CERCLA’s retroactive strict liability rewired how real estate deals treat land
Evidence
What made strict, joint and several liability so transformative of the law, however, was its potential scope of application. CERCLA identified as potentially responsible parties not only the current owners and operators of the sites where the hazardous substances were located and those who transported the substances to the site. It also extended liability to (1) all past owners and operators at the time of disposal and (2) any entity that arranged for the transportation or disposal of discarded hazardous substances. … The category of past owners and operators extended the scope of liability back in time to prior landowners who might have had no active involvement in the waste disposal activity beyond passive ownership of the property. The impact of such a temporal expansion of liability on a strict, joint and several basis was tremendous. Not only did it retrospectively sweep in persons and entities who had long assumed that their responsibilities had ended with formal relinquishment of land ownership, but it also sent a strong signal throughout the real estate and banking industry regarding the implications of the ownership of land. The result has been that few purchasers of real estate now consider the transaction without detailed inquiries into the past uses of the property, including the possible presence of hazardous substances. — Richard J. Lazarus, The Making of Environmental Law, 487
Categorization
- ADDENDUM: Directly relevant to ‘On Trees as Infrastructure’: the argument that land carries invisible legacies of past use/pollution that owners cannot shake parallels how tree grafting and root systems bind present owners to prior ecological acts — liability as a form of temporal rootedness.
- XREF: Connects to ‘grafting as narrative metaphor’ and to land-as-carrier in eco-justice course frames. — connects to: Strict 1970s waste-disposal laws perversely multiplied abandoned hazardous-waste sites — Richard J. Lazarus, The Making of Environmental Law, 484; CERCLA liability reached nearly every waste generator including governments and universities — Richard J. Lazarus, The Making of Environmental Law, 490