segunda-feira, 29 de janeiro de 2007

Poluição, o caminho (mesmo, mesmo...) Liberal

Um texto "completo" que deve constituir uma referência para a área ambiental.

Law, Property Rights, and Air Pollution
By Murray N. Rothbard

Law as a Normative Discipline
Physical Invasion
Initiation of an Overt Act: Strict Liability
The Proper Burden of Risk
The Proper Burden of Proof
Strict Causality
Liability of the Aggressor Only
A Theory of Just Property: Homesteading
Nuisances, Visible and Invisible
Owning the Technological Unit: Land and Air
Air Pollution: Law and Regulation
Collapsing Crime Into Tort
Joint Torts and Joint Victims

Nas conclusões:

"Air pollution is a private nuisance generated from one person's landed property onto another and is an invasion of the airspace appurtenant to land and, often, of the person of the landowner. Basic to libertarian theory of property rights is the concept of homesteading, in which the first occupier and user of a resource thereby makes it his property. Therefore, where a "polluter" has come first to the pollution and has preceded the landowner in emitting air pollution or excessive noise onto empty land, he has thereby homesteaded a pollution or excessive noise easement. Such an easement becomes his legitimate property right rather than that of the later, adjacent landowner. Air pollution, then, is not a tort but only the ineluctable right of the polluter if he is simply acting on a homestead easement. But where there is no easement and air pollution is evident to the senses, pollution is a tort per se because it interferes with the possession and use of another's air. Boundary crossing — say by radio waves or low-level radiation — cannot be considered aggression because it does not interfere with the owner's use or enjoyment of his person or property. Only if such a boundary crossing commits provable harm — according to principles of strict causality and beyond a reasonable doubt — can it be considered a tort and subject to liability and injunction.

A joint tort, in which defendants are compelled to defend themselves jointly, should apply only if all acted in concert. Where their actions are separate, the suits must be separate as well, and the liability apportioned separately. Plaintiffs should be able to join their suits against a defendant only if their cases have a common element predominating over the separate and individual interests. Class action suits are impermissible beyond a voluntary joinder of plaintiffs because they presume to act for and bind class members who have not agreed to join in the suit."

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