Brubaker: Regulations Don’t Protect the Environment, Property Rights Do

Environmental regulation is inherently political. Politicians pass laws that give agencies broad authority to “protect the environment,” but leave “protect” and “environment” up to the agency to figure out. Often these agencies fail to protect the environment from pollution for political reasons, the chief executive wants to “stimulate the economy” or he knows the businesses involved. For this reason, environmental regulation ought to be, for the most part, carried out by the courts, as citizens sue to protect their health and property.   Elizabeth Brubaker from the Canadian think-tank Environment Probe gives many examples of how property rights rather than legislation were used to prevent pollution in her book Property Rights in the Defence of Nature.

Property Rights in the Defence of Nature was published in 1995

In 1768, Sir William Blackstone, an English judge, wrote

If one erects a smelting house for lead so near the land of another, that the vapour and smoke kills his corn and grass, and damages his cattle therein, this is held to be a nuisance. And by consequence it follows, that if one does any other act, in itself lawful, which yet being done in that place necessarily tends to the damage of another’s property, it is a nuisance: for it is incumbent on him to find some other place to do that act, where it will be less offensive.

Soon after Huron Steel Products installed an 800-tonne press at its Windsor, Ontario, stamping plant in 1979, Douglass Kenney complained to both the company and the Ministry of Environment. As president of the corporation that owned an apartment near the plant, he objected to noise and vibrations from the press’s operation, which were driving his tenants away.

But Mr. Kenney could not get the government to enforce its own regulations. Although the Ministry of the Environment tests indicated that the press exceeded provincial noise guidelines, and despite assurances from Huron Steel that it would improve the situation, the plant continued its noisy operations. Frustrated by the lack of progress, Mr. Kenney’s company launched a nuisance case seeking damages and an injunction.

At the trial before the High Court of Justice in 1990, former and current residents of the neighborhood testified that the press’s noise made falling asleep difficult, and that its vibrations shook furniture, disturbed pictures, and rattled dishes. This testimony, along with that of expert witnesses who described the degree to which the plant exceeded provincial noise guidelines, convinced Justice Potts that the press’s noise and vibration were excessive.

The court acted where the government would not. Justice Potts found that Huron Steel’s operations unreasonably interfered with its neighbour’s use and enjoyment of its property, thus constituting a nuisance. He awarded $71,427 damages for lost rental revenue and reduction in the value of the apartment building. He also prohibited Huron Steel from operating its press if it failed to complete remedial work within four and a half months.

At the heart of the Huron Steel decision, like the decisions in many other nuisance cases, is the maxim “use your own property so as not to harm another’s.” The maxim reflects a balance under the common law between the rights of neighbours to both use and enjoy their property.

The principle behind the maxim dates back to the English law of the mid-thirteenth century. Henry of Bracton, a judge and prominent legal scholar of that era, stated that “no one may do in his own estate any thing whereby damage or nuisance may happen to his neighbour.” Bracton, whose writings provide a foundation for later nuisance law, noted that a landowner could not, in raising a pond, flood his neighbour’s land; nor could he divert a watercourse and deprive his neighbour of water…

The simple rule that one may not harm his neighbour’s property, or interfere with his enjoyment of it, has protected the environment from an infinite variety of insults for over seven hundred years. People have relied on nuisance law to prevent or clean up the pollution of their land and the air above it. From nuisance law has evolved a separate branch of the common law, called riparian law, that people can enlist to protect the water flowing past their property.