The environment has often been thought to consist of resources that are unowned, and hence subject to the well-known tragedy of the commons. But in recent years, property ideas have been increasingly recruited for environmental protection, in a manner that appears to vindicate the view that property rights evolve along with the needs for resource management. Nevertheless, property regimes have some pitfalls for environmental resources: the relevant parties may not be able to come to agreement; property regimes may be weak or ineffective; they may be aimed at purposes inconsistent with environmental protection; property rights definitions may not work well for environmental resources; modern property regimes may promote monoculture rather than diverse environments. This essay describes these problems and asks to what degree they apply to a new effort to use property rights approaches, namely cap-and-trade programs to control greenhouse gases. It concludes that property rights, while imperfect and something of a retreat from a regime of complete liberty, may offer gains for environmental protection. But success will depend on close attention to the accountability and effectiveness of the governmental institutions necessary to support environmental property regimes.

This paper argues that the occurrence of a non-native species, such as purple loosestrife, on one's property does not constitute a nuisance in the context of background principles of common law. No one is injured by it. The control of non-native species, such as purple loosestrife, does not constitute a compelling public interest, moreover, but represents primarily the concern of an epistemic community of conservation biologists and ecologists. This paper describes a history of cases in agricultural law that establish that a public authority may enter private property to destroy a tree or other species but only to protect a compelling public interest, such as the apple industry in Virginia or the citrus industry in Florida, and only if it pays all the costs including just compensation. The paper argues a fortiori that if a public authority enters private property to control non-native or “invasive” species it must pay all the costs and indemnify the owner—contrary to what many state laws contemplate and the Environmental Law Institute recommends.

Modern discussions of natural resources focus on increasing public control over extractive industries proposing measures that range from increasing the public's share of the gain via royalties and taxes to regulating extractive activities to prevent environmental problems to outright expropriation of private investments. This article argues that such efforts are counterproductive because the fundamental economic problem of natural resources is producing the knowledge necessary to locate and extract resource deposits. The public benefit comes from enabling the use of the resources and the increased economic activity their discovery produces rather than from royalties or expropriation. The key question in designing natural resource laws is thus their effects on the incentive to discover and manage resources. Private property rights in natural resources are the best way to provide such incentives. Fortunately, the combination of property rights and tort law principles (trespass and nuisance) enables property rights to solve environmental problems related to natural resource extraction as well.

The over-exploitation of commonly-held resources is typically analyzed as an instance of market failure that calls for legislation to internalize the social costs that private activities impose on the environment. In this article, I argue that to the extent that this analysis ignores the regulatory effect of the common law, it is unsound. In The Tragedy of the Commons, Garret Hardin points out that there are two solutions to the tragedy: privatize the resource or restrict access to it. Environmental legislation is a means restricting access to the commons. The evolutionary development of common law is a means of privatizing the commons. These represent alternative methods of environmental regulation. Proper public policy analysis requires a comparative assessment of the efficacy of these methods for resolving any particular environmental problem. In many, if not most cases, such an assessment will show common law regulation to be superior to environmental legislation.

In the early 1970s, we and others in the economics profession became enamored with the notion of externalties—a cost or benefit imposed on or provided to others but not taken into account by the economic agents who generate the effect. We, and others, seemed to see external effects everywhere. There was polluted water and air, noise, urban blight, traffic congestion, and other features of modern life that seemed to call out for some form of corrective action. As the externalities revolution unfolded, economists and other social scientists overlooked the importance of evolved legal and other institutions that formally and informally establish property and liability rules that cause decision makers to face the cost of their actions, including what otherwise could be external costs imposed on unwilling third parties.

While markets seemed always to fail, political institutions were seen systematically as without blemish, or so it seemed. It was this two-pronged failure, 1) a failure to consider and state assumptions about background institutional arrangements and 2) a disregard for special interest politics, that became the Achilles Heel of the otherwise elegant externality arguments. Eventually, it was the modern institutionalists, scholars who focused on laws, regulation, and rules of the marketplace, who attempted to close the lid and drive the nails on the externality coffin.

In this paper, we reach back to 1920 and trace the rise and decline of the policy importance of externalities theory. Beginning with A. C. Pigou and Alfred Marshall, our story includes some of the great figures in economic history of thought. But while theory was being built, institutions were overlooked. Pigou continues to be a dominant player in the story until the 1960s and 1970s when externalities theory was challenged by James M. Buchanan, Ronald Coase and other scholars. It is here in the twilight years of the externalities revolution that the prospects of government failure are raised as being more daunting than the likelihood of market failure. Finally, in the late 1970s and beyond, the externalities revolution is replaced by a property rights revolution.

In this article the implications of our nature as both autonomous and heteronomous beings is discussed. It is suggested that our condition as part-dependent creatures calls for a reconsideration of the nature of both freedom and liberalism, and the work of Alasdair MacIntyre and Jean-Paul Sartre is used to illustrate the natural and historical dimensions of our dependency. The conclusion reached is that neither deep ecological re-enchantment nor full-blooded cornucopianism are possible, and that we need to take our nature as semi-dependent creatures seriously as we seek ways of negotiating our way through our environmental problems.

Environmental thinking vacillates between two conceptions of our relationship to nature: one assumes that human beings are simply a part of nature, the other that what is natural is defined by what humans have not interfered with. Both can conduce to making human extinction appear a way to protect the integrity of nature. An alternate view notes that human beings by nature possess speech and reason, or logos, which leads to our ability to articulate a concern for nature. The examples of Deep Ecology and transhumanism suggest that only when nature and logos are completely abstracted from one another will thinking about nature in these terms support advocacy of human extinction. Still, this alternative requires confronting the modern “demoralization” of nature, which can coexist only uneasily with either environmentalism's attempt to get us to value nature more, or transhumanism's effort to have us value it less.

The science underlying global warming, climate change, and the connections between these phenomena are reviewed. Projected future climate changes under various plausible scenarios of future human behavior are explored, as are the potential impacts of projected climate changes on society, ecosystems, and our environment. The economic, security, and ethical considerations relevant to determining the threat posed by climate change are subsequently assessed. The article then discusses the various means available for climate change mitigation, focusing on the relative strengths and weaknesses of various societal alternatives including ‘geoengineering’ and transitioning to less carbon intensive energy sources. The article concludes with the author's views as to what steps might most profitably be taken to avert dangerous anthropogenic interference with Earth's climate, and the ramifications if such steps are not taken.

Claims that a man-made global warming catastrophe is imminent have two major aspects: the scientific support offered for the claims, and the political proposals brought forth in response to the claims. The central questions are whether non-scientists should accept the claims themselves as true, and whether they should support the political proposals attached to them. Predictions of a coming disaster are shown to be a-historical in both the long term and the short term, to involve shifting predictions that are contrary to evidence, and to be opposed by many scientists. The political proposals to alleviate this alleged problem—especially plans by the U.S. Environmental Protection Agency—are shown to offer no alternative to fossil fuels, and to portend a major economic decline and permanent losses of liberty. The anthropogenic global warming claims are largely motivated not by science, but by a desire for socialist intervention on a national and a global scale. Neither the claims to an impending climate catastrophe nor the political proposals attached to those claims should be accepted.

This paper considers prevailing environmental policy in the United States with the emphasis on liberty, markets, utilizing information, entrepreneurial discovery, and the economic analysis of political decisions (public choice). The general discussion is illustrated by the concern over global warming and policies for addressing this concern. The political incentives to confront environmental problems directly with mandates, restrictions, and subsidies ignore the power of liberty and market incentives to solve problems by fostering an impressive network of information transfer, increasing innovation, and expanding prosperity. Indeed, most environmental policies systematically suppress liberty, censor the communication of information, and retard innovation and prosperity, with the result that they provide less environmental quality at greater cost than is possible. While such flawed policies might be justified in cases where pollution problems pose clear, serious, and immediate threats, we argue this is not true of global warming, and the most effective response to concerns over carbon emissions may be limiting the discretionary power of government to take direct action and rely on the indirect effects of liberty and market incentives to move us beyond the petroleum age more quickly and efficiently than will result from the direct action of government.

The dominant approach to environmental policy endorsed by conservative and libertarian policy thinkers, so-called “free market environmentalism” (FME), is grounded in the recognition and protection of property rights in environmental resources. Despite this normative commitment to property rights, most self-described FME advocates adopt a utilitarian, welfare-maximization approach to climate change policy, arguing that the costs of mitigation measures could outweigh the costs of climate change itself. Yet even if anthropogenic climate change is decidedly less than catastrophic, human-induced climate change is likely to contribute to environmental changes that violate traditional conceptions of property rights. Viewed globally, the actions of some countries—primarily industrialized nations—are likely to increase environmental harms suffered by other countries—less developed nations that have not (as of yet) made any significant contribution to climate change. It may well be that aggregate human welfare would be maximized in a warmer, wealthier world, or that the gains from climate change will offset environmental losses. Yet such claims, even if demonstrated, would not address the normative concern that the consequences of anthropogenic global warming would infringe upon the rights of people in less-developed nations. As a consequence, this paper calls for a rethinking of FME approaches to climate change policy.

The Endangered Species Act of 1973 (ESA) is America's strongest environmental law. Its citizen-suit provision—permitting “any person” whomsoever to sue on behalf of a threatened or endangered species—awards implicit intrinsic value, de facto standing, and operational legal rights (sensu Christopher D. Stone) to listed species. Accordingly, some cases had gone forward in the federal courts in the name of various listed species between 1979 (Palila v. Hawaii Dept. of Land & Natural Resources) and 2004 (Cetacean Community v. Bush), when the Ninth Circuit Court of Appeals ruled that animals could not sue in their own name. Because the Supreme Court has interpreted its habitat destruction as the “taking” of a listed species, some have argued that enforcement of the ESA's critical-habitat-protection provision is a “regulatory taking” of private property without just compensation, contrary to the Fifth Amendment of the Constitution. The courts have not agreed. The ESA citizen-suit provision appears to waive federal-court standing requirements devolved from Article III of the U.S. Constitution, creating much confusion and mutually contradictory rulings. A series of cases (culminating with Bennett v. Spear) reconciles the ESA's citizen-suit provision with the particularized and concrete “injury-in-fact” standing requirements devolved from Article III.

The Endangered Species Act (ESA) can impose significant limitations on what landowners may do with their property, especially as it pertains to development. These restrictions imposed by the ESA are part of a larger controversy about the reach of the “Takings Clause” of the Fifth Amendment, which says that private property shall not be taken for public use without just compensation. The question this paper addresses is whether these restrictions require compensation. The paper develops a position on the general question of compensation for regulatory takings and applies it to the ESA. The main argument concludes that compensation should be paid. It is based on the proposition that the goods provided by regulatory takings are typically public goods, and on a principle of fairness, which holds that compensation should be paid when those who benefit from a regulatory taking pay virtually nothing and those who pay receive hardly any benefit. It is argued that this principle is implicit in many of the Court's rulings on regulatory takings.

Over the past three decades, the Precautionary Principle (PP) has become popular in discussions of public policy, especially in relation to health and environmental policy. Though there are a number of different versions of the principle, the genesis of the idea is that it is better to be safe than sorry. In terms of public policy, proponents of the PP argue that being safe means that, if there is a possibility of harm from a new activity or novel technology, even if the scientific evidence concerning the harm is absent or uncertain, precautionary actions should be taken. In one version or another, the PP has been incorporated into a number of laws and treaties. Yet arguments for the PP are unconvincing, the PP itself is vague and when enacted in law, results in arbitrary regulations that pose a threat to human welfare. As a result, the PP should be rejected as a basis for public policy.