Brownfields Archives

The Supreme Court's recent decision to end the "substantially advances a legitimate state interest" takings test in Lingle v. Chevron is already making its way into the circuits. A takings claim rested among a host of other claims brought before the 9th Circuit by a game ranch. (For the Congressional Budget Office's explanation of what a takings is, see here, and how the courts evaluate takings claims, see here.)

The ranch was affected by Montana voter initiative I-143, which passed in November of 2000. The initiative outlawed fee hunting on existing game ranches and prevented the creation of future game ranches. (Game ranches entail the raising of "alternative livestock" usually elk, deer, or exotic game on fenced-in properties. This should not be confused with ranching for wildlife where landowners improve habitat in return for tags they can sell to hunters for pursuing wild game on their property. For more on ranching for wildlife, as opposed to game ranching, see here.) The 9th Circuit refused to hear a substantially affects theory of takings in light of Lingle and left a deprivation of all economic value theory of takings (which remains valid under current Supreme Court precedent) to be decided once the state courts have decided whether a takings has occurred under Montana law.

Around the environmental horn in other cases this week:

On Monday, in Cooper Industries v. Aviall Services the Supreme Court, by a vote of 7-2, held that the Comprehensive Emergency Response, Cleanup, and Liability Act (CERCLA) – affectionately known as “Superfund” – does not authorize private parties who have not been subject to suit under the statute to file contribution suits against other potentially responsible parties for cleanup and other response costs. In other words, if a company voluntarily engages in the cleanup of a hazardous waste site, it cannot seek contribution from other companies that may have also contributed to the site’s contamination unless the initial company has been sued by the government under CERCLA. This decision is good law, but bad policy.

Where is there to build a new golf course in heavily urbanized areas, like northern New Jersey? How about a former waste site? Tuesday’s Wall Street Journal featured a story on the Liberty National Golf Course, a $129 million project underway to create a premier golf course on a fomer waste site along the New York Harbor. While more expensive than most, this project is hardly unique. Over the past 40 years, the WSJ reports, over 70 golf courses have been built on former waste sites nationwide. Golf courses are well suited for former waste sites because, unlike office buildings or other structures, they don’t place much weight on the ground, which can essentially squeeze contaminants out of the soil – contaminants that would otherwise harmlessly stay put. This is simply another good example of why the sort of remediation necessary at a given waste site is very much a factor of intended future uses – and any policy that fails to take this into account wastes money, increases environmental risks, or both.