Mr. Callaway is a junior, with a major in philosophy, at the Pennsylvania State University. This article is slightly condensed from the July, 1969, Commentary on Liberty, published by the Philadelphia County Young Americans for Freedom.
Air and water pollution do not raise basic philosophical or theoretical questions but nevertheless puzzle many libertarians. Can it be that there is no answer within a framework of voluntary agreement and that necessity requires regulation by government? Such problems present a clear challenge to the ideal of freedom and obviously require an answer.
Air and water pollution are a definite threat to the structure and continuation of urban, industrial civilization; they cannot and should not be underestimated. The quality and purity of this nation’s rivers and streams and air are continually deteriorating, but little has been done to correct the situation.
At issue here is the concept of "rights" and its proper extension. Air being a "free" good, does not a businessman have the right to use it as he sees fit? By the same token, does not the ethical conflict of this issue derive from an implicit assumption that everyone else has a right to clean air? The concept of human rights has changed over the years but can be recognized in writings going back at least to John Locke. On the other hand, air and water pollution on such a grand scale as we are experiencing today are relatively new problems. In view of this, the new facts of air and water pollution require an extension of the concept of rights.
Perhaps one reason why these problems have not already been solved is the loss of prestige which common law has suffered at the hands of this century’s invigorated legislatures. Some forgotten judge presiding over a case of damage due to air pollution might have solved this question long ago. A precedent, once set, might have avoided this problem as it looms today. In any case, the question remains, and the answer is not really so difficult as it may seem.
Assessing the Damage
Consider a small stream flowing through two properties. It seems clear that neither owner could claim the rights of property over the water of that stream in the same sense that they own the land. If one of them were to take a glassful, the water in the glass would be his, in the same sense as any other property, as soon as he lifted it out of the stream. Without prior agreements, however, the upstream property owner would not have the right to block the flow of the stream or to redirect it so that it would no longer pass through the land of the downstream man. Neither would one have the right to pollute the water of the stream so that it would be no longer usable by the other.
Unused water that flows down the stream belongs to no one so long as it is not used. Now, suppose that the man upstream opened some sort of mill or plant which had the side effect of polluting the stream. This business produces a product which the owner sells. Since this is a new product, the owner of the plant does not know that he is polluting the water as a result of his process. And since the amount of pollution is small, the man downstream may take no notice of the change in the quality of the water which is passing through his land and make no complaint. Everything continues smoothly between the two men.
Now, suppose the new product attracts customers and the owner greatly increases his production. With this, the level of pollution in the stream greatly increases and the water becomes unfit for the purposes of the second property owner. Up to this time, the effect of the upstream plant upon the quality of the water in the stream is an unknown cost being borne by the man downstream in terms of lower quality water. It is when the level of pollution can be noticed that this heretofore unknown cost becomes evident.
Obviously, there could have been no legal protection against a form of damage of which no one had knowledge. In the hypothetical case just cited, the downstream man could not ask that his neighbor be prosecuted, since no law could have been written to cover this specific type of damage. However, the situation could have been handled very neatly through a civil action in which a judge would have been required to make a new application of the concept of property rights.
The damage done to the quality of water in the stream came as an effect of the process of production and the owner of the business should be held liable for the cost. This unknown cost, once it is recognized, should be paid by the owner of the plant. At first, it might take the form of damages paid to the man downstream. But one could foresee that the owner of the plant would likely install some equipment which would clean the water before it was returned to the stream. The cost of this new process, and of the damages which would otherwise be paid to his neighbor, would then appear as a part of the cost of production which would likely be reflected in an increase of the unit price of the product.
The same basic analysis applies as well to air pollution and to any such cost of production which had been previously unknown. In a sense, we are all the downstream man in respect to those great industries or in respect to the automobile users who are polluting the air.
The situation becomes more complicated when we consider the case of a large steel plant upriver from several towns and cities.
There might be thousands of people who had access to the river and who would thus be deserving of compensation for their losses. The same applies to those who live downstream from a municipality which continually dumps tons of raw sewage into the water. In regard to the air, it becomes evident, on application of this principle, that we all live "downstream" from each other and that any pollution of the air which damages another demands retribution.
It should be noted that many industries might not be able to pay costs of production which they have thus far been able to shift onto their neighbors. However, this is no argument against the principle involved here. These costs are paid by someone in any case. The recognition of an otherwise unknown cost in the production of some item and in the sales price merely allows the consumer to accurately value that product in relation to other things available.
The Role of the Courts
If the courts were to begin to award damages to those affected by these various problems, I think this could not be construed as government regulation of industry. The distinction between this proposal and many of the others which have been considered goes back to the unwarranted distinction between civil and criminal law. Criminal law is conceived in the judicial systems of the world as applying to an act which offends society in general, while civil courts are supposed to deal with cases in which an individual is damaged. It seems obvious that this is an unfounded distinction. If "society" is offended or damaged by the actions of an individual it must be through the effect of this action upon some other individual (s). The fact that laws against air pollution have been written as criminal laws has allowed many persons to continue in their old methods. Where it might cost a great deal to eliminate some source of pollution, many corporations have been faced with the almost pleasant alternative of being dragged into court to pay perhaps a hundred-dollar fine twice a year.
Perhaps the best method of eliminating pollution is through the use of court injunctions. If giant industries or municipal utilities found that their entire production could be halted by the act of a single affected individual, the cost of eliminating the pollution they cause might seem small indeed.
Not the Innocent, But the Guilty, Should Pay
The longer this day of reckoning is put off, the larger will be the cost of eliminating such unknown costs as are now being paid by the innocent. It is impossible to calculate the damage which has already been done. In addition, the free ride which the pollution producers have enjoyed at the expense of everyone else has brought untold distortions into society. All of the products of these industries have been underpriced and overproduced at the expense of those industries which do not produce pollution. Suppose the automobile industry had been obliged to compete with other forms of transportation under condition that each form pay in full to eliminate any pollution it caused! In effect, the failure of the courts to award damages to those affected by pollution is an intervention by default and should be considered as such.
As long as the possibility of change exists (as it must in a free economy or free culture) unknown costs of all types will continue to crop forth. This will require a persistent extension of the meaning of freedom in ways which cannot be fully foreseen and ought not be foreclosed.