Introduction
It is becoming obvious that in the last decades, environmentalism, under all its forms, ranging from conservation of ecosystems to sustainable development, is gaining more and more influence upon our daily activities. Environmental organizations appear every day and promote all sorts of theories regarding the necessity to protect the environment in which we live. It is also clear that not only was the public opinion receptive to these ideas, but so were the political parties, since environmental claims appear in nearly all of the current political agendas.
Taking these aspects into consideration, the main objectives of this paper will be, on the one hand, to analyze the environmental legislation (viewed as a result of the environmentalists’ claims) in light of five universally valid ethical principles and on the other hand, to propose a better juridical alternative for solving conflicts regarding environmental protection. Based on the works of W. Block (2008, p. 42-62) and M. N. Rothbard (1997, p. 121-170), I will underline the necessity of a better definition and enforcement of private property rights. I will also mention the disadvantages of the current environmental legislation versus the advantages of the former Anglo-Saxon method of private individuals pressing charges in court against polluters. Moreover, in this paper I will try to interpret the unbelievable success of the current environmental movement in light of the decay of natural rights theory.
Taking into account the fact that the study will have a theoretical approach, the methodology used will be literature review and critical analysis.
In short, through an analysis based on the theory of natural rights and on the universal principles of law, I will try to show in this paper that the current environmental legislation has some serious shortfalls. I will propose as an alternative to environmental legislation the Anglo-Saxon method of pressing charges against the polluter, method used between 1820 and 1830. Also, the fact that the polluter must pay damages to the plaintiff will be underlined as being of critical importance.
The conclusion of this study is that the environmentalist claims give rise to serious ethical problems and that environmental legislation is not the best juridical mean to solve pollution conflicts, but rather the byproduct of the misinterpretation of the idea of natural rights. The only thing necessary for an improved environmental protection is a better definition and enforcement of private property rights, in light of the universally valid ethical principles.
1. The analysis of the environmental legislation based on ethical principles
The main instrument that the state has at his disposal to implement environmental policy is legislation. Although it is clear that pollution (under all its forms) is a real problem and there is a real need to have legally binding means to compensate the potential victims, the questions which arise are: is environmental legislation the optimum legal mean to solve this problem? Are there any alternatives to environmental legislation?
The alternative which I will suggest, inspired from the liberal economic and juridical theory (Rothbard 1997; Block 2008), is the possibility of individuals to press charges against the polluters in court. This alternative, which is based on the principle of nonaggression, is far from being new. It was used in the U.S. and Great Britain between 1820 and 1830 (Block 2008, p. 48-49)[1]. Apparently the process went something like this: an individual sued a company or another individual, arguing that the pollution affected his person or property, and the judge ruled usually in favor of the plaintiff and issued an order to stop the pollution and to compensate the victim. However, before we explain this process in detail, we must first demonstrate why this alternative is preferable to environmental legislation.
Based on the study of literature written in this field (Rothbard 1997; Block 2008; Reisman 2001; Reisman 2002; Barnett 1977), a possible answer would be that pressing charges in court is compatible[2] with a set of universally valid ethical normative principles, while environmental legislation is not[3]. The ethical framework which I refer to includes five principles: the principle of private property (1), the nonaggression principle (2) (which are practically two faces of the same coin[4]), the principle of proportionality (3), the principle of individual responsibility (4) and the principle of strict causality connection (5).
1.1 The principle of private property
It is extremely important to mention the fact that in order to solve any legal dispute regarding environmental aspects one must start from the distribution of property rights involved. Thus, the statement A claims that B “pollutes the environment” must necessarily involve the following: a certain action undertaken by B has as an effect the invasion and damaging of A’s property[5]. In this case, it seems just that B must compensate A for the damages that he is responsible for. We can ask now a fundamental question: is it possible in the above mentioned case for a certain individual C to accuse B of polluting, even though the actions of B have not affected C’s property in any way? If we want to respect private property rights, the answer would be no. However, nearly all the environmental NGOs who lobby against polluters[6] (and for more environmental legislation), in nearly all the cases, do not have any property rights in the polluted areas. An interesting example here would be the claims made by Greenpeace and Agent Green that the road 66A is “destroying the last forest landscape left intact in Europe” and therefore it must be stopped (Stop DN 66A – Salvați munții Retezat de Asfalt 2010). If we stick to the property right paradigm, this claim has no substance because the environmental NGOs do not have any property in the respective forest. Their claims are thus null and void.
Of course, this is not the only example in which private property rights are totally ignored when it comes to environmental legislation. For instance, the Romanian legislation regarding packaging waste[7] (which represents the implementation of the European Directive 94/62/CE) states that producers must bare the costs of waste collection, reusing and recycling. If we analyze the production cycle from producer to consumer, we can clearly observe that the product becomes waste, not when it is “put on the market[8]”, but after it is used/consumed by the consumer. Thus, the product becomes waste when it is the property of the consumer (which is liable for the way in which he uses his property), therefore it seems reasonable that the consumer (not the producer) should be held responsible and should bare the costs of the waste which he has created. Coercing producers by law to bear these costs can only be explained by the fact that they have more money and that they are easier to tax than the consumers (Rothbard 1997, p. 144).
Regarding the implementation of property rights in the case of pollution, Rothbard (1997, p. 145) underlines a more subtle aspect. According to John Locke, the non-aggressive ways of acquiring property are exchanges, unilateral transfers (e.g. gifts) and homesteading. In accordance with John Locke’s view, Rothbard suggests that in case a factory, for example, has acquired a property in a non-populated area and has began polluting the air to a certain degree, that factory has also acquired (by homesteading) the right to the respective degree of pollution because the owner has “mixed his labor with the environment”. Thus, if an individual buys, in the above case, a piece of land next to the factory (after the owner has began polluting the environment) and sues the owner of the factory for pollution, he should not win the trial unless the owner of that specific factory is polluting more than the initial degree (which he acquired by homesteading). Rothbard also mentions in his article a few cases which were actually solved in this manner[9].
1.2 The nonaggression principle
As we have stated above, this fundamental normative principle regarding nonaggression is nothing more than a reformulation of the universal principle of private property. The nonaggression principle can be briefly expressed in the following words: „No action will be considered illicit or illegal, and thus forbidden by law, unless it invades, or physically aggresses[10] against the person or property of another man (Rothbard 1997, p. 127)”. Pollution falls into this definition because it represents a clear physical aggression against the person or property of another man and thus the victim can press charges against the polluter. However, the so called “preventive” legislation – the laws which aim at preventing a future possibility of environmental damage – is by itself aggressive[11]. Most of the actual environmental laws fall into this “preventive” category, the following paragraph form the European Directive 94/62/CE being extremely suggestive:
“… in order, on the one hand, to prevent any impact thereof (packaging waste) on the environment or to reduce such impact, thus providing a high level of environmental protection… Whereas the best means of preventing the creation of packaging waste is to reduce the overall volume of packaging”
It is clear that such a law institutionalizes aggression and hampers economic progress. Moreover, it we employ reductio ad absurdum, in order to prevent any impact of packaging waste on the environment, the only logical solution is to give up packaging altogether. Of course, the same logic can apply to all the other productive processes. In this case, it is obvious that environmental legislation represents a restriction upon economic freedom. However, many economists (Block 2008, p. 45-60) consider that there is no reason to believe that economic freedom (the so called laissez-faire approach) and environmental protection should be two opposite concepts. Moreover, in their opinion, the free market is the most efficient mechanism for environment protection.
1.3 The principle of individual responsibility
This third principle is probably the simplest and most obvious of them all. It can be best expressed in the words of Ludwig von Mises „Only individuals think. Only individuals act.” (Von Mises 1951, p. 133). Thus, the principle of individual responsibility is nothing more than the application of the concept of methodological individualism in juridical matters. If we would elaborate on this point we could say that the individual must be held responsible strictly for his own actions before the law. However, the above mentioned principle, although intuitively correct, is totally ignored when it comes to pollution. The best examples in this case are global warming and the depletion of the ozone layer (Reisman 2002). Can a single individual, through his everyday actions, bring about global warming or can he deplete the ozone layer[12]? It seems obvious that it is impossible for a single individual, regardless of his actions, to produce these phenomena. The environmental theory advances the idea that the actions of all human beings produce these climatic effects in the long run and that it is necessary for the state to adopt legislation in order to restrict air pollution. However, coercing people to pay huge taxes for preventing such phenomena, taking into account the fact their individual actions cannot cause global warming, seems intuitively wrong. Some authors (Reisman 2002) suggest that if these climatic phenomena appear strictly as an effect of all the actions of all individuals combined, global warming becomes an Act of Nature (or Act of God) – an action which is outside of the control of human beings. This interpretation is, in my opinion closer to the truth.
1.4 The principle of proportionality
Pursuant to the above mentioned principles, our short normative analysis concluded so far that an individual is free to do anything as long as his actions do not result in the concrete/physical aggression against the person or property of other individuals (principles 1 and 2). In case a person did carry on an act of aggression against the person or property of another, he should be held liable before the law for his own actions. However, an important question arises here: how should the aggressor make up for the damages he caused?
In order to answer this question we can invoke the principle of (pure[13]) restitution. According to this principle, if a certain individual A damages through pollution the property of B, A is obliged to pay B the value of the damages he has caused[14]. The method of pressing charges in court remains in the paradigm of restitution and proportionality while environmental legislation does not. Although legislation puts forward the correct idea that “the polluter pays”, we can go further and ask who does the polluter pay? According to the principle of restitution the polluter must repay the victim for the damages he has caused, but according to almost every environmental law the money taken from the polluters automatically goes to the state budget. In Romania, for example, most of the environmental taxes go to the Environmental Fund’s Administration (Romanian A.F.M.)[15]. An interesting question would be how much of these funds reach the victims affected by pollution (the persons who were aggressed by polluters)? Taking into account that the Environmental Fund’s Administration uses the collected taxes to “implement projects which have as an objective the protection of the environment[16]”, it is clear that these taxes are redistributive in nature and that nobody has the intention of compensating the victims. It is extremely important to realize that from a juridical point of view (respecting the principle of proportionality) the polluter did not aggress against society, but against the individual whose person or property was affected.
Moreover, using the principle of restitution in court would have the following advantages (Rothbard 1997):
a) The victims of pollution would get just compensation;
b) The possibility of being compensated would be a strong incentive to encourage people to be vigilant and report any case of pollution;
c) There would be a clear set of rules[17] for calculating the value of the damages caused by polluters (more exactly the price of the property which was invaded). Polluters could be able in that situation to calculate clearly the “cost of pollution”.
d) Consumers would pay much less by reducing or abolishing environmental taxes. It is clear that producers are nowadays taxed under the pretext of protecting the environment. Of course, a certain part of the tax is passed on to consumers via increased prices. Moreover, the government spending for the huge environmental bureaucracies would drastically decrease.
1.5 The principle of strict causality connection
The last concept that I will introduce in the juridical analysis is the principle of strict causality connection. According to this principle, the plaintiff must prove “beyond reasonable doubt” a strict causal connection between the actions of the defendant and the invasion of his rights (Rothbard 1997, p. 142)[18]. Moreover, the burden of proof falls on the plaintiff, any defendant being considered “innocent until proven guilty”. If we would apply this principle to pollution we would have the following process (Rothbard 1997, p. 157): A accuses B of polluting. Step 1: (a) if the pollution is visible (or otherwise detectable by human senses) it represents an aggression per se. (b) If the pollution is invisible or undetectable by human senses A must prove that this “invisible pollution” harms him (physically) in a negative way[19]. Step 2: A must prove a strict causality from the actions of the B to his victimization.
Although probably few people would oppose this basic juridical principle, environmental legislation ignores it in most of the cases. Such an example is, again, global warming. The fact that pollution causes global warming is far from being proven “beyond reasonable doubt” [20]. However, numerous laws have been adopted to fix this so called problem.
I have brought the 5 universal principles into discussion in order to suggest the fact that it is necessary to also respect them in the case of environmental protection.
In order to avoid any confusion, I must underline the following fact. The object of this paper is not to say that pollution should be ignored, but that the means and reasons used nowadays for protecting the environment give rise to serious problems. The juridical reason for which polluters should be sanctioned is that they aggress against the person and property of others (Cordato 2004). Environmental legislation, on the other hand, is not the best legal mean to fight against pollution. As an alternative I would propose the possibility of individuals to press charges in court against polluters, an alternative which already exists in almost any juridical system in the world (Rothbard 1973, p. 265). Adopting environmental laws is not the optimum way to implement environmental protection because these laws are not in the spirit of the above mentioned ethical principles. Thus, the suggestion of the paper would be to employ better juridical means – the court system – with the goal of stopping any aggression upon person or his just property. In other words, I have suggested an alternative legal framework for solving pollution as an interpersonal conflict between two or more individuals who try to use the same scarce resource for conflicting ends. According to this view, pollution is not anymore an issue of “protecting the environment”, but it becomes an issue of solving a human conflict arising from the intention of using a scarce physical resource (Cordato 2004).
2. The environmental movement as a degeneration of the concept of rights
In the first part of this paper I have proposed a legal alternative to solve the conflicts arising from pollution. Of course, this vision is not currently put into practice and the main way to “solve” environmental problems is through legislation or administrative law[21]. One must underline that, even though it is beyond the goal of this paper, the environmental movement began in the same time with a degeneration of the concept of natural rights. Initially, natural rights were considered negative rights. Thus, the only limit one has upon exercising his rights is limiting the possibility of other individuals to exercise the same rights (Hamowy 2004). In other words, freedom can be considered the possibility to do anything as long as you do not affect others in a negative manner.
However, we cannot fail to notice the huge rise in the number of “positive” rights which has taken place in the last decades. A positive right is not a legal interdiction under the form: “Thou shall not…”, but on the contrary, it offers a legal privilege to someone, coercing other individuals to act positively in a certain manner. A typical example is “the right to medical care” which states that a citizen has the right to medical services, forcing the other citizens to bear the costs of the system. Nevertheless, the most suggestive example of the decay of the concept of rights took place when Franklin Roosevelt added to the two natural rights “freedom of worship” and “freedom of speech”, two other positive rights, “freedom from want” and “freedom from fear”. Such a right as “freedom from want” (a concept which is strongly linked to the idea of welfare state) gives rise to a number of problems[22], but it is not the purpose of this paper to enumerate them. Another example from the same category can be considered Art. 25 from UN’s Declaration of Human Rights which mentions that: “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family”.
It seems evident that the environmentalists took advantage of this process of degeneration of natural rights, considering that they have all sorts of positive rights. For instance, they promote the idea that they have the right to a “clean environment” and thus any infringement on this right should be punished (usually by the state, which acts as protector of the environment), regardless of the circumstances[23]. Moreover, the ones who make these claims usually share a deformed vision on property rights, many of them thinking in terms of a sort of “collective inheritance of mankind[24]”, regardless of who really justly owns those specific resources (Hamowy 2004, p. 163). This type of thinking can lead to extremely bizarre conclusions – like somebody claiming that you do not have the right to smoke in your own house, because you are affecting the quality of the air, which is a public good. This conclusion, which is more than controversial, results ultimately from the idea that people have the positive right to a “clean environment”.
Even in Romania, this right is granted by Art. 35 from the Constitution – The Right to a healthy environment:
” (1) The State shall acknowledge the right of every person to a healthy, well preserved and balanced environment.
(2) The State shall provide the legislative framework for the exercise of such right.
(3) Natural and legal entities shall be bound to protect and improve the environment.”
Furthermore, according to paragraph (3) from the article, any individual or company has the legal duty to improve the environment, duty which is, from a certain point of view, a contradiction in terms. According to some of the environmental claims, human activity is opposed (antagonistic) to the processes of nature. Thus, if the environment reaches a certain ecological equilibrium only in the absence of human interference, any human attempt to improve the environment is, by definition, damaging.
I felt the need to include this discussion on rights because the suggestion of treating pollution as an interpersonal conflict for the use of the same scarce resource for different ends is made in the spirit of natural law and natural rights. The strict implementation of (only) negative rights is essential in order to tackle pollution and at the same time respect the fundamental ethical principles.
Following the previous suggestions, the goal of public policy would be to help shape the institutional framework necessary for a market economy. Thus, government intervention would be limited to better defining and implementing private property rights[25]. If one understands this, it can be easily affirmed that pollution is not a “market failure”, as many people consider it to be, but an institutional failure, the institution of private property not being fully defined and implemented (Cordato 1997, p. 2).
Conclusions
The article has made an analysis, based on the fundamental ethical principles, underlining the advantages and disadvantages of the actual environmental legislation. As alternative I have proposed the legal method used in the former Anglo-Saxon countries between 1820 and 1830 – the right of every individual to press charges against the polluter – thus treating pollution as a conflict between two or more individuals. Furthermore, the paper observed that the current legal system does not always respect the principle of private property, that the polluter is not obliged to pay damages to the victims and that the plaintiff is not held responsible to prove beyond reasonable doubt that a strict causality relation exists between the actions of the polluter and his victimization. Also, I have underlined that the current environmental legislation does not rest on the concept of natural law. Environmental legislation is a type of administrative law and it does not have as an ultimate goal to guarantee the freedom of an individual to do whatever he wishes, as long as his does not infringe upon the freedom of others. One can fairly say that the success of the environmental movement, success which manifested itself in the adoption of a huge number of environmental laws, was made possible because of the degeneration of the concept of natural rights.
As a final point, the article underlined the necessity of a clear delimitation and enforcement of property rights. Because, from an economic point of view, problems arising from pollution are interpersonal conflicts, it seems necessary that also from a legal point of view such problems should be treated similar to any other interpersonal conflicts arising from the infringement upon property rights. As a personal opinion, I would like to stress out that the environmental movement has taken a turn for the worst lately. One could say that it has rather become an anti-capitalism, anti-progress and anti-development movement. What is surprising is that this vision has influenced not only the public opinion, but also political figures which have created legislation to regulate “environmental aspects”. I have tried to show in this paper that not only does not the environmentalist vision respect the fundamental ethical principles, but also the fact that a better definition and enforcement of private property rights is the only thing necessary to protect the environment.
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[1] The author of the above mentioned work argues that in the years 1820-1830 environmental complains were considered as falling under the jurisdiction of tort law.
[2] Or at least we can say that theoretically, pressing charges in court is compatible which the ethical framework while environmental legislation is not even compatible at a theoretical level.
[3] A certain set of ethical principles is necessary in enforcing justice, because justice is a normative concept, see Rothbard (1997, p. 121-170).
[4] Ultimately all the 5 principles can be reduces to one – the principle of private property (1). Respecting private property necessarily implies avoiding any aggression against persons or property (2). The other 3 principles ((3)(4)(5)) are the results of applying the principle of private property in particular cases. Still, I consider that the 5 principle approach will make the analysis clearer.
[5] In this article the deduction process starts from the premise that any man has property in his own body. If anyone, by means of pollution, affects the health of another man, he is by definition aggressing against his property, Rothbard (1997, p. 127).
[6] And their actions are successful in all too many cases.
[7] See HG 621/2005 or HG 167/2010.
[8] Wording used in HG 621/2005, which refers to the production or import of a certain good.
[9] One example is New York Case of Bove vs. Donner-Hanna Coke Co. (1932) in which a person moved into a neighborhood which was used mostly for industrial production. After a few years she sued the operator of a coke oven for pollution. The court rejected the plea arguing that the plaintiff bought the parcel of land willingly and knowingly in an industrial area and that pollution is inherent to that specific industrial activity.
[10] In the same category, besides physical aggression, we may add the clear imminent intention on behalf of one man to aggress another. In juridical theory this is called an “overt act”. In this case the person faced with imminent aggression has a legal right do defend his person and property.
[11] Following the above mentioned definition.
[12] Even if we assume, for the purpose of the argument, that in extraordinary conditions an individual is capable of these actions, we may still ask if the environmentalist claim involves a strict determinable causal relation between the actions of a certain individual and global warming. On the other hand, global warming seems to be considered by the environmentalists as an aggregated phenomenon of all human beings acting together. The lack of a clear causality relation between the two – e.g. a maximum level of greenhouse gases above which global warming begins – seems to prove the existence of certain problems in defining the phenomenon.
[13] The concept of restitution splits into the following categories: pure restitution – the aggressor is liable only for compensating the victim for the damages he has caused – and punitive restitution – where the aggressor is not only responsible for compensating the damages but it also involves punishing the offender, see Barnett (1977).
[14] In order to solve situations when a polluter has injured the health of a person, some authors suggest the possibility of incorporating elements of criminal law into tort law, (1997, p. 144, footnote 91).
[15] See O.U.G. 196/2005 CAPITOLUL III: Veniturile Fondului pentru mediu, Art. 9.
[16] Idem, CAPITOLUL IV: Destinația Fondului pentru mediu.
[17] Or, if we want to be more specific, there would be a strong incentive to discover such a set of rules, based on which the judge court could approximate as best as possible the value of the damages. This would give birth to an evolving process through which these rules would be discovered, a process which would be put into motion by the self-interest of the victims to be compensated for the damages incurred.
[18] The author also mentions that the causal relation must be proven clearly and not through “statistical correlation or probability theory”.
[19] If A proves, for example, that the productive process of B generates some kind of invisible radiation, which in the long run causes a type of lung disease, A can press charges against B in court.
[20] There are numerous alternative theories, one of them being that the temperature on Earth will vary according to its distance from the sun. Historically, planet Earth’s orbit around the sun has greatly varied causing climate changes, among which the most renowned are the ice ages.
[21] Administrative law is a concept opposed to natural law. The latter is discovered by reason and it represents a set of universal objective ethical norms through which one can judge human actions. Administrative law (or positive law), on the other hand, is strictly the arbitrary result of the bureaucrats in the legislative apparatus, see Rothbard (2002, p. 17).
[22] Problems such as who can determine what are my needs (or wants) – from an economic perspective, needs are infinite in number. It is safe to say that the welfare state is trying, at least in theory, to bring about a utopia – the kingdom of heaven on hearth (everybody should have sufficient goods and services to be happy). However, the real world is still being characterized by scarcity.
[23] There have been numerous efforts on behalf of the environmentalists to attack the concept of rights. Some of the most interesting attempts were trying to apply the concept or rights to animals, plants and ultimately to minerals, see Hamowy (2004, p. 164-165).
[24] One can affirm that, to a certain degree, there is a striking resemblance between environmentalists and socialists. Both movements are ideological in nature and both wish to have collective property rights. Both have an extreme aversion towards capitalism and the industrial revolution. Both consider, for different reasons, that freedom must be restricted and both propose coercive measures to reach their goals. We could also point out that according to some studies many environmentalists have a Marxist orientation, see Hamowy (2004, p. 164-165) or Reisman (1990, p. 171).
[25] However, it is worth mentioning here that certain authors consider that, theoretically, government intervention is not necessary even for defining and implementing private property rights. Rothbard (1973, p. 267 – 301) and Hoppe (1999) argue convincingly that, on a free market, justice and protection services will be privately offered, in order to fulfill consumer desires. Moreover, because of the free competition, these services would offer higher quality at a lower price than if they would remain a government monopoly. The same argument can be applied in the case of environmental protection. A priori it does not result that the state must necessary intervene in order to define and implement private property rights. The optimal solution to environmental protection lies probably in the spontaneous order of a free market economy. Defending this argument, however, is beyond the scope of the present article.
