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 for hundreds of years in countries with longstanding common law.
  • 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 are 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 via 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 agree that the Earth is warming, at least partially due to humans burning fossil fuels, and it is warming at a rate that presents substantial concerns… but 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 fairly determines that the cumulative effects of man-made greenhouse gas emissions (GHGs) is 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 disperses 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 smoke disputes to modern toxic torts. As science and technology advances, 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 best and cheapest way to reverse 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 decentralised enforcement also avoids the regulatory capture that is common today.
  • There are many ways that CO2 can be sequestered safely and sustainable. 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 incentivise entrepreneurs to keep devising better ways to solve this problem.
  • By offering the trespasser the routine option to either stop trespassing or pay to durably sequester the carbon (essentially a “trespass fee” for the 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 may be used as to satiate 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: ‘State Farm vs Vistra Energy’
• What about jurisdictions that do not adhere to the Legal Principle?
  • This, along with all other existential threats, is a problem faced today, just as it would be faced by a free community.
  • There are various carrots and sticks a free society may choose to implement in attempt to mitigate the threats, including trade related measures like tariffs or other foreign policy measures. Ultimately these may prove futile (especially while free communities are few in number), just as they are currently failing. The 3L Philosophy does not promise utopia.
  • Likely the most effective approach will be to lead by example; demonstrate the superior benefits of freedom, peace and prosperity enjoyed from adhering to the 3L Philosophy, such that all eventually choose to emulate.
• What about historic emissions?
  • There are many challenges with bringing cases against polluters of the past, including statutory limitations which 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.
  • 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.