A Libertarian Speculation: Leave No Trace Behind

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!