Carolyn Miller · August 2014
82 GEO. WASH. L. REV. 1267 (2014)
In recent years, the Environmental Protection Agency (“EPA”) has recognized a unique opportunity to solve two of the nation’s environmental problems—the need for clean, renewable energy and the need to remediate contaminated sites—with one solution: the development of renewable energy on contaminated sites. Although EPA has provided databases of sites that are well-suited for renewable energy, with electrical infrastructure and extensive land, few renewable energy developers have chosen to build projects on these hazardous sites, commonly called Superfund sites.
Developers’ concerns stem from the failure of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) to define the liability of a lessee for preexisting contamination, as well as the failure of the Small Business Liability Relief and Brownfields Revitalization Act (“Brownfields Amendments”) to extend a defense against existing liabilities to developers who seek to lease Superfund sites. Notably, this concern is specific to renewable energy developers, who prefer to lease, rather than purchase, sites in order to align the lease term with government incentives and the revenue stream from the sale of power. Although EPA has committed to using its discretion in applying a federal purchaser defense to lessees in its administrative enforcement, courts must still consider the plain language of CERCLA, as well as controlling case law, which both lack defenses for circumstances in which a third party brings a claim against a lessee.
This Note argues that Congress should pass an amendment to CERCLA that creates a lessee defense that is modeled after California’s lessee defense. By providing a defense against liability for preexisting contamination, renewable energy developers will be more likely to lease contaminated sites, and in turn, their renewable energy developments can provide both a source of energy and funding for the cleanup of those sites.
