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April 5, 2018

Climate and Property Rights: A Response to R Street’s Josiah Neeley

April 5, 2018
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Josiah Neeley of the R Street Institute is one of the thought leaders within the small, but vocal segment of the libertarian ecosystem that advocates for a carbon tax, i.e. a fee to be paid into the public coffers per unit of greenhouse gas emitted. R Street and the Niskanen Center argue that the evidence of human-induced global warming is significant enough to constitute a negative externality warranting a state remedy. Neeley’s most recent article addresses a lawsuit brought by an entity calling itself “Our Children’s Trust” that seeks to compel the federal government to “prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2.” While Neeley expresses some disagreement with the specific terms of the suit, he lends support to the general principles undergirding it.

Interestingly, Neeley provides a reframing of the issue from that which is typically employed by the more mainstream climate hawks. Instead of focusing on a nebulous “social cost of carbon” and cost-benefit analyses, Neeley frames the issue in terms of property rights, drawing upon the work of Murray Rothbard for intellectual backup. It is a somewhat novel—and, I would argue, far more valid—approach.

Indeed, when addressing issues regarding alleged pollution, property rights are the appropriate lodestar, as Rothbard convincingly argues in “Law, Property Rights, and Air Pollution.” But while Neeley concludes that a focus on property rights should lead to his carbon tax conclusion, I would argue otherwise: neither a focus on property rights nor specifically Rothbard’s perspective does any such thing. In this article I will compare Neeley’s presentation of Rothbard to my reading of Rothbard, highlight the elements of Rothbard’s discussion of air pollution that I think deserve consideration, and relate them to a few of my own thoughts on these issues.

Rather than bolstering Neeley’s case, I think Rothbard’s arguments show the folly of the carbon tax as a response to climate change. What Neeley overlooks in this piece is that a key to the Rothbardian approach to emissions vis-a-vis property rights is evidence of physical invasion. As Rothbard describes:

No action should be considered illicit or illegal unless it invades, or aggresses against, the person or just property of another. Only invasive actions should be declared illegal, and combated with the full power of the law. The invasion must be concrete and physical.

Rothbard was writing before the greenhouse effect became a pressing concern, so we do not know just what he would have said on this issue, but by strictly applying his logic, I submit that he would have disagreed with Neeley’s assessment of greenhouse gases. Greenhouse gases have none of the critical characteristics of the pollutants Rothbard addresses. Whereas a compound emitted by the factory of A, like sulfur dioxide, can infiltrate the property and person of B and adversely affect his respiratory function, greenhouse gases (within the range of real-world emissions) cause no such direct harm. The purported harms from greenhouse gases instead result from the influence of a pooling of gases in the atmosphere over an indefinite period of time on already complex climatologic cycles.

Neeley cites Rothbard’s treatment of radio waves as potential rights violators as if it is ipso facto an indication that Rothbard would take the R Street position on greenhouse gases, but the radio wave example is actually a clear case in illustration of Rothbard’s strict physical application of the invasion principle: writing that hypothetical cancer-causing waves could merit injunction if and only if “proof of harm and the causal connection between the specific invaders and specific victims are established beyond a reasonable doubt.” In the case of the harm described, it is the wave itself that penetrates a person, not a third order consequence. In a related passage Rothbard writes that air pollution “definitely constitutes an invasive interference. These particles can be seen, smelled, or touched, and should therefore constitute invasion per se, except in the case of homesteaded air pollution easements.”

One need not be an expert in climate science to see that this conception of air pollution is narrower than the alleged harms caused by greenhouse gases and, rather than augmenting Neeley’s case, contradicts it.

The pro-carbon tax libertarians have made an interesting habit of drawing upon the standing of deceased thinkers in an attempt to rally support for a tax on energy from advocates of the free market, as we’ve seen with the Niskanen Center’s invocation of Milton Friedman and Friedrich Hayek. Neeley, in this instance, concludes by writing that “the irony for those who consider [R Street] too alarmist on the climate issue is that both our proposal and the Our Children’s Trust lawsuit are actually much easier on greenhouse gas emitters than what hard-line, Rothbardian libertarians would call for.” And yet, Neeley is unable to point to a single, existing hard-line Rothbardian today who truly does call for the government to upend the energy sector. All we have is the occasional writer from R Street or Niskanen confidently telling us that this is what Rothbardians ought to believe, even though the actual Rothbardians alive today say no such thing, to my knowledge.

But the problems with Neeley’s rights-centric argument for climate action go beyond a misapplication of Rothbard and extend to the more important issue of how we should conceive of property rights themselves in the context of emissions.

In addition to the invasion principle, the concepts of particularity and redressability can help us think through the complicated details of emissions, climate, rights, and state action and understand why neither this lawsuit nor a carbon tax makes clear sense from a property perspective.

In accordance with Rothbard’s approach, for state action to be merited either in the form of an injunction (as Neeley thinks Rothbard might handle greenhouse gases) or a tax (as Neeley himself would like) a particular, demonstrable harm to person or property must be proven a strict causal result of the action of another party. In Neeley’s recent article as well as another from 2016, Neeley assumes a far wider definition of what constitute a rights violation than I use or than I interpret Rothbard as using. As Rothbard writes, “a strict causal connection must exist between an aggressor and a victim, and this connection must be provable beyond a reasonable doubt. It must be causality in the commonsense concept of strict proof of the ‘A hit B’ variety, not mere probability or statistical correlation.”

Claims of climate-related damage lack, and will continue to lack, such particularity. Even accepting IPCC climate projections, it is not possible to attribute particular phenomena, such as a river flooding and detrimentally inundating cropland, to climate change as opposed to meteorological variability.

Furthermore, in order for state action to be merited it’s important that such action would serve to remedy the harm in question. Again, assuming IPCC projections, short of an unrealistic drawing of greenhouse gases back out of the atmosphere, there is little the government of this country could do to mitigate the greenhouse effect. While U.S. greenhouse gas emissions have fallen over the last decade, emissions from rapidly-growing Asian countries have continued to climb. The U.S. already contributes less than 15 percent of annual global emissions—and that figure will continue to decline. As a result, even if we take the alleged domestic harms of climate change as given, the question of redress is still left unanswered.

Josiah Neeley properly seeks to reframe our attitude toward climate around the concept of property rights, but in doing so he opens his position to numerous lines of criticism. As Murray Rothbard, whom Neeley sought for theoretical support, describes in “Law, Property Rights, and Air Pollution,” the defense of rights requires more than a claim of harm, but rather a demonstration of evidence of a particular physical impact caused by another party. What’s more, even in the context of a proven rights violation, the challenges of redress must be acknowledged. Contrary to Neeley’s intention, his directing of this debate to the critical concept of rights doesn’t give the state a mandate for action, it invites closer scrutiny.

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