Solo and Small Firm

The Practitioner VOLUME 29, ISSUE 2, SUMMER 2023


Megan Meadows and Debbie Mantalis*

There are things in life that are, by their very nature, stressful. Sometimes the source of that stress makes sense, like when someone needs a lawyer. Hiring legal counsel is not typically hyped as a fun time for all. The stress we see our clients under when navigating environmental laws certainly makes sense. Environmental laws are often strict liability with very few defenses that are difficult, at best, to qualify for. There are important policy reasons for both. Back when wearing seat belts was optional, there were also very few environmental regulations on the books. The result was that companies were able to pollute without real consequence, leaving the rest of us to suffer the long-term consequences of the unfettered growth of industry. Decades later, the law places responsibility on a broad swath of Potentially Responsible Parties (PRPs). So, if you own, or rent contaminated property (whether you caused the problem or not), it’s nearly impossible to present a defense to that liability. There are ways to limit your liability, and to shift the ultimate costs to the party that did cause the problem, but those are fraught with their own difficulties. With those generalities in mind, this article will focus on a defense called the "Innocent Landowner Defense."

The stress we mentioned above, needing a lawyer, can be compounded when faced with buying property you learn is contaminated, or inheriting contaminated property after the death of a family member. As the new owner of contaminated property, the odds are pretty good that you will be on the hook for costs associated with the cleanup of the property under federal and state environmental laws.1 However, if you satisfy the requirements of the innocent landowner’s defense, your responsibility for such costs will be absolved.2

The innocent landowner exemption is a defense to liability available in limited circumstances. The defense shields landowners who "innocently and in good faith, purchase property without knowing that a predecessor in the chain of title had allowed hazardous substances to be disposed on the property."3 There are in fact times when what you don’t know can serve as a viable legal defense, i.e., this very narrow exception in environmental law. However, satisfying the requirements of the defense are so difficult that only very few have successfully done so.

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