Libertarian Anarchy

According to standard homesteading theory, just as an individual can homestead and establish a property right in unowned land, they can also homestead and establish a pollution easement in unowned land. Whereas traditional homesteading gives a full property right, i.e. ultimate jurisdiction over land, pollution easements only give a limited property right, namely the right to pollute some land.

In his article Law, Property Rights, and Air Pollution, Rothbard writes (p.145-46):

The “first ownership to first use” principle for natural resources is also popularly called the “homesteading principle.” If each man owns the land that he “mixes his labor with,” then he owns the product of that mixture, and he has the right to exchange property titles with other, similar producers. This establishes the right of free contract in the sense of transfer of property titles. It also establishes the right to give away such titles, either as a gift or bequest.

Most of us think of homesteading unused resources in the old-fashioned sense of clearing a piece of unowned land and farming the soil. There are, however, more sophisticated and modern forms of homesteading, which should establish a property right. Suppose, for example, that an airport is established with a great deal of empty land around it. The airport exudes a noise level of, say, X decibels, with the sound waves traveling over the empty land. A housing development then buys land near the airport. Some time later, the homeowners sue the airport for excessive noise interfering with the use and quiet enjoyment of the houses.

Excessive noise can be considered a form of aggression but in this case the airport has already homesteaded X decibels worth of noise. By its prior claim, the airport now “owns the right” to emit X decibels of noise in the surrounding area. In legal terms, we can then say that the airport, through homesteading, has earned an easement right to creating X decibels of noise. This homesteaded easement is an example of the ancient legal concept of “prescription,” in which a certain activity earns a prescriptive property right to the person engaging in the action.

On the other hand, if the airport starts to increase noise levels, then the homeowners could sue or enjoin the airport from its noise aggression for the extra decibels, which had not been homesteaded. Of course if a new airport is built and begins to send out noise of X decibels onto the existing surrounding homes, the airport becomes fully liable for the noise invasion.

It should be clear that the same theory should apply to air pollution. If A is causing pollution of B’s air, and this can be proven beyond a reasonable doubt, then this is aggression and it should be enjoined and damages paid in accordance with strict liability, unless A had been there first and had already been polluting the air before B’s property was developed. For example, if a factory owned by A polluted originally unused property, up to a certain amount of pollutant X, then A can be said to have homesteaded a pollution easement of a certain degree and type.

Similarly, Hoppe has written:

If A currently physically damages the property of B (for example by air pollution or noise), the situation must be judged differently depending on whose property right was established earlier. If A’s property was founded first, and if he had performed the questionable activities before the neighboring property of B was founded, then A may continue with his activities. A has established an easement. From the outset, B had acquired dirty or loud property, and if B wants to have his property clean and quiet he must pay A for this advantage. Conversely, if B’s property was founded first, then A must stop his activities; and if he does not want to do this, he must pay B for this advantage.

But imagine a scenario where a vast territory is completely unowned and untouched by humans, like the moon, or a desert. Imagine also that I have a lifetime supply of nuclear weapons.

Then, can I homestead an easement right to nuke that unowned desert, say, once a month? The desert is completely uninhabited, so my nuking would not violate anyone’s rights. If pollution easements can be homesteaded, I don’t see why nuking rights would be excluded. After all, what is a nuclear bomb but a form of pollution? Smoke from a factory alters the landscape, just as nuclear weapons do. Sure, nukes emit radioactive particles, but this is only a difference in degree from smoke particles. Because I am nuking once a month, rather than a one-time event, I can claim that this is actually an act of homesteading, not just a one-time use of the land. In Hoppe’s words, “From the outset, B had acquired nuked property, and if B wants to have his property clean and quiet he must pay A for this advantage.”

Now, intuitively we would reject nuclear homesteading; the idea that someone could establish a right to destroy huge amounts of land does not seem very plausible. But if we reject it, what are the consequences for homesteading theory? If we reject nuclear homesteading, how can we coherently support pollution easements? I imagine supporters of the Lockean proviso could reject nuclear homesteading on grounds that it does not leave “enough and as good” for others; but libertarians generally reject the proviso. Libertarians might appeal to forestalling, where potential homesteaders are prevented from accessing unowned property, but I’m not sure it applies in this scenario.

So how do we resolve this? Should we even reject nuclear homesteading to begin with?