Climate Change and Property Rights

In a thought-provoking article from The Atlantic, Jonathan Adler -- a professor at the Case Western Reserve University School of Law -- lays out what he sees as "A Conservative's Approach to Combating Climate Change." There are a number of statements regarding anthropogenic climate change (ACC) and property rights in this publication that warrant a more detailed discussion.

First off, Adler states that "[b]oth sides pretend as if the climate policy debate is, first and foremost, about science, rather than policy. This is not so. There is substantial uncertainty about the scope, scale, and consequences of anthropogenic warming, and will be for some time, but this is not sufficient justification for ignoring global warming or pretending that climate change is not a serious problem."

The logic behind this statement eludes me. If one cannot accurately define "the scope, scale, and consequences" of a problem, how does one know it is a "serious problem"? In short, one cannot and one does not. In contrast to Adler's claims, the climate policy debate is all about science, and the science is far from settled (despite what many will tell you). We know very little about our planet's environmental systems, and this low state of knowledge will exist for many years.

Coherent policy cannot be founded on poorly defined science, and as such, it is far too premature to be discussing the implementation of policies at this point in time. We can -- and should -- discuss potential policies as a preparatory measure, but any notions of policy implementation must rationally be delayed until we better understand the science. In a legal analogy, one cannot determine the punishment if one does not understand whether or not a crime has been committed, and if one has, what the true nature of that crime is.

Adler also raises the point of property rights. His assessment of the law is correct, but it does not necessarily support action on climate change. Adler's views can be readily determined from the following statements he makes:

"It is a well established principle in the Anglo-American legal tradition that one does not have the right to use one's own property in a manner that causes harm to one's neighbor.There are common law cases gong [sic] back 400 years establishing this principle and international law has long embraced a similar norm. As I argued at length in this paper, if we accept this principle, even non-catastrophic warming should be a serious concern, as even non-catastrophic warming will produce the sorts of consequences that have long been recognized as property rights violations, such as the flooding of the land of others.

My argument is that the same general principles that lead libertarians and conservatives to call for greater protection of property rights should lead them to call for greater attention to the most likely effects of climate change. It is a well recognized principle of common law that if company A is flooding the land of person B, it is irrelevant whether company A generates lots of economic prosperity for the local community (including B). A's action would still violate B's property rights, and B would be entitled to relief of some sort. By the same token, if the land of a farmer in Bangladesh is flooded, due in measurable and provable part to human-induced climate change, why would he be any less entitled to redress than a farmer who has his land flooded by his neighbor's land-use changes? Property rights should not be sacrificed as part of some utilitarian calculus. Libertarians readily accept this principle when government planners violate property rights in the name of economic development (see e.g., Kelo v. New London).Yet they seem to abandon their commitment to property rights when it comes to global warming."

It is indeed a "well established principle in the Anglo-American legal tradition that one does not have the right to use one's own property in a manner that causes harm to one's neighbor." But, quite frankly, one can imagine that if such a law were rigorously applied to all reasonable situations, society would grind to a halt.

For the sake of the subsequent discussion, we will assume that ACC is occurring and is -- as defined in its name -- a result of greenhouse gas emissions by humans into the atmosphere. What are the effects of ACC? Changes in the intensity, duration, and frequency of various climate descriptors, such as temperature and precipitation, and alterations to the earth system as a result (i.e., changes in how well specific plants grow in certain locations, alterations to groundwater levels and streamflows, etc. ... the list is endless from a scientific perspective). That's fine, but what about all the non-ACC related activities humans routinely engage in each day that have similar affects on the property rights of others? Why do we not litigate all of these infinite property rights transgressions?

A couple examples are in order.

Your neighbor could plant a tree in his backyard. This tree will grow and deplete (via evapotranspiration) the groundwater table around it (roughly in a cone of depression). Even if the roots of this tree do not extend under your property, the cone of groundwater depression might. This induced lowering of the groundwater table under your yard could result in the death of trees and/or lawn on your property, or necessitate you needing to water your property more frequently and with greater intensity than you would have had to had your neighbor not planted this tree.

The negative property rights impacts are obvious: the inconvenience and/or extra costs from the additional watering required, or perhaps even the loss of your landscaping if the additional required watering is forbidden due to local water restrictions.

Can you sue your neighbor for such a property rights violation? If not, why not? If so, imagine all the potential lawsuits we should see occurring. And the effects on your property rights from this example may be as serious as one may expect under ACC. The effects of ACC will have high heterogeneity. Some individuals will be strongly affected versus some not affected at all -- at least within the error of reliable measurement.

One could readily extend this example to larger pieces of land with differing neighboring effects and different land uses. For example, what if you are a farmer and your neighbor plants a row of trees on his property such that the trees block the prevailing wind that crosses from his property onto your property?

Your property perhaps will now develop a frost pocket that kills your crops, or the increased humidity on your property due to the neighbor's windbreak results in increased disease incidence on your crops, or perhaps the change in the microclimate (more accurately, small-scale mesoclimate) on your property due to the windshading alters the type of crop you can grow. Can you sue? If not, why not? If so, then we have an infinite number of possible serious lawsuits because these types of property rights effects have been going on since the start of human civilization, and they will continue forever. One cannot make any use of one's land without impacting one's neighbors in some fashion (often negatively).

The second example.

You live in a dense suburban/urban environment. Your current neighbor has a vegetated lot, but a new owner removes the vegetation and installs an asphalt parking lot that acts like a heat sink during the summertime. Previously, you never (or very rarely) had to air condition your home either during the daytime or nighttime due to the cooling influence of your neighbor's vegetated lot. Now you need to air condition your home nearly continuously all summer due to the heat absorbing and releasing properties of the parking lot. Can you sue your neighbor for a property rights violation? If not, why not? If so, then -- once again -- we have an infinite number of possible lawsuits that will grind modern society to a halt.

Off the top of my head, I can think of many more equivalent examples from both urban and rural settings, all of which offer the exact same property rights violations as would be expected to occur from ACC. If we applied the property rights principles that Adler is referring to in a uniform manner across all such cases with equivalent results as that expected from ACC, society would no longer function and almost all citizens would be engaged in continuous lawsuits for compensation from property-rights violations.

So why do we focus on anthropogenic climate change-induced property rights violations that are -- in general -- of similar magnitude and effect as the other examples we can imagine? Because the criminal is easier to catch. In other words, ACC has an easy to identify and control culprit -- greenhouse gas emissions. But the criminal effect is no different than all the other property rights violations that occur each day by culprits that are far more difficult to identify as a singularity. Since when do we make and apply laws based on the ease of identifying and capturing a culprit? We obviously don't, or else we would not penalize murderers that are difficult to catch, all the while throwing the proverbial book at the murderers who remain at the scene of the crime holding a sign admitting their guilt.

In other words, Adler's property rights arguments are not persuasive. We regularly allow activities as part of the normal course of civilization that have the same magnitude of effects as expected in many locations from ACC, and yet do not litigate each and every one of them (and if we allowed such unfettered litigation, as can be said once again, society would grind to a halt).

Assuming ACC is occurring, we should not treat its effects in a manner different than we do any other so-called property rights violations of similar type and magnitude. It is also not wise to make either law or policy decisions based on extreme cases. For example, we routinely balance the nature of the legal system between the rights of the innocent and the need to punish the guilty. We could design a legal system whereby no guilty individuals escape conviction (or at least very few do), but such a system would undoubtedly capture too many wrongfully convicted innocent individuals. So there is a societal sacrifice to be had, the boundary of which is determined by vigorous public debate. Similarly, we should not make climate change law or policy decisions based on a relatively small number of extreme cases (e.g., flooding in Bangladesh). Rather, the effects -- and prescriptions -- must be considered much more holistically.

Dr. Sierra Rayne writes regularly on environment, energy, and national security topics. He can be found on Twitter at @rayne_sierra.

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