In the ongoing argument over gas drilling, proponents of the process frequently assert the notion that it is their right under the United States Constitution to use their property as they see fit, including leasing it for drilling. Some have even gone so far as to say that protecting this right is the only reason they are in favor of drilling.
Those who know me will attest to the fact that I am as much a proponent of property rights as anyone, but the fact of the matter is that this is a fallacious argument.
The Cato Institute, co-founded by Charles G. Koch, is a respected libertarian think tank. Section 34 of the 7th edition of its Handbook for Policymakers, titled “Property Rights and the Constitution,” begins with the statement, “America’s Founders clearly understood that private property is the foundation not only of prosperity but of freedom itself.”
It goes on to say that “the uses [of property] that are legitimate are those that can be exercised consistent with the rights of others…. The common law limits the right of free use only when a use encroaches on the property rights of others, as in the classic law of nuisance or risk. The implications of that limit, however, should not go unnoticed, especially in the context of such modern concerns as environmental protection.
“Indeed, it is so far from the case that property rights are opposed to environmental protection—a common belief today—as to be just the opposite: the right against environmental degradation is a property right.”
Regardless of where one stands on the gas drilling issue, the notion that one has a clearly defined constitutional right to lease one’s property for drilling is just wrong. Someday the extraction of natural gas from shale might be done in such a way as to pose negligible risk to the environment and to the property of those neighboring the drilling site, that is not the case today. Therefore, even by the most libertarian of interpretations, no such property right exists.