Applying the Legal Principle

• Pollution is ‘unreasonable conduct causing harm’; a breach of the Legal Principle. Specifically, pollution is a tort law violation in which the pollutant is a form of trespass when it enters onto another person’s property without consent.
• There is no technical reason why tort law cannot resolve all material pollution incidents in a well-functioning justice system, as it has precedent in effectively doing so for hundreds of years in countries with a longstanding common law tradition.
  • The plaintiff (who claims to have suffered the unreasonable harm) must have ‘standing’, meaning they can demonstrate injury and a causal connection to the defendant’s conduct such that the court can provide a remedy.
  • Tort remedies involve injunctions (to stop the pollution) and damages (compensation for the victim)

Minor trespasses

• When a minor trespass occurs, like faintly hearing a sound coming from another neighbor’s property, barely smelling their barbecue, or being able to see a neighbor’s small light, we employ the Latin expression “*de minimis”* to resolve such matters by concluding they are too small or insignificant to be legally actionable. Exactly where to set the de minimus threshold is a grey area that local communities can define.
• As it pertains to climate change, it should be assumed that mere exhalation of CO2 by individuals is de minimus. Competent adults remain free to contract otherwise.

Climate Change

• Given the magnitude of the potential harm that could occur if the preponderance of qualified experts is correct, the issue of climate change warrants our serious consideration.
• Like many factual disputes on complex issues, the best way to resolve whether anthropogenic climate change is indeed a violation of the Legal Principle is to subject the best experts and evidence from each side to a trial to decide.
  • The facts that are predominantly debated include whether humanity is inducing climate change through polluting activities and whether this is causing material damage.
  • ‘Experts’: It is unavoidable that factual findings must rely on experts in their field, and that not all experts agree on the facts, nor who is even an expert. The preponderance of qualified experts agrees that the Earth is warming, at least partially due to human activities such as burning fossil fuels, and it is warming at a rate that presents substantial concerns. However, the preponderance of experts might still be wrong. A court that is grounded in the singular goal of fairly applying the Legal Principle is our best hope of resolving the issue.
• If a court reasonably determines that the cumulative effects of man-made greenhouse gas emissions (GHGs) are not de minimus and indeed a causal link can be demonstrated between polluters and damage to others’ property without consent, we must treat it as any other actionable trespass: the trespasser must stop trespassing.
  • In practice, this means they must either stop burning fossil fuels altogether or sequester the GHGs in equal measure to those emitted. Sequestration can be outsourced to solution providers in the free market. Because GHGs disperse quite evenly in the atmosphere once emitted, sequestration does not need to be done locally. So long as a ton of carbon is sequestered somewhere before an equivalent ton is emitted, we can say no ‘unreasonable conduct causing harm’ has taken place.
  • In local pollution instances, the trespasser can purchase the right, otherwise known as a license or an easement, to continue to use another’s property. Given that all 8 billion people are potentially impacted by climate change, this ‘easements’ option is impractical.
  • Common law has always adapted, from medieval disputes over smoke to modern toxic torts. As science and technology advance, courts can more easily establish proper causality for large-scale pollution issues with diffuse harm, like climate change.
• A free market for carbon sequestration is the most effective and cost-efficient way to mitigate climate change.
  • Rather than arbitrary tax and subsidies schemes that have failed to address climate change for 36 years (James Hansen testified to the US Congress about the risks of climate change in 1988, but emissions and global temperatures have been steadily rising since), a free market for sequestering carbon would be the cheapest and most effective way of dealing with the problem. This decentralized enforcement also avoids the regulatory capture that is common today.
  • There are numerous ways to sequester CO2 safely and sustainably. For example, farmers can sequester CO2 in their soil via no-till agriculture, which is also better for biodiversity. The market-derived carbon price would incentivize entrepreneurs to keep devising better ways to solve this problem.
  • By offering the trespasser the option to either stop trespassing or pay to sequester the carbon durably (essentially a “trespass fee” for continued trespass), we can effectively resolve the climate change issue and all pollution-related issues without violating the Legal Principle.
  • Under this solution, as much fossil fuel energy can be used as needed to satisfy demand. All the economic benefits in terms of improving quality of life may be enjoyed, and, so long as all pollutants are mitigated, no one is being aggressed against. By entirely mitigating the pollution, all other energy/climate-related taxes and subsidies can be removed.
    • Energy, like government, weapons, or any other tool, can be used as much as desired to the extent its use does not aggress against others.
• Specific hypothetical example
• What about historic emissions?
  • There are several challenges to bringing cases against past polluters, including statutory limitations that many jurisdictions reasonably apply. Like with foreign polluters, this is an issue that is not easily resolved today, nor would it be easy for a free society to decide.
  • The Aspirational Values, including voluntary kindness, are well met by individuals choosing to sequester carbon in excess of their own emissions.
  • As always, the question is not whether the 3L Philosophy is perfect in solving climate change or any other topic, but whether it offers an improvement.