PROPERTY RIGHTS AS A KEY TO ENVIRONMENTAL PROTECTION

Professor Joseph Sax calls the problem of reconciling the Transformative Economy of the post-Industrial World with the Economy of Nature, "one of the most important problems of our day." The conflict arises because: 1) property lines and political boundaries divide the landscape in ways that do not correspond to nature, and 2) courts, legislatures, and the Property Rights Movement have focused on the rights within private property boundaries (the "generators"), rather than the rights of those outside those boundaries (the "receptors"), on either public or other private property. The present systems subsidize polluters by allowing offsite waste deposit, with the effect that the population has become test subjects and generators are unconstitutionally taking the receptors' property rights. These hidden subsidies distort the market by shifting costs to uncompensated receptors, hence environmental law must require internalization of all costs to the generator, which is difficult given the vast gaps in data.

Policy must include 1) the rights of all receptors to be free of externalities, and 2) the responsibility of all generators to internalize so as not to damage the property rights of receptors (in addition to onsite regulation). Externalization of waste is relatively easy to identify, monitor and remediate where the waste is released in the atmosphere or into the surface transport system. It becomes increasingly complex to identify, monitor and remediate waste that is released into the subsurface, particularly if there are multiple sources of waste production in the area. The burden should be placed on the generator to quantify and to demonstrate containment of all trans-boundary effects, which would spur scientific research.