Property Rights in the Defence of Nature: CELA Review

Karen Clark
Intervenor (Canadian Environmental Law Association newsletter)
November 21, 1995

NB: The conversion of this document to a digital format may have introduced errors. To see the document in its original form, click here.

In his forward to Elizabeth Brubaker’s book, Property Rights in Defence of Nature, Anthony Scott writes that her arguments are “clear, vigorous (and) convincing.”
I’ll grant that the arguments are vigorous. But Brubaker’s brief treatise on the universal virtue of property rights as a bulwark against environmental destruction is not convincing. Brubaker’s selective rendering of the history of property rights under the common law seeks to “preach to the converted.” That is, if you are already predisposed to believe that property rights are the source of all good in the universe and that government actions are the source of all evil, then you will be “convinced” that Brubaker is right. If, however, you have some doubts and concerns about how property rights can be used to protect the environment, there’s not a lot in Brubaker’s book to calm those concerns and doubts, or to convince you that she is right.
Unless you share Ms. Brubaker’s libertarian (pro-private rights/anti-government) bias, it is not entirely clear of what the book is trying to convince you. The first three chapters provide a distorted overview of the “potency” of common law remedies against trespass, nuisances and interference with riparian (water) rights. The view is distorted because, as Ms. Brubaker acknowledges elsewhere in the text, even these powerful rights did not prevent pollution from being a social problem of crisis proportions at the time. After discussing the putative potency of common law remedies, Ms. Brubaker then surveys how governments sought to undermine these rights in the name of the public good. From that point on, the book dissolves into a miscellaneous collection of piecemeal screeds against government resource “management” policies, anti-conservation tax policies, arguments for entrenching property rights in the constitution, for “full” compensation when property values are reduced because of pro-conservation legislation, and, finally, argument based apparently unironically on “The Gospel According to St. John,” irrefutable authority for the economic theory that when people own property they will take better care of it.
When people are writing an argument in order to convince others, they usually state their thesis and then set out evidence and argument to support it. Ms. Brubaker, however, never gets around to stating her thesis, apparently assuming that it is already proven. She also assumes her “evidence,” no matter how overstated, unconnected, contradictory or incongruous, supports this unstated thesis. The result is, as noted, a diatribe that may appeal to those who already agree with Ms. Brubaker, but that remains opaque for the unconverted.
The “Gospel According to St. Brubaker” not only does not make sense to the uninitiated, but also does not hold together. It is a very big conclusion to draw from fairly frail facts that just because common law rights had the largely insignificant effect of limiting certain kinds of environmental damage in some cases, they will therefore translate effectively into a timeless, broad-based, all-purpose cure for most environmental problems. But, as most of Brubaker’s book demonstrates, the facts really don’t have a chance in the face of her all-powerful and all-encompassing theory.
Should you spend the money and time to read this book? If you share Ms. Brubaker’s opinions already, have a few hours to spare (minus the notes and the appendixes, the book is very short – like a long editorial) and enjoy a good bout of government-bashing, then I recommend you read it. If, however, you are looking for a principled discussion about effective legal mechanisms to protect the environment, you may want to keep looking.
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