> 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
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
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.