Volume 20, No.3, Fall 2002


By Gregory B. Christainsen and Brian C. Gothberg


Your symposium on the energy bill, ÒWhy Did the Greens Win?Ó intrigued me, even if it opened with a false premiseÑthat environmentalists won much of what they wanted in the Senate energy bill. While environmentalists did succeed in blocking oil development in the Arctic National Wildlife Refuge, we are sufficiently alarmed at the rest of the bill that the Cato Institute and the Sierra Club jointly submitted to the Washington Post an op-ed calling for Congress to give the legislation a decent burial (published July 29, 2002). Both the Sierra Club and Cato are highly skeptical that something called a Òcomprehensive national energy policyÓ is a good way to keep members of Congress gainfully employed and off the streets.

You asked "how free market environmentalists might convey their messages more effectively." But as Jerry Taylor and Kenneth Green trenchantly commented, several participants seem focused on outmaneuvering environmental values, not expressing them through free-market mechanisms. If libertarians continue, in TaylorÕs words, to seek Òa society that chooses tangible wealth creation over preservation of ecosystems,Ó my guess is that they will fail to convince the American public which, from most of the evidence, seeks a balance between those two goals .

Kenneth Green’s comment about ensuring that environmental regulations don’t constitute theft opened up one of the hidden and undebated fault linesÑwho owns what? To the best of my knowledge, most of the global ecosystem infrastructure remains an unpartitioned commons. No one owns the rain which falls on my backyard, the air which passes into my lungs, the ozone layer, the Atlantic ocean, or the genetic code that provides for the creation of everything from a mosquito to a prize black Angus. (Okay, a few tiny bits of that genetic code are, at least in the United States, owned.) And each of us is an equal shareholder in the public lands of the United States. Libertarians may argue that these commons would be better managed if they were partitioned and privately owned. But until this happens, it does not seem to me that it is theft for anyone to expect to enjoy his or her fair share of these amenities, undegraded, for free.

On the contrary, it seems to me that the theft occurs when anyone acts in a way which degrades someone elseÕs access to those amenities without freely given consent. Pollution, loss of biological diversity, disruption of global climate and weather patterns, exposure to risk from toxic substances, all would appear to violate fundamental libertarian principles at least as much as the government regulations put in place to limit those lossesÑbut many of the participants in your symposium seem to reserve all of their anger and indignation for the regulations, and none for the massive loss of freedom represented by, say, the inability of women in the Great Lakes to safely eat fish caught by their families.
Carl Pope
Executive Director, The Sierra Club
San Francisco, CA


Carl Pope credits me with surfacing an important issueÑthat of ownership of the elements of nature often considered to be indivisible, and hence unsuitable for a property-rights management approach. Pope homes in specifically on my observation that the role of a libertarian environmental policy analyst (in my opinion) is not to dictate what level of environmental quality, or environmental resource allocation people ÒshouldÓ want. I argued that what we should be doing is to act as a watchdog, and ensure that where environmental laws are enacted, people are actually getting the environmental benefit they are supposed to get, without having some people use the force of government to deprive others of property or liberty under the guise of protecting the environment.

IÕm in agreement with Pope that a legitimate function of law is to prevent people from harming others through releasing things into the environment in a way that (demonstrably) hurts other peopleÕs health or property. And I agree with him that some elements of the environment such as the atmosphere and oceans are not easily managed with a property- rights approach. But Pope fails to see how environmental regulations can turn into theft. And there we part company quite sharply.

Pope comments that Òit does not seem to me that it is theft for anyone to expect to enjoy his or her fair share of these [AmericaÕs unpartitioned commons] amenities, undegraded, for free. On the contrary, it seems to me that the theft occurs when anyone acts in a way which degrades someone elseÕs access to those amenities without freely given consent.Ó

But what about degrading the access of people who are handicapped or of limited economic means because of the elitist Òhikers onlyÓ laws supported by groups such as the Sierra Club?

As an asthmatic teen of limited means, some of my experience of nature came through camping, but all of my experience of "wilderness“ came on the back of a small motorcycle I bought with my bar mitzvah money. That little Yamaha 80 took me to remote areas I could never have reached on foot, just following animal trails or ancient mining trails in the Mojave Desert. I remember sitting on a boulder 25 or 30 miles from the nearest road, late in the spring, watching the subtle, but diverse, wildlife of the high desert. With survival gear on my back, I had that feeling of autonomy that you just donÕt get from riding a Ã’handicapped access trail busÓ through a tiny patch of national forest with 100 people you donÕt know.

The laws against motorized vehicles in national parks of the sort supported by Sierra Club will deprive many people of that experience, as will the laws against snowmobiles and road-building. Many people can afford a one-time purchase of an inexpensive motorcycle or snowmobile, but fewer can afford the kind of time, training, and hiking equipment needed for twenty-mile hikes into the wilderness. And yet, my tax dollars are taken to protect systems I am no longer allowed to use. I am still unable to hike, now because of arthritic ankles, but I could still ride a dirt bike, snowmobile, or sea-doo into one form of wilderness or another, but of course, that’s increasingly illegal. To me, that’s theft.

I also feel robbed when I see "my" national forests burn to the ground because of mismanagement, and an insane opposition to environmentally sound use of timber and clearing of deadfall and brush.

And then, I sometimes feel robbed when I pay more for products because "my" natural resources are being sequestered away because of other people’s values for an ecological absolutism I may or may not share.

While environmental laws have done a lot to prevent people ÒstealingÓ from others through polluting activities, theyÕve too often done so in a bluntobject way that limits choice, rather than expanding it. In doing so, it has deprived many people of meaningful use of their Òfair shareÓ of our undivided commons in accordance with their values and abilities.
Kenneth Green
Chief Scientist, Reason Foundation
Harker Heights, TX


Carl Pope offers a useful commentary on the energy billÑwhich he rightly notes serves neither economic nor ecological purposes. His continued challenge to free market environmentalists is to develop practical ecological privatization strategies (ÒLibertarians may argue that these commons would be better managed if they were partitioned and privately owned. But until this happens. . . .Ó)

One possible starting point might be to identify species not yet on any endangered list but which are viewed as Òat risk.Ó Enact an ecological adoption law that would specify the conditions under which an individual or group could acquire ownership rights to a population of this species. The goal would be to test whether individuals empowered to directly protectÑ via acquisition of habitat and ownershipÑcould play an effective role in species recovery. Exactly this role is played by various environmental groups for charismatic speciesÑthe peregrine falcon, the wolf. Why shouldnÕt the idea be extended to the population at large and the broader array of less dramatic plants and animals? Pope seems sincerely open to ideasÑhis support of this idea would be valuable.
Fred L. Smith, Jr.
President, Competitive Enterprise Institute
Washington, DC


Gregory B. Christainsen is professor of economics at California State University, Hayward. Brian C. Gothberg is completing his master’s degree in economics at California State University, Hayward. This article is adapted from "The Potential of High Technology for Establishing Tradable Rights to Whales," in The Technology of Property Rights, ed. Terry L. Anderson and Peter J. Hill (Lanham, MD: Rowman & Littlefield, 2001).

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