1999 CPEO Brownfields List Archive

From: Emery Graham <"egraham"@ci.wilmington.de.us>
Date: Fri, 21 May 1999 09:32:08 -0700 (PDT)
Reply: cpeo-brownfields
Subject: Re: Definition, VCPs, and Brownfields -Reply

In the world of international trade and the World Trade Organizations, aren't
nations, states, and localities put on a level playing field in the matter of
their legislating government actions that violate the trade agreements and
treaties of the United States? It seems that local govenments may have as
good a
shot at determining their fate as any nation given the changes that are taking
place. It seems that there's some pending confusion re where legitimacy
lies and
the processes for signaling its presence.

If Charles Patrizia is asking, in other than a rhetorical way, about the
source of
legitimacy and authority at the local government level; it still emanates
from the
State that has every power but those proscribed by the Federal
constitution. Is
development a local phenomena? I think it is. Even exurban, suburban, and
areas can develop intensely, but they have to contend with the coaltions of
that seek other alternatives and are willing to exercise countervailing
power to
enforce their will. As urban areas become increasingly controlled by people of
color, the locus of authority and power to govern, to exercise sovereignty,
be challenged more and more. Questions of power are at the heart of the
brownfields debate.

The history of the American court system is as much a history of policy
enforcement as anything else. It's interesting to note that lawyers are the
element, or currency, when it comes to effectively seeking a decision from a
decision making body. Lest we forget that for  African Americans, and most
skinned minorities, the courts have documented periods of bias in their
decisioning with the judges own words as evidence,e.g., " there's no
promise that
a white man makes to a black man that he is bound to keep," Judge Taney
wrote, or
something to that effect. Try the book, "White By Law," by Lopez, for a
corroborating view of the immigration law dilemma.  Cynical?

As for the law not saying that "potentially responsible parties" are liable
the hazardous waste site; who does the law point out is liable, no one?
Brownfields will not be resolved until the aggreived parties master the
of power that govern the flows of goods and services that support their
wishes. I
think that what we see emerging is the beginning of an internationally
unifying challenge that, unless met, will frame the demise of capitalism and
democracy as we have imagined it.



> Emery's view is a little too cynical. even for an old Washington hand like
> me.   I think the underlying issues are close to the core of many ideas
> that we have discussed before in this group:
> 1.  What ought to be the role/authority of local decisionmakers as
> opposed to federal or state decisionmakers?
> 2.  Who speaks for the locality -- local government? Community groups?
> 3.  Should the closest geographic interest trump larger regional interests
> (e.g., the issue of disparate environmental impacts)?
> 4.  What is the balance between placing economic growth in particular
> areas and allowing communities choose growth strategies (e.g, much of
> the brownfields analysis looks to reusing properties in urban areas,
> keeping growth in those areas, rather than allowing growth in exurban
> areas with the accompanying "sprawl".  Should state or federal
> decisionmakers have the authority to prevent  exurban communities from
> seeking growth at the expense of existing urban cores?  Why?)?
> 5.  I don't know that local decisionmakers are more subject to influence.
> Anyone reading the press should know that federal decisionmakers are
> also subject to all kinds of influence and pressure.  To put it in a
> framework, any lawyer seeking a decision from an agency actor -- local,
> state or federal, should understand one key difference between
> agencies and courts.  Agency decision makers don't have to be
> professedly neutral and are entitled to have policy preferences which
> must be addressed in the advocacy.   Saying locals are more easily
> subject to influence just says that there is a suspicion that they are more
> inclined to agree with one side or the other.
> 6.  The law doesn't say that PRPs are liable.  The phrase after all is
> potentially responsible parties.  The problem is that defenses are few,
> and most of the fight ends up being over how much responsibility.  But
> that is in many cases a fight well worth having, from both the
> perspective of a de minimis or de micromis participant, and the
> perspective a major PRP, for whom the contribution of many small
> players can make a significant reduction in the final cost.  The problem in
> CERCLA litigation to date has been the high transaction and decision
> costs.  Remediation can be expensive, God knows, but many of those
> decisions, particularly in the brownfields context are becoming
> reasonable -- if one assumes that use controls, attenuation, etc. are
> reasonable.  Many communities close to sites don't think so.  A major
> advantage of voluntary programs is not just that the decisions seem to
> PRPs to be reasonable, they also lower transaction and decision costs
> substantially.  Many of my clients go to voluntary programs not because
> they expect remediation costs to be less, but because they expect
> transaction and decision costs to be much less and certainty to occur
> more quickly.
> Chuck Patrizia
> >>> Emery Graham <"egraham"@ci.wilmington.de.us> 05/19/99 09:42am
> >>>
> Potentially Responsible Parties would rather work in a regulatory
> environment
> where the regulators acts of "discretion" are more accessible to the
> PRP's
> influence. In cases where the EPA is the decision maker, the cost of
> influencing
> decisions are higher than when a local decision maker is involved. I
> suggest that
> the operating principle focus on the control of the regulatory decision
> makers
> decision.
> It is very interesting to observe the dialog that attempts to frame the
> periphery
> of the age old question of power and control. How many ways can one
> disguise a
> situation? After all, the law says that the PRP is liable. The governmental
> apparatus, the bureaucracy, must act to enforce the law. It is in this
> enforcement
> stage that the PRP seems to find relief and the marginal socio-cultural
> groups
> experience environmental justice's denial. Mr. Bartsch's article on
> brownfields in
> a European setting seems to provide a more detailed description of this
> denial
> process. The article is available in another message on the CPEO
> listserv.
> Emery
> Charles Bartsch wrote:
> > Another response...
> >         In a few cases, the credibility of the state VCP makes it worth
> going
> > through; I have looked at a couple of site situations in Minnesota where
> > the site owners ttok their sites through the state VIC program, because
> the
> > state's sign off was viewed as an advantage when approaching
> financiers
> there.
> >
> > At 09:43 AM 5/17/99 -0700, you wrote:
> > >Peter,
> > >
> > >I was looking through the recent discussion on definitions and these
> > >paragraphs stuck out:
> > >
> > >
> > >>      However, under the EPA brownfield definition we have read
> again
> > >> today, the occurrence Peter Strauss describes is simply not
> possible,
> > >> except for previously residential sites:
> > >>     Q   -- why would any site go through a VCP if it did not have to?
> > >>     A   -- when its "expansion or redevelopment is complicated by
> real or
> > >> PERCEIVED environmental                 contamination." (-- my
> emphasis.)
> > >> Thus, what Peter S. described involves a definition of a brownfield
> very
> > >> different from that used by EPA (and, increasingly, by the other
> related
> > >> agencies, both state and federal.)
> > >
> > >My experience in California leads to a different answer to the
> question
> > >you posed. I would say that owners of property that are
> contaminated are
> > >motivated by easier and less burdensome regulatory oversight. In one
> > >instance where I have been very involved, the owner of the property
> > >(i.e., the Federal Gov't) has entered into a VCP not because of
> > >development pressure but because it wants to avoid stricter
> regulation,
> > >and avoid being cast into the CERCLA net.  In another instance, due to
> > >litigation by a community group that alleged that developing a dirty
> > >site would lead to contaminant migration, the private owner of the site
> > >entered into a VCP which was less stringent than if it fell under
> > >another jurisdiction.
> > >
> > >In the broad definition of brownfields (i.e., Abandoned,idled, or
> > >under-used industrial and commercial facilities where
> > >expansion or redevelopment is complicated by real or perceived
> > >environmental contamination), one could say that these VCPs dealt
> with
> > >"brownfields". However, in the first case, the motive was to avoid
> > >stricter oversight - there were no plans for expansion or
> redevelopment.
> > >In the latter case, the VCP was entered into before the term
> > >"brownfields" had found its way into common lexicon. The VCP got
> the
> > >developer out of a hole by avoiding cleanup requirements that the
> > >community had requested.
> > >
> > >Peter Strauss
> > >
> > >
> > >
> > >

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