Chapter 8: The Courts v. The Common Man

Go Back to the Table of Contents for Property Rights in the Defence of Nature

“All the filth of the town – dead horses, dogs, cats, manure, etc. heaped up together on the ice, to drop down, in a few days, into the water which is used by almost all the inhabitants on the Bay shore . . .”

The Canadian Freeman, circa 1832(1)

In the nineteenth century Toronto’s waterfront was a cesspool. The municipal government located its first landfill dumps on the water’s edge in 1835. That same year it started emptying its sewers into the harbour . . . and didn’t stop for three-quarters of a century. Rotting garbage and raw sewage soon filled the shoreline slips, necessitating frequent dredging. In response, the city simply extended its sewers further into the harbour. By mid-century, a two-foot-thick carpet of sewage stretched more than 300 feet from the shore.(2)

The government wasn’t the only polluter. Companies drained manure from their cowsheds into nearby Ashbridges Bay. People dumped trash into the water. In the winter, they tossed it onto the frozen lake, knowing that it would sink in the spring melt.

Incredibly, the city drew its drinking water from the fetid harbour. The contaminated water (described by the Globe as “drinkable sewage”(3)) sickened Torontonians. Cholera broke out in 1832, and again and again during the following decades. Typhoid fever followed.(4)

Toronto was by no means unique. In fact, it was one of the age’s cleaner cities, described in 1884 as “the healthiest on the American continent.”(5) Britain’s industrial towns may have been the most polluted. There the Industrial Revolution transformed pastoral landscapes into wastelands of appalling filth and ugliness. One district’s saturation with smoke and coal dust earned it the name “the Black Country.” Chemical vapours destroyed virtually all of another district’s trees, gardens and crops. Once-clear rivers ran like ink. They stank and, in one case, burned. Friedrich Engels described the view from a Manchester bridge in 1844:

At the bottom flows, or rather stagnates, the Irk, a narrow, coal black, foul smelling stream full of debris and refuse, which it deposits on the shallower right bank. In dry weather, a long string of the most disgusting, blackish green, slime pools are left standing on this bank, from the depths of which bubbles of miasmatic gas constantly arise and give forth a stench unendurable even on the bridge forty or fifty feet above the surface of the stream. But besides this, the stream itself is checked every few paces by high weirs, behind which the slime and refuse accumulate and rot in thick masses. Above the bridge are tanneries, bone mills and gas works, from which all drains and refuse find their way into the Irk, which receives further the contents of all the neighbouring sewers and privies.(6)

Why did desecration such as Toronto’s and Manchester’s occur? Blame falls in part on the governments that utterly failed to enforce their own laws, such as the 1834 act requiring Toronto to provide “good and wholesome water” to its residents. While that city’s bylaws regarding nuisances, sanitation, and public health multiplied throughout the nineteenth century, and government increased its powers to regulate pollution, water quality deteriorated.(7) Laws and regulations aimed at cleaning up air and improving public sanitation proved similarly ineffective in Britain.(8)

While the histories of Toronto’s filthy harbour and Britain’s squalid rivers illustrate governments’ failure to protect the environment, they also raise questions about the effectiveness of common law property rights – then and now – in preventing pollution. Since riparian law forbade water pollution, why didn’t Torontonians and their British counterparts use their riparian rights to prevent the contamination of their lakes and rivers? Why, for that matter, didn’t all pollution victims – at least those in common law jurisdictions – use their property rights to fight the environmental destruction wrought by industrialization? While some of the answers to these questions are certainly found in both the governments’ and the courts’ higher regard for the abstraction they called the public good, other factors – including an absence of concern, the difficulties of court challenges, and people’s ignorance of their rights – further explain the common law’s failure to protect the environment.

Many nineteenth-century townspeople were indifferent to water pollution. Children swam in Toronto’s foul harbour. Almost no one understood the health effects of pollution. Torontonians blamed cholera, for example, on virtually everything other than contaminated water. Some thought it originated from putrid or humid air. Others linked the disease to filthy houses and habits. Still others blamed intemperance, jailing drunkards or putting them in stocks in order to stem the spread of the disease.(9)

Even those knowingly suffering from pollution often saw it as an inevitable and acceptable price of progress. Such was frequently the case in England during the Industrial Revolution, when many who favoured industrialization were willing to exchange clean air and water for jobs, consumer goods, and public services. Smoke and noise meant work for those living near the belching factories. Industrial workers, under the strict control of their polluting employers, didn’t dare complain. Other incentives encouraged those who weren’t employed by polluters to trade away their common law rights. In some cases, property values rose in industrial areas. In other cases, manufacturers paid neighbours not to complain. And where victims were also polluters, refraining from enforcing their common law rights could be reciprocated to their benefit.(10)

The high cost of litigation deterred many from enforcing their common law property rights. Suing polluters was expensive – so expensive that legal action was out of the question for almost all but the wealthy. A select committee examining air pollution in one region of England in 1862 reported that average workingmen could simply not afford to bring nuisance actions against polluters.(11) Even those who could afford litigation often found it cheaper to simply move away from the squalor.(12)

Further complicating legal action was the victim’s obligation to prove not just that he was injured, but that he was injured by one particular polluter. With only the unaided human eye to trace the paths of poisons, British landowners hired runners to follow the plumes emanating from factories. Manufacturers responded by raising smokestacks and dispersing fumes.(13) Tracing the source of a pollutant in a heavily industrialized area presented further challenges. The 1862 select committee noted, “[W]here several works are in immediate juxtaposition, the difficulty of tracing the damage to any one, or of apportioning it among several, is too great as to be all but insuperable.”(14) It was also difficult to establish a causal connection between a poison and an injury: how could one prove that emissions from a neighbouring factory caused one’s illness?

Torontonians no longer throw animal carcasses into their harbour. British factories don’t blot out the sun with soot. Rivers rarely catch fire. Yet pollution is likely of greater concern today than in the nineteenth century. Ironically, despite more affluence and better education about pollution’s consequences, people are now less able to fight pollution: they have lost many of the rights that they so often failed to exercise in the past. Yet, where common law property rights remain, those using them to protect the environment face fewer impediments. Social and technological advances have overcome many of the factors preventing industrialization’s early victims from asserting their rights.

Several factors, while less severe than a century ago, continue to impede the enforcement of common law property rights. Although legal aid has increased the poor’s access to the courts, litigation remains prohibitively expensive for many. Lawyers’ bills, court costs, witness fees, and the threat of having to pay the other party’s legal costs in the event of an unsuccessful suit (the rule in Canada) often deter court actions.(15) The exercise of property rights, as with other rights, continues to be a rich man’s prerogative, and will remain so until the court system is reformed to provide equal justice for all.(16)

Even the best court reforms would leave some litigation prohibitively expensive. As a general rule, high transaction costs resulting from unavailable information, costly negotiations or other factors reduce the courts’ effectiveness in fighting pollution. When many people suffer minor, cumulative damages from many small polluters, no individual has an incentive to sue; each costly suit would bring inconsequential relief. No one, for example, could sue every smog-producing driver that passes his home, and suing one or two would not measurably clear the air. Such cases call for government regulations that, in reducing emissions from numerous minor sources, make a major difference in air quality.

Tracing an environmental poison to its source can be difficult, especially if there is a time lag between the release of the poison and the appearance of its effects, or if there are numerous potential sources.(17) But technological advances are rapidly overcoming many barriers to enforcing property rights. Chemical “fingerprinting” (using methods such as gas chromatography and mass spectrometry) enables victims to match a pollutant to a polluter. As the technology becomes both cheaper and more powerful, law firms, banks and insurance companies are increasingly adopting it to prove environmental liability.(18)

Chemical fingerprinting also allows companies to shield themselves from liability for pollution not of their making – often a strong incentive for adopting the technique. In 1993 a geochemist used gas chromatography and mass spectrometry to trace oil in Price William Sound to a 1964 spill, bolstering Exxon’s contention that the 1989 Exxon Valdez disaster was not responsible for all of the oil fouling the sound.(19)

Various tagging methods could also enable people to trace water or air pollutants to their sources. Odorants (such as the mercaptan now added to natural gas), dyes, or isotopes could “brand” chemicals. Government agencies and utilities have demonstrated one such pollution-tracing technique in the American Southwest, where, after injecting deuterated methane into smokestacks, they traced sulphur dioxide from an Arizona power plant to haze in a national park in Utah.(20)

Even if pollutants can be traced, it is often difficult – or impossible – to prove that they caused particular damages complained of. But here, too, barriers are beginning to fall. Molecular fingerprinting, while not as developed as chemical fingerprinting, shows extraordinary potential for establishing polluters’ liability for the health effects of their emissions. Different carcinogens produce unique mutations in one gene: radon, ultraviolet light, and tobacco tar, for example, leave recognizable fingerprints. Genetic analysis may therefore soon make it possible to identify the carcinogen responsible for a tumour.(21)

In those instances where proof remains impossible, victims using the common law may still be able to stop pollution. A civil case asserting one’s common law rights demands a less rigourous standard of proof – a 51 per cent likelihood – than does a statutory prosecution, which requires proof beyond a reasonable doubt.(22)

Both court reforms and scientific advances may well, at least indirectly, help overcome the widespread ignorance of the law that remains one last impediment to people enforcing their now limited rights.(23) In the 1940s and 1950s, a handful of well- publicized law suits alerted Ontarians to the nature and extent of their common law property rights, and to their usefulness in protecting the environment.

Even lawmakers had been unaware of the power of riparian rights before people living along the Spanish River won their 1948 lawsuit against the KVP pulp mill. The Ontario CCF’s conservation-minded William Dennison complained that, when trying to put a stop to de Havilland’s pollution of Black Creek in 1944, “I did not know about the English law at that time, or I would have suggested he take the thing to court.” The common law’s potential was also news to his Liberal colleague, who noted, “I am interested to know that the only way we can get rid of the pollution is through the court.”(24)

In the 1950s, court challenges to polluting sewage systems further increased interest in using property rights to clean up lakes and rivers. An Ontario Progressive Conservative MPP described the growing awareness in 1956: “Interest in this problem, I find, is much greater than ever before. There is a growing realization on the part of the public that it is a trespass on the rights of their neighbours and of themselves for untreated effluent to be discharged from municipal or industrial sewers into a stream or lake which serves others.”(25)

New tools will inevitably prompt successful cases against polluters – cases that will alert others to the attainability of clean air, land, and water. Inspired by the possible, they too may well turn to the courts.

Notes

1. Francis Collins, editor of the Canadian Freeman, circa 1832, cited by Glazebrook, The Story of Toronto, 68.

2. For more information on the nineteenth-century pollution of Toronto’s harbour, see Armstrong, Toronto, 70, and City in the Making, 32, 210-11; Kerr and Spelt, The Changing Face of Toronto, 69, 72-3; Kluckner, Toronto: The Way It Was, 110, 166-8; Middleton, Municipality of Toronto Canada, Volume 1, 198, 331-2, 344, 368; Reindeau, “Servicing the Modern City,” 161-2; Rust-D’Eye, Cabbagetown Remembered, 48; and Toronto Harbour Commission, Toronto Harbour, 14.

3. Globe, March 18, 1882, cited by Careless, Toronto to 1918, 144.

4. For information on the health effects of Toronto’s contaminated water see Armstrong, Toronto, 65, 123; Careless, op. cit., 51, 71, 73; Glazebrook, op. cit., 29, 67, 79-80, 175; Kluckner, op. cit., 168; Middleton, op. cit., 167-8, 235, 331, 344; and West, Toronto, 101-3.

5. Mulvany, Toronto, 246.

6. Engels, The Condition of the Working Class in England, cited by McLaren, “Nuisance Law and the Industrial Revolution,” 323-4. For more information on nineteenth-century Britain’s environmental blight, also see Hoskins, The Making of the English Landscape, 167-172; and Brenner, “Nuisance Law and the Industrial Revolution,” 416-9, 429.

7. Nor did the 1911 Toronto Harbour Commission Act alleviate the problem. Under the THC’s jurisdiction, the harbour became infamous for its toxic water and sediments, and was designated an “Area of Concern,” first by the Great Lakes Water Quality Board and later by the International Joint Commission.

For information on early environmental regulation in Toronto, see Armstrong, Toronto, 68, 109, 123; Careless, op. cit., 59, 145; Glazebrook, op. cit., 77; Middleton, op. cit., 198; and Mulvany, op. cit., 59, 247.

8. Brenner, op. cit., 425-8.

9. See references in notes 2 and 4.

10. Brenner, op. cit., 408, 420, 430, 432; and McLaren, op. cit., 353, 357, 360.

11. The House of Lords Select Committee on Noxious Vapours, discussed by Brenner, op. cit., 416-25. Also see McLaren, op. cit., 346-9, 360.

12. Hoskins, op. cit., 167.

13. McLaren, op. cit., 349-50.

14. Cited by Brenner, op. cit., 425.

15. Even a simple civil claim may be prohibitively expensive. With lawyers’ fees starting at about $1,000 a day (and most lawyers needing one day to prepare for each day in court) and witness fees in the $2,000 range, a four-day hearing may cost $10,000. A defendant with deep pockets may call numerous witnesses, prolonging the hearing and increasing its costs. More complicated legal challenges may be still more expensive: it may cost a plaintiff over $500,000 to take a constitutional challenge to the Supreme Court of Canada.

A successful plaintiff will likely recover some of his costs. An unsuccessful plaintiff, however, will likely have to bear not only his own costs but also those of his opponent.

For more information on the prohibitive cost of civil suits see Estrin and Swaigen, Environment on Trial, xix, 7, 51, 67, 120.

McLaren suggests that the increased availability of information and the emergence of environmental groups (who may provide inexpensive assistance) should offset some of the costs of making and proving one’s case in court (“The Common Law Nuisance Actions and the Environmental Battle,” 509).

16. Allowing lawyers to charge contingency fees would be one way of increasing the courts’ accessibility.

17. For information about the extent to which barriers to enforcing one’s property rights in the courts remain, see Dewees, “The Comparative Efficacy of Tort Law and Regulation for Environmental Protection,” 11-16. Also see Bardach and Kagan, Going By the Book, 272, 275, 281.

18. “Fingering pollution,” The Economist, 91-2; Wall Street Journal, “CAT Scan May Soon ‘Map’ Air Pollution.”

19. New York Times, “A New Slant on Exxon Valdez Spill.”

20. Anderson and Leal, Free Market Environmentalism, 166. Also see Smith, “Controlling the Environmental Threat to the Global Liberal Order,” 11, 21; and Stroup and Shaw, “The Free Market and the Environment,” 39.

21. New York Times, “Cells May Bear Mark Of Each Cancer Agent.”

22. Estrin and Swaigen, op. cit., 52-4.

23. Bardach and Kagan, op. cit., 273.

24. William Dennison and J. D. Baxter, Ontario Legislative Assembly Debates, March 29, 1949, 1459, 62. Ironically, the debate occasioning these remarks resulted in amendments to the Lakes and Rivers Improvement Act – the first step in the extermination of property rights along the Spanish River described in Chapter 4.

25. William Murdoch, Legislature of Ontario Debates, Official Report – Daily Edition, February 12, 1957, 286. These remarks, too, occurred in a debate resulting in the further erosion of Ontarians’ property rights.

Go Back to the Table of Contents for Property Rights in the Defence of Nature

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