American Scientist

To the Editors:

In their article “How Property Rights Can Fight Pollution” (March–April), Lawrence Cahoon, Robert Cutting, and Michael Mallin promote using individual actions to protect property rights as a way to address toxic chemical cross-boundary pollution. The authors do not provide a balanced discussion of the advantages and disadvantages of using nuisance law and property rights to address “invisible” pollution.

The authors accurately and succinctly describe the limitations and some failures of the government regulatory system, and then pivot to a court-based case-by-case system. Such a system would not have national health-protection standards, and there is little likelihood that a local or state decision could be effectively used as a precedent in other states or even in neighboring counties without spending substantial resources on experts, testing, and other court costs in each and every case. This burden would limit health protections to those with abundant financial resources, such as corporations and large landowners.

The flaw in the authors’ argument is that they appear to want to replace the regulatory system without discussing the corollary effects. Once we elevate individual property rights above societal concerns, the jurists could move to undo most national oversight of interstate commerce, civil rights, and national environmental and health regulations. The result of their approach is not a regulatory scheme for a world that is highly interconnected and has finite resources.

The federal regulatory record for the past 35 years is decidedly mixed, and there should be a discussion of its limitations as well as its substantial successes. I would argue that its failures arose, in large part, from being forced to become rigid by conservative and corporate legal challenges. The authors mention in passing the need in each nuisance case to have scientific evidence of damage, economic impacts, and personal injury. Experience has shown that these are difficult issues requiring a great deal of expertise and expense, and results in the courts have been mixed.

Focusing on the litigation of property rights would undo 70 years of environmental and regulatory laws that reflect the interrelationships of the economy, the environment, and health. The authors emphasize individual property rights over collective societal rights, but the larger implications for education, civil rights, protection of natural resources, and protection from global problems such as climate change need to be discussed.

Robert Ginsburg
Chicago, IL

Drs. Cahoon, Cutting, and Mallin respond:

Property rights exist concurrently with the statutes that create the regulatory agencies. A return to historic property rights will enhance the ability of the regulatory system to protect public health by requiring better data and more scientific analysis before release into the environment is authorized.

If property rights are enforced, regulatory agencies could easily adapt in several ways. They could condemn pollution rights and make polluters pay fair value for those rights (as an efficient market economy demands, economists agree), or they could impose emissions charges on polluters. The agencies could require testing before materials that otherwise escape review are released into other properties, or they could reduce emissions and discharges to zero, as the Clean Water Act purports to require. Given the tools of additional data and court backing, regulatory agencies should become more effective than the hamstrung political footballs many have become.

The individual lawsuits to which the letter-writer refers exist now, but the cases are laboring under a much more difficult subjective legal theory of nuisance. For instance, the Sabin Center for Climate Change Law has a database that contains references to thousands of cases that Justice Ruth Bader Ginsberg has noted on climate change alone—and there are thousands more untested pollutants.

Shifting back to trespass would reinstate an objective standard and require that sources pay for the privilege to pollute into other spaces. Sources would have to either secure consent, receive the government assist of condemnation for pollution easements, or seek other disposal or treatment options. Any of these options would enhance public health. That is why we offer property rights as a solution to several problems at once. Such rights would boost regulatory agencies by requiring adequate data and consideration of the science of the pollutants’ effects on the rest of the population.