Harriet Friedmann
Literary Review of Canada
July 31, 2007

A seven-year mystery about the contamination of well-water in Walkerton, Ontario was solved for me in Elizabeth Brubaker’s very first paragraph. I recall good media reports when it happened in 2000 about the livestock operations that were a possible source of the bacteria which caused illness and death to citizens of the town. Yet the livestock operations faded from view as the public inquiry turned the spotlight on government inspections.  Brubaker’s treatise on agricultural pollution begins with a paradoxical finding of the Walkerton Inquiry —- that pollution of wells came from manure which had been spread on farm fields in accordance with provincial regulations.

Greener Pastures targets exactly these regulations, which Brubaker argues emphasize procedures rather than outcomes. The Walkerton Inquiry’s finding about the E.Coli’s source highlights a bureaucratic hazard familiar in many spheres of food safety and beyond. A specific notion of “accountability” has taken hold in large organizations that encourages slavish attendance to approved rules even in defiance of common sense. And the problem seems persistent: even since Walkerton, a frightening number of rural wells tested show coliform levels higher than allowed.  Throughout the book, Brubaker gives detailed accounts of parallel episodes in Manitoba and New Brunswick, plus more from Ontario and a sprinkling from other provinces.

What is the remedy? For Brubaker it is seductively simple. She argues that before the 1970s, outcomes like E.Coli poisoning were monitored and corrected by the centuries old approach of common law. It worked straightforwardly. Neighbours sued. In addition to awarding damages, which served to deter polluters, courts also issued injunctions to prevent farmers (like everyone else) from continuing dangerous or annoying practices. The crucial cusp came when “right to farm” laws were introduced in every province, beginning in Manitoba in 1976. These laws featured provisions absolving farmers of legal responsibility for pollution as long as they followed environmental regulations for agriculture. In other words, these laws removed the common law remedy for those affected.

Common law, Brubaker strongly implies, protected not only those immediately affected by agricultural pollution, but by extension society as a whole. So, Brubaker argues, we should get rid of right to farm laws and bring back common law remedies for agricultural hazards and nuisances to rural communities.

Agriculture ministries fear that a return to such remedies would unleash a barrage of lawsuits, interfering disastrously with agriculture. Their fears attach mainly to new rural dwellers, fleeing cities in search of bucolic respite from pollution by noise and toxins, only to encounter noxious smells and dangerous bacteria. They suspect that these new citizens, who get fewer benefits from agriculture than older rural communities, might also have fewer inhibitions about bringing their farm neighbours to court.

Brubaker claims these fears of excessive litigation are groundless. There is no evidence of past abuse of the courts in this area. Moreover, common law remedies against abuse of property have self-correcting features. Precedents and judicial flexibility reasonably ensure that suits are brought and won in appropriate measure.

Of course, Brubaker has a different criterion from agricultural regulators against which to measure excess: she rightly points out that agriculture ministries have embraced economic growth to the detriment of clean water and air.

This makes clear the reason why centralized regulation began in the 1970s. Right to farm laws emerged, in Brubaker’s view, to protect agricultural businesses operating on an unprecedented scale, also taking off in the 1970s. These large operations create animal and other wastes, such as nitrogen runoff, on a magnitude rarely encountered by earlier generations of rural citizens.

Brubaker is convinced that these dangers cannot be contained by direct government regulation. Instead, actual or threatened legal action by private citizens most effectively constrains agricultural businesses from harming their neighbours, motivating them to prevent the harm, move, or cease operations.  She convincingly argues, for example, that civil liability could reduce the environmental impact of mushroom farms.  These operations use compost whose ingredients include chicken litter and stable bedding, producing noxious smells.  The threat of legal action by affected neighbours, however, would give farmers an extra incentive to invest in technologies that can alleviate the problem.

Overall, Brubaker tells an enticing story about agricultural pollution: all worked well for centuries, indeed since 1711, when an English court ruled that straying cattle violated the law, which “bounds every man’s property, and is his fence.” (cited p.15). Only in the 1970s did misguided government officials begin to prevent citizens from applying to the courts for remedy against irresponsible property owners, and only (it is implied) for agriculture. These same officials instituted in their stead ineffective regulatory measures, such as environmental plans, and enforcement mechanisms, such as administrative boards.

Targets of seductive arguments, if they are wise, look for complexities and omissions. I therefore want to highlight some aspects of Brubaker’s argument which remain in the shadows. These have to do with wider changes in both government and agriculture.

Brubaker identifies “centralization of regulation” by officials as the problem. By collapsing several centuries before the 1970s as a golden age of common law, Brubaker misses more recent changes in the overall shape of government. These changes frame the actions of agricultural lobbies, as they do for other interests.

The idea that officials are more rather than less biased towards special interests ignores two centuries of government reform. An autonomous civil service emerged long ago (but far more recently than 1711) through reforms designed to establish administration in the public interest by professionals with security of tenure, in place of elites who controlled Parliamentary seats and used them as personal property.

Power was indeed centralized the crucial decade of the 1970s, but at the expense of public officials. The Trudeau government disempowered officials by centralizing control in the hands of ministers. According to Political Scientist Donald J. Savoie, the effect was to undermine the professional autonomy of the civil service: Trudeau “broke the bargain” that had long characterized relations among ministers, public officials and Parliament. Gutted ministries ever since have had less authority, capacity, and confidence to pursue their missions. Independent administration was replaced by lobbying and patronage. These have fed the scandals which in turn have fed attacks on government in recent decades — including Brubaker’s complaints against agricultural regulatory boards.  If farmers, as Brubaker argues, have unduly influenced ministries of agriculture, Savioe’s approach suggests that the problem is not centralized regulation, but the loss of professional capacity and autonomy by public officials. The key question, without implying an answer, is whether farm regulations and enforcement practices worked reasonably well prior to the introduction of right to farm legislation in 1976, and if so, what changed?

Brubaker should tell us how well or poorly officials regulated agricultural pollution before the 1970s, for instance by setting and enforcing permitted thresholds of contaminating substances in soils, water, and air. Indeed, the Walkerton Inquiry focused on how water testing had worsened under the Harris Conservative Government’s cutbacks. (And whatever their faults, governments are at least still testing wells.)

If civil servants were at least part of what controlled pollution before the 1970s, then why should common law suffice now?  Brubaker is correct to focus on the present government failure to guarantee outcomes, but her argument is weakened considerably by her own failure to examine changes in what civil servants, regulators, inspectors, and the like used to do, and how and why that changed in the seventies. The reasons why agricultural pollution increased and government regulation became less effective in those years must somehow take into account larger shifts in power and politics.

At the same time, the interest groups demanding “right to farm” laws are very different from the farms formerly regulated by governments. Brubaker claims that right to farm laws “enabled farms to grow beyond the confines maintained by the common law and to generate levels of pollution that the courts would have deemed intolerable.” (p.31). But causation is not clear. What led such farms to grow beyond their ability to operate sustainably?

Large animal operations, for instance, are some of the worst agricultural polluters. Although purchased feeds have long been used by commercial farms, cattle and hog farms were once limited in scale not by litigious neighbours, but by the availability of pasture for summer grazing and hayfields for winter. Cows still occasionally graze in pastures; however, most animals destined for human bellies are now produced in Confined Animal Feeding Operations, or CAFOs. These are unprecedentedly large livestock businesses which use feedstuffs purchased from specialized industries to raise tens of thousands of animals at a time, keeping them in overcrowded conditions for increasingly short lives.  They also produce manure lagoons beyond the capacity of any crop systems to absorb as fertilizer, the standard use for animal waste.

What Brubaker misses is that “right to farm” laws are successfully lobbied for by CAFOs against the objections of not only rural residents, but also more traditional farmers. The various programs which have favoured such farmers since the 1930s, have now been appropriated, along with the word “farm,” by giant corporate operations. Only in Alberta have Canadian CAFOs reached U.S. proportions, but nowhere was agricultural regulation designed for this sort of industrial operation. The usual demand by groups opposing CAFOs, which Brubaker implicitly challenges, is to apply taxation and pollution controls, and in general to regulate CAFOs, not as “farms” but as industries.

Why does Brubaker not refer to CAFOs, the term now widely used in economic, management, and policy circles? Whatever her intention, by conflating CAFOs with all sorts of farms past and present, she ignores complex changes in land use, treatment of animals, production of meat, agricultural markets, retail and food service procurement, and the web of relationships connecting all these industries. CAFOs are linked not only to manure lagoons spread on fields next to new subdivisions or bucolic villages, for example, but also to the rise of other forms of large-scale, single-crop farming: over half of North America’s soy and maize fields are now dedicated to growing animal feed, and their nitrogen runoff contributes to dead zones in bodies of water thousands of miles away.  Each distinct step between pig crate and McMuffin is part of the story of CAFOs. So are all the oppositional movements, including not only local opposition to polluting agricultural industries, but also ethical treatment of animals, banning of transfats, and support for local, sustainable food networks reaching right back to (the old sort of) farms.

In other words, to hang the solution to agricultural pollution on courts responding to complaints by neighbours seems wildly inadequate. One can be convinced — rather than seduced — by Brubaker’s examination of one aspect of agricultural pollution, namely the changes in how provincial governments regulate substances emitted by agricultural enterprises. One can accept that legal redress may solve some problems, like smelly compost in mushroom operations (same caveat about the word “farm” here), and perhaps even limit the scale of some CAFOs in some locations. But neighbours can know or care about only so much. They cannot be expected to take responsibility for wider problems that affect whole societies, watersheds, and bioregions. Neighbours will not be inconvenienced more than anyone else by, for instance, antibiotic resistant diseases or early puberty in human females. Both are threats to individual and public health. CAFOs contribute to both by routine use of prophylactic antibiotics and growth hormones, respectively, since confined animals are prone to disease and rates of growth to slaughter determine income. Are antibiotics and hormones properly considered pollution? Surely they “sully” or “corrupt” water and food.

Such wider public issues require more comprehensive responses, which are the responsibility of governments and thus of citizens who elect them.  Environmental issues have historically required government attention on the scale of watersheds and urban regions, often under the rubric of public health and land use.  While Brubaker is right to remind us that property owners rubbing against each other must be part of the solution to agricultural pollution, surely the depth and interconnections of 21^st century production systems therefore also require coordinated efforts towards a common good.

Click here to view “Elizabeth Brubaker Responds”