Monday, 8 October 2018

What would 'Party X 'do about the environment? Policy #2: Scrap the 'License to Pollute'

So there's a gap in the market for a political party representing what I'm calling "ethical environmentalism" -- and even Simon Bridges will want a part of it come coalition time (Whether it would want him is a whole other story). 
By ethical I mean policies that remove some existing political coercion without introducing any new coercionBy environmentalism I mean today's fashionable environmental tropes. And by some innate cunning involving preternatural judo I propose a Party X that uses those tropes to kickstart both some real environmentalism and a true movement towards liberty. Let me explain how with today's example of a policy that such a party could promote... 

Today, two proposals to propel property rights towards the heart of New Zealand life, while solving several major environmental problems:
diving for pennies2

A few years ago we woke to the news that  the world-famous famous penny-divers at Rotorua’s Whakarewarewa were being told by the authorities not to swim in the Puarenga River if they value their health. It seemed the stream was becoming seriously polluted.
    Tests over the years have shown poor results for water quality and [authorities] says companies like the Red Stag Timber Mill could be doing much better.
    But Tim Charleson, the mill's environmental manager, says the company carries out regular chemical tests on its effluent and it's meeting the conditions of its resource consents.
I have no doubt Red Stag et al were and are  “meeting the conditions of [their] resource consents,” as do farmers, mill owners and waste operators all around the country. But as this story and others clearly demonstrate, these consents merely formalise their pollution instead of protecting against it.

In short, resource consents are not a form of environmental protection. They are a license to pollute.

In cases like this one and all over the country, from the Tarawera River (into which the paper mill has a license to dump chlorine and worse) to Akaroa Harbour (where the council has given itself a license to dump nearly raw sewage), a resource consent full of mealy-mouthed conditions has granted to these producers full license to sully the places and rivers that people value, and that property owners would cherish -- if they were still allowed to.

The RMA, under which resource consents like this are issued, is hopeless at protecting the environment precisely because it’s hopeless at protecting property rights. Contrast this with common law, which has seven-hundred years of sophistication at protecting both, and you realise how far from ideal NZ’s so-called “environmental legislation” really is. 

With strong property rights under common law, for example, the tourism operators along the Puarenga River—and the former fishermen at the head of the Tarawera River; and the aquaculture operators in Akaroa Harbour—would all have had legal standing to take action against polluters damaging their property right. 

And taking and winning these actions against big polluters is the best signal to other would-be polluters not to start.

As Elizabeth Brubaker writes
The age-old common-law maxim 'use your own property so as not to harm another's' has provided the foundation for the resolution of disputes about farming practices [and pollution] .... Under this maxim, the rights of farmers [and other producers] -- like those who own or occupy land -- are tempered by their responsibilities. While they have a right to use and enjoy their property, they have a responsibility not to interfere with their neighbour's rights to use and enjoy their property.
Recognising and protecting that right  has been at the heart of common law "as early as the thirteenth century," explains Brubaker, "when one legal scholar wrote that 'no one may do in his own estate any thing whereby damage or nuisance may happen to his neighbour.'

In cases over the following centuries dealing with everything from pigsties to cattle to railway lines to sewage systems -- and from Britain to Canada to the US and New Zealand -- courts frequently cited and affirmed the principle in providing environmental protection through protection of neighbour's rights against a polluter.

Historically and in principle that’s the best protection the environment ever had – both for the natural environment and for the human environment. Property rights in streams and rivers for example coupled with common law systems of protection would at a stroke solve the ‘dirty dairying’ problem about which so much is said, but so little achieved. Property rights in flora and fauna and land is the best means of ensuring a genuinely sustainable nation. 

Yet the Resource Management Act instead protects polluters. 
Overshadowing all other legal defences [of a polluter] is ... that a statute has authorised a disputed activity. Government statutes take precedence over the common law [explains Brubaker]. If a government approves a nuisance therefore, a court loses its power to enjoin it.... At enormous cost to the environment, governments of all times and all political stripes have overridden the common law to protect favoured industries... Farmers now benefit especially from statutes affording some of the country's clearest and most sweeping protections.
While ignoring the property rights the law is supposed to protect. Fortunately, there are many solutions. I have two:

Method No. 1. Putting Property Rights in the Bill of Rights Act

We know that common law protection of property rights has been buried by statute and regulation and by the Foreshore and Seabed Act and its later replacement--but it’s not too late to resurrect it. Placing property rights in the Bill of Rights Act would be a start—a politically possible start—repairing an omission that Bill of Rights architect Geoffrey Palmer has publicly conceded was a mistake.

It should be simple enough to insert a new clause in the Bill of Rights adding property rights to the rights protected. (And a responsible ‘Party X’ would know they would need to add pressure to make the Bill of Rights  superior to all other law, as it always should have been.) 

After all, the principle of property rights simply promises the protection of the right to peacefully enjoy that in which one has property. What reasonable objection can be brought to a law that protects an individual’s right to peaceful enjoyment? (Let me stress the word "reasonable.") 

Let’s place on the back foot those who object to that right by challenging them to say for what reasons the right to peaceful enjoyment should not be made superior to all other law. 

Why should that right not  be put beyond the vote? That is, put well beyond the power of any politician to tamper with -- for that is surely a power beyond any right!

Our putative ‘Party X’  may not be immediately successful in this goal, of course, but it could at least flush out the bastards who oppose such peaceful rights, and expose the reasons they do. 

In the meantime, you might like to consider what would happen if property rights ever actually were placed at the heart of the likes of the Resource Management Act . . . would it be something like the meeting of matter and anti-matter ?

Method No. 2. Coming to the Nuisance

Planners like nothing more than than telling you where and how you may live.  The RMA gives them that power in spades, and the country is infested with the well-fed bastards writing and administering District Plans empowered by the RMA to boss you and your family around -- and with the utopias they have created and are all their own work ... like Albany and the Manukau City Centre. 

It wasn’t always that way. Back when common law was being invented, the English king was becoming increasingly frustrated at having to fix issues about the damage that someone’s chickens did to someone else’s crops.  Keen to stop his castles being overrun by defendants’ chickens, the king quickly realised the three important questions that could quickly solve these issues:
  1. Whose chickens (and whose crops) are they?
  2. What damage did they do? (And how to remedy it?)
  3. Who was there first?
Such was the birth of common law—and right there in those three questions the English king had hit on the three ingredients that have been at the heart of common law ever since:
  1. Property rights.
  2. Damage.
  3. Nuisance (and who came to it?).
Once these principles were established, the English king was able to solve these problems rapidly, to cleanse his castles of chickens, and to head north to invade Scotland—which is what the king known as “The Hammer of the Scots”  he’d been trying to do when he got bogged down in these disputes. 

What I’m going to propose here is another simple modification to law that would allow New Zealanders to once again repair to the common law protections that “The Hammer” had made possible. In particular, the codification of the common law principle of Coming to the Nuisance (seen in palimpsest in point three above), which on its own would a powerful antidote to the zoning that the RMA has entrenched -- perhaps the strongest possible antidote to zoning there is. Supplementary to putting property rights in the Bill of Rights, then, ‘Party X’ could promote the reintroduction of the Coming to the Nuisance doctrine for use as an absolute in neighbourhood disputes.

The Coming to the Nuisance Doctrine is an enormously powerful principle protecting pre-existing rights, and quickly establishing rights in situations of apparent neighbourhood conflict. Move next door to a clean and well-run chicken farm or pig or mushroom farm for example (even if the place has been re-zoned since the farm opened), and under this doctrine you have no right to have them thrown out. 

Move next door to a speedway track, for another well-known example, and you have no right to complain about excessive noise. 

I assume you see the difference with how things presently work. If the farm or the speedway or whatever it is was there before you chose to buy next door, then that’s probably why you got your land so cheap.

And if the track (or farm) is well and properly run, then those pre-existing rights should and can be protected in law; and if they were you then have a strong incentive to either make a more careful choice in future (whereas now the incentive is there to move in and force them out), or to buy out the speedway or the farm, or buy easements or covenants over the neighbouring land. 

Either way, when the coercion is removed from all parties and bargaining is all that’s allowed, the tendency is for property to end up in its highest value use. This is not something planners can ever claim to have achieved. 

Furthermore, what this principle will demonstrate over long use is that zoning is not only coercive, but unnecessary. It will on its own provide a daily demonstration that sound property rights work for everybody except the grey ones and the looters.

Not only that, at the same time as undercutting the zoning law established under the RMA, if  introduced it would have ensured that if neighbours of Western Springs speedway weren’t prepared to stump up enough for the bikes and midget cars to go elsewhere, then the noise of fast cars and motorbikes would have continue to annoy the luvvies for some years to come. You can’t do better than that.

Coming To The Nuisance then is THE pre-eminent antidote to zoning, the best way to pull the planners' teeth, and the single-best way to silence the NIMBYs who move in next to a circus and then complain to the grey ones about the noisy tent next door.

And what could be better than that?


So you can see the power that this measure would have, and I hope I've shown that it should be politically possible. 

I hope too that I've given you a few other ideas, like how to solve the problem of dirty dairying .... and we will, later in this series.

In the meantime, you can tune in again tomorrow to discover a very simple way to use pressure to solve the housing crisis to solve the problem of property rights in land ...

* * * * *

INTRO: 'The Time is Ripe for a 'Party X' for the Environment
PART ONE: Eco un-taxes 
THE SERIES IS BASED ON THE PRINCIPLE DEVELOPED HERE: 'Transitions to Freedom: Shall We Kill Them in Their Beds?'


  1. This is not as good as the previous suggestion.
    The obvious problem with "Coming To The Nuisance", and why it is unlikely to be an "enormously powerful principle" is clearly illustrated by the story of the king and the chickens itself.

  2. Labour specifically rejected the idea of recognising property rights in the NZBORA in Palmer's time There would be significant bureaucratic resistance to either the NZBORA approach or the RMA option. I strongly doubt whether Labour would sign up to the idea and it would require a radicalism from National that they generally don't display. Interestingly there was a 'regulatory takings' clause in the old Town and Country Planning Act 1977. This was raised with National - they resisted (could not get Dunne on board (had been Palmers Associate Envron. minister), then Nick Smith took over and National preferred to do a deal with the Maori Party. Had ACT had an additional MP more would have been done.

    Whilst I LOVE the common law I would be careful; its development in property law (real property) and the tort of nuisance is much withered here and affected by statutory interventions in the anglosphere.


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