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Comment by tptacek | Hacker News Reader

Well, that's sort of obviously true, right? Like, there's generations of legal and economic thinking around this problem? It's one of the central problems? This is what Coase was all about.

Take the pristine state of nature in some location prior to human interaction, and then anything a society of humans does in that location is in some sense going to injure that state. To say you have a Constitutional right, as a resident, to forbid those injuries is essentially to say you have a veto on virtually all activity. So the question isn't whether you have a procedural right to stop pollution, it's how to negotiate the balance of competing interests.

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That is NOT what Coase was about - his proposition was that if you have well defined property rights, the parties would transact and price out any negative externalities efficiently, without govt. intervention. In this case, the bodies of water are owned by the public, polluters need to pay the public an amount equivalent to the harm caused by the pollution.

We are saying the same thing. I'm not saying polluters have a countervailing right to utilize all public resources! That would be a crazy thing to say; obviously, we have laws against various forms of pollution.

"His proposition was that if you have well defined property rights, the parties would transact and price out any negative externalities efficiently without government intervention"

Typical crock of shit thinking from economics. Assumes perfect future prediction combined with absolute awareness of all activity occurring at the molecular level, perfect attribution and ability to rewind time to determine causality/responsibility, that people are generally respectful of the law.

And above all, assumes that economics will price the value of human life (to say nothing of non-human life with emphasis on the word "nothing") as anything but "zero".

The obvious extension to this is that FLoridians have no right to a sustained future existence of humanity. All that remains is to determine how fast capitalism can consume humans and the environment into fictitious unicorn horn currency until nihilism triumphs and we pass into the void.

Like the tree falling in the forest, what is the monetary value of all human bank accounts when all humans that would observe the value of the bank account value are dead?

Here's a more fleshed out version: https://en.wikipedia.org/wiki/Coase_theorem. He did acknowledge things like transactions costs etc., which like in can-opener fashion, is typically assumed away by mainstream economists.

I think it all comes down to ownership.

If I own a piece of land then by virtue of that ownership I get an almost unlimited veto on what is allowed to be done to that piece of land. So if I own a piece of land then I have a right to forbid pollution on it.

If a piece of land is owned by the state then in some sense all state residents have some say in how it is used. They have the right to petition the government (lobby, etc), and I think they should have a right to determine, through the representative government process, what happens to that land. That doesn't mean that each individual person gets their own veto, but that the voters of the state have a right to weigh in on how a piece of land is being used and have the right to elect politicians or approve ballot measures expressing their intent.

Yes, but the issue in the story is the belief of some residents that they have a procedurally enforceable right to prevent water pollution. What could that even mean? We have a pretty standard mental image of "water pollution" (most of us are thinking of a plume of black fluid spreading through a lake) but all sorts of things are polluting, including organic agriculture.

And, like, it's obviously not the case that the counter- right exists, either; you don't have a right to utilize public resources. There's a balance of competing equities, and we have a whole system of government, with a legislature to do fact-finding and establish rules, an executive to do enforcement, and a judiciary to sanity-check the rules and make sure they're enforced consistently. It works... pretty badly, but so does every other system you can imagine.

To claim a "right" in the sense meant by the petitioners in the article is to say that there is a rule that exists above most of that system of governance that gives the judiciary the power to overrule all elected authority in the name of preserving clean water. No? Which water is clean and which isn't is a pretty basic function of government.

I think it is reasonable to assert that the health and survival of both human populations and the natural ecosystem is of critical importance to human society. Therefore, it seems easy to argue that making a water system uninhabitable and causing the collapse of communities or ecosystems should be prevented.

Whether the pollution in question is in the form of toxic heavy metals, forever chemicals, etc., or just excessive farm runoff that causes algal blooms and kills marine life (or anything else that consumes the water), that seems like the line to draw. If you're making a water system incapable of sustaining life, then... don't.

Depends on the circumstances. And, maybe you're right more generally. Maybe the balance of equities will be such that materially compromising the viability of any waterway is proscribed. But a political process works that out, not a natural right.

> It works... pretty badly, but so does every other system you can imagine.

That's not true.

There's been some great work in the area of 'the tragedy of the commons' by Elinor Ostrom, and others, which shows that not only is it possible to protect the commons without top-down regulation, but it's also quite feasible.

Ok, but this doesn't matter to my argument, does it?

If it doesn't matter to your argument, why did you bring it up in the first place?

Why would you claim there was no functional alternative, then say it doesn't matter when shown one?

The idea that principles for wisely and sustainably managing a commons would have no connection to regulating against water pollution is bizarre to me. I wouldn't know where to start if you don't see how those overlap.

> What could that even mean?

Read some Ostrom and find out, maybe?

I did not claim there was no functional alternative.

You claimed that 'every other system you can imagine works pretty badly'.

As in, they don't function well.

This level of pedantry might serve you well in some areas of life; but here, now, what are you accomplishing?

Why not focus on the joyous fact that there not only is there huge room for improvement in this area, but people have in fact already done a huge amount of the groundwork?

I'm really not interested in deep-sea drilling to find things to argue about, sorry.

But do you own a river that passes through your land? If not then what is your responsibility for the river? Do you need to preserve the water in exactly the same condition as it entered your property or not? Similarly, what are your rights as far as the river water that enters your land? Must it be pristine or could it be polluted?

If they own the water while it is in their property, it means they cease to own it the moment it gets out of the property. Should they be responsible to deliver it to the next owner in the same state they got it?

That's just restating one of the questions I previously asked.

Water rights law is very well established, with several different viewpoints. The one I'm most familiar with is the prior appropriation doctrine used in the western US, specifically, New Mexico.

Available water belongs to the public, not landowner. However, water use rights are assignable.

The right to use water goes first to the person with the oldest claim (the "senior appropriator"). You might have no claim to water running through your land, or as a junior appropriator only get access during wet years.

You may not block a senior appropriator from being able to make their appropriated beneficial use of that water.

As regarding pristine or pollution, quoting the NM constitution, 'The protection of the state's beautiful and healthful environment is hereby declared to be of fundamental importance to the public interest, health, safety and the general welfare. The legislature shall provide for control of pollution and control of despoilment of the air, water and other natural resources of this state, consistent with the use and development of these resources for the maximum benefit of the people.'

I'm not a water rights lawyer. Florida water law is very different from New Mexico. I do not know if the NM legislature has passed laws allowing cities to pass stricter pollution laws.

I would think one of the issues with trying to preserve pristine water in Florida is that they have hurricanes every year which can flood vast areas with polluted water.

The consequences of acts of God are typically held to different standards than that of Man.

That said, if your phosphate mine's tailings pond wasn't built to handle the expected consequences of a hurricane, failure to handle said hurricane is no excuse for negligence.

Well I think a lot of those areas are even flooded with seawater. There’s not much you can do to preserve a fresh water source if it’s close to the ocean and always in the path of hurricanes.

You've got a long way from your original questions at https://news.ycombinator.com/item?id=42552853 .

What you describe now has nothing to do with a river and can no longer be called 'pollution'. For one, storm surge flooding has been around long enough that the ecosystem has adapted to the occasional event, making it part of the pristine state.

They do have a right through representative government.

The powers one level of government doesn’t take trickle down to the next. Since the state level took those powers, the local level cannot.

The representative government processes needs to happen at the state level in Florida.

Not really, you don't. Because you can't control the wind. If pollution blows in from china onto the land, how exactly can you enforce your right?

You can petition China using the various international forums available.

Okay, and if a meteor filled with radioactive substances crashes into your land, where pollution is forbidden?

Acts of nature are obviously not attributable, the same with a volcano eruption. If it's caused by humans attribution is possible.

Okay, so how far do your rights extend? If you have a right to no pollution on your land, how far can the nearest road be built?

I believe moving the goalposts from "water pollution" to "no pollution on land" isn't helping anything on the discussion, just makes it murkier.

The right to no water pollution comes from a moving resource, water passes by a property and goes to another, land doesn't move and hence could have less strict rules.

I generally agree with what you are saying.

"If I own a piece of land then by virtue of that ownership I get an almost unlimited veto on what is allowed to be done to that piece of land."

However, this is the way people wished it worked. Due to zoning, eminent domain, and other laws, there is a lot that can be forced on land owners. Then we can even get into deed restrictions and easements.

Eminent domain means that the state/nation/county takes the land with some kind of compensation to the previous land owner.

Yeah...

"If I own a piece of land then by virtue of that ownership I get an almost unlimited veto on what is allowed to be done to that piece of land."

That belief is very culturally dependent. For example, in "freedom to roam" countries (https://en.wikipedia.org/wiki/Freedom_to_roam), you as a landowner do not have the blanket right to prevent people from walking through your land, from picking berries on your land, nor from camping on your land.

In California, the beach below the high-water mark is a public right of way and you as landowner may not prevent people from using is, nor block off paths people use to exercise that right.

In the United States, eminent domain means that no landowner has an unlimited veto.

Since your antecedent is not correct, your logical argument cannot be used to assess the validity of your conclusion.

Air and water are fluid. They move, so you can't veto what comes and goes.

Soil, you could make an argument for.

> So the question isn't whether you have a procedural right to stop pollution, it's how to negotiate the balance of competing interests.

A balance where the water isn't extremely polluted would seem to be a given, no?

For hundreds of thousands of years, if someone came to your village and refused to stop shitting in the well, they'd be kicked out or worse.

Washing some clothes in the river, or a bit of bathing? Fine. Dumping thousands of gallons of industrial chemicals into the water table? I consider that a violation of not just my right, but the rights of all living things which use that water. It's heinous, and (I would have thought) clearly, obviously, utterly indefensible.

We should have a law against that then.

> clearly, obviously, utterly indefensible.

If the past decade taught me anything is that people who don’t feel shame can’t be shamed into doing something obviously right. Or prevent them from doing something obviously wrong.

You need laws on all levels for the obvious things as well.

Surely an ability to balance requires that both sides of an issue be deemed somehow legitimate, no? In which case, surely there must be some sort of "right" which forbids injuries to nature, without which there can be no legal standing to prevent such injuries. In other words, why is there a procedural right to pollute and yet no right to stop pollution?

There is obviously no procedural right to pollute.

I would argue that ability to alter nature is implicit in property rights. I just don't think it is without limitations.

I dont think it requires an equal and opposite right. First off, not everything is balanced. Second, opposition and balancing can come from very different rights. For example, private property rights can balance. You can sue for injury when pollution impacts your private property. It may be legal for someone to pollute the stream (all else being equal), but illegal for someone to pollute the stream that you were already using for drinking water.

Virtually all legal systems are permissive in the sense that anything not prohibited is permissible. That's why basically all laws prohibit activity, and permitting activity is generally done by repealing/modifying the law prohibiting that activity.

The underlying issue here is that the state passed a law prohibiting local governments from granting rights to water to their citizens. The state prohibition supersedes the local government, so this local law is only allowed if they can find something that supersedes the state law (eg some part of the state constitution). No such clause exists in the state constitution, nor in any other state law.

If state law or the state constitution was modified to grant that right, the local law would be allowed to stand.

This is less about rights and more about state law superseding local law.

Perhaps you've got it right for the wrong reason.

> Take the pristine state of nature in some location prior to human interaction, and then anything a society of humans does in that location is in some sense going to injure that state.

This is not a universally held view of the state of humanity and wilderness. In particular, there are indigenous traditions on this topic which represent a very compelling (perhaps logically vanquishing) critique.

One in particular I can recommend, which I discovered via a discussion on wildfire management here on HN, is this: https://tendingthewild.com/tending-the-wild/

tl;dr for the purposes of this discussion: anthrogenesis is not per se injurious, and is in some important and measurable ways, less injurious than allowing wilderness to grow fallow. Humans are an important part of Earth's ecology.

Humans have been shaping that environment for...maybe 20,000 years(aka not that long ecologically speaking)? And everything done is about making earth better for those humans, not looking at it holistically.

> looking at it holistically.

Looking at it holistically is precisely what makes it good for humans.

Most activities that change the land from its original state are not done for the long term good of humanity, but for short term profit, which is what finances the activity.

Would these stewards of the land commit suicide if, holistically, humans were bad for the land?

They might try to root out an invasive creature, or a disease causing bacteria, but would they root out themselves?

> Would these stewards of the land commit suicide if, holistically, humans were bad for the land?

Most likely they'd change their ways and not be so bad for the land. Humans are a smart and very adaptable species. I'm sure we can master that art.

What is a wholistic value system independent of humans? I dont think humans are capable of representing one without injecting their own values.

Exactly. The earth was doing just fine for the incredible spans of time before humans took over the role of managing it.

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