Iain MacSaorsa

By Iain MacSaorsa - ca. October 19, 1995 [PDF File Available]

Can “absolute” private property rights protect the environment?

According to Libertarians, only private property can protect the environment. Rothbard claims that “if private firms were able to own the rivers and lakes... anyone dumping garbage... would promptly be sued in the courts for their aggression against private property... Thus, only private property rights will insure an end to pollution-invasion of resources” (Rothbard, For a New Liberty, page 256).

This ignores one major point, why would the private owner be interested in keeping it clean? Why not just assume that the company makes more money turing the lakes and rivers into a dumping site, or trees into junk mail. Its no less plausible, in fact more likely to happen in many cases. Its just another example of Libertarianism’s attempt to give the reader what he or she whats to hear.

But, of course, the Libertarian will jump in and say that if dumping was allowed, this would cause pollution which would affect others, who would sue the owner in question. Maybe, is the answer to that. What if the locals are slum dwellers and cannot afford to sue, or if they are afraid that their land-lords will evict them if they do so (particularly if they also own the polluting property in question)?

But, beyond these points lies the most important one. Namely, is the option to sue about pollution really available in the free market? Rothbard thinks it is. Taking the case of factory smoke in the 19^th Century, he notes that it and “many of its bad effects have been known since the Industrial Revolution, known to the extent that the American courts, during the... nineteenth century made the deliberate decision to allow property rights to be violated by industrial smoke. To do so, the courts had to — and did — systematically change and weaken the defenses of property rights embedded in Anglo-Saxon common law... the courts systematically altered the law of negligence and the law of nuisance to permit any air pollution which was not unusually greater than any similar manufacturing firm” (Rothbard, op cit, page 257).

In this remarkably self-contradictory passage, we are invited to draw the conclusion that private property must provide the solution to the pollution problem from an account of how it clearly did not do so! If the nineteenth century USA — which for many Libertarian’s is a kind of “golden era” of free market capitalism — saw a move from an initial situation of well defended property rights to a later situation were greater pollution was tolerated, as Rothbard claims, then property rights cannot provide a solution to the pollution problem.

It is, of course, likely that Rothbard and other “Libertarians” will claim that the system was not pure enough, that the courts were motivated to act under pressure from the state (which in turn was pressured by powerful industrialists). But can it be purified by just removing the government and placingcourts into a free market? The pressure from the industrialists remains, if not increases, on the privately-owned courts trying to make a living on the market.

The characteristically Libertarian argument that if X was privately owned, Y would almost certainly occur, is just wishful thinking.