Friday 23 January 2015

How the RMA continues to protect polluters


Hawkes Bay’s Tukutuki River is polluted with regular discharges of council sewage, and the river’s recreational users are understandably outraged that the regional council will not prosecute the district council responsible.

The Central Hawke's Bay District Council's new wastewater plants have failed to meet the conditions of a new resource consent six times since it came into force in October…
    Spokesperson for the group Friends of the Tukituki, Simon Lusk, said the district council had 10 years to put a new sewage treatment plan in place, and the regional council was failing in its statutory duty…
    Mr Lusk said the pollution flowing into the Tukituki River from the sewage plant was an absolute disgrace. 
    Labour's water spokesperson Meka Whaitiri questioned the regional council's ability to enforce any resource consents granted for the Ruataniwha Dam, after it declined to prosecute.
    She said the council was not doing its job.
    "If we can't get a waster water issue sorted out within 10 years what faith have we got in them doing the right things to ensure that this proposed dam is going to meet environmental standards."
    Ms Whaitiri said another body should be overseeing the activity of the regional council which was both a developer and regulator.

Bear in mind, customers, that this is happening under the present-day regime of the Resource Management Act, which you might have heard is there to protect the environment.

Of course, it does nothing of the sort.

What it does instead is issue a licence to pollute.

It gives meat processors a licence to dump their wastewater into rivers and oceans; it gifts farmers, pulp and paper mills and landfill sites to discharge their waste into lakes and rivers; it gifts councils a licence to dump sewage effluent directly into an ocean and river outfalls all over the country.  A license that, especially if you’re a council, you are able to flaunt at will – especially, as Ms Whaitiri points out, since they are frequently (and inappropriately) both developer and regulator.

The regional council's chief executive Liz Lambert said it was drawing up an abatement notice, but her council did not think punishing the district council was appropriate.
    "We believe that any financial punishment really doesn't help the ratepayer.
    "We'd rather see the money go towards the right outcome."
    Hawkes' Bay council's chief executive John Freeman said they designed the plants to meet the Regional Council's standards but they had run into issues with the chemical filtration process.

Can you see Joe and Jackie home-owner getting the same leeway from the likes of Ms Lambert?

Just to repeat, all this happens and had been happening for years under the present regime of the RMA. (And no, campers, nothing Nick Smith is proposing will either weaken that or strengthen it.)

So get this straight: whatever you might hear in your daily headlines, the RMA is not an Act that protects the environment*—partly because it has failed to recognise the property rights of those affected by this kind of pollution, and because it has removed almost every legal mechanism for them to protect their legitimate rights.  If we look at common law, however, we discover that common law offers precisely what both the environment and those affected most urgently need: i.e., a mechanism whereby their legitimate rights in the river are legally protected.

Elizabeth Brubaker of Canadian ground Environment Probe describes some famous cases on point here.

Landowners and tenants have often used trespass law to keep pollutants off their property. They
have fought sawdust from a lumber mill, fluorides from an aluminum plant, and pesticide spray.
Those living along rivers have used trespass law to prevent sewage discharges from littering the
rivers’ beds and banks.
In one early-twentieth-century case, a New York farmer complained that upstream sewers
polluted his creek. He argued that the filth piling up on the creek’s bed and along its banks
constituted a trespass. The court agreed. It gave the polluting town a year to build a new sewage
system. But after that, it ruled, the town would no longer be allowed to pollute the creek. The
court acknowledged that its decision would inconvenience the public. Regardless, it said, ongoing
trespasses have to be restrained.
In its defence, the town argued that its sewage was only one of many sources of pollution,
including another town and several tanneries. Cleaning up its effluent would not clean up the
creek. The court agreed that the town’s sewage constituted only a third of the pollution in the
creek. But that made no difference. The farmer had the right to sue whomever he wanted. If he
wished to take on all polluters, fine. If he wished to target just one, that, too, was fine. Higher
courts agreed: The injunction would stand…

Common law courts, whose role is to protect property rights, are a much stiffer hurdle for polluters to cross than a complaisant council regulator whose roles are regulatorily confused. And no fear waving the “public good” flag either as a fig leaf for your folly:

A famous nuisance case of the nineteenth century dealt with water pollution. The case concerned Birmingham, England, which built a large public sewer in 1851. The sewer dumped the town’s
filth into the local river. The owner of a downstream estate complained that the sewage caused
disease, killed fish, and was unsuitable for watering cattle or washing sheep. Birmingham argued
that the court should allow the pollution for the public good. It warned of disaster if it was not
allowed to dump its sewage into the river. In its words, “The evil that must ensue if the Court
should interfere would be incalculable.... Birmingham will be converted into one vast cesspool ...
The deluge of filth will cause a plague, which will not be confined to the 250,000 inhabitants of
Birmingham, but will spread over the entire valley and become a national calamity.” Private
interests, it argued, “must bend to those of the country at large.”
The judge hearing the case dismissed Birmingham’s argument as an “extreme position ... of
remarkable novelty.” He was not, he explained, a public safety committee. His job was simply to
interpret the law and to define who had what rights. In this case, the plaintiff had a clear right to
enjoy his river. Birmingham, in creating a nuisance, had violated that right. It was not allowed to
do that. In the judge’s words, “Public works ... must be so executed as not to interfere with the
private rights of individuals.” The judge concluded that he must grant an injunction, regardless of
its consequences. As he explained, “It is a matter of almost absolute indifference whether the
decision will affect a population of 25,000 or a single individual.”
A century later, another English case pitted a river-front landowner and a fishing club against a
polluting local government, along with a chemical company and a power station. The court issued
an injunction restraining the defendants from altering the river’s quality or temperature or
interfering with the plaintiffs’ enjoyment of their fishing rights. Although the local government
urged the court to substitute damages for an injunction, the court refused. Damages, one judge
noted, “would be a wholly inadequate remedy,” since the plaintiffs had “not been incorporated in
order to fish for monthly sums.” His colleague added, “The power of the courts to issue an
injunction for nuisance has proved itself to be the best method so far devised of securing the
cleanliness of our rivers.”
The court’s refusal to compromise an individual’s property rights for the convenience of society
reflected common-law traditions. Indeed, in the eighteenth century, the famous English jurist
William Blackstone wrote, “So great ... is the regard of the law for private property that it will not
authorize the least violation of it; no, not even for the general good of the whole community.”
Unfortunately, in the intervening centuries, many judges have abandoned this principle, and have
instead weighed the private benefits of protecting property rights against the social costs of doing
    Courts [and legislation] often now attempt to balance private rights with the so-called public good….

Which, if you recall, is precisely the position Nick Smith argues for the RMA.

On this, as on much else, he is wrong.

* What it does protect is polluters, planners, consultants and other vermin, but that’s almost another story altogether…


Jim Rose said...

Your own fire with your recent blogs on the Resource Management Act. Excellent

Peter Cresswell said...

Why, thank you sir. [bows]

Julian said...

I'll add my thanks for your recent posts on the RMA. The thing that is often not understood is that it is those who advocate property rights (i.e., free market advocates) that are the true environmentalists. Nothing protects the environment better than clearly defined property rights and history is replete with examples of what happens in their absence.

Anonymous said...

Abolish the RMA