 Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I'm Aaron Ross Powell, editor of Libertarianism.org and a research fellow here at the Cato Institute. And I'm Trevor Burrus, a research fellow at the Cato Institute Center for Constitutional Studies. Our guest today is Matt Zolinski, associate professor of philosophy at the University of San Diego, a co-director of USD's Institute for Law and Philosophy and the founder of the Bleeding Heart Libertarians blog. He's also a, let's call him, lapsed contributor to Libertarianism.org. Today we're discussing his new essay, Libertarianism and Pollution. So you start in the essay, you say that Libertarianism is often perceived as being fundamentally incompatible with the kinds of policy goals demanded by a thoroughgoing commitment to environmentalism. What about Libertarianism leads people to think that of us? Well, on a theoretical level, Libertarians have a very strong commitment to rights of private property, including the rights of owners of businesses over their property and the owners of natural resources over their property. And partly as a consequence of that strong commitment to private property, Libertarians have a very strong antipathy towards government regulations. So a lot of the things that government does, not just in the area of environmental regulation, but including that are viewed by Libertarians as involving violations of either rights of private property or rights of freedom of contract. So for instance, if somebody owned some land that had some valuable environmental resources on it and they wanted to develop that land in a way that would damage or destroy those environmental resources, Libertarians would support their legal right to do that even if they thought they were acting in a morally improper way by doing so. And that would put them at odds with, I think, the vast majority of people in the environmental movement. It seems that the image of Libertarians even stronger than that, that it's almost anti-environment. We get a lot of sort of reputation for being anti-environment. And I think that a lot of the rhetoric from Libertarians has courted that stereotype. Yeah, especially if you read people like Ayn Rand, she often has nothing but very hostile things to say towards environmentalists and not merely because of their political beliefs, it seems like. But she actually finds the underlying system of values to be kind of anti-life and anti-man. And I don't know how much of an influence that's had on the perception of modern Libertarians. But modern Libertarians have often courted alliances with political conservatives in the realm of practical politics and that may have some impact on their perception on environmental matters too, since I think conservatives perhaps tend to be even more hostile to a lot of environmental regulation than Libertarians are and have less sound theoretical grounds for supporting environmental regulation than I think Libertarians actually do when you look at what they're really committed to. Well, let's turn to those because I think what's really provocative about your paper and especially to people who haven't spent a while thinking about all the implications of Libertarian theory of rights is that you say this common view of Libertarians and Libertarianism not really caring about the environment is in fact wrong. And then you go on to point out that you say, quote, a Libertarian regime of strong private property rights might actually better serve environmental values than commonly proposed policies that undercut or infringe on such rights. Yeah, that's right. So I was tempted and I probably should have given in to this temptation to subtitle the paper. Why Libertarians should learn to stop worrying and love the environmental protection agency as if it weren't provocative enough. But yeah, I think, look, so if you're a Libertarian, like I said, do you believe in property rights? That's sort of your core political claim is that the state is like any other person or group of persons under an absolute requirement to respect the property rights of others and cannot violate those property rights, even if doing so would serve some important social or economic value. So if you take that real seriously, then what that means is that you can't justify allowing some pollution merely because you think it's going to be good for economic growth. If that pollution involves a violation of the property rights of other persons, and I think there's a good case to be made that pollution, at least most of the time and maybe even necessarily as just a pure conceptual matter, pollution does violate the property rights of others. Because if you think about what pollution is, it's sending stuff unbidden and unconsented to from your domain onto the domain of others. And if you're doing that without their consent, then that looks like a violation of their property rights and that looks like the kind of thing that Libertarians ought to condemn, regardless of whatever benefits that pollution might confer or the process that generates that pollution might confer. And then you get to the counterintuitive or unexpected part as opposed to the kind of Libertarians for human progress, Libertarians for transhumanist, Libertarians for a better future of human ingenuity. You say that once we consider the full implications of the 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 and the sense that it could almost grind the world to a halt if we just apply these in the way that you're talking about. Yeah, so if you start off with just the basic intuitive insight, it looks pretty plausible and it looks maybe like something that ought to make Libertarian attractive to environmentalists, right? So you think, okay, you're committed to property rights, that means if I take my trash and I dump it on your lawn, I've violated your property rights and you have a right to prevent me from doing that or seek relief afterwards if you weren't able to prevent me in time. That so far so good, right? Nobody has a problem with that kind of thing. But then you start moving down the logical slope and that's where things get hairy, right? So if I can't dump my trash on your yard, what about blowing noxious smoke into the air over your yard that you have to breathe, right? Some of it goes in through the windows, the cracks around the windows into your house. That looks like a pretty good case for being a violation of your property rights too. Okay, now what if I'm just playing music kind of loud in my house and you can hear it from your property? I'm physically vibrating the air around you and your eardrums even. I'm causing physical vibrations in your body of all things against your will. Is that the sort of thing you can prevent too? If you can prevent that, can you prevent me from shining lights into your house? Can you prevent me from expelling carbon dioxide over your house without your consent? All of these things are forms of pollution, but if you take seriously the idea that any kind of pollution that is not consented to is a violation of individual rights, then it looks like, in effect, almost everything is a violation of individual rights because almost everything we do involves some kind of non-consensual trespass of the physical boundaries of other people or their property. Does this consent need to be explicit because I can imagine saying, look, these things that you've described are simply part of living in the world in a very basic sense. We're not talking about like you move in and there's mobsters in town, they're beating everyone up and so by living in that town you've consented being beaten up. That's not kind of a necessary fact of the world, but living in a world where people breathing and you hear them talking seems inescapable but for absolute hermits. And so could we say something like, look, by living in this world by choosing to live around other people, you have consented to at least this minimum level of what we might call pollution? I think that is a suspect argument on a philosophical level. And on a more strategic level, I think that's a very dangerous argument for libertarians to flirt with endorsing. So I think libertarians often argue against non-libertarians who claim that by, for instance, living on the territory of the United States, we have consented thereby by that very active remaining here when we could have gone elsewhere. We've consented to all kinds of things, right? Like we've consented to pay taxes, we've consented to obey whatever regulations the government legally passes, we've consented to military conscription perhaps in times of war. Libertarians object to those kinds of arguments and I think quite rightly because the notion of tacit consent on which those arguments are grounded is a very, very flimsy one, right? It's not at all clear what ought to count as tacit consent and what not. It's not at all clear how we ought to understand the scope of what is consented to. It's not clear how we should handle people who explicitly say, no, I don't consent to that. It seems like if someone's explicitly saying no, then you can't count their behavior as giving tacit consent. So there are all kinds of problems that you find documented in people like in my humorous book, for instance, on the problem of political authority. So I think that's the right attitude for libertarians to have towards the argument from tacit consent and I wouldn't want to see them reversing themselves on this particular issue. Partly because I don't think the argument's a very good one and partly because I think it's incompatible with the other things that they rightly want to say about that. So you also discussed as you sort of lay out this problem, which if you're familiar with the Libertarian discussion of property rights and violation, it's a very vexing problem whether or not you can shine a light, whether or not you can breathe around me and you discuss some of the theorists in your paper who have talked about it. So you've discussed Robert Nozick. What was Robert Nozick's view on pollution and these kind of rights violations? Yeah, so Nozick has a discussion of pollution in his 1974 book Anarchy, State and Utopia. It actually comes up in a rather surprising context. So the book is divided into three parts. The first is the anarchy part and that's where he is concerned to rebut the philosophical anarchist, which is essentially something like the position that Murray Rothbard endorsed. The second part is about the state and what the state can and cannot do, so that's his defense of the minimal state. And then the third part is discussion of utopia and that's the part that sadly nobody reads anymore or talks about. But the stuff about pollution comes up in the first part where he's talking about anarchism because that's where he does most of his philosophical heavy lifting regarding these... Well, such a theory of rights as he does in fact develop in the book, which isn't fully fleshed out, but there's some meat to it. And in the course of trying to refute the anarchist, he ends up arguing that if you've got a kind of anarcho-capitalist society with all these different protective agencies running around being hired by a different individual to enforce their basically locky and natural rights, that some of these agencies are going to behave in risky ways. They're going to enforce their rights in risky ways. They're going to come to your house, they're going to arrest you because they say you violated the rights of one of their clients and they're going to haul you off to a kangaroo court and God knows what's going to go on there. So the puzzle that he's trying to deal with is, well, what do we do about that kind of thing? If we've got a dominant protection agency in the area, one that's kind of commanded the market, the largest share of the market in protection, can it prohibit these competing protection agencies from enforcing their client's rights in these risky ways? And he ends up saying you can. But in order to say that and make that compatible with the underlying theory of libertarian rights that he's got, he's got to do a bit of a song and a dance about what exactly those rights are and what exactly they do and do not allow. And so he basically says that you're allowed to prohibit certain kinds of risky activity so long as you compensate the people that you're harming by virtue of that prohibition. And so that's where this discussion of pollution comes up because you can see the affinities, right? Oftentimes pollution involves the risk of a harm. You drive your car to work and you're emitting some fumes from your exhaust pipe and in it of themselves. Perhaps those fumes don't do any direct damage, but they pose a risk of, say, contributing to some damage down the road. And so the question is, well, what, if anything, can we do about those risks? And Nozick's view, the view that he ultimately arrives at, is that essentially you're allowed to prohibit pollution whenever the costs of doing so are less than the benefits of doing so. Or to put it another way, you can permit pollution whenever the benefits of that pollution are greater than the costs. So if you've got some factory and it's polluting and to shut down that, or to suppress the pollution would involve shutting down the factory, which would create all these social costs, and the cost would be greater than the cost that the pollution is opposing, then you're allowed to shut down the factory. Well, that sounds pretty utilitarian for Nozick. I know, right? Yeah. So now we're going to start violating people's rights if there's a really good reason for it. It's very strange. I mean, he does, to be fair to Nozick, he does limit this to a certain narrow, this principle, right, that you can prohibit activities when the costs of those activities are greater than the benefit. He limits that principle to a fairly narrow range of cases, but it's still rather jarring to see Robert Nozick, who starts his book with this very inspiring speech about the inviolability of individual rights, now saying something which looks virtually indistinguishable from utilitarianism when it comes to grappling with the issue of pollution. What are those cases that he limits it to? So this gets pretty hairy here. Let me see. I mean, another way to – I guess what I'm getting at is if he limits it to cases, how does he limit it? Does he have a principle for limiting it? In his discussion of the anarchist society and the suppression of the competing protection agencies, one of the principles to which he appeals to in justifying the suppression of those agencies is the idea that by virtue of going around enforcing their client's rights in risky ways, they generate fear, right? So the harm that they cause is not just the harm that befalls the people that they actually go and arrest and subject to these unreliable processes. The harm is broader than that. It also affects anybody who gets afraid that they might be subject to these unreliable enforcement procedures. And so there's this kind of diffused harm kind of floating out there in society, affecting all sorts of people, not just the people they actually act on. So knows it kind of grasps onto that fear, that special kind of harm as a reason for – that justifies preemptively prohibiting these risky activities. And so it's not entirely clear if he thinks that that's a necessary condition for the application of this rule. You can't use the cost-benefit analysis unless there's this kind of fear-based concern at issue. If it is construed in that way, it seems like it could still justify a lot of environmental regulation on these grounds because you can make the argument that people are afraid after all of that they'll be harmed by global warming or whatever kind of cell phone towers or what have you. So it's not clear that it does a whole lot of limiting work. And it's not clear what really knows it contended it to do. So this is why I say it's a little bit hairy. You always have this problem with living with other people. You can tell this just so story. I've heard people justify the welfare state Medicare and Medicaid about eliminating the fear of deprivation or all these things that cause bigger harm in society. And therefore, people aren't very productive because they're afraid of what they're going to lose if they miss steps. So you can always justify something new, which seems to be the danger of Nozick's argument here. I mean, it's a special kind of fear that he's got at stake, right? Because it's a fear caused by the rights violating activity of an individual or agency. So if, you know, one question that seems like a libertarian ought to be able to answer is this, right? So suppose you're a gangster and you go around sort of breaking people's legs who don't pay you extortion. If you're caught and you're going to be subject to legal penalties, what exactly are you on the hook for? Are you on the hook only for the damages caused to people whose legs you've actually broken? Or are you also on the hook for whatever incidental damages you may have caused to people who reasonably feared that their legs would be broken by you, right? It's not just any old fears. It's not like the fear of being laid off, for instance, because employers have the right to lay off their employees. This is a fear caused by your rights violating activity. And so if, you know, you weren't supposed to be engaging in that rights violating activity in the first place and I'm suffering real tangible harm as a result of that activity, it seems like there's at least a prima facie case to be made for some kind of compensation, if not preemptive prohibition. This seems like a kind of odd loop in the sense that the dominant protection agency can violate my rights by preventing me from doing things, regulating pollution, taking money from me in order to pay for preventing pollution in order to stave off the fear of my rights being violated. So does that mean we can end up in some odd situation where then another agency pops in to prevent the first one from stopping pollution in order to prevent the fear of my rights being violated as it does that? Part of the philosophical song and dance that Nozick does here is to ask us to, I guess, rethink the way that we understand the rights that are at issue in these sorts of situations. So broadly speaking, there are two ways that you might think about libertarian rights of person and property. You might think of these rights as being, and this is the way Nozick suggests that we ought to think about them in the early part of the book, you might think of them as being protected by what we might call a property rule. And to say that rights are protected by a property rule is to say that the individual who has these rights has kind of an absolute discretion to prevent other people from infringing upon those rights and a claim upon the state or his or her protective agency to enforce that claim through physical violence. Nozick in this part of the book seems to move from thinking of rights as protected by a property rule to thinking of rights as protected by a liability rule, which means this, it means you've got a right in your person, you've got a right in your physical property, and that right gives you a certain kind of claim against other people. But the claim is not one to prevent them from using the property without your consent. The claim rather is one to demand compensation in the event that people use it without your consent, so they have a liability towards you. They can trespass across your grassy field, but if they damage your crops in doing so, then they owe you for the damages. So that seems to be the key philosophical move that Nozick makes here is to suggest that many of these rights that he's been discussing in the early part of the book aren't really property rights. They're more like liability rights so that if the dominant protection agency suppresses these other competing agencies, it's not really violating their rights. They're infringing their rights to use a bit of technical philosophical jargon, but as long as it pays compensation, then everything's A-OK. Now, to change tracks from Nozick here in a different level or a different way of thinking about rights is Murray Rothbard. Mr. Libertarian. Mr. Libertarian. Is that what we're supposed to call him now? He's been called. Okay. Who wrote about pollution too and said some pretty interesting and novel things about that. What was Rothbard's view of pollution? Yeah, so Rothbard's view of pollution comes out in a couple of different places. The first time he addressed the issue, as far as I know, was in his For a New Liberty, his kind of popular Libertarian manifesto published, I believe, in 1973. In that book, he had just a short little discussion of the issue of pollution, but it was pretty radical. In that book, he seemed to embrace the idea that the Libertarian commitment to property rights would have these radical and pro-environmentalist implications. He says something like, look, you know, property rights are absolute. That means you can't violate them no matter what the social benefit of violating them might be. And that means that if in order to enforce these property rights in a really kind of robust way, we need to shut down a whole bunch of businesses because the pollution they emit is violating the property rights of others, then so be it. That's just the price of respecting property rights. There's no de minimis exception here, right? You said it's absolute, so violating is even a small amount of violation. Yeah, there's no de minimis exception. And think about why that's the case, right? And this is going to be a problem that affects all of the Libertarian treatments of this issue, including Rothbard but also including Nozick and Eric Mack and really everybody who's touched on it. So if you're a Libertarian, right, you'll want to be an absolutist about property rights in a whole range of cases including those involving government taxation and government regulation because you don't want to end up saying, well, a little bit of regulation is okay or a little bit of taxation is okay as long as it's not too much or it doesn't exceed some kind of reasonable threshold, a small welfare state, sure, that's fine. If you end up saying those kinds of things, then you've lost, it seems to me, kind of the radical core of Libertarianism. And most Libertarians don't want to give that inch. They want to be absolutist and firm on those areas. The problem is how do you be absolutist and firm in those areas and not absolutist and firm when it comes to the issue of pollution? How do you say that a little bit of pollution is okay but a little bit of taxation isn't okay? That's a really hard move, I think, to justify on Libertarian grounds. And so every person that we end up looking at has to kind of dance around that problem in one way or another. So in 73 Rothbard's just biting the Libertarian bullet here and he's going absolutist all the way, absolutist on pollution and absolutist on taxation and everything else, and that leads him to philosophical anarchism. Then in 1982 he writes a paper for you guys, for the Cato Journal, called Law Property Rights and Air Pollution or something like that, where he ends up, first of all, devoting a much lengthier discussion to this issue of pollution and the problem it raises. And second of all, endorsing a position that looks far, far less radical, indeed, I think, even conservative at the end of the day. Because he puts a lot of different restrictions on what should count as a rights-violating instance of pollution. And by the time you put all those restrictions together, it looks like people who are the victims of pollution are left with no valid recourse to either prevent them. It's either the pollution from recurring in the first place to issue an injunction against it or to seek relief. So I think it's a kind of radical change in views between 1973 and 1982. Let's walk through some of those exceptions because when I was reading it, I mean, I was struck by how many of them just seem kind of odd and arbitrary. So distinguishing, like, visible from invisible things. Great radiation is pretty invisible, I would say, so that's another one. And harmful and non-harmful. And yes, there's a bunch of strange exceptions he has in there. So some of them are really strange, and probably the strangest of them is this distinction that he draws between trespass and nuisance. So he takes himself here to be drawing upon and elaborating upon and in some ways reformulating the traditional common law approach to these issues. But by the time he's done with it, he ends up with something I think that's quite different from traditional common law. So what he ends up saying is, look, so you've got these two kinds of activities that might plausibly be thought to involve a violation of the rights of others and that might plausibly be thought to involve a kind of pollution. So first of all, there's trespass. And trespass he defines as a visible and tangible or sensible invasion which interferes with the possession and use of property. So that would be like me dumping my garbage bin on your front lawn. That would be a trespass. Because first of all, it's visible and tangible. You can see it. And second, it's interfering with your use of the property. It's stinking up your land, or you want to walk across that space and you can't anymore. So that's a trespass. And nuisance he defines as involving invisible or insensible boundary crossings that don't interfere with the possession of the use of the property. And what he ends up saying is that trespass can be permissively prohibited on libertarian grounds. So we can have laws against trespass to protect property rights. But not nuisance, he thinks. We can't have laws against nuisance. That would be a kind of impermissible form of regulation. And so things like radio waves, right? If I'm broadcasting a radio station in my house and the radio waves are traveling across your property, you have no legitimate libertarian legal right to prohibit me from doing that. Sound waves possibly wouldn't be legally prohibitable because while they're invisible, I guess they're sensible. So that's a little tricky. And then whether they interfere with your possession of the use of the property, I guess that's a difficult question too. But part of the reason it's hard to resolve this kind of thing is because he's got a bunch of different conditions sort of mixed on to this one distinction. And it's not clear which of the distinctions is meant to be doing the real work here. Well, he also makes a distinction about priority, correct? If you move next to a factory after the factory is there, then you have no claim against it? Is that the lesson you just had? Yeah, that's the same one. So he talks about this idea called homestead easements, which is... This one's actually kind of interesting and I'm kind of sympathetic with this idea. So you start off with the libertarian theory of property rights, which is based on an idea of homesteading, right? So how do you come to acquire property rights in land to begin with? Well, you go on broadly kind of the same grounds as John Locke argued. You go and you mix your labor with a bit of unowned soil and in doing so you come to acquire a property right in that unowned soil and a right to exclude others from using that soil without your consent. So Rothbard endorses something like that. He calls it a homesteading view of original appropriation. And the way he appeals to that idea in this context is to say, look, when you come to own property in that way, you're not just coming to own the soil, right? You're coming to acquire this bundle of rights of which the right to exclude people from walking across your soil without your consent is just one. But say that when you mix your labor with the soil, you set up some kind of factory there and you start making noises and you start making funny smells and those funny smells and noises sort of they extend beyond the reach of where you put your fences on the ground. But not onto property that anybody else has yet claimed, right? And then somebody else, let's say, comes next door. They start mixing their labor with the soil next door and they build a house there, plant a little turnip form, what have you. And then they start complaining to you about these funny smells that are coming from your land. Rothbard says, well, they've really got no right to complain because when you mixed your labor with your soil and built your factory, you not only acquired a property right in that land, you also acquired a property right to pollute over the region that you were polluting. You were sort of mixing your labor with the air around you by using that land as a dump, let's say, for your pollution. So you acquired a property right in the airspace around your land in addition to the property right in your soil and anybody else who comes after you and claims an ownership right in that soil, yeah, they can have the soil but they can't have the airspace because you got there first. I guess a couple of questions about that because it seems like there's some odd distinctions going on. First, for this airspace, how far would something like that extend? Because you could have a factory, you know, you set up a factory in the middle of an enormous swath of unclaimed land, right? And then you start setting off, you know, like you set up a new… You had a meth lab, I think, the kind of nuisance property, right? Well, I'm thinking of something more catastrophic. So you bought this chunk of land in the middle of Nevada, right? And no one else is living in Nevada and you start, you're setting off, it's a nuclear test site. So you're spreading fallout across this vast swath of the western United States and then people start moving in there. It would seem perhaps odd to say, well, you know, I'm using my land. I was spreading this stuff around unowned land and now that you guys just happen to be showing up, you know, you just suck it up and take the fallout. Or am I misreading? I guess like how far, if it's going to extend any distance outside of it to funny smells into the lot over, does it go hundreds of miles, thousands of miles? I take it that the view is that the extent of the property right coincides with the extent of the resources that you're occupying and using in some way. So if you're broadcasting a radio signal that transmits for, you know, hundreds of miles, then by doing so you've homesteaded that frequency for hundreds of miles and you have a claim against any others who might want to use that frequency for their own purposes. And I guess he would have to say the same thing about this fallout issue. You know, what you don't have in Rothbard that you did have in John Locke's theory of property is any kind of proviso that says, you know, in taking some resource to use for yourself, you have to leave enough and is good for others. If you had a proviso like that in effect, then you might say that that would play some limits on the amount or the scope of the resources that you're able to appropriate in this way. But Rothbard rejects that view. But let me say, I mean, I think that's a good rejoinder against Rothbard and maybe one that could be dealt with by the addition of a proviso, maybe not. But there is something attractive in Rothbard's view and you see that, I think, when you contrast the Rothbardian view on this issue with the other view that you tend to see among libertarians who talk about environmental issues, which is the more law and economics approach that derives from the work of Ronald Coase. So when you read Coase on externalities, Coase's famous article on the problem of social costs is all about the problem of pollution, in a sense. And one of the most distinctive and memorable things that Coase says about externalities is that externalities are not about villains and victims. They're not about bad guys polluting and good guys, innocent victims suffering the result of that pollution. All externalities, Coase argued, are reciprocal in nature, which means that, yeah, you don't have a problem of externality if you don't have a polluter, but you also don't have a problem of externality if you don't have somebody there sort of getting in the way of that person's pollution, right? So this is the, why did you stand in the way of my fist argument type of thing? Exactly. I could have free swung my arm and you just happened to stand in the way of my fist. So that was your problem, yes. That's right. I was sitting here, swinging my fist around, minding my own business and you just walked into it. There's something, right, and so he goes on from that to say there's no reason to think that we ought to privilege the position of the so-called victim of externalities and assume that it ought to be the polluter who bears the cost of dealing with the problem of externalities. Maybe it should be the polluter, but maybe it should be the victim, right? If it's cheaper for the victim to pack up and move to a different place than from a law and economic standpoint, that's what ought to happen. There's something I think kind of disturbing about that view, right? And I think Rothbard's notion of homestead easements gets at at least a part of that, right? Like the idea is if, look, if you were there first, right, if you were, like, built a house and minding your own business and then this factory comes along and starts polluting, it seems like then you've got some kind of a claim against that factory for having violated your rights in some ways, whereas if the factory was already there and then you bought a piece of land next to it knowing that it was going to be smelly and noisy, you kind of give up your right to complain about that factory's activities. So I think that's something that the rights-based view that the social welfare or law and economics view doesn't have. It seems that all of these issues, we have a kind of cataclysm, a combination of absolutism which has this inherent attractiveness to it because then you just have an answer to a problem. And you can say, yes, even breathing on me, even a laser beam is a violation of right. It makes it a very simple analysis. And then you have consequentialism where you ask questions like Aaron's question about fallout or just sort of, I think the Nozickian term is morally catastrophic situations or something like that. And then you also have social convention, which is like the quiet enjoyment. Most people would say that if you move next door to the factory, like you have no right to complain. It's just that's the way we kind of do things if you put yourself in this situation. And of course we have a whole legal system with the history of social convention about rights to who has the nuisance right and who has the right to be downstream pollution or riparian rights. And in the middle of all that, we're trying to figure out pollution, which is when we have this other sort of emergent libertarian Eric Mack talks about some of these things, trying to deal with how all those things fit together. Right, right. And social conventions especially are, they're tricky from a libertarian point of view because at the one hand, right, when we're in our Hayekian or Humian moments, we want to appeal to those social conventions as representing a kind of spontaneous order, an evolved process for dealing with the myriad kinds of coordination and other problems that we face in living together in a society. But then when we're in our more Rothbardian-Nozickian moments, the authority of those social conventions becomes much less clear, right? Part of the appeal of Rothbard is the radicalism, right? The idea that we've got this basic moral premise and what we're going to do is we're going to work that premise out to all its far-reaching logical conclusions no matter where they take us, no matter what conventions they overturn. So if you're a Rothbardian or a natural rights theorist of any sort, you've got to at least do some serious explanation for when social conventions have any authority and why and when they don't. And then maybe on that basis you could explain how some of the conventions we have in place with respect to pollution are not just traditions that we happen to have but actually philosophically well-grounded and defensible solutions. And I think you're right, that is part of what Eric Mack is up to in his piece on this subject. Can you explain that Mack's view, this ur-claim that he talks about? Because I thought it was pretty interesting. Yeah, so let me say something about the general kind of approach that Mack is taking first and then we can talk about a specific way of pulling it out, right? So one way of dealing with problems that you face as a result of adhering to some principle in philosophy is to sort of step back and look at the moral justification that was given for that principle, right? So the idea is like, look, if you're committed to some principle like you shouldn't tell lies and then you run into some situation where it looks like, oh gosh, if I commit myself to that principle here it looks like I'm going to get this really crazy result, right? Like I shouldn't tell lies to the Nazis when they come looking for Jews in my attic. So to avoid that kind of thing a lot of people say, well, why did I want to ban lies to begin with, right? What was the purpose of having this prohibition on lying? The purpose maybe was to, I don't know if you're a utilitarian, maybe the purpose was to maximize utility. Okay, well generally speaking maybe avoiding falsehoods maximizes utility, but gosh in this case when the Nazis are at your door surely it doesn't. So in that case I'm going to put the principle against lying to the side and I'm going to appeal directly to this underlying more fundamental moral principle, namely I should act in a way which maximizes utility. That's a common move that a lot of philosophers make when they get into trouble, when they found themselves in a pickle because of the unwanted implications of some principle that they've committed themselves to. So I think that makes it sound like it's kind of a sneaky and ill-grounded move and I don't mean it to sound that way on being a little glib, but it's something like that that Mack is doing in this paper, right? So he says, look, you know, why do we have property rights? Property rights are getting in trouble with this pollution issue because it looks like if pollution constitutes a violation of property rights and we have this absolute commitment to property rights, then we must be absolutely opposed to pollution and that means basically the end of human civilization. So that's a problem. So why was it that we had property rights again to begin with? And that's where he gets into this moral urr claim, right? So the idea there is that the fundamental moral principle is that something like that each individual has a claim against others to live his or her own life in his or her own way compatible with a similar right for everybody else. And then property rights are meant to be one way of implementing that urr claim, right? So we have property rights because, and property rights are justified because they facilitate individuals living their own life in their own way. And he has a really good paper on the natural right to private property where he goes into that argument in significantly more detail. And in this piece on pollution that I talk about in the paper, he kind of gestures at it, but he doesn't say a whole lot about it. So he's appealing to this urr claim as a way of kind of rethinking what it is that we're committing ourselves to when we endorse a kind of libertarian view of property rights. So there's a little bit of a practicality there or an understanding of would you call it consequentialism or a version of it? I certainly wouldn't call it consequentialism because I know Eric would not be happy with that. And I think philosophically it isn't consequentialism. I think one of the important ideas of consequentialism is, sorry, put it this way. Consequentialism isn't just the idea that consequences matter in philosophy because that's an idea that almost everybody agrees with whether you're a utilitarian or a virtue theorist or a Kantian for that matter. Everybody thinks consequences matter somehow. Consequentialists are distinct in that they think, first of all, that only consequences matter. And second, that we can and ought to aggregate consequences and act in a way such that these aggregate consequences are maximized. So it's okay if I hurt you a little bit, Trevor, as long as I can in so doing confer some benefit to Aaron and the benefit I confer to Aaron is greater than the harm I do to you. That's a distinctly consequentialist mode of reasoning. Interesting. So what Mac is doing here is he's appealing to consequences but not to consequentialist way. He's saying we've got this fundamental ur-claim that each individual has to live his or her own life in his or her own way and that's going to shape and constrain the theory of property rights that we wind up endorsing because any theory of property rights that does not allow each individual to live his or her own life in his or her own way is going to be unacceptable because incompatible with that more basic ur-claim. One concern I have with these kind of ways out of the problem of blanket bans on effectively a modern economy that would flow out of strict libertarian property rights, as they're being described here, one problem I have is that this shift to, say, the ur-claim of, you know, is this particular instance of pollution really getting in the way of someone pursuing her good in her own way or the Rothbardian, is this harmful? Did you really agree to this sort of thing? If you did, how harmful is it? Does it overcome, you know, is it bad enough to overcome various considerations that these all kind of shift decision-making back to people? Like someone has to decide if this small amount of pollution is actually getting in the way of you pursuing the good in your own way. And one of the appealing things about strict rights is that there isn't that process of decision-making, right? Like if you – they're there no matter what people think of them and no one gets to decide if they're overridden in a particular circumstance or not. We don't need tribunals. We may need that for enforcement purposes but if the rights exist, the rights exist and that question is done. Is that – I mean that – so do we kind of open things up by just, you know, allowing these opportunities for people to decide these edge issues of what falls into the bundle of rights that might flow with property, whether you can overcome someone's distaste with, you know, having been there first, whether this is actually a prohibition or is getting in the way of someone living well. Are we kind of undermining the very features that make rights attractive in libertarian philosophy and elsewhere in the first place? Yeah. I see the appeal of that worry. I think, however, that the appeal is largely illusory. We have a desire, I think, to free ourselves from the need for judgment and discretion and to latch on to the comfort of a simple absolute rule that's going to solve our problems for us. Not in the sense of sort of solving all our practical problems but like it'll solve the theoretical problems, right? The rights are there. They're plain – they're simple plain as day. Anybody can understand them and that's all there is to it. You don't need legislators or judges to do anything to have a lifting because it's already been done by the book of nature. I think it's just not going to be that simple. You read somebody like Locke or you read somebody else in the libertarian tradition like Lesander Spooner and they make these great compelling arguments about the importance of property rights for human well-being and for human self-direction and it's all very compelling. But then you start to think of hard cases, right? Cases where you've got somebody living next door to you and they're operating a brewery on their premises and the brewery is making some sounds that you don't like or you start operating some kind of business in your home that requires more quiet than is normal, right? Maybe you're examining your doctor, you're examining patients in your home and so noises that otherwise wouldn't be bothersome are now getting in the way of your business. How do you deal with these sorts of things? It's not clear that reading Locke's second treatise or reading Lesander Spooner's letter to Grover Cleveland is going to solve those problems for you or that there's any way of solving those problems other than just sort of digging down into the facts of the case, examining the claims that both sides have and then trying to come up with some considered judgments about who has what interests in the case, how important those interests are compared to the interests of the other parties, what the social consequences would be of adopting a rule prohibiting or allowing a certain kind of activity. I think there are important questions to ask and as libertarians I think we have an important contribution to make about the kinds of institutions that we want to have making those decisions, right? So I think for instance there's a good libertarian case to be made that those decisions are better left to the kind of decentralized system that we have represented in the common law than by federal legislatures. But I think the need for some kind of decision making is inevitable and even for somebody sympathetic to the broad picture of libertarian rights is found in somebody like Locke. Okay, so in the paper you end up surveying a number of solutions which we talked about today or proposed solutions to this problem of environmental strictness in libertarian rights and you end up finding all of them lacking. So I guess let me close by just asking how can we solve this problem? Is there a way to make a world where people can pollute enough to live well and drive a modern economy compatible with strict libertarian rights? I wish I had a better answer for you than I don't know but that's the state of my own thinking and as far as I can tell that's the state of current libertarian thinking. I tried to survey everything I could find on this topic in the libertarian literature for this paper and I have yet to see anything that really offers a satisfactory solution to the problem. I think Eric Mack's paper probably comes closest. So Mack ends up endorsing this kind of what he calls a live and let live principle which comes from an 1862 case called Bamford versus Turnley involving a case much like the one I just alluded to where you've got a neighbor getting into a dispute with another neighbor because he's operating a brick kiln in his house and creating some noxious fumes. So the justice in this case, Justice Baron Bramwell wrote that he says, those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without submitting those who do them to an action. It is as much for the advantage of one owner as for another. For the very nuisance the one complains of as the result of the ordinary use of his neighbor's land, he himself will create any ordinary use of his own and the reciprocal nuisances are of a comparatively trifling character. The convenience of such a rule may be indicated by calling it a rule of give and take, live and let live. So something like that seems to me to be basically right. And interestingly, I found that principle cited favorably by a lot of different libertarians with very different moral priors. So Eric Mack endorses it and Eric Mack's the kind of quasi-Nozikian libertarian. Richard Epstein endorses it and Epstein's kind of like a consequentialist, utilitarian consequentialist of some sort. And then Walter Block, who's a Rothbardian, writes favorably about it too. So it seems like there's at least a potential for a consensus on that principle, but that potential still needs to be better developed to deal with the two big problems of pollution for the libertarian. The first of which we spent some time talking about already, which is the problem of absolutism. So how do you reconcile an allowance of some pollution, a kind of non-absolutist stance on pollution with the more absolutist stance that libertarians want to take on issues like taxation and regulation and stuff like that. That's one problem that libertarians have to deal with. The other one, which I don't think we've really mentioned yet though, is the problem of what I call the problem of interconnectedness, which is really more of a challenge to the individualism of libertarian political philosophy. So libertarianism is, I think, on its firmest ground, morally speaking, when we think about interactions between one person and another person. And this is often the way that libertarians argue about politics. They say, look, here's why taxation is wrong. If I came up to you and said, I want some of your money so I can give to this really good charitable cause, give it to me or else, I'm going to use violence against you. Clearly that would be wrong, so why is it any different if the state does that rather than some individual? That's a really compelling intuition. But pollution is tricky in part because generally speaking, the harms caused by pollution are not harms caused by one individual's actions that could be directly traced to some particular victim. Think about global warming. If global warming is imposing harms upon some people, it's a harm that a whole lot of people have produced acting in a kind of concert. And the harms are radically dispersed throughout the globe such that it's very difficult to trace a direct connection between one person's actions and the effects on any other individual. Now, how do you deal with a problem like that? Within the framework of individual rights, that I think is a problem that libertarians have not yet even begun to address adequately. So that, I think, is where a lot of the hard work on the problem of pollution is going to be in the future. Thank you for listening to Free Thoughts. If you have any questions or comments about today's show, you can find us on Twitter at Free Thoughts Pod. That's Free Thoughts P-O-D. Free Thoughts is a project of Libertarianism.org and the Cato Institute, and is produced by Evan Banks. To learn more about libertarianism, visit us on the web at www.libertarianism.org.