I’m worried! I’m sympathising with organic farmers over a land use conflict!

Writing this blog of sound mind and sober disposition, I still have considerable sympathy with two organic farmers over a land use conflict they have with the neighbouring gun range.

blackstone nuisance

Local land use regulations allows a gun club to set up 600 m away with competitive shooting days all day for 88 days a year. That is a voluntary self restraint. They could hold shooting competitions every day of the year. The local land use regulations allow the use of guns on rural land. The gun club used this absence of a prohibition on the use of guns in the frequency of use to set up a gun range to fire guns all day long on rural land.

Now here is the rub. There something wrong with the concept of quiet enjoyment of your land if a neighbour can fire off a large amount of noises continuously. The occasional noise, the occasional gunshot yes, but all day? I live near the airport, but I knew it was there when we bought the property and the lands  was a little cheaper because of that.

The organic farmers are unusually pristine and prissy about what they want by neighbours to protect the sacredness of their more expensive snob food. I’m not too sure whether they would want to grant their neighbours an equal right to unusual land uses such as opening a gun range. That said, the organic farmers do have a point about a very noisy neighbouring land use that can be heard some distance away.

The organic farmers, of course, could have negotiated with their neighbours for covenants to restrict land use that undermine there are unusually pristine requirements for quiet enjoyment of their land and their neighbours land too. Easy to do when the land is first unused, but once economic activity accumulates, not so easy in terms of  transaction costs and hold-outs.

HT: Environmental Law 101 | Hoover Institution.

Environmental Law 101 | Richard Epstein

Back in 1999, Richard Epstein wrote a great summary of what should be environmental law from an old common law perspective, from a classical liberal perspective, and a pragmatic economic libertarian perspective:

Stated bluntly, nothing in the theory of property rights says that my property is sacred while everybody else’s property is profane. That single constraint of parity among owners should lead every owner to think hard…

This recognition of the noxious uses of private property is the source of the common law of nuisance.

That law dates from medieval times, certainly by 1215, at the time of the Magna Carta. It is no new socialist or environmentalist creation for the twentieth century.

When the common law of nuisance restricts the noxious use of property, it benefits not only immediate neighbours but the larger community. If I enjoin pollution created by my neighbour, others will share in the reduction of pollution.

Simply by using private actions, we have built a system for environmental protection that goes a long way toward stopping the worst forms of pollution.

Epstein does not stop there. He recognises as he should that the common law of nuisance is not enough to stop all problems of pollution:

Yet before we leap for joy, we must recognize that private actions are not universally effective in curbing nuisances.

Sometimes pollution is widely diffused—waste can come from many tailpipes, not just one—so that no one can tell exactly whose pollution is causing what damage to which individuals.

Under those circumstances, private enforcement of nuisance law can no longer control pollution…

We do not change the substantive standards of right and wrong, but we do use state regulation to fill in the gaps in private enforcement.

Epstein then makes a plea for private covenants to deal with a great deal of the social frictions that arise in the suburbs:

But often when individuals worry about their local environments, they’re not particularly happy to treat the nuisance law, however enforced, as the upper bound of their personal protection.

They want (especially as their wealth increases) more by way of aesthetics and open spaces. Fortunately, our legal system has a way to accommodate these newer demands.

One of our most important land-use control devices is the system of covenants by which all the holders of neighbouring lands agree among themselves and for their successors in title

Covenants might work in Greenfields developments in modern cities. But they really doesn’t work in managing land use conflicts in the inner city where regulation is been used to substitute the covenants for many decades.

Epstein’s ideal for modern environmental law is:

In sum, the system of public and private enforcement of nuisances and public and private purchases of environmentally sensitive sites is the way that sound environmental policy should proceed.

via Environmental Law 101 | Hoover Institution.

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