Leave No Trace Behind: A Libertarian Speculation
By
Martin L. Cowen III
Libertarian theory has
two great problems: the tragedy of the commons and taxation. In Libertarian
theory, the meaning of “freedom” is the societal condition in which property
rights, including the rights to life, liberty, and the pursuit of happiness,
are protected by the rule of law. Property rights are the key because the goal
of politics is human survival and flourishing. Human survival and flourishing is
possible only by human work. All that is created or produced by individual
human work is private property. Individuals work to secure their own survival and
flourishing and the survival and flourishing of all that is necessary in
his/her judgment to his/her life, including his/her family, friends,
associates, and communities. All adult relationships in a Libertarian society
are voluntary, that is, freely chosen by every adult participant to any
intercourse.
The tragedy of the
commons is difficult for Libertarians because, by definition, “the commons” is
an asset to which property rights do not easily and obviously pertain. Taxation
is difficult for Libertarians because “taxation” usually involves the involuntary
confiscation of individual private property, thus violating the Libertarian
rule that all adult relationships be voluntary.
We propose in this essay
to address only one of these two great problems, to wit: the tragedy of the
commons.
The “commons” usually
refers to air and water. Even the boldest totalitarian theorist or grasping
world monopoly does not yet claim ownership of the earth’s atmosphere or of the
oceans, though to be sure they savor the thought. The 1990 Arnold
Schwarzenegger Sci-fi film Total Recall
shows the Administrator of the planet Mars withholding company-owned oxygen
from an oppressed population. The plot resolves with the creation of a
previously non-existent Mars-wide atmosphere freely available to all
inhabitants.
In formerly communist
countries, the “commons” included more than the oceans or the atmosphere. (By
definition of “communism,” all property is “commons.” Private property
is forbidden.) Large tracts of land and parks can be the “commons.” The office
refrigerator can be the “commons.” The tragedy of the commons is that everyone
will use the “commons” and no one will care for it. Thus, the office
refrigerator becomes uncleaned and useless after a short time. A “commons” park
will be shortly covered in dog poop and other litter, the lawns overgrown with
weeds, the flowers gone wild, every fixed structure defaced, the benches stolen
or destroyed. The “commons” shortly become unusable by humans.
Beijing, China’s
atmosphere is smog-filled because people and government-run industries dump
pollution into the “commons” of the atmosphere. Environmentalists allege that
there is a Great Pacific garbage patch containing mostly plastic debris
discharged by human beings from land and sea. Assuming that the Great Pacific
garbage patch is real and not merely enviro-propaganda, it is an example of the
tragedy of the commons. (I have no doubt about Beijing’s atmosphere since my
son has travelled there, experienced it, worn a surgical mask to mitigate the
adverse effects, and photographed it. The Great Pacific garbage patch cannot be
“seen” and must be “sampled.” Those of us who have not “sampled” it engage in act
of faith by accepting its existence, even for the sake of argument.)
People of all political
persuasions, Right, Left, and Libertarian, believe in clean air and water. The
problem is how to achieve the righteous goal of clean air and water. To be
sure, there are many people who do not believe in clean air and water, but they
are not categorizable as Right, Left, or Libertarian. These are venal people. Venal
people litter because it is easier to toss the beer can on the “commons” (roadway,
waterway, public park) than to find a trash can. There are venal industrialists
to dump pollutants into streams, rivers, oceans and atmosphere, because it is far
cheaper than recycling or otherwise rendering safe their own waste products. There
are venal politicians who, knowing full well that an unfunded and unfundable
pension program is a long-range impossibility, nevertheless create the program
to further their own immediate political ambitions. The bankruptcy of the city
(Detroit), the state (Illinois), the country (Greece) will occur on somebody
else’s watch. Libertarians lament that this form of governmental corruption is
ubiquitous. This creation of unfunded pension programs is the tragedy of the
commons carried to an extreme, where the “commons” is “other people’s money”
and everything is ruined. Witness the news of the day.
So what is the
Libertarian solution for the tragedy of the commons?
The first step is to
privatize as much property as is possible. A privately owned park is preferable
to a public park. A privately owned farm is preferable to a public cooperative.
(In his book Fields without Dreams:
Defending the Agrarian Idea, Victor Davis Hanson proposes that the small
family farm of Ancient Greece is the societal structure at the root of the
Western idea of private property and the related ideas of individual freedom
and self-responsibility.) A privately owned railroad is preferable to a
government operated railroad (e.g.
Amtrak). A privately owned package delivery company (e.g. UPS or FedEx) is preferable to a governmental monopoly (e.g. United State Postal Service).
Even after massive
privatizations, the atmosphere, the oceans, seas, enormous lakes, rivers and
streams will remain a part of the “commons.” Human beings live in the
biosphere. The biosphere is the quintessential “commons.” How does Libertarian
theory propose to preserve the biosphere in order that human beings can survive
and flourish?
Libertarians believe in
freedom and responsibility. These two are opposite sides of the same
coin. In Libertarian theory, the individual should be free because he is responsible for his/her own life. Human freedom is
the means of human survival and flourishing. Individual human life is the
standard of moral and political law. Because human life is good, human freedom
is good. The purpose of politics is to organize human society to optimize human
survival and flourishing. Human survival and flourishing is optimized when
individuals are free to exercise their minds and bodies to secure their
survival and flourishing via the production of private property upon which to
live and trade thereof.
In Libertarian theory,
the individual utilizes his/her own self and resources, including trading with
others, to produce a flourishing life for himself/herself. One uses one’s
property in order to flourish. One trades one’s property with others in order
to flourish. One does not use the property of another without the other’s
permission (the voluntary association principle).
So, we combine a number
of principles:
1) Human beings live in the biosphere. There are
exchanges between human beings and the biosphere, intakes (clean air and clean
water) and discharges (human waste, exhaled breath, and home, work and industrial
waste).
2) In order for human beings to survive and flourish (the
goal of ethics and politics), the intakes and discharges to the biosphere must be
managed to maintain a healthy-for-human-beings biosphere.
3) It is a scientific question as to the amount of human
intakes and discharges the biosphere can naturally process. For example, humans
take in clean air and oxygen and discharge carbon dioxide. For example, humans
drink clean water and discharge urine and feces. Carbon dioxide, urine, and
feces must be processed, somehow, by the environment or by human work in order
to maintain a balanced and therefore healthy-for-human-beings biosphere. More
problematic than these simple biological human discharges are the discharges
from human work and industry, such as waste paper and gaseous discharges from coal-fired
power plants.
Combining these
principles we come to our Libertarian speculation: “Leave No Trace
Behind.” The “Leave No Trace” principles are widely known in outdoor activities
circles. The United States Forest Service promotes the seven “Leave No Trace”
principles:
·
Plan
Ahead and Prepare
·
Travel
and Camp on Durable Surfaces
·
Dispose
of Waste Properly
·
Leave
What You Find
·
Minimize
Campfire Impacts
·
Respect
Wildlife
·
Be
Considerate of Other Visitors
Applied to the tragedy
of the commons, the principle would be that each individual should discharge
only that amount of waste that can be processed by the biosphere and not
interfere with the intakes of another individual. So, for example, human
breathing is not likely to be a problem, since, one presumes as a scientific
fact, that the biosphere can easily process human exhalant. So, for example,
human urinating or defecating at sea from a private sailboat is not likely to
be a problem, since, one presumes as a scientific fact, that the biosphere can
easily process one human being’s waste in the open ocean. (Imagine whale poop!)
Problems arise when the
millions of inhabitants of New York City propose to discharge their collective
human waste (urine and feces) into the Hudson River. Such a policy cannot work
and is not the current practice (one presumes). Problems arise when a
coal-fired power plant discharges untreated smoke upwind from a major
metropolitan area. One supposes that this type of problem is among Beijing’s
pollution causes.
The details of a “Leave
No Trace Behind” solution are complex. The general solution is to allow a
private cause of action by all individuals harmed by a polluter for monetary damages
and injunctive relief to stop any individual or industry from discharging waste
into the biosphere in such a way as to damage the complainant. Courts and
perhaps legislatures will have to define, based upon scientific evidence, the
amount of discharge that does not cause harm to individuals.
A starting principle is
that each individual is entitled to receive from the biosphere clean air. A
starting principle is that each individual is entitled to experience clean
water in large bodies of water (oceans, large lakes) and water courses (streams
and rivers) located in the “commons.”
Some examples may be
helpful:
When one is enjoying his
backyard hammock (on his/her own private property), one is entitled to clean
air. Thus, a smoker in the vicinity of the property line may be violating the
non-smoker’s rights if the smoker’s discharge wafts onto the non-smoker’s
property and disturbs the non-smoker’s hammock nap. The non-smoker has the
right to ask the smoker to move away from property line in order that the
non-smoker can enjoy his/her right to clean air. The smoker retains the right
to smoke on his own private property, just so long as his/her smoking discharge
does not interfere with the non-smoker’s right to clean air.
On the other hand, if a
non-smoker is visiting a privately owned motel and the policy of the motel
owner is to allow smoking anywhere on the property, then the non-smoker must
accept the unsanitary conditions of the motel as a condition of being permitted
on the private property by the motel owner.
When one is driving to
St. Simon’s Island, Georgia, one is entitled to clean air. Thus, the stink of a
paper plant may be violating the traveler’s rights. The traveler would have a
private right of action against the paper plant for violating his/her rights to
clean air.
Some pollutants are
odorless and colorless, but nevertheless harmful to human beings, for example,
carbon monoxide. A polluter who discharges carbon monoxide in amounts harmful
to human beings would likewise be subject to private rights of action by
individuals damaged by the discharge.
When one is enjoying the
ocean, he/she is entitled to clean water. Thus, a beachgoer who steps on a used
syringe and hypodermic needle hidden in the sand previously discharged into a
nearby river from an upriver hospital, the beachgoer would have a private right
of action against the hospital for violating his/her rights to clean water. A
court could award the beachgoer monetary damages and issue a restraining order
against the hospital forbidding further discharges.
When one lives on a
river or stream, he/she is entitled to clean water from the river or stream
flowing through his/her private real property. Thus, an upstream dweller is not
entitled to discharge any matter into the river or stream to render the downstream
water unclean. Urinating, one time, into the Mississippi River, would not cause
a problem for a landowner one mile downstream. Discharging household waste into
a small neighborhood stream would be a violation of the downstream property
owners’ rights to clean water. Between these two extremes, a court would have
to decide those discharges which are not violations of rights and those which
are.
These examples will
suffice for our present purposes. As stated, the details of this “Leave No
Trace Behind” solution will be complex. The Common Law will define the rules.
One can see that
polluters would not long remain polluters with thousands of potential
individual litigants chaffing at the bit to sue, to say nothing of the Sierra
Club or Earth First! There would be no need for the Environmental Protection
Agency in these circumstances.
The general principle is:
“Leave No Trace Behind” on other people’s property or upon the commons. Each of
us owns our own stuff, but we are not entitled to allow our stuff, including
our waste products to interfere with another’s use of his stuff or of the
commons (the biosphere).
We do not wish to imply
that anything goes on private real property (land) so long as there is no
impact on adjacent landowners. One must consider later landowners in the chain
of title. No one lives forever. Real property is bought, sold, gifted, transferred,
and inherited.
A person is entitled to buy
a brand new automobile and destroy it immediately, provided the residue is
properly disposed. Such is the nature of private personal property. We own it.
We can destroy it. Of course, who would want to? We can imagine that the new
car owner is a movie producer who wants to use his brand new car in the chase
scene of his/her action-adventure movie.
Land, though, exists
forever and is limited in quantity. It strikes one as bad public policy to
allow a private land owner to permanently render unusable “his/her” land, since
it will not be “his/her” land for eternity or even beyond his/her lifetime. The
most obvious permanent ruination of land is the storage upon it of nuclear
waste material. Even if the presence of nuclear waste material on a plot of
real property is not a threat to adjacent property owners, one supposes that
the destruction of the plot of real property for any other use for 240,000
years is bad public policy. (Greenpeace claims that Plutonium 239 has a
half-life of 24,000 years and will remain hazardous for 240,000 years.)
Technology may well
solve the problem of nuclear waste disposal. An obvious, though expensive,
solution is to blast the nuclear waste by rocket into the Sun. Other less
expensive solutions are almost certainly to be discovered by science.
The general principle
ought to be that the use (and abuse) of private real property has no bounds
except: (1) the use cannot threaten adjacent land owners, and (2) the abuse can
be mitigated for a price less than the value of the land. The principle for
exception (2) is that a landowner ought not to destroy forever the value of “his/her”
land on the grounds that it will not always be “his/hers.” In this sense,
viewed from the perspective of centuries, real property (land) is in the
commons. Therefore, a large tract of land might be used for a junk yard as the
“junk” has value and can be removed from the land and sold or recycled,
returning the land to its “unabused” state. More problematical is a landfill.
While a landfill might be mitigated and returned to its original state, the
cost to do so is likely to be much higher than the value of the land. The
“half-life” of a landfill is likely to be millennia. The landowner might
collect a storage/mitigation fee to permit the use as landfill and avoid
litigation.
This solution to the
problem of the commons vis-à-vis land viewed from the perspective of centuries is
radical. No one save the most radical enviro-nutcase will approve. (I do not
count myself as a most radical enviro-nutcase. I notice with some surprise that
my Libertarian Speculation: Leave No Trace Behind leads me, logically, to conclusions
I suppose a most radical enviro-nutcase would approve.)
In summary, Libertarians
believe in both freedom and responsibility. Part of responsibility includes not
allowing one’s exercise of his/her freedom to impair another’s exercise of
his/her freedom. Recall the freedom is simply the protection of private
property rights by the rule of law. The radical conclusion we draw from this
Libertarian assumptions is that one ought not to despoil the biosphere or land
in the commons. Even private real property (land) when viewed from the
perspective of centuries is in the commons.
Wow!
