This paper explores the development and application of the common-law principle of open justice. For centuries, people used common-law courts to resolve disputes about pollution. The courts were open and accountable. Environmental disputes are now often resolved by regulatory bodies that are less transparent. For example, disputes concerning agricultural pollution are heard by government-appointed right-to-farm boards. Some boards do not release their decisions to the public, and some delete key information regarding the parties and their locations. This lack of transparency makes it difficult for people to make informed decisions about where to live, how to behave, and what to expect. When governments move decisions about the environment from courts to administrative bodies, it is essential that they adopt the principles of transparency and accountability that have long infused the common-law.
Category Archives: Property Rights
Environment Probe Turns 20
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Environment Probe turned 20 this year. To our surprise and delight, we also learned this year that our foundation maintains Canada’s most popular environmental web site. The reason, we suspect, is that the public doesn’t like top-down environmentalism, and we have the field of community-based, market-oriented environmentalism pretty well to ourselves.
A General Introduction to Property Rights and the Environment
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In this presentation to Property Rights and the Environment, a student colloquium held in Vancouver in July 2009, Elizabeth Brubaker explains that property rights provide incentives to conserve scarce resources, such as water and fish.
Book Review: Greener Pastures
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This important book builds on earlier work by the same author, Property Rights in the Defence of Nature (1995), which made a strong case that customary common law in the United Kingdom, the United States and Canada has been an effective means of pollution control, where and when it has been allowed to work. As that earlier book showed, however, legislative law, often drawn up on the premise that it would promote economic progress or the public good, has often weakened these customary common law remedies to air and water pollution.
This new book applies the same analytical lens to the narrower issue of air and water pollution originating on farms.
Law and the Environment
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The environment is one of the major concerns of our day, perhaps overwhelmed recently by the economic tsunami that is sweeping the globe, but not an issue that will go away or be easily solved.
Protecting the environment: Are property rights a better solution than legislation?
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Elizabeth Brubaker spoke at the Canadian Constitution Foundation’s annual law conference, Individual Freedom and the Common Good, held in Toronto, Ontario, on October 18, 2008.
Property Rights: The Key to Environmental Protection
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A chapter from A Breath of Fresh Air: The State of Environmental Policy in Canada, a collection of essays edited by Nicholas Schneider exploring market-based environmental policy options for Canada. In this chapter, Elizabeth Brubaker discusses the roles that property rights play in protecting the environment: They provide powerful incentives for the preservation of natural resources and they are effective tools to resolve differences over resource use. Although Brubaker proposes a number of means to strengthen property rights, she advocates one principal reform: the enshrining of property rights in the Canadian Charter of Rights and Freedoms.
Unacceptably Green
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Much of the Canadian environmental movement’s efforts to fight climate change have been directed towards advocating for increased government intervention. But what about existing regulatory barriers that hamper the market’s own ability to address environmental problems? Before enacting new legislation to deal with environmental ills, it is worthwhile to consider removing existing laws that block financial incentives for green initiatives. In Canada, government regulation has held back the development and usage of environmentally friendly alternatives like electric cars and hybrid taxis.
Greener Pastures: Reforming the regulation of agricultural pollution
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"Livestock are one of the most significant contributors to today’s most serious environmental problems." That warning, issued by the Food and Agricultural Organization of the United Nations, couldn’t be clearer. Farmers around the globe are polluting the air, degrading the land, and fouling the water on a "massive scale," the FOA charged. "Urgent action is required to remedy the situation."
Holding polluters accountable
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Our water and our air are under siege, and our governments are doing precious little to protect them. Warnings have been sounded by two of Canada’s most prominent environmental watchdogs. Together, they demonstrate the pressing need for a new approach to environmental protection.
Agriculture, the Environment, and Private Property Rights
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A speech to the Annual Conference of the Alberta Agricultural Economics Association, held in Red Deer, Alberta, on May 4, 2006.
Standing Ground
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Danielle Smith, campaign director of the Alberta Property Rights Initiative, interviews Elizabeth Brubaker on the use of common-law property rights to protect the environment.
Industrial farms shouldn’t trump the rights of our citizens and communities
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In her annual letter to supporters, Elizabeth Brubaker argues that provinces are stripping citizens of their property rights and disempowering local governments in order to promote industrial farming. Continue reading
Empowering individuals and communities to curb pollution from farms
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Should hog farmers be allowed to create odours so foul that they make neighbours physically ill? Should cattle farmers who follow manure-management rules be exempt from local bylaws limiting their size and density? Should vegetable farmers be allowed to send clouds of black dust across neighbouring lands, or awaken neighbours throughout the night with cannon explosions designed to scare away wildlife? How much pollution is "necessary" or "acceptable," and who should decide?
The New Environmentalists
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Tom Adams, Elizabeth Brubaker and Lawrence Solomon are three leading intellectuals in an umbrella organization – Energy Probe Research Foundation (EPRF) – that is influencing the views of a new generation of policymakers about a host of interrelated issues that include environmental protection, energy, urban planning and foreign aid. These folks can’t be dismissed as politically left or right of centre.
Beyond ideology: Doing whatever works to protect the environment
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Earlier this year, several days after a lengthy interview with a writer for a weekly news magazine, I received a puzzled e-mail. "How would you describe yourself politically?" the writer asked. "Do you lean towards the left or the right?"
Restoring the family farm to economic and environmental sustainability
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"Treat farming like any other industry and clean it up, inquiry urged." So read the headline of a Toronto Star article about one of our presentations to the Walkerton Inquiry. Our approach was considered newsworthy, but it shouldn’t have been. After all, isn’t it just common sense that we need to start cracking down on pollution from farms?
Free market, free Willy
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This defence of free market environmentalism, published in the Ottawa Citizen, cites Elizabeth Brubaker’s book, Property Rights in the Defence of Nature. Continue reading
Reducing Risk By Creating Accountability
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Energy Probe Research Foundation’s submission to the Walkerton Inquiry’s Expert Meeting on Guiding Principles for Drinking Water Safety explores the critical role played by legal liability in risk management.
River pollution: A lawsuit runs through it
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On the surface, a recent B.C. court case seemed to deny a legal right to clean water. But in fact, since the 19th century, common law has given the users of water downstream from a polluter a clear right to seek redress through the courts.
Environment Probe 