CERCLA, Institutional Controls, and the Legacy of Urban Industrial Use

Abstract

Population growth over the last few decades in cities around the country has created high demand for vacant urban land. But much of this now desirable property remains contaminated from prior uses. An increasingly popular option for managing the contamination left at urban sites is the use of institutional controls to limit use of the property in line with the degree of cleanup accomplished through the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) or other remediation programs. Through these restrictions, institutional controls allow for both less than complete remediation and faster return of land to productive use. At the same time, however, recent amendments to CERCLA have limited the potential for review of or liability with regard to institutional controls. And there appears to be widespread agreement that at least some institutional controls will fail to provide their intended protections. Based on the apparent lack of remedy available if these controls fail to operate as anticipated, this Article concludes that there is a need for judicial interpretation and/or congressional amendment of CERCLA's liability and timing of review provisions to better address institutional controls. In the meantime, planners would be wise to use caution in integrating institutional controls into designs for urban renewal; otherwise, new and beneficial patterns of urban growth may be derailed by future failures of those controls.

Keywords: remediation, CERCLA, green building, sustainable development, institutional controls