Jonathan L. Clark
Journal of Agriculture and Human Values
December 2, 2008
As researchers in the field of agri-food studies turn their attention to the institutional mechanisms that enable industrial agri-food systems to persist in spite of their ecological contradictions, environmental regulation is likely to become an increasingly important topic (Harrison 2008; Harrison and Wolf 2008). That regulatory systems contribute to the resilience of regulated industries is nowhere more apparent than in the industrial livestock and poultry feeding sectors. State legislatures in the United States have enacted right to farm laws that shield livestock and poultry feeding operations from nuisance lawsuits. State legislatures have also enacted environmental statutes that pre-empt the authority of municipalities to ban feeding operations or regulate them more stringently than they are regulated by state and federal law. By creating a relatively uniform, certain, and predictable regulatory environment for investment capital, state legislatures have attempted to attract and retain the footloose agribusinesses that dominate industrial livestock and poultry feeding.
Greener Pastures analyzes how the shift of power from individual litigants and municipalities to higher levels of government has played out in Canada. Focusing on provincial laws that shield agricultural operations from private nuisance lawsuits and municipal regulation, Elizabeth Brubaker, Executive Director of Environment Probe, refers to this shift of power as the ‘‘centralization of control over agricultural pollution’’ Brubaker criticizes centralization, arguing that it has facilitated the industrialization of agriculture and legalized agricultural pollution. And as the subtitle of the book suggests, she advocates the decentralization of agricultural pollution control. Indeed, Brubaker sees decentralization as an effective tool for building more sustainable agri-food systems.
The book is divided into seven chapters. Academic researchers looking for a theory chapter will be disappointed. This is a book written not for social theorists but for concerned citizens and policy makers. The first chapter introduces the reader to the problem of centralization. The second is a useful review of how Canadian courts have interpreted the common law of private nuisance. The third, fourth, and fifth chapters describe how Canadian provinces have shielded agricultural operations from nuisance lawsuits. The sixth chapter is about how provinces have stripped municipal governments of their authority to regulate agricultural operations more stringently than they are regulated by the federal government and the provinces. Finally, the seventh chapter makes the case for decentralization. In the rest of this review I will describe Brubaker’s case against centralization and her case for decentralization. I will also point out two problems with her vision of decentralization.
In Chap. 2, Brubaker explains how the law of private nuisance can protect both individual property rights and the broader environment. Using the law of nuisance, a landowner can sue an agricultural operation for engaging in activities that deprive the landowner of the use or enjoyment of his or her land. Canadian courts typically order operations to stop creating a nuisance. In some cases, however, courts allow the nuisance to continue, so long as the operation pays the landowner for having to endure it. In the United States the law of public nuisance differs from that of private nuisance. Whereas the law of private nuisance is used to protect individual private property rights, the law of public nuisance is often used to protect the environment. But as Brubaker explains, private nuisance lawsuits can also indirectly protect the environment in the process of protecting private property rights. This is because some activities that deprive landowners of the use or enjoyment of their land also affect the broader environment.
In the bulk of the book, Brubaker describes the centralization of pollution control and its environmental consequences. In the pre-centralization era, she argues, private nuisance lawsuits, working in tandem with municipal laws, ‘‘effectively restrained the unsustainable intensification of agriculture—too effectively, in fact, for provincial governments, which responded by transferring most decision-making authority to themselves and their appointees’’ .Brubaker is especially critical of provincial right to farm laws. The right to farm is the right to create nuisances without having to compensate the landowners who must endure them. Brubaker describes this reallocation of property rights as ‘‘expropriation without compensation’’ . ‘‘The right to farm,’’ she argues, ‘‘has become confused with a right to pollute’’ .
That agricultural operations must comply with federal and provincial environmental laws should provide little comfort to Canadian environmentalists. Although these laws have been effective at facilitating the industrialization of agriculture, Brubaker argues, they have been ineffective at controlling agricultural pollution. By failing adequately to control pollution, and by stripping landowners and local governments of their legal power to do so, the provinces have ‘‘permit levels of agricultural pollution that were once widely forbidden’’ . Centralization has legalized agricultural pollution.
Brubaker does a nice job of criticizing centralization. But where her book falls short is in its advocacy of decentralization. Decentralization means exposing agricultural operations to nuisance lawsuits and municipal regulation. There are two problems with Brubaker’s vision of decentralized pollution control. First, not all landowners can afford to file lawsuits. Although Brubaker acknowledges this problem, she does so in order to deflect industry concerns about a potential flood of litigation. She does not consider how lack of access to the courts might lead to environmental injustice.
The second problem has to do with Brubaker’s unfortunate tendency to depict farmers as environmental villains. She makes us empathize with the plight of landowners who must endure agricultural nuisances without compensation. But we are told little about the plight of farmers who must try to make a living in industrial agri-food systems. This asymmetrical treatment comes out most clearly in the book’s final paragraph, where Brubaker describes the promise of decentralization.
Such broad reforms will by no means be easy for the agricultural industry. Some polluting farmers will doubtless be put out of business; some low-value farmland will doubtless give way to higher-value uses. Truly viable farmers will succeed in internalizing the costs of their operations. They will create a new agricultural industry—an industry that respects the rights of others and is ecologically sustainable .
I am not convinced that we can sue our way to sus-tainability. And even if we could, I would not advocate that approach. What Brubaker fails to explain is how to create a just transition from ecologically unsustainable agri-food systems to systems that are more ecologically sustainable. How can we make the transition in a way that respects the farmers and workers who depend upon ecologically unsustainable agri-food systems for their livelihoods? Suing farmers and driving them off of their land is not what I would call a just transition. Researchers in the field of agri-food studies need to begin to imagine what such a transition might look like.
Harrison, J. 2008. Lessons learned from pesticide drift: A call to bring production agriculture, farm labor, and social justice back into agri-food research and activism. Agriculture and Human Values 25: 163–167.
Harrison, J., and S.A. Wolf. 2008. Introduction to symposium— Charting fault lines in U.S. agri-food systems: What can we contribute? Agriculture and Human Values 25: 147–149.
Jonathan L. Clark is a Ph.D. candidate in rural sociology at The Pennsylvania State University. His dissertation research focuses on the role of technoscience in agri-environmental governance.