Property Rights are No Excuse to Restrict Property Rights

March 30, 2020   Robert Gmeiner

  • Property, Markets & Trade
  • Blog

Climate change is an issue and will continue to be a source of lobbying pressure for laws and policies.  Regardless of whether one agrees with the science behind it, climate change is undeniably a force in today’s politics.

Property rights advocates sometimes oppose measures designed to mitigate climate change because they infringe on property rights by restricting what can be done with private property.  Yale Climate Connections published a piece arguing that property rights advocates should support action to stop climate change for property rights reasons.  Law professor Jonathan Adler builds this case by claiming that actions that cause sea level rise infringe on the rights of property owners who get their homes flooded.  He correctly points out that if a someone causes a flood that destroys someone else’s home, it is a property rights violation.  It seems hard to see how one individual could cause a flood of such magnitude, but it is easy to see how someone could cause water damage in someone else’s property by clogging water mains or draining a swimming pool into someone else’s yard.  Professor Adler takes this a step further by claiming that emitting greenhouse gases that cause sea levels to rise is the same as causing a flood.

This argument falls apart on the basis of proximate causation.  One power plant does not single-handedly cause sea levels to rise enough to inundate a house in a coastal area; if these sea levels are caused by human action, it is the result of more greenhouse gases than one power plant produces.  Someone who damages property is not liable for the damage inflicted by someone else.  In the case of property damage resulting from greenhouse gas emissions that are not proximate (i.e., not an issue of nearby pollutants causing harm to livestock), attributing damages to specific polluter is nearly impossible.  Moreover, they are not all located within the same jurisdiction.

There may be other reasons to support policies designed to combat climate change but protecting property rights is not one of them.  Fighting for climate change on the basis of protecting property threatens to unleash a nightmare of litigation and efforts to conclusively attribute damages.  Framing the climate change issue in this way will not inspire property rights advocates to support action that proximately curtails property rights by restricting what can be done with property.  All that Professor Adler’s proposal promises to do is create new liabilities and further increase the scope of government in regulating private property, something that is an anathema to the very people Professor Adler wants on board.  Yes, it is good to make people pay for damage they cause, but there is no feasible way to calculate damage to one home from a specific emission of carbon dioxide.