USA – Response to Case 2008
1. What kind of regulation or case law exists in the United States when a polluted site must be decontaminated, and the owner and sole party responsible for the contamination is bankrupt and has no assets which can be used to clean up the site?
This problem can be addressed in two ways. First, it can be addressed through the Comprehensive Environmental response, Compensation and Liability Act (CERCLA), or as it is commonly known, Superfund. The party who placed contaminated substances on a site is responsible, and this responsibility continues after the property is sold. The current owner of property is also liable except is limited circumstances not relevant to this case. Liability is strict, and joint and several except in very limited circumstances. There is no need to show that the deposit or discharge of a hazardous substance caused harm. A person is liable simply for ”releasing” the substance. However, the problem here is the tight liability net of Superfund is useless. The statute was enacted to address this specific problem. The federal government may expend money to take both short term (removal) and long term clean up actions (remediation). It may then sue the responsible party but if the party is bankrupt or no longer in existence, the site will be cleaned up.
Superfund imposes two conditions for the expenditure of federal monies. First, the site must be placed on the National Priority List. Second, the removal and remediation actions must be consistent with the National Contingency Plan. Superfund was originally funded through a tax on chemical feedstocks. Unfortunately, the tax expired in 1995, and the political gridlock that has characterized the United States for at least two decades has prevented its reauthorization. Congress has kept the program alive through annual appropriations. The result is a shrinking program that is starved for funds as the demand for clean up exceeds the available federal monies.
The site in question would most likely be addressed through a special program that grew out of the Superfund. The property could be characterized as a “Brownfield” site, although the fact pattern states that site is that is heavily polluted and thus may preclude the use of this program. The program is designed for lightly rather than heavily contaminated property. The Brownfields program creates incentives for developers top purchase abandoned, contaminated industrial property for redevelopment. It does this in two primary ways. First, the Small Business Liability relief Act and Brownfields Revitalization Act of 2002, an amendment to CERCLA, exempts bone fide purchasers of the property from full Superfund liability described above. There eight conditions for qualification as a bone fide purchaser including that the person exercises “appropriate care” with respect to hazardous substances.
The second way in which the Brownfields program creates incentives to reuse property is to remove the site for the National Priority list. This, in effect, turns the fate of the site to the 50 federal states. Many states, especially in the de-industrialized “Rust Belt” have enacted Brownfield statues. These statutes allow the developer to voluntarily clean up the site at a level that is less than that required by Superfund. To summarize a very complicated and contested subject, Superfund requires a case by case determination about the clean up level and the degree of risk reduction. In contrast, the Brownfields program allows the developer to obtain relatively quick approval of a clean up program. There are other aspects to the program, but, with some dissent, the program has been regarded a success.
2. Is the new plan or development and environmental impact assessment an easy or difficult process. Does it require a lot of time? Is it expensive?
The answers to these questions are generally yes. The major exception is Brownfields approval as states and cities have developed “fast track” approval procedures. Any large project that requires plan and zoning changes will invite public participation which lengthens the approval process and makes it costly for all parties.
A few states require full environmental assessments for land use decisions. In these states, the process can be long and costly. The basic reason is that any stage of the process can be challenged by a third party. Thus, both the decision not to prepare and environmental impact assessment and the prepared assessment can be challenged. States such as California and New York have a well-developed case law on what an “adequate” assessment must contain. Thus, the assessment must try and anticipate all the challenges and make sure that the assessment addresses them.
3. A. Who has standing to bring challenges to zoning decisions?
The answer to this question varies among the federal states. The basic standard, generally codified, is that the person must be “aggrieved.” Standing is generally limited to those in close proximity to the subject of the zoning. Plaintiffs who live near the subject property are often accorded a presumption that the new development will adversely impact them. However, some states require more specific proof, and the more distant the plaintiff’s property, the more difficult it is to meet this standard. There are a few categorical exclusions: competitors generally do not have standing to contest a zoning decision because it will potentially result in a loss of income. Other states have more restrictive standards based on the law of standing to sue for a public nuisance. The challenger must show that he or she was injured and that the injury is different in kind rather than degree from that suffered by the general public.
Other states have a more liberal standard. Either tax payers or a member of the general public may sue. The federal constitutional law of standing requires proof of injury in fact, but state courts, with one exception, have not imported this standard into state constitutional law. These liberal standards allow non-governmental organizations (NGOs) to sue. NGOs may also sue to represent a group of neighbors whose property will suffer nuisance-like impacts from the new development.
B. At what stage of the procedures can those challenges be brought?
The answer is that a challenger must exhaust his or her administrative and legislative remedies. The doctrine of exhaustion of administrative remedies is premised on the constitutional doctrine of separation of powers. Both administrative and legislative bodies must be allowed to exercise the full measure of the legal discretion before judicial review. For legislative decisions, as most rezonings are classified, this means that the challenger must seek a determination from the local legislative body with the power to make a final decision.
C. What is the general scope of judicial review?
State constitutional law requires that legislative decisions carry a presumption of validity. Thus, the challenger carries a high burden of persuasion because a court will validate a land use decision if its rationale is fairly debatable. A few courts have reclassified rezonings as administrative decisions and shifted the burden of justification to city. This is often done with the decision is inconsistent with an adopted a plan. This said, courts have probed the merits of a decision. The two most common cases are inconsistency with an adopted plan and the adoption of a zoning classification that is substantially at variance with the surrounding property. When a rezoning allows a use that is substantially different from the surrounding land with an adequate justification, a court can invalidate it as “spot zoning.”
Courts also apply equal protection review. For example, if the city has allowed intensive development of an area and then decides to abandon this policy, a court may decide that it is too late. Once most properties in an area have been dedicated to intensive development, it is unfair (a violation of equal protection) to deny the remaining undeveloped or low density properties the right to develop to a similar level of density.
D. What remedies can be ordered?
Generally, a court will simply enjoin the decision as invalid. Thus, it is remanded to the local government which is free to make another, similar decision. The problem is that cities can “game” the system. They can enact a new ordinance almost as restrictive as the previous one. Courts have occasionally granted more specific relief by ordering the city to adopt a zoning ordinance that allows some level of development or the court will grant the developer specific relief. It will order the city to allow the project.
Dan Tarlock, USA