As with the issue of global pandemics and viruses just discussed, the issue of climate change is similarly complex and among the most difficult to analyze. What makes the issue of climate change so difficult is the inability of the average person to reach intelligent and well-reasoned conclusions about the facts personally. Indeed, there may not exist even one sufficiently qualified person in all the scientific disciplines necessary and who also has sufficient historical and technological knowledge to conclude with certainty answers to the following questions:

  1. Is the Earth warming in a way not historically seen before?
  2. If so, is the Earth warming mostly or partially due to human activity?
  3. If it is warming, do the adverse effects outweigh any positive effects?xvii
  4. If the adverse effects of warming outweigh the positive effects, do those adverse effects amount to severe problems or even endanger life on Earth?
  5. If so, when will this occur?
  6. If a legitimate threat exists, what can we do now to mitigate this threat?
  7. If a legitimate threat exists, will our yet unknown future technology sufficiently mitigate this issue before the harm materializes?

The average person cannot conclude with any certainty on these critical questions. As such, we must rely on the conclusions of experts working with incomplete information and assumptions. Further complicating the problem, as is the case with many issues, is that it is relatively easy to find an “expert” who will support virtually any conclusion. While there remain professional and qualified experts on all sides of this issue, it is reasonable to conclude the preponderance of qualified experts on the climate change issue conclude that the Earth is warming, at least partially due to humans burning fossil fuels, and it is warming at a rate that presents several concerns. That said, the experts could still be wrong nonetheless.

We should proceed cautiously, with reason, and always based on scientific data rather than with a media-induced panic. Indeed, a similar panic occurred with the concern of human overpopulation.xviii The unfounded concern over human overpopulation caused China to foolishly and legally prohibit couples from having more than one child.xix We now know the alleged problem of human overpopulation was not a problem.xx This does not mean the issue of climate change is not a problem. It may well turn out to be a problem we are forced to deal with and resolve. However, merely because the issue gets lots of attention, as was the case with the alleged problem of human overpopulation, does not mean we should proceed any differently than with a cool head and always based on scientific data and our best judgment. That said, given the magnitude of the potential harm that could occur if the preponderance of qualified experts is correct, the issue of climate change warrants our serious consideration. While substantial factual disputes remain in this area, we can analyze this issue with the worst-case factual scenario in mind and conclude that we can resolve these issues without violating the 3L Legal Principle.

People generally argue the Earth is warming due to the “greenhouse effect,” which traps heat instead of dissipating it into space. This situation results from, among other things, humans burning fossil fuels and engaging in various agricultural and industrial activities which release certain gasses into the atmosphere. While the problem may be complex, the solution is not. Suppose the bulk of the climate change problem results from humans polluting the environment by engaging in conduct that releases harmful gasses into the atmosphere. In that case, we need to look no further than ordinary trespass law to resolve the issue.

We all trespass routinely. If a neighbor can faintly hear a sound coming from another neighbor’s property, barely smell their barbecue, or even struggle to see another neighbor’s small light, an actual trespass has occurred. The same can be said when one person accidentally brushes against another in a crowded elevator. As with all trespasses, each of these technically violates the 3L Legal Principle. However, courts of law properly employ the Latin expression “de minimis” to resolve such matters by concluding they are too small or insignificant to be legally actionable. Said another way, we do not treat them as trespasses because they are generally below the threshold of concern held by reasonable people in that community. Such issues are simply consequences of living in the world. While competent adults remain free to contract otherwise, in the absence of such an agreement, deeming these trespasses de minimis and simply ignoring them is the proper course of action.

However, reasonable minds can disagree in determining when to treat a trespass as de minimis. As such, we relegate these issues to local communities. For example, local communities properly enact various noise ordinances suitable for their community’s particularities. They are actually and properly determining when to deem a certain noise level as an actionable trespass in their community. For this reason, laws generally tolerate less noise at 3 am than at 3 pm.

For most of human history, the law treated as de minimis gasses released into the environment. However, assuming the climate change concerns are correct, this conduct’s cumulative effects are no longer de minimis. It is, therefore, an actionable violation of the 3L Legal Principle. Said another way, if a person’s behavior releases harmful gasses into the environment resulting in actual harm or substantial risks to others, we should consider this as any other actionable trespass. As with any other trespass, we can properly insist that a trespasser either stop trespassing or purchase the right, otherwise known as a license or an easement, to continue to use another’s property. We can employ the same remedy to resolve the climate change and pollution-related issues.

In the case of burning fossil fuels, we can now accurately calculate the amounts of harmful gasses released into the environment from that activity. We can also approximate the amounts of harmful gasses released into the atmosphere for various agricultural and industrial activities. Further, we can calculate the cost of removing those same harmful gasses from the environment through biological and geological carbon sequestration methods such as planting trees and storing carbon underground. Indeed, scientists are currently working on new and more efficient ways to reclaim carbon from the environment.

By employing these existing and new methods of remediating carbon from the atmosphere and calculating the costs to do so, we can determine the real economic cost of the pollution and the actual economic cost of remediating it. By offering the trespasser the routine option to either stop trespassing or pay a “trespass fee” for the continued trespass, we can effectively resolve the climate change issue and all pollution-related issues without resorting to violating the 3L Legal Principle in any way.

As with the previous chapter on global pandemics and viruses, I do not intend this chapter to resolve all issues related to climate change or pollution generally. However, simply identifying where the actions of one person trespass upon or create substantial risks to others is always at the heart of the solution. There is no cause to abandon our commitment to the 3LP to resolve this issue. Indeed, simply adhering to it yields the most just and effective result.