Anthony On Pollution

On Jul 9, 2011, at 10:55 AM, Anthony wrote:

Spured on by news of the gold in California, Konrad Spiers migrates from Shiny Rock, VA to  Fair Play, CA where he finds gold in the Cosumnes River and stakes a claim.    Konrad does well, but the placer deposits quickly run out.   Undeterred, Konrad starts to use Mercury to extract the fine flour gold from the river.     After a period of a few months, downstream,  rancher Hubert Wiley wakes up to find his 100 head of cattle died of mercury poisoning.  Further downstream, citizens of Rancho Murieta start suffering the effects of mercury poisoning.   

How would the free market settle this?   If true property rights are enforced how could the poisoning of a river, a limited resource needed by all,  be prevented?   What happens if the cost of cleanup and restitution costs more than Konrad's entire estate?   How would the free market clean up the river?

All law starts with property law, and property law starts with riparian law: law concerning riverbanks.  So it is with natural law, upon which free markets are based.

In property rights, sequence matters.  Before man, animal poop got in the river. Let's take a safe bet and say Hubert Wiley was ranching the territory before the town of Rancho Murieta formed.  No doubt Hubert Wiley was conserving cow poop as fertilzer, but no doubt also cow poop got in the river. So the fact that cows pooped in the river before Rancho Murieta formed means Rancho Murieta lives with that fact.  What limits the cow poop is not only its value as fertilser, it is also Hubert Wiley can only farm so much territory, so he can only turn so much land into private property, can handle only so many cows.  Wealth is limited to what you can personally (or your family unit) can work.  (Where I part company with capitalists is they accept usury and employment, which allows the few to trap the many and distort the free market.)

So we have a stasis between the town and Wiley. Then comes the wicked Konrad Spiers.  Konrad Spiers can homestead upriver to the extent that he does nothing that harms the quiet enjoyment of the property of the people downriver of him, nor can the downriver people harm the quiet enjoyment of Konrad Spiers on his property.  If downriver they have formed uses that require 100,000 gallons river flow per day, of a million gallon river flow, then Konrad can start using some of the unused 900,000 gallon river flow.  The people downriver may not dam it up to the point that it floods out Konrad Spiers.

I know you made up your story because Spiers would have been shot when the first cow got sick.  That much mercury would have been noted and the word would get out quickly.    But let's go with your story...

As soon as silt starting gumming up the works downriver, a lawsuit would have been enjoined, requiring Spiers stop and ordering damages paid.  This was what kept polluters at bay for some 800 years of common law.  You can read in Morton Horwitz's book, case by case, how courts in USA shifted from property rights to utilitarianism, with the principle of the greatest good for the greatest number, with government as the arbiter, instead of the law.  Once the courts began ruling the dirty coal plant was more important than the old lady's laundry, there was no limit on the size and damage of big biz pollution.  In USA we socialize the cost of pollution, instead of making the perpetrator pay for it.

Under property rights, Spiers would be obliged to account for every gram of mercury. If he brought on 1000 grams and used it, he would have to reclaim the same 1000 from the process.  If he cheated he would be liable for the cost.  He would never exceed the ability to cover the cost because his damage would be immediately seen.  

Only governments can protect polluters, and they do, for example, by licensing nuclear power plants that are so very poorly designed and managed.  if GE were responsible for the cost of cleanup, we would have alternative power sources.  If we had to pay what it costs to produce power, we'd use far less an waste almost none.  This is why the Bonneville Power Administration is so abjectly evil.

Under property rights, in common law, the basis of the free market, you must keep your mess on your property.  This keeps the cost borne by those who would make the mess. Instead, we have a system where people exploit the chaos we always have when there is a government involved.

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