“We have established that everyone may do as he wishes provided he does not initiate an overt act of aggression against the person or property of anyone else. Anyone who initiates such aggression must be strictly liable for damages against the victim, even if the action is “reasonable” or accidental. Finally, such aggression may take the form of pollution of someone else’s air, including his owned effective airspace, injury against his person, or a nuisance interfering with his possession or use of his land.
This is the case, provided that:
- the polluter has not previously established a homestead easement;
- while visible pollutants or noxious odors are per se aggression, in the case of invisible and insensible pollutants the plaintiff must prove actual harm;
- the burden of proof of such aggression rests upon the plaintiff;
- the plaintiff must prove strict causality from the actions of the defendant to the victimization of the plaintiff;
- the plaintiff must prove such causality and aggression beyond a reasonable doubt; and
- there is no vicarious liability, but only liability for those who actually commit the deed.
With these principles in mind, let us consider the current state of air pollution law. Even the current shift from negligence and “reasonable” actions to strict liability has by no means satisfied the chronic special pleaders for environmental plaintiffs. As Paul Downing says, “Currently, a party who has been damaged by air pollution must prove in court that emitter A damaged him. He must establish that he was damaged and emitter A did it, and not emitter B. This is almost always an impossible task.” If true, then we must assent uncomplainingly. After all, proof of causality is a basic principle of civilized law, let alone of libertarian legal theory.
Similarly, James Krier concedes that even if requirement to prove intent or unreasonable conduct or negligence is replaced by strict liability, there is still the problem of proving the causal link between the wrongful conduct and the injury. Krier complains that “cause and effect must still be established.” He wants to “make systematic reallocation of the burden of proof,” that is, take the burden off the plaintiff, where it clearly belongs. Are defendants now to be guilty until they can prove themselves innocent?
The prevalence of multiple sources of pollution emissions is a problem. How are we to blame emitter A if there are other emitters or if there are natural sources of emission? Whatever the answer, it must not come at the expense of throwing out proper standards of proof, and conferring unjust special privileges on plaintiffs and special burdens on defendants.
Similar problems of proof are faced by plaintiffs in nuclear radiation cases. As Jeffrey Bodie writes, “In general the courts seem to require a high degree of causation in radiation cases which frequently is impossible to satisfy given the limited extent of medical knowledge in this field.” But as we have seen above, it is precisely this “limited extent of knowledge” that makes it imperative to safeguard defendants from lax canons of proof.
There are, of course, innumerable statutes and regulations that create illegality besides the torts dealt with in common-law courts. We have not dealt with laws such as the Clean Air Act of 1970 or regulations for a simple reason: None of them can be permissible under libertarian legal theory. In libertarian theory, it is only permissible to proceed coercively against someone if he is a proven aggressor, and that aggression must be proven in court (or in arbitration) beyond a reasonable doubt. Any statute or administrative regulation necessarily makes actions illegal that are not overt initiations of crimes or torts according to libertarian theory. Every statute or administrative rule is therefore illegitimate and itself invasive and a criminal interference with the property rights of noncriminals.
Suppose, for example, that A builds a building, sells it to B, and it promptly collapses. A should be liable for injuring B’s person and property and the liability should be proven in court, which can then enforce the proper measures of restitution and punishment. But if the legislature has imposed building codes and inspections in the name of “safety,” innocent builders (that is, those whose buildings have not collapsed) are subjected to unnecessary and often costly rules, with no necessity by government to prove crime or damage. They have committed no tort or crime, but are subject to rules, often only distantly related to safety, in advance by tyrannical governmental bodies. Yet, a builder who meets administrative inspection and safety codes and then has a building of his collapse, is often let off the hook by the courts. After all, has he not obeyed all the safety rules of the government, and hasn’t he thereby received the advance imprimatur of the authorities?
The only civil or criminal system consonant with libertarian legal principles is to have judges (and/or juries and arbitrators) pursuing charges of torts by plaintiffs made against defendants.
It should be underlined that in libertarian legal theory, only the victim (or his heirs and assigns) can legitimately press suit against alleged transgressors against his person or property. District attorneys or other government officials should not be allowed to press charges against the wishes of the victim, in the name of “crimes” against such dubious or nonexistent entities as “society” or the “state.” If, for example, the victim of an assault or theft is a pacifist and refuses to press charges against the criminal, no one else should have the right to do so against his wishes. For just as a creditor has the right to “forgive” an unpaid debt voluntarily, so a victim, whether on pacifist grounds or because the criminal has bought his way out of a suit or any other reason, has the right to “forgive” the crime so that the crime is thereby annulled.
Critics of automobile emissions will be disturbed by the absence of government regulation, in view of the difficulties of proving harm to victims from individual automobiles. But, as we have stressed, utilitarian considerations must always be subordinate to the requirements of justice. Those worried about auto emissions are in even worse shape in the tort law courts, because libertarian principle also requires a return to the now much scorned nineteenth-century rule of privity.
The privity rule, which applies largely to the field of products liability, states that the buyer of a defective product can only sue the person with whom he had a contract. If the consumer buys a watch from a retailer, and the watch does not work, it should only be the retailer whom he can sue, since it was the retailer who transferred ownership of the watch in exchange for the consumer’s money. The consumer, in contrast to modern rulings, should not be able to sue the manufacturer, with whom he had no dealings. It was the retailer who, by selling the product, gave an implied warranty that the product would not be defective. And similarly, the retailer should only be able to sue the wholesaler for the defective product, the wholesaler the jobber, and finally the manufacturer.
In the same way, the privity role should be applied to auto emissions. The guilty polluter should be each individual car owner and not the automobile manufacturer, who is not responsible for the actual tort and the actual emission. (For all the manufacturer knows, for example, the car might only be used in some unpopulated area or used mainly for aesthetic contemplation by the car owner.) As in the product liability cases, the only real justification for suing the manufacturer rather than the retailer is simply convenience and deep pockets, with the manufacturer presumably being wealthier than the retailer.
While the situation for plaintiffs against auto emissions might seem hopeless under libertarian law, there is a partial way out. In a libertarian society, the roads would be privately owned. This means that the auto emissions would be emanating from the road of the road owner into the lungs or airspace of other citizens, so that the road owner would be liable for pollution damage to the surrounding inhabitants. Suing the road owner is much more feasible than suing each individual car owner for the minute amount of pollutants he might be responsible for. In order to protect himself from these suits, or even from possible injunctions, the road owner would then have the economic incentive to issue anti-pollution regulations for all cars that wish to ride on his road. Once again, as in other cases of the “tragedy of the commons,” private ownership of the resource can solve many “externality” problems.”
— Murray N. Rothbard, Law, Property Rights & Air Pollution