The Tragedy is “the Commons,” Part 6

In most instances, establishing property rights to a resource is fairly straightforward. If an individual turns a barren field into a lush farm, or extracts ore from the ground, or plants an orchard, most people would recognize his right to that property. But what of more complex situations, such as air and water?

In some ways, water presents more complexity than air. Not only does water exist in oceans, lakes, rivers, and other waterways, it can also be found underground. But the same principle that applies to any resource applies to water as well—those who transform the resource into a human value are the rightful owners.

This can occur in many different ways. For example, a fisherman may improve the habitat in an area of a lake or the ocean so as to increase the number of fish. He would have a rightful claim of ownership to the area of his improvement. Similarly with other improvements or uses—offshore oil wells, wharves and piers, beaches, or dredging a river to allow larger boats to use it.

In these instances, property rights are not extended to the water itself, but to the waterway. Others remain free to use the waterway, so long as they do not interfere with the use established by the owner of the improvement. For example, if a company dredges a river to permit larger boats to use it, others may still use the river. But they cannot impede the first company’s use of that river by, as an example, building an oil well that blocks the river. In other instances, property rights would be extended to the water itself.

For example, a farmer might divert water from a river to use for irrigation. Or a water company might drill a well to supply water to the residents in a community. In these cases, they would have a claim to a specific amount of water, and later users could not interfere with their use. That is, other farmers would be free to also divert water for irrigation. However, they could not divert so much water that the first farmer could not obtain the amount of water that he had claimed a right to. To do so would be to interfere with his property—his well or irrigation system.

But what about pollution? Is Hardin’s claim that a free market encourages pollution true?

Just as you cannot damage the automobile, home, or other property of your neighbor with impunity, damaging another’s waterway would carry legal penalties. In short, if waterways were privately owned, you could not morally pollute in such a fashion that the property of others would be damaged.

If an individual (or a corporation) dumps toxins into a river, thereby killing fish stocks or vegetation, or making the water unsafe for human or livestock consumption or for human recreation, he violates the rights of property owners in or along the waterway. Even in unowned waters, one may pollute only if and to the extent that one can do so without (demonstrably) damaging another’s property. But, given water’s free-flowing nature, the ability of individuals and corporations to pollute a waterway without violating another’s property rights is quite limited. Those who do harm another’s property—whether on land or in waterways—risk prosecution and punishment by a government dedicated to protecting its citizens’ rights.

The recognition and protection of property rights allows individuals to act according to their own judgment and use their property as they judge best. If they take actions that damage the property owned by others, a proper government would hold them responsible. Recognizing and protecting property rights provides us with the principles required to have clean air and water.

I hasten to add that there are many technical and legal issues involved, and I am not claiming to have all of the answers. I am merely indicating how property rights could be applied. The specific details would require the input of competent and rational experts in both the philosophy of law and the relevant technical fields.

In the case of air, nuisance laws provide one way to apply property rights. With roots in common law, a nuisance “is an interference with a person’s enjoyment and use of his land. The law recognizes that landowners, or those in rightful possession of land, have the right to the unimpaired condition of the property and to reasonable comfort and convenience in its occupation.” You have a moral right to use your land without being subjected to loud noises, nauseating fumes, or similar conditions that interfere with your “comfort and convenience.” However, creating loud noises or obnoxious odors does not necessarily violate the rights of anyone, and therefore, nuisance is highly contextual. A property use that constitutes a nuisance in one context may not be a nuisance in another context. For example, burning rubbish in a rural setting is likely to impact nobody, while doing so in a suburban neighborhood could send unhealthy smoke and fumes into the yards of neighbors. Nuisance laws recognize a property owner’s right to use his property as he chooses, so long as his use does not interfere with the mutual rights of others.

As a further example, if you use your grill on your back patio, you will generate smoke. But the amount of smoke that you create is unlikely to impact your neighbors. However, if you build a bonfire in your back yard and send plumes of smoke over your fence, your actions could pose a threat to the welfare of your neighbors. But, if you build a bonfire in the middle of your thousand-acre ranch, nobody is likely to be impacted by the smoke. In each instance, you have generated smoke, but your action is a nuisance only when that smoke prevents others from using and enjoying their property. You have a right to use the air that is on your property, just as your neighbors have a right to use the air that is on their property. If you wish to fill your air with smoke, you have a moral right to do so. However, if you fill your neighbor’s air with smoke so that he cannot use and enjoy his property, you have violated his right to use that air.

Again, there are complexities that are beyond my knowledge or expertise. For example, the emissions from a factory might cause damage miles away. Or, the emissions from a single plant may not cause harm, but the cumulative emissions of many factories might do damage. But such claims must be proven with objective, scientific evidence, not the type of hysterical predictions and data manipulation that characterizes so many claims by environmentalists.

As a final point, Ostrom and other commoners assume that resources exist in a fixed quantity. Garrett Hardin, for example, argued that rational actors would seek to maximize their own utility, and when multiple actors do so, they will deplete the resource. While it is true that everything is finite, some resources, such as fisheries, are renewable, to use a favorite term of environmentalists. Fisheries can support much larger populations of fish than they currently do, but the focus of commoners is on managing the existing supply, not increasing it. When property is owned “in common” there is no motivation or means to increase supply. However, when property is privately owned, both a motivation and a means to increase supply exist. When individuals can profit, they often find innovative solutions to expand production. Fish farms are but one example.

Property rights address any legitimate concerns—such as pollution—that commoners may hold. Not only are property rights practical, they are moral as well—they recognize and protect the freedom of individuals to take the actions they deem best.


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