Taking Property Rights Seriously: The Case of Climate Change

Dscn3451-golden-adler Via a VV comment at ATTP I discover How a professional climate change denier discovered the lies and decided to fight for really long headlines which is fair enough, but via that I discover the far more interesting Taking Property Rights Seriously: The Case of Climate Change by Jonathan H. Adler1, a friend of said reformed denier.

This is interesting for two reasons: the arguments it puts forwards, and FME4 itself. Here's its abstract:

The dominant approach to environmental policy endorsed by conservative and libertarian policy thinkers, so-called "free market environmentalism" (FME), is grounded in the recognition and protection of property rights in environmental resources. Despite this normative commitment to property rights, most self-described advocates of FME adopt a utilitarian, welfare-maximization, approach to climate change policy, arguing that the costs of mitigation measures could outweigh the costs of climate change itself. Yet even if anthropogenic climate change is decidedly less than catastrophic - indeed, even if it net beneficial to the globe as whole - human-induced climate change is likely to contribute to environmental changes that violate traditional conceptions of property rights... It may well be that aggregate human welfare would be maximized in a warmer, wealthier world, or that the gains from climate change will offset environmental losses. Such claims, even if demonstrated, would not address the normative concern that the consequences of anthropogenic global warming would infringe upon the rights of people in less-developed nations. A true FME approach to climate change policy should be grounded in a normative commitment to property rights. As a consequence, this paper suggests a complete rethinking of the conventional conservative and libertarian approach to climate change.

The use of property rights is probably not going to be favourably received on the "left", but that doesn't matter, because for the moment we're discussing an argument to be made to the "right". We being by reminding ourselves of an old court case:

As understood by FME proponents, common law principles prohibit the forcible imposition of pollution or other harms onto the persons or property of others, even if such a forced exchange of rights would be net beneficial. For example, in one famous case from New York, the state’s highest court upheld an injunction shutting down a $1 million pulp mill employing several hundred workers in order to protect the riparian rights of a single farmer. “Although the damage to the plaintiff may be slight compared with the defendant’s expense of abating the condition,” the court held, “that is not a good reason for refusing the injunction.” Such a ruling, the court explained, “would deprive the poor litigant of his little property by giving it to those already rich.”

The application to the case of GW is obvious: just because the world overall might gain from burning lots of nice fossil fuels, living in nice warm houses, and whizzing around in cars and planes, doesn't mean that individual harm (perhaps, stretching things slightly, harm-in-the-future; or maybe you just discount) is permissible, regardless of whether the net effect - if that could even be calculated - is positive or not.

This represents a completely different approach to the usual one where, a-la-Tol-etc, we compute a global damage function, with all it's attendant problems. Before stopping to think of some of the problems, let's extend and simplify this slightly, as Adler does, and split the world into those who emit lots of CO2 and gain from it: call them W. And those who emit less and will lose overall: call them T (this is a gross simplification for the sake of illustration of the usual assertion that those who emit least CO2, are poor, and will probably suffer most damage). We now imagine a global court in which T sue W for (a) damages and (b) injunctive relief, the latter meaning "you must stop emitting CO2". If we look to the simple example of our riparian farmer and his enemy the pulp mill, we might expect them to get both. But, no. At least according to Adler; on the "clean hands" principle, T (even though emitting less CO2 than W), cannot claim to be emitting little or none, and so aren't entitled to ask W to stop. Instead, they just get (a), viz damages2.

I should now consider some of the obvious problems with this approach, which even Adler admits is only a thought experiment. Firstly, no global court exists. Second, it is not possible to specify damage with precision, even assuming the most simple form of change he considers, sea level rise3. Third, assuming a simplifying aggregation into just two blocks is implausible. Some of these problems might in principle be resolved, some seem insurmountable. But that doesn't necessarily matter. The point is not to setup such a system: recall that we're only talking to the "right" here who believe in strong property rights. Those who believe in utilitarianism might not even accept the principle. But for those who do claim to believe in FME, it provides a philosophical underpinning for wealth xfer to those who would lose under GW5.


* These conservatives want to convince you that climate change is real


1. Not being familiar with it, I poked around for discussion of it. I found a ref to it at Climate Etc. but as you'd expect there's little of interest there.

2. OIANAL. If you want all the right words used in the proper order, read Adler's original.

3. See-also Impacts – IX – Sea Level 4 – Sinking Megacities May 2, 2017 by scienceofdoom.

4. Also known as "Fuck My Environment", by analogy with FML.

5. It is, obviously, incomplete. The less thinking property rights folk, I suspect, won't want to discuss damages, because they'll just say "let the courts sort it out", and will regard the absence of courts as making the entire idea null.

More like this

All those words to evade the inevitable conclusion that collective action is required to avert a global Tragedy of the Climate Commons. Any Libertarian who acknowledges a case for any taxation at all, should not have a problem with a revenue-neutral carbon tax. It's how we'll get the biggest bang for our bucks, without any need to infringe on anyone's private property rights.

By Mal Adapted (not verified) on 05 May 2017 #permalink

It should make a difference if the very poor country does not initially understand the consequences of emitting their small amount of pollution. As a thought-experiment-type-example, North Korea may not have access to up-to-date science on some pollutants, their pathways, and consequences.

If after learning more, NK then reduced their pollution to effectively zero, (a) damages and (b) an injunctive relief, seems more appropriate - if their country suffers significantly from this pollution. From, say, rich well informed America.

Beyond me what this post is about.

Perhaps we need to go on to why the sea is boiling hot and whether pigs have wings...

By David B. Benson (not verified) on 06 May 2017 #permalink

So much to consider.
Firstly the single farmer case is a great single example of the viewpoint you feel happy with, but said to say, most courts would find the other way, just saying.

[It is more of an illustration than anything else. But again, we're trying to talk to people who should be sympathetic of the court's decision -W]

Secondly the concept that emmisions are bad per se and tat people who emit more hurt people who emit less is also purely emotional not logical.
It is possible for instance that being able to emit led to pharmacy companies that made antibiotics that then saved the lives of millions of non emitters.
Now I know the logic may be lousy and that I am defending the bad side but some logic sure beats feel good but counter intuitive arguments.

[Again, I was arguing on the premise that CO2 emissions cause harm, and if so what should be done. Whether they do cause harm is a separate discussion, of which you'll find innumerable examples, so there is little point repeating them here. You should not be confused by common discourse that often implies that fossil fuels do nothing but harm, which is clearly wrong; but it does not imply the reverse that you seem to imply, that they do no harm -W]

angech - I think you failed logic. It is not that emissions are bad per se, but that the emissions lead to harm for specific individuals.

Unless one denies that CO2 emissions lead to global warming and that said warming leads to, for instance, increases in sea levels, the logic is inescapable.

The 'greater good' does not erase the fact that some are harmed and those harmed deserve recompense.

[Actually, that's not clearly correct. That CO2 leads to unevenly distributed harm and good is clear. That some individuals benefit more than others is also clear. That any actually net lose, when you take into account the benefits of fossil fuel use, is not clear -W]

By Kevin Thomas O'Neill (not verified) on 06 May 2017 #permalink

I'm confident that the libertarian argument for collective action will convince at least three people.

I would support a compensation fund being established much in the way others have been set up for those affected by tobacco or asbestos.

I would hope the lawyers and activist groups don't get as much as they have from previous iterations.

But I don't see any logic in compensating potential sufferers from climate change. Climate models do not resolve to a regional level and nobody knows which regions will suffer and which will remain unaffected.

[But that is no theoretical objection, merely a practical one -W]

Although, every region has put a stake in the ground, claiming that their postcode will be the hardest hit by climate change.

By Tom Fuller (not verified) on 06 May 2017 #permalink


Secondly the concept that emmisions are bad per se and tat people who emit more hurt people who emit less is also purely emotional not logical.

Dude, the decision whether "to be or not to be" is purely emotional. Science can sometimes tell us what will happen given certain initial conditions and forcing rates; it cannot not, not, not tell us why we should care!

Every practical choice you make is a value judgement, made from a rational* but ultimately subjective, i.e. emotional, weighting of costs and benefits: for example, "Should I get up and go to the office, or devote the day to immediate gratification?"

You surely understand that you are alive only because you and all your direct ancestors are/were emotionally attached to both surviving and procreating; and because to date, nobody powerful enough has felt you were enemies, or expendable resources, worth the trouble to intervene successfully.

On that foundation, how can you claim authority on what's bad "per se"? How can that ever anything but an emotional valuation? IOW, what part of "AGW has already cost thousands of people around the world, including the US, the loss of their homes, livelihoods and even lives" do you not understand? BTW, those costs are acknowledged even by lukewarmers like Richard Tol, so the burden is on you to cite otherwise. Good luck.

* "rational" is a term of economic art for "seemed like a good idea at the time".

By Mal Adapted (not verified) on 06 May 2017 #permalink

There are so many predictably subsidized contrarian think tanks catering to their donor's view that , distracted by the 2016 election, I failed to take a real time look at the Niskanen Institute, which mirabile dictu, seems dead straight compared to Cato & CEI- it's resident climate guy actually understands climate science.

What's droll is that Jerry Taylor's brother is the chief carnie at the psuedotarian Heartland Institute- a job he got decades ago on being introduced by his brother, the then Cato VP--this could be the beginning of a beautiful fratricide.

[I'm glad you did that post, it prompted me to look at the NI itself, and I discovered more of interest there. You should try allowing comments; I'd have thanked you -W]

WC writes: [...That any actually net lose, when you take into account the benefits of fossil fuel use, is not clear -W]

Really? You'll have to explain to me the discounting for an infant or toddler that dies due to famine, disease, or flooding caused by climate change. I fail to see how the proposed net benefit to them.

Of course one could claim that no infant or toddler has or will ever die due to these circumstances - in which case all is well, Dr Pangloss.

[Why do you restrict yourself to infants and toddlers? Could this be an appear to emotion instead of reason? But to make the terms clear, it would be necessary to show that the death was actually caused by GW, and that said infant or other human had not been saved previously by, say, modern medicine intervening during birth; or vaccination; or similar.

However, I think it likely that there will be at least one individual that dies because of GW, and so does net lose. I should have added some kind of "almost everywhere" to my original statement -W]

By Kevin Thomas O'Neill (not verified) on 06 May 2017 #permalink

WC writes: [...Could this be an appeal to emotion instead of reason?]

No, an older person could conceivably have accrued enough benefits to outweigh a few days, months, years of a shorter life. An infant or toddler not so much. You've let your prejudices bypass your reasoning.

By Kevin Thomas O'Neill (not verified) on 06 May 2017 #permalink

WC, if your blood pressure is a bit low, you might want to read Cory Doctorow's new book "Walkaway" -- much there about pathology and the market economy to rile you up.

By Hank Roberts (not verified) on 07 May 2017 #permalink

Adler is a blast from the past - lost track of him. Adler spent a lot of time in early-mid 2000s arguing against climate change regulation, including filing a major failed brief in the 2005 case that went to the Supreme Court. I spent a significant amount of time refuting what he said.

I vaguely recall him turning away from the worst denialists in the years after that, and more vaguely still that he stopped doing as much on climate.

As for this latest, sure, make a tiny amount of inroads among libertarians to think they should actually do something on climate. Just don't use it primarily as a weapon against say shutting down coal plants on the basis that we have a shiny idea for compensating victims.

By Brian A Schmidt (not verified) on 07 May 2017 #permalink

The use of property rights is probably not going to be favourably received on the “left”

I'm pretty lefty, and I'm fine with it. (Yeah, yeah, N=1, but it's the best I can offer.)

[Actually, that’s not clearly correct. That CO2 leads to unevenly distributed harm and good is clear. That some individuals benefit more than others is also clear. That any actually net lose, when you take into account the benefits of fossil fuel use, is not clear -W]

I'm not convinced that it actually matters whether anybody is a net loser here. The fundamental point is that some people are harmed by other people's actions, without their consent. (Even if that harm "only" constitutes e.g. a reduction in the value of their property).

Even if those people are (according to some calculation) net beneficiaries, that does not allow you to abrogate their rights on the basis that you think you know what's good for them. People have the right (within certain limits, which we could argue about endlessly) to make "bad" decisions.

[Agreed; but that discussion was somewhat off-topic in response to KON -W]

Some of the clearly identified losers will be US citizens in low lying areas whose properties have been, are being or will be flooded. Does this give them a route to take large emitters to court in the US?

[I don't see why not, in principle. Of course the courts might throw up their hands in horror at the implications and wimp out -W]

WC writes: "we're only talking to [those] who believe in strong property rights"

The fundamental contradiction to the libertarian position is the idea that property rights are fundamental. Property rights all rely on the state (enforcement) and mythical title. Every title is the result of might-makes-right if we trace it back to its origins.

[This is just a variant on the Dumb America fallacy, I think -W]

Moreover, the enforcement through a judicial process inherently relies upon normative assumptions to avoid even further contradictions. I.e., in any dispute over use of property however we decide the dispute will result in one party being 'wronged' - e.g.,either the water is allowed to be fouled (where the people downstream are wronged) or the landowner is wronged by being enjoined from dumping his raw sewage on *his* land (next to a stream).

[Ditto. But to explain the obvious, the civil contract is that we all agree to abide by the law and accept its decisions -W]

Assume the courts find in favor of those downstream - does not the landowner deserve compensation for not being able to use his land as he wants? And doesn't this then open up a whole new rentier class of those who propose dumping their raw sewage next to waterways just to receive the compensation for being enjoined from doing so?

The idea that we can factually weigh right and wrong in these disputes is illusory. Only libertarians believe it. The decisions will always 'wrong' someone and the real question is one of selfish-delusion or common good.

Which is why it bears repeating: "There are two novels that can change a bookish fourteen-year old’s life: The Lord of the Rings and Atlas Shrugged. One is a childish fantasy that often engenders a lifelong obsession with its unbelievable heroes, leading to an emotionally stunted, socially crippled adulthood, unable to deal with the real world. The other, of course, involves orcs."

[http://scienceblogs.com/stoat/2017/04/26/perspective-its-not-a-war-on-s… -W]

By Kevin Thomas O'Neill (not verified) on 10 May 2017 #permalink

Common law seems best suited to smaller instances of damage being done, assigning responsibility after the fact then applying it more broadly as a precedent that prevents larger instances. This does not apply so well when the damage is indirect and difficult to attribute to specific individuals/legal entities. Or balance the harms against the benefits of their activities. Or to projected, expected harms that have not yet occurred.

I suspect that the reason credentialed "maverick" scientists are so highly valued is that they justify those holding positions of trust and responsibility to claim lack of clear foreknowledge, allowing them to dismiss and ignore the more abundant expert advice and act like the climate problem is entirely hypothetical.

The political Left is not responsible for the political Right's failures to take the climate problem seriously; the Right chose to frame the issue as "green" and "left" as a political expedient, to discredit legitimate science based knowledge with those associations. The Right cut itself out of the climate policy development game but that framing continues; it ceded the "green-left" greater credibility at the expense of it's own.

We need the Conservative Right to be part of the solution but it's painted itself into a corner with it's enthusiastic embrace of climate science denial and it's gratuitous use of economic alarmist fear to prevent a political consensus in line with the scientific one. Those choices have had profound consequences, from leaving the wider public befuddled to encouraging people who by any historical standards are wealthy and extravagantly wasteful to resent even the smallest economic sacrifice for the sake of enduring climate stability. Their opposition to strong climate action was also a stab in the back for any nuclear-for-climate proponents, preventing the greatest body of enduring political support for nuclear solutions being mobilised in any effective manner - no climate problem, no need for such a serious and expensive solution. Nuclear was demoted in practice to no more than a rhetorical blunt instrument for bashing at "greenies" and renewable energy, without any commitment to actual use to displace fossil fuels and has become just one more element of a wider effort to fuel anti-environmentalist sentiments in order to prevent commitment to strong climate action by any means.

I will welcome the Conservative Right becoming part of the solution but I don't accept that anything the Left has done has ever prevented them from doing so; their own choices did that.

By Ken Fabian (not verified) on 11 May 2017 #permalink

> the civil contract is that we all agree to abide by the law
> and accept its decisions -W]

You forget the 11th Commandment (which is "You do too know what I mean"). Haven't you ever worked with (for) rich people? The sense of entitlement that money gives people is awesome, and so is the associated willingness to work around any law's explicit limits. "But that's not illegal." Yeah, right.

By Hank Roberts (not verified) on 13 May 2017 #permalink

The New Closed Shop? The Economic and Structural Effects of Occupational Licensure, Beth Redford, American Sociological Review, May 2017

Your intuition may be wrong. Empirical data says that licensure may actually *increase* entry into the market.

"This article demonstrates that, contrary to established wisdom, licensure does not limit competition, nor does it increase wages. Results are based on a new occupational dataset, covering 30 years, that exploits interstate variability in licensure across the 300 census-identified occupations. I argue that licensure, instead of increasing wages, creates a set of institutional mechanisms that enhance entry into the occupation, particularly for historically disadvantaged groups, while simultaneously stagnating quality."

By Kevin Thomas O'Neill (not verified) on 14 May 2017 #permalink