Redevelopment Rewind: a Look at the Current Status of Public and Private Brownfields Redevelopment
by Mark E. Elliott* and Amy E. Gaylord**
In addition to being eyesores, contaminated properties are commonly believed to contribute to an increase in crime and the downfall of neighborhoods, often accompanied by the relocation of business and residential communities. Local agencies and communities have a strong interest in facilitating the redevelopment of Brownfields1 to prevent the loss of business and the associated tax revenues. And blighted neighborhoods, often located in urban areas, can be prime locations for "infill development" as both commercial and residential developers seek proximity to downtown areas. But despite these very real incentives for Brownfields development, there is a natural tension between state and federal environmental laws designed to impose liability on responsible parties for contamination, and the desire of companies, communities and investors to take on the risk of redeveloping Brownfields.
Environmental laws typically seek to ensure innocent parties do not bear the burden of contamination for cleanup of contaminated properties, and therefore first and foremost impose liability on the contaminating party. This usually means the owners and/or operators at the time of a release of contamination are primarily responsible for cleanup.2 However, in an effort to avoid placing the burden of remediation on the public at large, these laws also usually extend cleanup liability to current owners. As a result, when the contaminating party is gone or recalcitrant, the current property owner can be left holding the bag. This possibility makes buying or investing in a Brownfield a risky proposition.