Re: "INSTITUTIONAL CONTROLS: THE NEXT FRONTIER"

[Emery Graham <"egraham"@ci.wilmington.de.us>]

In a previous reply on this topic I offered background on my thinking that
relied on the sovereignty of local governments to control their territory. In
this instance contract law is taken to its highest level, that of the
relationship between the people and its government. City codes can, and the
City
of Wilmington's does, provide for municipal sanctions and requirements
directed
toward owners of hazardous waste sites. The City's legislature passed these
sanctions into law and they are currentlyl being enforced our Licenses and
Inspections department. I expect that in the near future these laws will
become
more strict and impose timed linked penalties on land that violates these
laws.

As in the case of offending private property, like dilapidated buildings,
there
is a well established body of law in this matter. Land that is a danger to the
life, health, and safety of the general public, as documented by state
environmental analysis, falls into this catagory. The elected
representatives of
the jurisdiction, who happen to live in close proximity to these hazardous
waste
sites, have enacted laws to protect the people. What else would one expect
them
to do after the local brownfields program educated them on the presence and
dangers of the hazardous waste sites?

TommeY@aol.com wrote:

> Re:  Emery Graham's questions:
>     There is a clear legal reason which prevents the use of stiff fines and
> penalties in the enforcement of agreements of the type being discussed --
> those agreements are, by definition, contracts; and the proper basis for
> their enforcement is contract law, under which contractual (and similar)
> damages, recission, and in some cases, direct enforcement of contractual
> provisions are virtually the only acceptable legal remedy (there are a few
> remedies called "quasi-contractual" but these do not include the use of
> governmental penalty authority either.)
>
> Stiff fines and penalties may still be applicable, but only if based on
> violation of environmental laws (the only proper legal basis for using
> government punitive authority.)
>
> If the contract violation is also a violation of environmental legislation,
> then fines, imprisonment, and other penalties are appropriate.  Otherwise
> besides contractual remedies (see above), the government (the other party to
> the contract) may legally
>     (1) keep a list of persons who are not permitted to enter into such
> contracts in the future (I don't know if they do this, but EPA does maintain
> similar lists in other contexts.)
>     (2) include requirements of a variety of "institutional controls" (as
> discussed in the article by Katherine N. Probst), possibly including a
> fine-like payment provision (called a "liquidated damages clause") in the
> contract.  If it is part of the agreement, and both parties have agreed to
> it, such an assessment would be legally enforceable under contract law, (but
> also negotiable at the time the contract was created.)
>
> Tomme Young
> UN Legal Consultant on Environmental and Conservation Legislation