Greener Pastures: Decentralizing the Regulation of Agricultural Pollution.

David Bennett is the national director of the Department of Workplace Health, Safety and Environment at the Canadian Labour Congress in Ottawa.

By “decentralizing agricultural pollution,” Elizabeth Brubaker, the executive director of Environment Probe, means two things. The first is the repeal of provincial “right-to-farm” laws in favour of the restoration of common law protections against farm odours, dusts, noise, and contaminated water. The second, complementary contention concerns the right of municipalities to regulate farming, particularly livestock factory farms. Both are essential if agricultural pollution is to be avoided and agriculture made truly sustainable. The dual thesis is well-argued and properly documented.

Brubaker’s project has limitations, nonetheless. She acknowledges that broader environmental impacts have to be regulated “at higher levels.” But without some discussion of the areas of such regulation and their importance relative to local issues, it is impossible to say just how decentralized agricultural regulation is going to be.

Brubaker’s thesis is at its weakest when it comes to the water-borne pollution of groundwater and waterways — the “aqueous commons.” Apart from drainage issues that affect neighbouring farmers, Brubaker discusses these issues in a single short paragraph, making one mistake and one false presumption. The mistake is the supposition that common-law disputes have invariably sided with the recipient of contamination at the expense of the polluter. They haven’t, which is the reason that historically water quality was regulated by statute. The false presumption is that common law precepts can be used to protect the aqueous commons from polluted agricultural runoff. In order to do this, there would have to be such centralized regulation or centrally directed incentives that it would erode Brubaker’s claims that the common law and municipal powers hold the key to agricultural sustainability.