A decade ago Idaho farm groups were pushing takings legislation that would have required state regulators to reimburse farmers when their regulations forced them to give up value in their operations.
If a rule, for instance, limited them to 2,000 head of cattle in an area where they had previously had 2,500, the state would have to make up the difference. Critics argued at the time that since the state could not afford the regulatory cost they simply would allow the 2,500 cattle even if there were water quality, air quality or simply smell issues.
At the same time the same farm groups were pushing what is now called “right to farm” laws which prevented neighbors of farming operations to file nuisance suits if they believed their own property rights were threatened by their neighbor’s operations. These two initiatives, aimed at preventing limits on traditional agricultural practices, presented an ideological conflict for liberty-loving Idahoans.
Most agreed with the takings legislation, which, by the way, never passed. But they never fought as hard against the “right to farm” laws, which have gone into effect. As often is the case, traditional values trumped strict ideology.
The principle that a neighbor can file a nuisance suit when his health or safety on his own property is threatened by others is more than 400 years old and at the heart of property rights law internationally. Most environmental protection law is based on this concept.
Part of the reason that legislation limiting nuisances suits has been popular is that traditional natural resource practices are valued in our society. And the tradeoff between reasonable regulation and property rights to replace individual suits has been accepted as the nuisances have become more complex and come from often thousands of miles away.
It is in this light that conservative commentator Jonathan H. Adler, a professor at the Case Western Reserve University School of Law talks about climate change. He writings in a guest opinion posted on The Atlantic , that he now is convinced that the climate is changing and that human activity is at least partially responsible.
He is arguing that conservatives like himself who believe that climate change is a nuisance rather than a catastrophe should not ignore those places where it will have impacts, like Bangladesh. There large portions of the country may be inundated if the oceans rise within the levels predicted in the next century.
He is asking that conservatives consider the same legal concepts that requires forest owners to pay their neighbors when they start a fire on their property and it spreads to the other’s forest. Alder makes a lot of other arguments designed to offer a conservative alternative to addressing climate change.
But like the neighbors of farming operations in Idaho, his ideologically based views are, for the near future, fighting up stream against tradition.