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A few concluding thoughts on common-law property rights


> Two important issues that we didn't have time to dicuss on March 9 Elizabeth Brubaker

Even if property rights were better protected, they wouldn't solve every environmental problem. Property rights are great tools, but they can't be used in all situations. They work best when a polluter can be identified, when a limited number of victims can be identified, and when the harm is substantial. When many people suffer minor, cumulative damages from many sources, no one has an incentive to sue. Each suit would be costly, and it would solve only a small part of the larger problem.

Nor will property rights work well when people can't trace the source of a problem. The good news is that technology is making monitoring and tracing far more effective than it has been in the past. But there are still serious challenges. Ammonia emissions from animal waste might mix with other pollutants to create haze, but my guess is that it would be pretty difficult to trace the problem to a specific farm.

And of course property rights won't work when no one has rights to the resource that's being harmed. For example, it would be hard to rely on property rights to challenge farmers' creation of greenhouse gasses. No one has rights to the atmosphere.

Another serious problem with property rights is that they can be expensive to defend, and the process can be painfully slow. A simple four-day hearing might run about $10,000. And then you have the potential costs of appeals. And even after all that expense, there's a chance that the you'll lose. That's a huge financial risk to take on - since if you lose, you often have to pay other side's legal costs. So costs are a serious impediment to bringing common-law actions.

But costs aren't an insurmountable problem. There are many ways for several parties to share costs and risks. Where lawyers charge contingency fees, they share the risks - they only get paid if they win the case. When plaintiffs band together in class actions, they share the risks. Or public interest groups can share the risks. There are a number of public interest law firms that regularly file lawsuits against polluters. Here in Ontario, we have Ecojustice, Environmental Defence, and the Canadian Environmental Law Association. Unfortunately, there are far more cases than there are environmental groups to take them on. Many victims of pollution are inevitably going to be on their own.

For that reason, I think that we have to make sure that the courts are accessible to everyone - either through legal aid or other publicly provided legal services. Such services will enable the poor to exercise their common-law rights. In my mind, that is especially important. These are people who often don't have much political influence. And they're people who can't afford to just move away from pollution. For them, property rights may be their only hope.

The good news is that when rights are secure, an expensive trial can often be avoided. Cases are often settled before they reach the courts. That's especially true if there's a history of successful cases on similar subjects - if who has what rights has been well established. If polluters know they're likely to lose, they'll want to avoid a trial.

The threat of a law suit is also an excellent deterrent of pollution. Property rights have a prophylactic effect. If polluters know that they'll have to cease their harmful activities and pay for damages, they have strong incentives not to pollute in the first place. Liability isn't just about correcting a problem or compensating those who have been harmed. Above all, it's about prevention. The threat of liability creates powerful incentives to minimize risks, to take precautions, to make sure that no harm is done. So protecting one's property isn't necessarily a costly proposition.

* * *

Regardless, sometimes property rights will be an effective tool, and sometimes they won't. In cases where property rights can work, I feel very strongly that we should let them work. In cases where property rights can't work, I believe that legislation is called for. We need both. Neither one on its own can address all of today's environmental challenges.

That said, I do want to add that the common law has a great deal to offer statute law. We can often use the common law as a model of how statute law should work. In other words, we can incorporate principles from the common law into our regulatory regimes.

The first principle of the common law is: Use your own property so as not to harm another's. There is no reason why statutes and regulations can't incorporate this principle. Just like the common law, government-made laws can create virtual fences around polluters. They can shield neighbours from harm.

Another feature of the common law is its focus on ends rather than means. Government-made laws can likewise require specific outcomes - rather than specific inputs.

Statutes can also incorporate the common law's approach to penalties for those who break the rules. They can call for fines that go to the victims of pollution - rather than to government coffers. And they can provide for injunctions, actually stopping polluting activities rather than just fining them.

Incorporating such principles into the laws and regulations governing pollution would create industries that bear their own costs, that have incentives to reduce their pollution, that respect the rights of others, and that are truly environmentally sustainable.

Elizabeth Brubaker


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