A new book takes aim at right-to-farm legislation, arguing that relying on the creation of common law through court decisions would result in fewer disputes and would make polluting farmers responsible to their communities.

The book is Greener Pastures, Decentralizing the Regulation of Environmental Pollution by Elizabeth Brubaker, executive director of Environment Probe. It chronicles the increasing centralization of protection of farming practices across Canada to where each province now has right-to-farm legislation.

Brubaker argues that putting control back in hands of municipalities or communities of interest, along with allowing nuisance claims to be resolved by the courts, will encourage farmers to use better and available production practices. Traditional common-law rights of rural residents to be free of agricultural pollution would then be upheld.

Environment Probe is not your average environmental organization. It is a cousin of Energy Probe, known for its free-market thinking.

Similarly Environment Probe’s board of directors is populated by the likes of Gail Regan, president of giant food service company Cara Holdings Ltd. and Globe and Mail columnist Margaret Wente. Brubaker’s 2002 book Liquid Assets called for the privatization of Canada’s water and wastewaster utilities. She also thanks Larry Solomon, known for his vociferous opposition to public support for rural areas in the acknowledgments.

As such, it isn’t surprising that Brubaker espouses common-law, free markets and private property rights as solutions to moderating farm environmental pollution.

Interestingly to those in groups such as the Rural Revolution pushing for more private property rights, Brubaker suggests such rights would give landowners living near farms with whom they have a problem stronger ways to deal with those problems.

In fact, she uses the example of Iowa where right-to-farm legislation was struck down after a challenge under the United States constitution which guarantees rights to property.

Property rights would also interfere with the ability to do the extensive multi-property drainage built into the Ontario rural landscape.

Brubaker accurately says that right-to-farm legislation has taken environmental decisions out of

the free marketplace. That is, however, what farm organizations were looking for. She argues they should not have that "right" beyond other rural residents.

Brubaker uses strong language to condemn what she sees as a shield sheltering farmers who wish to pollute. That has in turn meant that farmers now claim that society should help them not to pollute, by looking for funding for implementing manure storages.

Society has a right to live free of pollution to start with, she says. Society shouldn’t have to pay for that right.

"Farmers have persuaded legislators of every party of the overarching importance of their industry and the acceptability – and inevitability – of its adverse environmental impacts. They have convinced them that the common-law regime that regulated agriculture for centuries poses unacceptable threats to otherwise viable contemporary farms."

For those who believe that local solutions are best and that government regulation since the Walkerton crisis has been excessive, Brubaker’s arguments make sense. They are apt intellectual arguments.

She cites Iowa to make the point that nuisance lawsuits against farmers have been minimal since right-to-farm legislation was struck down. There were two in 2004 and two in the first nine months of 2005. She might be correct that life would go on just fine without right-to-farm legislation.

However, Brubaker’s argument that farmers have used the Farm Practices Protection Act as a license to justify polluting suffers from a lack of time spent in rural, farming communities. The creation of the Farm Practices Protection Act wasn’t seen by farmers as a licence to flow liquid manure down rural drains.

When hog manure ends up in a drain or a stream, the polluters are investigated and charged. That hasn’t changed.

Local disputes are still mediated between neighbours across the fence and by local councils. The Nutrient Management Act carried with it the creation of local peer mediators, groups of farmers who help diffuse situations through conversation and bringing disputing parties together.

High profile cases she references such as Knip vs. Biddulph would likely have dragged on through the courts whether or not there was nutrient management legislation or a Farm Practices Protection Act.

Brubaker also makes the case that right-to-farm legislation means farmers have no incentive to invest in environmentally responsible technologies. The examples she lists, better manure storage, manure injection equipment and shelterbelts all appear to be common practice on large livestock farms today. In fact, in discussing better environmental and animal welfare practices, the George Morris Centre’s Kevin Grier told the London Swine Conference earlier this year that those are simply costs of being in business.