# Wellspring: Non-Ameliorable Harmful Activity (`NAHA`)

## Purpose

This file outlines a mechanism for preventing the advent of irreversible damage to the environment and non-compensable harms to individuals and property, by supplying a cause of action ("Attempted Non-Ameliorable Harmful Activity", hereafter, "attempted `NAHA`") through the courts which can produce an unjunction against the defendent to halt the Non-Ameliorable Harmful Activity (hereafter, "`NAHA`") until such time that they can prove that they have the means to pursue those activities without incurring harms against 3rd parties that they cannot ameliorate.

## Cause of action: Attempted `NAHA`:

### Liability

Any individual having **facts of evidence** proving currently ongoing activities being undertaken by a conagent which fulfill the following criteria:

- The activity concerns itself with entities, substances and/or processes whose properties are factually capable of causing harm to a 3rd party.
- The conagent is undertaking these activities in such a manner as to cause those entities, substances and/or processes to exhibit their capability to cause harm to a 3rd party.

...shall have recourse through the courts to plead for equitable relief against said conagent under the cause, "Attempted`NAHA`".

### Defense

> [Note]: I don't like this wording -- find out the correct legal wording for specifying a defense against a particular form of action.

The defendant shall have a good defense if it can prove, concerning the harms which can be caused to 3rd parties by those entities, processes and/or substances, being utilized in the manner that they are being used, that:

- That it has a method of containing the 3rd party harms such that no harm can come to 3rd parties without their knowing volition, and that it is carrying out said activities under the auspices of that method.
- That it has informed said 3rd parties of the harm and they have consented to be exposed to the harm (volenti non fit injuria).
- The conagent is undertaking said activities while maintaining at the ready, a provable method of fully reversing 3rd party harms.

> [Apologia]: Explain that this provable method at the ready may be insurance, or a lease on loans, etc.

## 

> [Note]: Discuss the fact that some amount of evidence-free speculation of harm must be allowed to the plaintiff, and how to limit this. Or perhaps don't allow evidence-free skepticism and an unlimited assumption of guilt on the defendent.
- To ensure that the mechanism is evidence-based, we may have to reward whistle-blowers with a monetary incentive.
- To ensure that the mechanism doesn't become a company secret revealer for non-damaging activities, a whistleblower whose disclosure doesn't demonstrate damage caused by a current activity of the defendent which incurs 3rd party damage that is not already ameliorated, is liable to the defendent for damages in "Malicious prosecution" and "sabotage".

> [Apologia]: This mechanism replaces things like the FDA and EPA with an open process in court which is subject to a jury of peers rather than to the whim of an unelected panel of beaurocrats and the caprice of political unaccountable appointees. The solution to this problem was never to create a pantheon of unaccountable 3-letter government agencies. It was merely to be innovative and think of how to apply the current private property process to new phenomena.

> [Apologia]: One of the problems that previous iterations of individualist polities had is that they did not provide a mechanism to extend the principle of non-interference to activities which have the potential to inflict 3rd party harm when things go wrong. Because legislators haven't been competent and diligent to think the problem through and to extend current mechanisms, they usually establish an unaccountable government agency with broad arbitrary power to control and stifle innovation. This file specifies a mechanism which achieves the desired outcomes without establishing a 3-letter agency with broad discretionary powers.

> [Apologia]: Innovators working with harmful materials for which there is not yet a known containment and harnessing framework should be able to work within this legal framework to safely experiment and productize their innovation.

> [Apologia]: It is intentional that the requirement to be able to demonstrate a working, deployed containment method, or a ready rollback mechanism imposes capital barriers. Only those conagents which can front the capitals to safely handle such volatile activities without while preserving non-interference, should be able to attempt such innovative activities.

Allegations of uncompensatable harms.

Harm is upon commission - however, in the case where one's action is liable to result in a negative externality, one may still be sued to to demonstrate an ability to either contain the harm (I.e, prove that there will be no externality), or to reverse the harm if it occurs (I.e to restore the damaged property to its original state).

Failure to demonstrate such ability to contain or reverse harm shall be a cause for action in pursuing equitable relief in the form of an injunction against the action.

Only a person against whom such harm may come shall have standing to file such a suit. The burden of proof that a harm may arise shall lie with the plaintiff. However, upon  judgement for the plaintiff, the burden for proving that the harm may be contained or reversed shall lie with the defendant.

Obviously volenti non fit injuria applies with respect to negotiated compensation. E.g, if the defendant has negotiated to pay the plaintiff in regular instalments for the right to take such uncompensatable actions.

This is meant to act as a defense against irresponsible neighbours taking actions which pose a recognizable future threat to surrounding property owners who know that the reckless actor will be incapable of compensating them for those harms. It can be summed up as a means of preventing the threat of property damage arising from negligence.

Note that this cause of action can only be taken against the proximate cause and not the efficient cause; I.e, the direct taker of the action which is liable to cause the harm anticipated. It does not apply as a way to prevent the production of an instrument which may cause said harm.

Obviously the defendant can sue to overturn the injunction at any time should s/he find a way to contain or reverse the harms and so make them compensatable.

Furthermore obviously the plaintiff must prove that harm would come to *his* property in practice. A plaintiff shall have no standing to sue a nuclear plant for example, if the plant is built on such a massive expanse of land that the surrounding expanse is large enough to distance any neighbouring property from radiation damage, and the waste disposal process to be used by the plant is designed to be an effective containment mechanism.

I.e, one may use this action against someone who is using a particular tool in a way that will cause harm, but not against the manufacturer of that tool. E.g, one may sue the driver of a vehicle that produces harmful waste, but not the manufacturer of the vehicle. One may sue the factory that manufactures vehicles if that factory spews waste, but not the supplier of the fuel that is burned by the factory. One may sue a fuel refinery if its refinery process produces radiation, but not the manufacturer of a furnace used by the refinery.

I am reluctant to make this measure available to govt as a means of preemptively refusing to sell natures to bidders due to anticipated permanent harms - e.g, natures to be used as a nuclear facility prevented from being sold due to concerns by motivated government agents filing suit through the attorney general to embargo the sale. Further, I dont like having the government be able to initiate legal actions. So I will not allow that.