It’s happening. A lawsuit brought to force action on climate change is headed for trial in Oregon after a federal appeals court rejected attempts by the Trump administration to block the suit. The case, brought by a group of young plaintiffs under the name Our Children’s Trust, alleges that the failure of the United States to restrict greenhouse gas emissions violates their constitutional rights.

What should libertarians think about this lawsuit? To answer this question, it is important to be clear on what the libertarian or free market position should be on environmental issues generally. Contrary to common stereotype, the libertarian position on the environment is not that people should be free to pollute as much as they want. Libertarians are strong believers in property rights, and to the extent that my polluting damages you in the use or enjoyment of your property, that is a violation of your property rights.

Given that pollution constitutes a violation of property rights, what is the right response from a libertarian perspective? Here the famous libertarian tendency towards factionalism comes into play. Some libertarians have argued that the best way to deal with pollution is to tax it. Milton Friedman, for example, thought government had a role to play in dealing with pollution, but that it ought to do so via pollution pricing rather than regulatory mandates:

There’s always a case for the government to do something about [pollution]. Because there’s always a case for the government to some extent when what two people do affects a third party…. But the question is what’s the best way to do it? And the best way to do it is not to have bureaucrats in Washington write rules and regulations saying a car has to carry this that or the other. The way to do it is to impose a tax on the cost of the pollutants emitted by a car and make an incentive for car manufacturers and for consumers to keep down the amount of pollution.

R Street’s own work supporting a revenue neutral carbon tax is inspired by this perspective. In fact, we have gone one step further. Not only is a tax a better way to deal with pollution than regulatory mandates, but any money generated by the tax ought to be swapped for cuts to existing, more burdensome taxes.

However, this is not the only libertarian perspective on the matter. Murray Rothbard, for example, fiercely criticized Friedman’s position… for being too soft on polluters. According to Rothbard, the only acceptable libertarian solution would be for courts to impose an absolute ban on pollution, regardless of cost. As Rothbard put it, “the remedy is simply for the courts to return to their function of defending person and property rights against invasion, and therefore to enjoin anyone from injecting pollutants into the air.”

Not only did Rothbard take a hard line against polluters, but his definition of what counts as pollution was also quite broad. For Rothbard, any kind of emissions could be pollution if it harmed people or damaged the use and enjoyment of their property. When considering whether radio waves might constitute a violation of property rights, for example, Rothbard said that ordinarily they would not because they are impossible to detect. However, if it is “later discovered that radio waves are harmful, that they cause cancer or some other illness[,] then they would be interfering with the use of the property in one’s person and should be illegal and enjoined,” assuming the owner can meet their burden of proof.

Applied to global warming, a person who can prove they were being harmed by global warming would be able to singlehandedly shut down large sections of energy production and industry. That might be economically devastating, but to Rothbard that did not matter: “The argument that such an injunctive prohibition against pollution would add to the costs of industrial production is as reprehensible as the pre-Civil War argument that the abolition of slavery would add to the costs of growing cotton, and that therefore abolition, however morally correct, was ‘impractical.’”

Of course, a person would have to prove that they would be harmed by greenhouse gas emissions. Whether any particular plaintiff could do that would be a matter for courts to decide. But it is important to keep in mind what they would not be required to prove. To get an injunction against emissions, a person would not need to prove that climate change was an existential threat to humanity or even that it was particularly bad. Nor would it matter if climate change was actually beneficial to some other group of people. I have been accused of being a “climate statist” for not giving enough attention to the possibility that climate change could have net benefits for humanity. But from Rothbard’s libertarian perspective, this question is irrelevant. A doctor who kills a patient and uses his organs to save five others is not a libertarian hero.

From this perspective, the Our Children’s Trust lawsuit is closer to the libertarian ideal that most climate change proposals. The suit claims that the plaintiffs will be harmed by global warming, and asks for some specific projects (such as liquefied natural gas terminals) to be shut down because they would contribute to that harm. The plaintiffs do seem to still be focused on a regulatory solution, rather than an injunctive one. From the plumb line perspective they ought to be suing emitting companies, rather than the federal government. On the other hand, what the plaintiffs are asking for (a plan to phase out emissions) is a lot milder than what they might be able to get before a Rothbardian judge.

As I mentioned above, R Street’s perspective is a little different from the one advocated by Rothbard. In fact, we have written previously about some of the problems inherent in this lawsuit. Yet the irony for those who consider us too alarmist on the climate issue is that both our proposal and the Our Children’s Trust lawsuit are actually much easier on greenhouse gas emitters than what hard-line, Rothbardian libertarians would call for.

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