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Tuesday, June 15, 2010

AALS Mid-Year Property Meeting -- Property, Morality and Climate Change

I am just back from, among other places, the AALS Mid-Year Meeting of the Property Section in NYC.  I was on the planning committee, which was an experience worthy of its own blog post, but I'll leave that to side for the moment.  I really enjoyed the meeting, and thought that the panels were terrific.  One of the discussions I moderated was a panel of Eric Freyfogle (Illinois), Hari Osofsky (currently W&L but headed to Minnesota shortly) and Jonathan Adler (Case) concerning the effect, if any, climate change should have on our conceptions of private ownership.  I had never met Jonathan before, and he doesn't actually teach property law, but I invited him to participate on the panel because of his writing about environmental law and, in particular, because of this piece he wrote concerning the reasons why those concerned with private property rights need to take climate change more seriously.  His argument, in a nutshell, is that even the rosiest predictions about the likely course of human-induced climate change over the next few decades seem to present the problem that the use of fossil fuels (both past and ongoing) will impose concentrated losses on certain property owners, apparently in violation of their rights of private ownership.  Those who think private property rights are extremely important, he says, cannot ignore climate change without violating their own principles.

Jonathan's comments at the panel did not disappoint.  (In fact, each of the three discussants did a terrific job, but I'm singling out Jonathan's talk just because it provides a good springboard for my questions.) 

Jonathan's presentation and responses to questions were extremely thoughtful.  The gist of his argument was that climate change does not provide a reason for rethinking our conceptions of private ownership but for reaffirming and even extending them.  He echoed familiar themes from the free-market environmentalist movement, which treats environmental harms as resulting from the tragedy of the commons that can result when resources are not the subject of clear private property rights.  In short, the cause of environmental harm is, generally speaking, the absence of private ownership and the solution is more, not less, property.  Jonathan pointed to high seas fisheries as an example of this problem at work. This is extreme shorthand, obviously, and Jonathan's discussion was more subtle.  The problem of climate change, he argued, is a tragedy of the commons resulting from the lack of private property rights in the atmosphere.

Although I am usually not at all convinced by free-market environmentalists' broadest claims, when Jonathan actually turned to specifics, I found much to agree with.  For instance, he argued that the best way to address climate change was through a carbon tax.  I completely agree.  My confusion, though, was in his reference to this as an example of extending private property institutions rather than engaging in centralized decision-making.  After all, a carbon tax will have to be set at a certain level by a responsible governmental entity.  And, in setting the carbon tax at a certain level, it will need to evaluate the likely consequences of that tax on any number of human behaviors.  Moreover, it will have to decide how to allocate the money raised by that tax -- whether to tax relief in other domains, redistribution of burdens, infrastructure development, or climate change mitigation and adaptation. If this is what free-market environmentalists mean by property-based solutions to climate change, then sign me up.

I think part of my confusion results from the different kinds of discussions occurring among property scholars and environmental scholars.  Among environmental law types, like Adler, the debate often seems to be framed as pitting regulations that mandate particular behaviors against more decentralized modes of regulation that introduce mechanisms borrowed from markets and private ownership into the regulatory tool kit, such as cap and trade.  Among property scholars, the debate tends to focus more around the prior question of which decisions should be delegated to the discretion of private owners -- and private markets -- and which call for more collective legal action.  For property scholars, then, both traditional command-and-control and cap-and-trade (and carbon tax) mechanisms constitute examples of collective interventions.

I can see how Jonathan could characterize this particular collective intervention as an effort to stand in for a private owner of a resource (the atmosphere), which we have in the past tended to treat as a commons.  On the other hand, I wonder why it makes sense to employ the language of property here rather than just talk about the limits of property institutions when confronted with activities implicating certain resources (air and water) that are difficult, if not impossible, to allocate to private owners or the relative incapacity -- and perhaps even harmfulness -- of private property institutions when confronted with ecological consequences that operate on such a large scale.  Freyfogle and Osofsky both had very interesting things to say about the problem of private ownership at certain scales.

This last point leads to my other question:  why do libertarians seem to need wrongs to be translated into property terms in order to take them seriously?  In both his paper and at his talk, Jonathan was talking about the problem that the consequences of climate change will be concentrated in areas of the world where --  historically speaking -- the people have contributed least to the rise in atmospheric CO2 concentrations.  He compares this to a common law nuisance.  Of course, this raises the problem -- which Jonathan recognizes -- of having to assess a global problem using the language of property rights (e.g., the right to be free from a nuisance) rooted in a particular system of property law. 

Two possible answers here would be either to (1) treat the law of nuisance as reflecting certain underlying and universal moral truths that are triggered whether or not the person who suffers the harm actually owns property in the relevant sense required by the law of nuisance, say, in the United States or (2) to admit that the argument is really only an analogy and that the harms people will suffer from climate change may not actually be violations of actually existing property rights. 

The first approach appears to be Jonathan's -- in response to a question at the panel, he spoke about property rights be prepolitical in a way that allowed his argument to operate independently of particular national legal systems.  That response raises a number of tangled philosophical questions about the nature and basis of such prepolitical property rights.  I'm not aware of any argument that would adequately ground such "state of nature" property rights with a sufficient degree of specificity so as to rule out the possibility that losses resulting from the use of fossil fuels are, in effect, damnum absque injuria. Or, pushing the argument in the other direction, could a theory that found harms resulting from climate change to violate some sort of moral, prepolitical conception of property rights, could it rule out the possibility that the proper remedy of that rights violation is the force people to stop using fossil fuels rather than allowing them to merely compensate the victims of their behavior?  A libertarian property theory of the harm of climate change like the one Jonathan is appealing to needs to be able to thread a pretty small needle:  it needs to compel the conclusion that climate change violates property rights without compelling an injunctive remedy without appealing to utilitarian principles.

Because of these difficulties, I wonder what the language of property rights really adds to the discussion.  I can see why Jonathan uses it -- he is addressing a group of people (free market environmentalists and libertarians) who claim to be very interested in property rights and yet also seem not to be taking the problem of climate change very seriously.  But, apart from that strategic need to frame the argument in terms that most starkly exposes the apparent inconsistency of his interlocutors, my question for Jonathan, had I had the time to raise it, would have been whether he thinks it would be possible -- and perhaps even easier -- to frame the question in straightforward fairness terms, without introducing the notion of property rights.  Isn't it possible to owe someone a duty that is not a property duty?  Or, put the other way around, aren't there rights or entitlements that are not "property" rights?  I suppose we could say that any entitlement to use or consume a particular material thing without interference from others is a property right.  This seems to be the way Locke uses the term, for example, when he says that "charity gives every man a title to so much out of another's plenty, as will keep him from extreme want, where he has no means to subsist otherwise."  But then it seems to be that it is the moral entitlement, considered on its own, that generates the "property right" and not the other way around.  If that's the case, why not just talk about what people are entitled to?

Posted by Eduardo Penalver on June 15, 2010 at 11:02 AM | Permalink


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Eduardo --

Thanks for the post. I've summarized my remarks at Volokh here:

I hope to respond more fully to your remarks later today.


Posted by: Jonathan H. Adler | Jun 21, 2010 9:07:59 AM

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