Legislative Innovation in State Brownfields Redevelopment Programs

Abstract

States throughout the country have created legislation and administrative programs to encourage the cleanup and redevelopment of urban brownfield land. In part, these efforts respond to the federal government's recent focus on the issue. However, leadership in method and approach has come, not from the federal government, but from the states. States have approached the cleanup and redevelopment of contaminated land in a variety of ways, some choosing to create voluntary cleanup programs, others imposing mandatory cleanup programs, and still others using combinations of these approaches. Regardless of method, however, the push to clean brownfield land is grounded in a widespread desire to return that land to productive use, and also in the more fundamental desire to repair the environment in which we live and work.

This Article examines state legislative and administrative efforts to redevelop urban brownfield land by reducing the environmental barriers to redevelopment. I have argued in the past that, despite the best efforts and best intentions of citizens, legislators, and bureaucrats, real success will elude state brownfields programs, in part, because they tend to ignore the non-environmental factors that present significant barriers to redevelopment, especially in urban areas. Here, I argue that some of the legislative innovations in those same state brownfields programs, although created to facilitate the programs' goals, may be risky or unwise without some alterations. This Article analyzes two important innovations in states' efforts to encourage brownfields redevelopment: the application of cleanup standards determined by the intended future use of the land, and the use of licensed or certified environmental professionals to oversee and certify the cleanup of brownfield sites. These two innovations illustrate instances where legislatures or state administrative agencies attempted to streamline a process to facilitate the program's or legislation's goal of reducing the environmental barriers to brownfields redevelopment, thus facilitating cleanup and redevelopment.

Keywords: environmental law, brownfields, legislative innovation, state law