky a murky grey-green,” and he uses airplane noise as a specific example of where a compensatory scheme might be appropriate, which strongly suggests that he is focused here on common activities with widespread effects that can only be resolved by state, regional or federal policy. His analysis is not meant to address “micro” cases that implicate the property rights of an individual or a small group, e.g. Joe dumping waste on Sam’s property, which as shown below are different in important respects.
Also, it is crucial to recognize that rights are not the moral bedrock of political theory. Rather, their content and stringency are a function of the ethical presuppositions held by their proponents. This is why, for example, libertarians and utilitarians have such fundamentally different views regarding the substance and stringency of rights.
For Nozick, rights function to protect the moral space owed competent adults as rational agents, as outlined here: http://naturalrightslibertarian.com/2013/03/nozicks-experience-machine-not-broken/. His argument relies on the powerful intuitive appeal of Kant’s famous demand that persons always be treated “never simply as a means, but always as the same time as an end” (see ASU, 32). The question, then, is whether being forced to comply with pollution rules based on CBA necessarily violates the moral considerations embodied by Kant’s maxim. I see no short step to this conclusion.[2]
In cases where a general rule governing pollution is unavoidable, as in the case of smog or aircraft noise, all members of the applicable jurisdiction experience the benefits and burdens of the policy. Accordingly, assuming such laws are written and enforced in a fair and impartial way, there is no obvious reason why being subjected to them violates Kantian “respect for persons.” The “victims” are only being asked to abide by the same rules that all members of the community must live with; rules that are designed to reflect, by means of CBA, the trade-offs that members of the affected community actually make in their day-to-day decisions.
Contrast environmental statutes (or judicial case law) regulating this type of pollution with the situation presented by Joe dumping garbage on Sam’s property without his consent.[3] Here, Joe gets the entire benefit and Sam bears the entire burden of Joe’s unilateral action. Given the intimate connection that natural rights libertarians posit between property ownership and personal autonomy, it is clear that Joe should be condemned (and may be punished) for using Sam solely as a means to his own selfish ends. Since under core libertarian principles property rights have great stringency, Sam (as the sole holder of this right) is not required to give his consent to Joe’s dumping, even if the economic gain to Joe clearly outweighs the cost imposed on Sam.
Therefore, I believe it is easy to distinguish this sort of case from (say) emissions generated by power plants. In the latter, every affected citizen will have their own opinion regarding the tolerable level of pollution, and the community must enact some uniform rule, unless they wish to do without electricity altogether. There is no way in such circumstances to please everyone, but it is not at all clear to me that the pollution inflicted on the dissenters amounts to an impermissible invasion of their moral space.
Unfortunately, Nozick’s two-page discussion of pollution (ASU, 79-81) does not attempt to reconcile his position with his general view of rights, and focuses as much on the procedural question of whether the tort system might be used to redress widespread, but relatively minor forms of pollution, as on the more fundamental issue. It surely would have been helpful has he addressed this matter further, along the lines I have suggested. Nevertheless, while I believe there is tension between his limited endorsement of CBA and his broader commitments, I believe the two perspectives are compatible.
____________________
[1] Matt Zwolinski, “Libertarianism and Pollution” (preliminary draft), available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2443030.
[2] I address this issue in more depth in Chapter 6 of my Nozick’s Libertarian Project: An Elaboration and Defense.
[3] I take no side in the ongoing libertarian debate regarding whether unwelcome pollution can best be redressed by the tort system or administrative regulations.
