A Free-Market Energy Blog

“Global Warming: A Dialogue” (Adler’s Judicial Activism Considered)

By Robert Bradley Jr. -- November 16, 2023

“Speculative incremental harm from a multi-decade global phenomenon has a classical liberal option: civil society charity. Uber-wealthy climate-related foundations can evaluate the harms to poor island villagers from sea level rise (as an example). But keep politicized science, global judicial activism, and backdoor Big Brother out of it.”

By 2004, after Jonathan Adler reversed positions to endorse climate policy activism, the Property and Environment Research Center (PERC) published a dialogue where Professor Adler defended his tort approach to address anthropogenic climate change with several classical liberals. Excerpts from “Global Warming: A Dialogue” follow.

This discussion is an edited version of comments made in December 2004 on the Free Market Environmentalism (FME) Roundtable list-serve. Jonathan Adler prodded his colleagues to forget, for just a minute, the debate over the impacts of warmer temperatures or whether humans are contributing or not. He asked the list-serve members to assume that burning fossil fuel will warm the earth’s atmosphere. Even if some benefits occur, this warming will cause some harm to some people.

Then he asked: If one takes a position of principle, do those who are harmed by global warming have the right to compensation from those who contributed to it? This evoked a discussion.

 Participants are listed below in order of their appearance.

Steven F. Hayward., F. K. Weyerhaeuser Fellow, American Enterprise Institute, Washington, D.C., and Senior Fellow, Pacific Research Institute, San Francisco

Robert L. Bradley Jr., President, Institute for Energy Research, Houston

Roy E. Cordato, Vice President for Research, John Locke Foundation, Raleigh, North Carolina

Jane S. Shaw, Senior Fellow, PERC, Bozeman, Montana

Julian Morris, Executive Director, International Policy Network, London

Kenneth W. Chilton, Institute for Study of Economics and the Environment, Lindenwood University


Jonathan Adler: If one accepts conservative predictions about climate change such as those championed by many global warming skeptics that there will be a modest warming over the next century and it will produce some costs, as well as substantial benefits-is the proper global response to “do nothing”?

 Even if one believes that the benefits of such climate change may exceed the costs- or merely that the costs of climate change are far less than the costs of trying to stop it—the distribution of climate changes impacts will not be uniform. Temperate regions may be significant winners and tropical areas significant losers. If this is the case, do those nations most “responsible” for the warming have any obligation to compensate the losers?

 If the industrialized nations, which are concentrated in temperate regions, are the dominant contributors to climatic changes, are not these nations (or industries, or wherever one wishes to assign responsibility) guilty of violating the property rights of those in the tropical world? If the land of a farmer in Bangladesh is flooded, due in part to human-induced climate change, is he any less entitled to redress than the individual who has his land flooded by his neighbor’s land-use changes? There is a long-standing cause of action under the common law for the latter. Is the former any less worthy of redress? 

More broadly, if we accept a property rights framework, as free market environmentalists do, must we not accept the fact that even non-catastrophic climate change to which human activity contributes produces property rights violations? In a perfect world, should not those whose property rights are violated have a remedy?

 I recognize that implementation and public choice considerations may make this choice moot. There is no global institution capable of administering such a rule, and we would all rightly fear any institution that had such power. Nor should we have any confidence that current multinational institutions or national governments would handle compensation in a just or efficient manner. My question is, what would be the best normative resolution of such concerns, assuming away such considerations?

Hayward: I want to second Jonathan’s query. With so many past predictions of the eco-apocalypse, deep skepticism is the sensible default position on global warming. But I am not sure I am comfortable with it. Jonathan’s property rights query is a good first step to thinking through and articulating a serious position.

Bradley.: The fact that there may be some regional losers is a powerful argument for open borders so that folks can travel to the best climates, seasonally or permanently.

Adler: Open borders certainly make it easier for those affected to escape the costs of climate change, but they don’t address the property rights concern….

Cordato: As libertarians, it seems to me that what we should do, in the famous words of the late Edwin Starr, is “absolutely nothin’.” It seems to me that there is very little that can be done in terms of real-world COreduction that could significantly alter the climate. Plus all this cost/benefit talk is mumbo jumbo anyway. If an aggrieved party can figure out a way to sue someone for damages and get it to stick, then go for it. Let the common law process figure out how damages should be allocated and who should get paid what and by whom. To do anything other than this takes us right back to F. A. Hayek’s pretense of knowledge (the idea that policy makers assume or “pretend” to have information that, in a complex society, they cannot possibly obtain).

 Adler: I think the “let someone file a claim and let the common law sort it out” is a bit of a cop-out. I say this because the common law as it stands today, at least in the United States, is not particularly protective of property rights, either for plaintiffs or defendants…. The “let the courts sort it out” approach may be justified on pragmatic grounds, but I do not think it is grounded in property rights principles.

 Jane S. Shaw: Some harms aren’t actionable. If you build a supermarket next to my mom-and-pop grocery and my sales suffer, can I sue you for damages? No. You did something that harmed me, but you did nothing illegal. That’s life. Is global warming necessarily different?

Adler: Yes, it is different insofar as there are physical changes to my land. If you fill a wetland upstream from me, and my land floods, that is actionable under the common law. If you live on “lower” land than I do and you remove lateral support from my land, that can be actionable. If your factory emits substances that harm my crops, that is actionable. Therefore, at least as an abstract matter (setting aside questions of jurisdiction, etc.), it would seem that insofar as climate change produces such effects in parts of the world-a likelihood that even most skeptics accept for some portions of the world-there should be a claim. In each of these examples, there is a property rights violation and there is harm. What I want to know is why global warming is any different.

Cordato: Jane, I think this is exactly why a property rights violation and not harm has to be the deciding factor. Harm is a necessary but not sufficient condition for compensation. In some sense we are all harmed in the marketplace when someone we would like to trade with decides that he is not willing to. Someone competes away our customers. Harm? Yes. Rights violation? No. Therefore, no compensation.

 The key question is whether global warming entails a rights violation. That’s why I suggest that if someone can make a case that is deemed courtworthy then he should go for it and let the common law process sort the issue out.

Adler: My question to Roy is this: Setting aside the pragmatic questions of how one would sue, do you believe a) that property rights would be violated if human contributions to climate change produce any negative effects for property owners in developing nations? and b) that injunctive relief should be as available here as in any other context? … I am surprised to hear defenders of property rights suggest that whether contemporary courts recognize the claim should settle the matter. After all, these are the same courts that long ago departed from common law principles and gutted the property rights protections written into the U.S. Constitution, yet property rights advocates rarely defendant let alone accepted either result.

Julian Morris: Roy’s spot on. It’s true that some harms are not actionable. But the law of nuisance at least traditionally was clear: Harms were actionable if damage was done either to property itself or to the enjoyment of that property. Notwithstanding the recent invasion of nuisance by negligence standards and a balancing test, this principle remains. The reason that a person with a grocery store can’t sue someone who builds a bigger grocery store and takes its customers away is that there has been no objective harm done to the property or the enjoyment of that property.

 It seems to me that the fundamental principle should remain that a person who has been harmed by a climate event (or series of events) should have an actionable claim against the person (or persons) who caused the event. Now, this might in fact be quite a simple process for climate events caused by an identifiable act or series of acts by a single party or small number of parties, the effect of which is quite immediate and follows directly from the action of the liable parties. This might apply, for example, to a rainstorm/ hailstorm that is caused (intentionally or otherwise) by someone seeding clouds and that results, say, in broken windows and damage to cars.

However, when it comes to global climate change a number of more substantial problems arise. First, if it turns out that emissions of greenhouse gases are the major source of change, the number of potentially liable parties would be very large indeed, making the apportionment of damages difficult and costly. Second, the events that caused the harm are likely to be separated from the actual harm by a very long period, leaving ample room for intervening acts to influence the effect of the act allegedly giving rise to liability.

Let me illustrate this point. Governments around the world currently prevent the creation of wealth and undermine technological progress on a grand scale, thus hindering adaptive responses to the consequences of climate change, whatever its cause. Such harmful government intervention is, I would argue, a form of novus actus interveniens and should be considered the primary cause of the harm that results to people affected by droughts, floods, storms, etc., both now and in the future, where there is no other direct and immediate cause.

Consider Bangladesh, which experiences frequent floods. In part these floods happen because Bangladesh is a massive delta, in part because its government prevents the people of Bangladesh from owning property and otherwise engaging in wealth-creating activities. Contrast Bangladesh with Holland, a country that is largely below sea level but rarely suffers from floods because the inhabitants have built systems of canals and dikes.

If climate change makes these regular inundations worse, the harm that results can largely be blamed on the Bangladeshi government. Why? Because if the government were to hinder entrepreneurial activities less, the people could become wealthy and would develop or purchase technologies that enabled them better to cope with the inundations in general, regardless of the frequency.

Cordato: Jonathan, my point to Jane was that I don’t know to what extent a property rights violation is occurring. Isn’t this part of the case that would have to be made? If it is determined that rights have been violated and if the proper causal relationship is established, given traditional standards of proof, then I think that at the very least compensation would be due. (By the way, I am not sure what it would mean to violate property rights in countries where there is no real private property rights protection in the first place. Their own states are the primary violators of rights. To what extent do meaningful property rights have to be in place before we talk about property rights violations?)

Attorneys general are currently suing electric utilities for contributing to global warming through emissions of carbon dioxide. Are they identifying specific victims in the here and now, not theoretically in the future, who have suffered harm from global warming? Can they show, using a preponderance of the evidence standard, that the marginal amount of warming that caused the harm was human-induced?

If all this is the case then I think a suit is in order, but it should be pursued by the victims, not the state. I also think it would be well within the rights of gas station owners, charcoal producers, electricity generators and all other producers of greenhouse-gas-emitting products to refuse to sell to the plaintiffs. If the plaintiffs are going to complain about the effects of the emissions then they should be happy to live without the services provided by the offending products. I think that this is the kind of dynamic that a free society would generate.

Kenneth W. Chilton: Jonathan, when will the developing nations compensate the developed nations for “free-riding” on their tremendous contributions in the area of medicine and agriculture? What is an extra ten years of life, or a far healthier life, worth to residents of these nations? ….

Adler: I believe this is a relevant issue from a net-total-welfare standpoint, but it doesn’t address the property rights question…. if a factory causes significant physical changes to my land to which I object, it does not matter if the factory is providing other benefits to me or the community at large. I have a right not to be subject to such impacts and I am entitled to a remedy. This is so even if the costs to me of the factory’s pollution are significantly less than the benefits that the factory provides to my community and even to me. My question is this: Why don’t we apply this framework to global warming ”at least as a theoretical matter” when thinking about the “first-best” approach to the issue? …

Final Comment:

Under a classical liberal standard, tort law has boundaries where it becomes practically inoperative–and dangerous to apply. In a perfect knowledge sense, one might know how anthropogenic climate change hurts certain person (while benefitting many). But in the real world, what is cause and effect?

Adler’s go-to example is sea level rise from anthropogenic warming. (He then brings in a variety of pollution issues above to defect from the real issue.) But even here, we are talking about inches and decades, a very thin reed compared to what normally is considered “pollution”.

Here are the questions for Adler in this particular case, some of which echo the concerns stated above:

  1. What is natural vs. anthropogenic? Given unsettled science, the burden of proof is on the plaintiffs.
  2. If a level of anthropogenic sea level rise occurred over the decades (and not in one act), how does the plaintiff defend a lack of self-help and adaptation? (Alarm over sea level rise has been sounded since the 1980s.)
  3. If Statism prevented self-help (in the case of poverty stricken islands), should the plaintiffs sue their government?
  4. Who caused the damage for the plaintiffs to sue? Everyone who used fossil fuels? Developed countries? Energy companies? Could the plaintiffs also be defendants if they used fossil fuels in the period of accumulated harm? And for the future, should the undeveloped world (and the islands in question) not develop as part of a plaintiff victory.

Living on an island is a lifestyle choice. There are benefits and costs, just like living in the country versus urban areas. There are benefits of sun, warmth, and solitude. Multi-decade warnings of incremental sea level rise from global accumulations of GHGs in the atmosphere turns an act of man into an inherited situation, not a tort. Greenhouse gases were there first.

The idea of enjoinment and restitution is such a situation is a bridge far too far. Speculative incremental harm from a multi-decade global phenomenon has a classical liberal option: civil society charity. Uber-wealthy climate-related foundations can evaluate the harms to poor island villagers from sea level rise (as an example). But keep politicized science, global judicial activism, and backdoor Big Brother out of it.

Leave a Reply