Pollution

[orangesiscool]

A short while ago, I was reading an anti-Ayn book ("It Usually Begins With Ayn Rand") mostly for the unintentional humor. Later in the book he starts attacking Ayn Rand on the worshiping smoke stacks thing. He didn't succeed in much except to look stupid, but then I thought, yes, it's producing through non-productive elements, but the smog (insert pollutant here) IS harmful to people. Then again so is a stove. The fact remains it is harmful. If things unsuper-cool based on degree of harm, where do you set the line?

[Edited to capitalize everything that should be. Matt]

Edited August 25, 2005 by Groovenstein

[gags]

The problem of pollution could be solved through property rights and a rational legal system, rather than government regulation. If a factory is spewing pollution onto your property, a tort has been committed against you and the owner of the factory should be held liable for damages.

[MNRfan]

I agree with gags. If you produce a pollutant that reaches onto another's property, you are responsible for removing it at your own expense. Of course, you may make agreements with the property to compensate them without removing the pollution.

Environmentalists should take head. If property rights were respected, companies would be alot more environment conscious, because of the expenses they would incur from having to clean pollution or pay off the property owners, who would be much more difficult to appease than a disinterested government.

[Capitalism Forever]

Pollution, is it violence?

No, it is not violence, but I think what you wanted to ask is: Is it an initiation of force?

[orangesiscool]

so when that "big business" pollutes the air releases monoxide what have you, it is liable for damages, where do you draw the line, is my car/stove/cigarette cause for me to be liable? or is it not because it's out of need? how high up does my property go? property rights on air?

[y_feldblum]

When a person "pollutes" the air by exhaling and releasing carbon dioxide and contributing to the imminent transformation of this planet into a raging inferno with a plasma-state core and an inhospitality to life, is he liable? Has he initiated force?

[DavidOdden]

so when that "big business" pollutes the air releases monoxide what have you, it is liable for damages, where do you draw the line, is my car/stove/cigarette cause for me to be liable? or is it not because it's out of need? how high up does my property go? property rights on air?

The line is drawn at proof. If you can prove that Smith actually harmed you by his actions (dumping benzene into your water) and you did not contribute to the harm (you did not knowingly drink tainted water or drink his water), he is liable for the actual harm he did to you. "Polluting the air" does not cause specific harm. There is a cement case (the reference escapes me) which may make this clearer. It's not your cigarette per se that creates the liability, it is your action.

[orangesiscool]

so one would need to track the source of each molecule of pollute? (carbon dioxide isn't harmful) think china where coal is THE fuel for heating, cooking etc. obviously it does do something.

(note: I AM playing devils advocate)

[orangesiscool]

kind of like voting.

[DavidOdden]

so one would need to track the source of each molecule of pollute? (carbon dioxide isn't harmful) think china where coal is THE fuel for heating, cooking etc. obviously it does do something.

I don't see why you would. All you have to prove is that Jones crossed the line with enough of of his molecules that you can prove that he harmed you. It isn't necessary to show that only Jones contributed to the damage incurred by you.

[Groovenstein]

There is a cement case (the reference escapes me) which may make this clearer.

Boomer v. Atlantic Cement Co., I'm guessing.

[orangesiscool]

Hows-bout this, a law stating that all pollution decreed to be harmful to my life be contained and disposed of properly. (filtering, capturing it before it can get into the atmosphere) Now if this pollution is contained on private property, without going otherwise, no problem.

Do you all think that it would be outside the limits of government to enforce such a thing?

[DavidOdden]

Hows-bout this, a law stating that all pollution decreed to be harmful to my life be contained and disposed of properly. (filtering, capturing it before it can get into the atmosphere) Now if this pollution is contained on private property, without going otherwise, no problem.

Do you all think that it would be outside the limits of government to enforce such a thing?

Yes, for zillions of reasons. First because "pollution" is a silly non-concept. If you want to talk about specific toxic wastes that are by nature highly harmful to people, then it makes sense to have a law presuming harm per se(similar to the presumption of damage that is traditional in defamation law, so that it you call a woman an incompetent syphillitic whore, she can sue you for defamation as long as it isn't true). But even then, that doesn't prove contact -- i.e. Smith may have dumped benzene somewhere but you still have to prove that he did it and that his junk made it to where you are. And finally, I don't see the case for prior restraint. With laws against murder and theft, once you've actually performed the act, you have ipso facto violated someone's rights. But with pollution, you have not necessarily violated anyone's rights when you release whatever your pet chemical is. Laws should prohibit the violation of others' rights -- not prohibit people from doing something that might violate the rights of others.

[DavidOdden]

Boomer v. Atlantic Cement Co., I'm guessing.

Thanks -- yes, that's it. I'm on the road so my disorganised piles of relevant cases are elsewhere.

[Felix]

Hmmm....

The real problem is that there is no property right on air.

So if there is harmful stuff coming from different places all over the world, you can't blame one single person or company with the eventual damage.

If we actually pollute the air to a degree that is harmful to humans, what then?

If there is nobody liable for all of it, i.e. responsibility is spread among lots of people, do we just give up starting lawsuits and wait for a company selling us air refreshment?

My question here is. Can one be made liable for a case of pollution even if there are so many people involved? I think, no. But that would mean, if you think it to the very end, that pollution is ok in the end and that nobody can be made liable unless the case is obvious (like I unload toxic waste in your backyard).

If it's a cululative effect, there can be no law against it.

Therefore we have to pay to keep our environment clean and healthy instead of preventing others from destroying it.

That's my current way of thinking.

[DavidOdden]

The real problem is that there is no property right on air.

So if there is harmful stuff coming from different places all over the world, you can't blame one single person or company with the eventual damage.

That confuses the issue. You can own air particles (trap 'em and sell 'em -- an emerging industry for the lunar colonies), and you can own air space (a fact recognised in NYC, as I understand). Your objection doesn't have to do with ownership, it has to dow with proof, which is the real problem with pollution laws -- they don't require the proper element of proof.

Can one be made liable for a case of pollution even if there are so many people involved?

Yes, certainly. If you can prove that some person harmed you by his actions then you can sue for damages. If you can only prove that someone in a group of 10 harmed you, you can't collect from any of them.

[Groovenstein]

If you can only prove that someone in a group of 10 harmed you, you can't collect from any of them.

Are you saying this is what the law should be or what it is?

I haven't given the "should be" part of this question much thought. To the extent you're saying this is what it should be, can you please explain your argument in terms of the underlying philosophical principles? What if you can prove it was one of only two (as in Summers v. Tice)? Four?

To the extent you're saying this is what the law is, this is not correct. (David, I know you're a legal buff, so if you already know this, I mean no offense.) Sindell v. Abbott Laboratories discusses these types of theories. The court in Sindell did not require the plaintiff to prove causation, stating:

"[W]e hold it to be reasonable in the present context to measure the likelihood that any of the defendants supplied the product which allegedly injured plaintiff by the percentage which the DES sold by each of them for the purpose of preventing miscarriage bears to the entire production of the drug sold by all for that purpose."

If memory serves, a famous case in which this theory of liability was rejected was Skipworth v. Lead Industries Association.

[Groovenstein]

Thanks -- yes, that's it. I'm on the road so my disorganised piles of relevant cases are elsewhere.

You're welcome. I was wondering why you'd been posting past your bedtime recently. West Coast?

[DavidOdden]

You're welcome.  I was wondering why you'd been posting past your bedtime recently.  West Coast?

Tromsø. It's a lovely day now, though it will probably cloud up hy the time you see that.

[DavidOdden]

Are you saying this is what the law should be or what it is?

That's an "ought"; I think it's a traditional "is" but that kind of archaeology is very hard for me to do. Somewhere in the progression from Dixon v. Bell to MacPherson v. Buick, the underlying concepts pertaining to responsibility started to shift. It is my impression, and really just an impression rather than a study, that various social issues took over, and that the idea of "a wrong without a remedy" became less acceptable. The principle is simply that a person should be held responsible for his actual acts, and not assign collective liability simply for being part of some group (for example, the group "copper refiners"). However, I admit that the scenario posed by Summers v. Tice is a challenge. I'll have to think about this; my immediate feeling is that this has to do with the problem of proof. If we accept that both defendants were acting negligently and that it is equally possible that the shot came from Tice's or Simonson's gun (and guaranteed that it was one, if not both), that distinguishes such a case from one where it is reasonable to conclude that pollutant X caused the damage and that it is plausible that A, B or C did produce that pollutant. This is something I'll need to contemplate at leisure.

[Groovenstein]

Tromsø. It's a lovely day now, though it will probably cloud up hy the time you see that.

Very nice. It hasn't clouded up, but I think that website is using up Norway's allotment of "k"s. They might run out if not careful.

[Groovenstein]

Somewhere in the progression from Dixon v. Bell to MacPherson v. Buick, the underlying concepts pertaining to responsibility started to shift. It is my impression, and really just an impression rather than a study, that various social issues took over, and that the idea of "a wrong without a remedy" became less acceptable.

This is my impression as well. Several commentators now argue that causation should be abolished entirely in the realm of toxic torts. I don't really remember why (this was part of a group presentation in which my sole responsibility was to present evidentiary standards under the Daubert trilogy), but here are some articles if you or anyone else happen to be interested:

Alani Golanski, General Causation at a Crossroads in Toxic Tort Cases, 108 Penn St. L. Rev. 479 (2003).

Clifford Fisher, The Role of Causation in Science as Law and Proposed Changes in the Current Common Law Toxic Tort System, 9 Buff. Envt’l. L.J. 35 (2001).

Margaret A. Berger, Eliminating General Causation: Notes Towards a New Theory of Justice and Toxic Torts, 97 Colum. L. Rev. 2117 (1997).

[orangesiscool]

Dance puppets! Dance!

(kidding)

So based on the need for proof etc., i give you this proposal:

Smith DID put monoxide into the air (he made an omelette on his stove); so did Gonzalez by way of his coal power plant. They both DID pollute. They did do a harm against whomever breathes the atmosphere. So would we need some way to track their output, then according to your output (for you can decrease it by filtration) you are given a tax that goes into everyones tax returns evenly (for everyone breathes) for the damage done. but if you filter or otherwise stop from polluting the air you do not need to pay the tax and you will be encouraged to stop your pollution.

[Captain Nate]

Out of curiosity, when we say someone is liable for damage they cause with polution (assuming it is provable), are we talking only civily, or can we also seek to punish them criminally?

Such as we might with criminal negligence, or even the intention release of toxins known to cause damage.

Edited September 9, 2005 by Captain Nate

[DavidOdden]

Out of curiosity, when we say someone is liable for damage they cause with polution (assuming it is provable), are we talking only civily, or can we also seek to punish them criminally?

Liability refers to civil damages.

Such as we might with criminal negligence, or even the intention release of toxins known to cause damage.

You could subsume some blatant cases under (objective) criminal law, under the rubric of assault. But I have a hard time imagining a real-world scenario where the wrong would rise to the level of assault. If the CEO throws you into a barrel of toxic chemicals, of course, that would be a criminal act.