ADDRESSING AIR POLLUTION THROUGH PROPERTY RIGHTS AND NUISANCE LAW

Our thesis is that the best way to deal with the challenge of air pollution is based on private property rights and nuisance law. In this perspective, pollution of the air is akin to trespass, not a negative externality or external diseconomy. Thus, pollution of the air is not an instance of a market failure. Rather, the opposite is the case: it constitutes government failure. The government has taken on the role of protecting the environment by quelling air pollution. It has done so by implementing a plethora of regulations, requirements, and prohibitions. These have been deemed necessary since the government first began its efforts in this regard by eliminating the legal possibility of suing those who emitted pollution into the air and were thus guilty of trespass. In other words, the government first disallowed the free enterprise way of solving the problem; when pollution continued, they blamed the very institution they had prohibited from operating in the first place for the problem. Then, they instituted a “solution” that would not have been needed had they not proscribed the free enterprise resolution. What should now occur? We should “turn back the clock” to what would have naturally occurred did the state not become involved: allow the victims of pollution trespass to sue for damages.