Conditional Innocence and the Myth of Consent: The Subtle Coercion of CERCLA's Contiguous Property Owner Protection.

• Author: Hockstad, Trayce

INTRODUCTION

The roots of environmental regulation of private property for the benefit of the public began, for the Western world, more than 400 years ago in the form of personal litigation. (1) It was the lone plaintiff who, through particular use of the nuisance suit, began to expand the scope of available legal remedies for ecological grievances--sometimes in defiance of procedural formalities of the English feudal court system. (2) For centuries, common law courts remained the chief legal avenue for resolving environmental disputes between private parties. (3) American courts eventually labeled these suits as either nuisance (4) or trespass actions. (5) With the exception of a rare quarrel over interstate pollution, (6) the burden of pursuing environmental regulation was largely left to the individual disgruntled plaintiff and the extent of his annoyance with his neighbor.

At the close of the nineteenth century, however, political and social policies began to influence the course of environmental litigation. Judicial opinions began to engage in equitable balancing between environmental and economic concerns, with a heavy bias in favor of promoting a profitable national market. (7) Instead of following the traditional rule of granting injunctions for established nuisance activities, (8) courts weighed the plaintiffs' property interests against the social utility of the defendant's action. (9) This new method of analysis for common law nuisance actions, combined with the public health crises of the Industrial Revolution, released a wave of federal regulatory legislation across the United States. (10) The first decade of the twentieth century saw the introduction of laws aimed as equally at regulating trade as guarding public health, such as the Lacey Act of 1900, (11) the Pure Food and Drug Act of 1906, (12) and the Insecticide Act of 1910. (13) But after World War II, Congress began to target private industries solely on the basis of environmental concerns, specifically for pollution control. (14) A fear that the world had become a nuclear test zone filled with untold amounts of seeping radioactive waste fanned the flame of federal regulatory legislation. (15)

In the late 1960s and early 1970s, the modem notion of environmental regulation began to take shape. New statutes like the National Environmental Policy Act, (16) Endangered Species Act, (17) Clean Air (18) and Clean Water (19) Amendments, Toxic Substances Control Act, (20) and Resource Conservation and Recovery Act ("RCRA") (21) established clear precautionary measures for protection of natural resources and public health. But these acts did little to address the thousands of sites, scattered across the United States, already filled with chemical byproducts from years of experimental technological testing. In response to a growing national concern after events like the Love Canal disaster, (22) Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") in 1980. (23)

Since its adoption, CERCLA has been the subject of substantial, ongoing litigation. The original legislative purpose of CERCLA was to empower the government to apportion liability among parties responsible for the thousands of abandoned landfills that threatened public health and safety. (24) Perhaps the most controversial aspect of CERCLA is its imposition of strict liability on a wide range of individuals who previously owned or currently own polluted land. (25) The broad sweep of this liability has been tempered, in some respects, by subsequent additions of affirmative defenses. While the statute imposes strict liability on those who have caused or may have caused the release of hazardous waste into the environment, it also correctly exempts otherwise innocent contiguous landowners whose property has become contaminated by migrating pollution. (26) This exemption is conditioned, however, on the property owner's guarantee of "full cooperation, assistance, and access" to persons conducting response actions on site for the duration of the operation. (27) Refusal to grant access to government agents necessarily results in the loss of the affirmative defense and the possibility of CERCLA liability for any cleanup costs or damages from the hazardous waste. (28)

This Article examines the relationship between the conditional status of innocence CERCLA offers under the contiguous property owner provision and the Fifth Amendment right of landowners to receive just compensation for governmental taking of private property. It specifically argues that, under current law, innocent landowners pay a high price for release from CERCLA liability. Access to property of contiguous landowners is generally obtained through the consent of the owner. But while consenting to government access for response actions preserves the shield to CERCLA liability, it also often prevents the landowner from successfully bringing a suit for just compensation if the use and enjoyment of his or her land arc destroyed by the government's continued access. (29) In other words, a property owner whose land is contaminated through no personal fault (and potentially through the fault of the government itself) may be forced to choose between liability for the hazardous waste under CERCLA and the loss of the right to exclusive control of the land, even if the owner is not compensated for the government's occupation of the property. Consequently, CERCLA's contiguous property owner defense requires innocent landowners to surrender their constitutional rights to bring Fifth Amendment compensation claims against the United States. The conditions of this affirmative defense create a subtle coercion that may technically survive judicial scrutiny but contradicts the public policies of both waivers of constitutional rights and the unconstitutional conditions doctrine. (30)

The easiest solution to this problem is to amend CERCLA's requirements for the contiguous property owner defense to exclude the grant of full, perpetual access to contaminated property. It is unlikely that many landowners will refuse to cooperate with the Environmental Protection Agency's ("EPA's") remedial procedures, even without compensation, but removing the coercive conditions of the statute would allow the statutory defense to serve its intended purpose of protecting innocent property holders without compelling them to surrender ownership rights. Owners would be free to entertain other options for remedial action, negotiate access agreements with the government, and perhaps most importantly--accurately assess the cost of unrestricted government access as cleanup efforts perpetuate. (31)

1. CERCLA's COERCIVE REPUTATION: THE HUNT FOR PRPS

   1. From CERCLA to Super fund

      Almost as soon as CERCLA was adopted, legislators realized they had underestimated the problem posed by hazardous waste sites across the nation. The initial scope of the statute was a five-year, $1.6 billion program to address "orphan" dump sites--which, by EPA estimates in 1980, affected one in six groundwater systems serving less than ten thousand persons and one of every three larger systems. (32) By 1985, however, some estimates put the number of abandoned hazardous waste sites in the United States as high as 20,000. (33) The House Committee on Energy and Commerce described the issue as follows:

      [In 1980,] most believed that cleaning up a site was relatively inexpensive and involved removing containers or scraping a few inches of soil off the ground.... Today, five years later, our understanding of the problem posed by abandoned hazardous chemicals is entirely different. The [EPA] Office of Technology Assessment now estimates there may be as many as 10,000 Superfund sites across the Nation, or an average of 23 sites per Congressional district.... We now understand that a cleanup frequently goes far beyond simple removal of barrels. It often involves years of pumping contaminated water from aquifers. (34) In light of the discovery of the magnitude of hazardous waste sites and the expense of remedial action. Congress enacted the Superfund Amendments and Reauthorization Act ("SARA") of 1986. (35) SARA extended certain CERCLA initiatives and authorized extra funding over the next eight years. (36) Furthermore, SARA established the right of potentially responsible parties ("PRP"s) to seek contribution from other PRPs, thus opening the door for third party interpleading. (37) Just as the scope and term of CERCLA's applicability expanded to match the unanticipated gravity of the nation's pollution situation, so too the nature of CERCLA liability began to expand.

      CERCLA was a departure from the traditional model of twentieth-century federal regulatory legislation in at least one crucial way: it was not truly regulatory. Instead of establishing a supervisory program, Congress created a framework for imposing strict liability for past and present hazardous substance releases. (38) The ultimate goal of CERCLA was to promote expedient and efficient remediation of polluted sites. (39) Accordingly, the statute provided EPA with a range of options to motivate response efforts. For instance, EPA may issue an administrative order to direct a responsible party to abate the danger of a hazardous substance release, (40) obtain injunctive relief to order the abatement, or undertake the abatement itself using Supcrfund resources and then sue the responsible party for reimbursement. (41) The federal government is also permitted to delegate cleanup decisions to the states or to impose state standards for remedial procedures when "applicable" or "relevant and appropriate." (42) But federal to state delegation rarely happened in the early years of CERCLA enforcement, (43) perhaps because of the all-encompassing nature of the statute's liability scheme.

      There arc four categories of PRPs contemplated under CERCLA: (1) current owners and operators of sites responsible for...