Environmental Law For Nappers
Those who subscribe to a foundational principle of ethics known as the non-aggression principle, or NAP, come in many different shapes and sizes. These "nappers", as I like to call them, tend toward some skepticism about the scientific "consensus" about the anthropogenic global climate change emergency, though the most reasonable among them are not deniers per se; their skepticism is the healthy skepticism that would be celebrated by many anthropogenic global climate change alarmists in other contexts, in fact. I will explain one skeptic's position on the matter here.
Of course, the alarmists' position is worth examining as well, and treating seriously at least for argument's sake. A merely skeptical position, rather than religiously contrary, may after all change to favor the same perspective on whether an emergency exists, given credible presentations of evidence and rational argumentation. Should such arguments arise, techniques for dealing with the emergency would become important, to say nothing of the fact that hypothetical questions from alarmists seeking to use the matter as a way to undermine the efficacy of the NAP as a basis for socioeconomic systems may need to be answered from time to time. I will also attempt to address this issue here. That is, in fact, the intended focus of this essay.
Neither Denier Nor Alarmist
I take no position on the accuracy or inaccuracy of arguments that anthropogenic global climate change is a critical threat at this time or in the near future. I am not a climate scientist. I have seen reports that some of the evidence used to justify claims of this impending emergency has been falsified. I have had conversations with climate scientists of various descriptions who argue that climate systems are far too complex to be certain of the causal relationships posited as explanations for collected data. I personally have not seen credible reports of research that is regarded as helping settle the matter. I am not satisfied that the logical connection between identified mechanisms of global climate change and actual events are dominant enough to achieve the ridiculously high level of difficulty refuting them that would be required to approximate that of evolutionary processes. I have seen correlative evidence that factors apart from anthropogenic factors may have a very tightly coupled relationship with temperature variance on Earth. I have noticed that supposed scientific consensus on planetary environmental issues have reversed themselves in major ways and otherwise dramatically reinvented themselves several times over a period of decades. Despite these reasons for skepticism, I am also quite aware that absence of proof is not proof of absence.
Suffice to say that I do not deny anthropogenic global climate change, nor do I deny that it would necessarily constitute an existential emergency. I am simply not satisfied that a reasonable burden of proof has been met and this proof communicated to the public (and thus to me). What this means, in practice, is that if the problem exists people are doing such a piss-poor job of telling us about it in a credible manner that it is perfectly reasonable for many people to believe whatever they like about the matter.
The situation is worsened, of course, by governmental involvement in the toxic stew of confusion surrounding the issue. There are strong financial and political interests on both sides of the question of whether anthropogenic global climate change is a real problem that requires action. In many cases, these financial and political interests lead to mandates that do nothing of any net positive effect, appear pathologically short-sighted, and in many cases even stand in the way of real progress in addressing environmental concerns or otherwise advancing knowledge and technology that could be of benefit to all -- even in cases where such advances might lead to improved environmental custodianship as measured by the environmentalists themselves a short time after such mandates are enacted.
Legal initiatives that effectively prohibit the funding (through the market) of research into particular fields of technological development, by mandating the adoption of other technologies that have been marketed as the "green" option, are rampant. Implementation specific requirements for adoption of particular technological innovations may similarly retard development of improved variants of the technology, or lead to implementations that have unnecessary damaging side effects. Pollutant accounting measures may result in perverse economic incentives that encourage greater overall pollution in some industrial markets than would result from enforcing no legal requirements at all.
In short, I am neither an Anthropogenic Global Climate Change Emergency Denier, nor an Anthropogenic Global Climate Change Emergency Alarmist, and I believe my position is reasonable. I also believe that those who have picked a side should realize that policy positions typically marketed as serving their goals are, in fact, usually counterproductive -- especially when those policies are governmental policies.
What If . . . ?
Some might reasonably argue that, if all else is equal, it is probably in our best interests to take a cautiously preventative position on the matter. To the extent that it does not cause significant harm to "the world", then, it might be argued that we should take precautionary steps to mitigate or even reverse the effects of the technologically advanced human race on global climatic conditions. Unfortunately, the suggestions offered as approaches to this precautionary stance are almost universally prescriptions for more of the same medicine as we have ineffectually (or counter-effectually) administered already: governmental mandates. Such prescriptions are thus clearly prone to greater harm than good in practice.
Even if we accept the nonsensical notion that we could somehow get governmental mandates to substantially align with a desire for positive change in policies related to environmental custodianship, and meaningfully enforce such policies without the very effectiveness of enforcement producing undesirable, unintended consequences affecting innocent bystanders (negative externalities, in economics lingo), we still face another problem. As governments that theoretically have enough power to effect and enforce such policies are currently constituted, any such policy shifts would come only at incredible cost to the strength of the world economy and to individual liberty (which means more negative externalities). Those who dismiss the non-aggression principle may not care about this latter concern, but even for them the damage to economic efficiency that could otherwise become leverage for producing more effective solutions to a global climate change emergency should be a notable concern -- unless, of course, their final solution is to outlaw advanced technology and consign the human race to scratching out a rudimentary existence in hunter-gatherer tribes.
Many proprietarian libertarians, including Rothbardian anarcho-capitalists and private industry minarchists, tend to use the instrument of binding arbitration or property damage lawsuits as their explanation of societal mechanisms intended to manage the problem of pollutants and similar forms of environmental damage. Some go so far as to suggest that ultimately every square inch of planetary surface would be subject to property rights, and thus directly protected; others suggest class actions for dealing with the case of nonproprietary environmental damage; still others invoke the foreseeability of extended effects that ultimately reach the land claimed by proprietors, perhaps indirectly, as justification for litigation.
Some of these proposed solutions rely on payment of damages in restitution for damage to property, which suffers the same problem as financial penalties on public corporations in the current system -- a "cover charge" for causing environmental damage that many business organizations or particularly powerful individuals may find entirely worth the cost, and even that only if they get caught. Other versions of these proposals have other problems. Some may be quite effective, given the assumptions about ethics and social order on which they rely, and some of those might even work with the NAP as a secondary priority to a proprietary theory of libertarian ethics, but they are generally not well suited to application in a socioeconomic system specifically and consistently compliant with the NAP itself as the initial principle of ethics.
The Universal Solution
A strictly NAP-compliant solution to the hypothetical problem of a genuine anthropogenic global climate change emergency offers strict ethicality according to a clearly bounded set of permissible actions. This set of actions is established as a consequence of a rigorously self-consistent theory of ethics that can be rationally derived from agreeable first principles, yielding a very strong argument in favor of such a solution. Apart from that, probably the best thing about such a solution is the fact that it works with almost any system seriously espoused by more than a handful of fringe-lunatic adherents to logically self-contradictory principles. While some popular conceptions of ethical socioeconomic systems may specifically call for acts of aggression to achieve important ends, such systems do not tend to require that only aggressive solutions should be applied, and the NAP-compliant solution can thus be consistent even with such opposing ethical systems.
In fact, the NAP-compliant solution I propose should be compatible with whatever system of jurisprudence you care to implement, and merely establishes the boundaries for permissible action according to the NAP justifying resort to that system of jurisprudence, whether it is binding arbitration, a state court system, or some other mechanism of enforcement for a peaceable social order. To achieve this end, I will largely avoid addressing details of enforcement, leaving that to one's particular implementation of a socioeconomic system in practice, and focus instead on ethical justifications.
In the interests of easing the process of explaining how environmental concerns may be addressed in a NAP-compliant manner, I will provide some notion of a NAP-compliant baseline system of jurisprudence. A list of the concerns involved in the design of a NAP-compliant system of jurisprudence should look something like this:
The purpose of the system of jurisprudence should, first and foremost, be to prevent avoidable acts of aggression. Restitution is secondary, while retribution and punishment are not valid goals of such a system.
That primary purpose is betrayed when the system's application itself constitutes an act of aggression. As such, only to the extent that it is not initiated may a coercive act be performed in pursuit of that purpose. "First, do no harm."
An act of aggression, taken in malice or depraved indifference to the rights of others, constitutes a crime. In performing such an act, given reasonable expectation of harmful effects on others to initiate a coercive relationship, the perpetrator becomes subject to coercive remedies to prevent his or her continued aggression in the future.
The accused should be regarded as innocent unless and until proven guilty, in accordance with the "first, do no harm" principle of this system of jurisprudence.
This helpfully yields a fairly simple and succinct -- but hopefully still complete -- explanation of a solution, because the NAP provides a comprehensive basis for an ethical system of jurisprudence whose emergent properties effectively deal with a wide range of concerns normally held as distinct in more conventional systems of law. The upshot is that no allegation that some person's behavior does harm to the environment results in the accused being regarded as a criminal unless:
The person can be shown, beyond reasonable doubt, to have performed an act that is alleged to be environmentally harmful.
The act can be shown to be actually harmful, or to reasonably be believed by a responsible individual, under the same conditions as those under which the accused acted, to be harmful.
The act was performed with malice or depraved indifference, without conditions excusing or mitigating the act's character so that malice or depraved indifference is not a necessary or confirmed condition.
The reasonably expected consequences of the act, identified according to the above points, actually affect individuals in undesirable ways, thus infringing on the right to be free from aggression.
If the accused is shown to have performed an environmentally harmful act regarded as a crime according to the above criteria, and the probability of continued aggression exists, actions that may normally be considered aggressive are (to the extent necessary to prevent continued aggression from the perpetrator) instead considered defensive acts with regard to limiting the potential damage the person may cause. In addition, restitutional requirements may apply where deemed reasonable, as in the case of providing for clean-up costs and resource replacement or recovery, funding medical treatment, or supporting research and development of technologies necessary to the mitigation or reversal of the criminal act of environmental harm.
This may mean that some people perform short-sighted, aggressive acts of environmental harm with malice or depraved indifference and get away with it, though such is probably unavoidable in any system of jurisprudence that does not regularly convict alleged criminals who are in fact innocent of wrongdoing.
This should serve to provide guidelines and potential penalties deterrent to large classes of environmentally harmful activities.
This would not interfere with research and development of remediation and mitigation technologies that could ultimately render anthropogenic global climate change emergency an obsolete concern. Economic demand for such technologies, to enable non-aggressive use of other, efficient technologies might even drive research and development quite effectively.
This should not interfere with general economic activity, and in fact should encourage economic activity to pursue productive ends that are not thought to be environmentally harmful without the economic harm caused (not only directly, but indirectly by redirecting resources toward regulation) by current regulatory systems.
Even More Universal
The particularly perspicacious among you may have noticed something interesting about the foregoing explanation of how a NAP-compliant solution to environmental law might arise, and work in practice:
If you remove all the references to application specific to environmental concerns, the explanation describes a general, NAP-compliant system of jurisprudence and how it applies to any matters of criminal aggression. It is only incidentally, in the context of this essay, that applicability to issues related to environmental pollution and other concerns related to a posited anthropogenic global climate change emergency needs to be identified.