Redeveloping Florida: United States Supreme Court says no time is better than now.

• Author: Close, Jeffery C.

The toll development has taken on Florida is no secret. In the past half-century alone, the state's population has grown from around 2.5 million to just over 18 million, and by the turn of the millennium, it was estimated that our "greenfields"--open, undeveloped areas such as farmland and wilderness--were being lost to new developments at a rate of over 870 acres per day. Today, over half of the everglades and even more of the state's farmland have been developed, and while this type of habitat destruction would be devastating in many areas of the world, it has proven particularly menacing to the intricacies of Florida's unique and largely aquatic ecosystem.

Clearly, development's more indirect impacts are likely to remain among Florida's most pressing environmental challenges for some time; however, some recent numbers are suggesting that a slowdown in the unprecedented population influx of the past few decades might just be offering lawmakers and citizens alike a welcome opportunity to rethink and reshape the unrepressed trends that have proven so destructive. Ironically enough, a recent United States Supreme Court decision in United States v. Atlantic Research, 127 S. Ct. 2331 (2007), seems to have simultaneously created some powerful incentives for the owners of contaminated properties to contribute to these efforts (not to mention their own financial and legal interests) by cleaning up these sites and either reutilizing them or selling them to someone who will.

This article seeks to explain those incentives, ultimately encouraging and promoting the cleanup and either redevelopment or reutilization of contaminated properties. It first gives an overview of the law applicable to cleanups and the allocation of related costs. It then explains a recent development in this area and why that development should lead to more cleanups and reutilization in Florida.

An Overview of the Applicable Law

For over a century and a half, the disposal and management of hazardous wastes went completely unregulated. Perhaps more importantly, their potential for harm went completely unrealized. As a result, the issue of ground contamination in the United States slowly degenerated into a bona fide health crisis, which, by the late 1970's, had manifested itself in a series of very public, very disturbing images that few people, if any, could ever forget. (1) In response, Congress enacted the Comprehensive Emergency Response, Compensation, and Liability Act of 1980 (CERCLA). (2) CERCLA is a long, thorny statute that seeks to ensure the remediation of ground contamination and promote the recovery of cleanup costs by strictly and retroactively imposing joint and several liability upon all who are deemed "potentially responsible" for contamination at a site. This includes current owners and operators, owners and operators at the time of a disposal, parties who "arranged" for contaminants to be sent to a site, and parties who transported contaminants to a site. (3) Section 107 provides a claim under which the government and certain private parties can recover costs incurred in conducting a cleanup, while [section] 113 provides a claim through which parties who have been held liable can seek contribution from others who may be responsible.

For years, the universal understanding among the lower courts was that, because of their joint and several nature, "cost recovery" claims under [section] 107 were reserved for so-called "innocent" parties, and that those parties who qualified as "potentially responsible"--particularly the ones who did so solely by virtue of their current ownership of a site--were limited to claims for...