RECYCLING LAND: UNDERSTANDING THE LEGAL LANDSCAPE OF BROWNFIELD DEVELOPMENT by Elizabeth Glass Geltman. Ann Arbor: The University of Michigan Press, 2000. 380 pp. Cloth $59.50. ISBN 0-472-10919-7.

Reviewed by Laura J. Hatcher, Departments of Political Science and Legal Studies, The University of Massachusetts - Amherst. Email: lhatcher@polsci.umass.edu.

When I first moved to Massachusetts from the Rockies, I was shocked to see a large number of old industrial sites abandoned and deteriorating in small cities and towns throughout the state. Having lived out west for fifteen years where much of the land is still pristine and where the level of consciousness concerning the look of the landscape always seems to be high (though polluting it invisibly may not be), the sight of so many old buildings deteriorating in New England winters was unsettling. I came to learn that they stand abandoned in part because redevelopment requires a very costly clean-up process of the land on which these old factories and commercial buildings are located. Therefore, businesses choose to abandon the sites and develop formerly unused (and unpolluted) areas. Termed "brownfields", the old locations are moderately polluted, but not enough to qualify for the federal Superfund program.

Elizabeth Glass Geltman provides an in depth description of the laws, regulations, and the nation-wide problems with the current policies guiding brownfield clean-up. In a very informative if not lively style, she describes a web of overlapping jurisdictions and fragmented policies. Also, though there is not much of a discussion of the politics of brownfields beyond a recognition of who the competing interests are, scholars interested in environmental law and policy, as well as regulatory issues surrounding redevelopment, urban planning and local government law will find it a very useful handbook for understanding the legal basis of brownfields.

Professor Geltman argues that the brownfields problem begins with ambiguities about what constitutes a brownfield. Overlapping levels of legal regulation enhances this problem. Different definitions can be found in the laws at the national, state and local levels. Typically, brownfields are found in urban or suburban areas, and are abandoned, under utilized or inactive industrial and commercial sites (p. 4). These definitional variations, at least in part, are a consequence of the differing needs of various states and localities, as well as a by-product of the historical development of environmental regulations at the national level in the U.S. As Geltman explains, prior to the 1970's the laws governing the transfer of industrial property were state and local with no federal level regulation. Because sellers of property were not required to disclose the presence of contaminations on-site, purchasers of property learned of contamination and the potential liability for it after they bought the land. The common law doctrine of CAVEAT EMPTOR, or "buyer beware," prevailed in these transactions (p. 1). After the 1980 enactment of the Comprehensive Environmental Response, Compensation and

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Liability Act (CERCLA), the government and current owners and operators were given a cause of action against the previous owners as well as the generators and transporters of the hazardous substances. Geltman explains that this development has resulted in a chilling effect on the transfer of industrial and commercial properties, as owners and former owners are unwilling to become targets for potential lawsuits if the property is found to be polluted at some later date (pp. 1-5). This, says Geltman, is especially true in the old industrial cities of the Northeast and Midwest (p. 2).

Geltman explains the heart of the brownfield redevelopment problem is located in the high cost of clean-up coupled with the potential costs of a litigation process in which land owners are liable for clean-up costs of property they no longer own. Because of these issues, commercial and industrial owners choose to "mothball" their properties rather than sell them. They continue to pay taxes on them, but leave the sites abandoned and do not clean them up. Seeking instead to find "greenfields" that will not require clean-up, there has been a movement away from cities into the suburbs as commerce and industry develop new areas. Not only does this leave polluted, potentially useful properties abandoned in the middle of urban areas, it also creates problems in the future when greenfields turn brown or cease to be viable to the businesses for various reasons. Owners will then choose to mothball them as well and move on to yet new greenfields. Instead, encouraging the clean-up of brownfields, argues Geltman, will allow the recycling of land already zoned and developed for commercial and industrial use. The final chapter of her book is devoted to describing the many inconsistencies in the current policies and suggesting possible solutions to the problems.

Although she does not make it clear at the beginning of her book, by the concluding sections it becomes obvious that Geltman believes the best means for "fixing the problem" of brownfields is found in federal law. Arguing that the various laws found at the state and the federal level create a situation that is frustrating to property owners seeking to redevelop old property, Geltman points out that there is no one statute addressing all the brownfields issues nation-wide. Instead, regulation has occurred through various federal level statutes, and no one administrative agency currently has statutory authority to oversee clean-up. Adding to this problem is the ad hoc nature of litigation on the issue and judges who create requirements administrators do not necessarily have the means to implement. Thus, Geltman argues that if we are to effectively address all of these issues and see progress made in the recycling of old industrial properties, we should seek to develop a comprehensive federal level program.

Because her book is less about politics and more about the laws and regulations shaping redevelopment issues, Geltman does not address the inevitable political difficulties with implementing her proposals. As Robert Kagan (1999) has pointed out, in the U. S. a regime emphasizing a centralized bureaucracy runs into direct conflict with interest groups, politicians, and the electorate at large, all of whom prize local democracy (pp. 730-731). Even if local actors are willing to allow federal level regulation of the type Professor Geltman suggests is necessary, the amount of money required to provide a bureaucracy capable of addressing the multiple issues she discusses in her book as well as providing the flexibility required to accommodate the various needs in the various locations where brownfields exists would require taxes

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higher than most lawmakers are willing to levy. Thus, her recommendations make sense in purely legal terms. However, when we add politics to the mix it seems that there is still more work to be done in finding a way to recycle industrial properties.

Over the course of my own research in property and land politics, I have come to understand that toxicity is visible on the landscape throughout the U. S. in many ways -- it is in the laws and politics surrounding the clean-up and reuse of land as well as in what I see out my window. Although I suspect her politics are clear to anyone who reads the book and is familiar with regulatory issues, Professor Geltman does not explicitly present her ideas as a political position. Rather, they are presented as common sense given the messy nature of the current regulatory scheme. A clear political position may not be a requirement in a book that purports to be a legal handbook, but given the area of law in which she is working it strikes me that positioning herself in the debate more clearly would assist readers in understanding the issues in this complicated area. Moreover, this is an area of law and politics where one's political position informs interpretation of the laws and regulations in rather specific ways. If readers misunderstand the position of an author, it can be devastating to that author's ability to persuade her audience to her position. In this case, while having an affinity with her concern with the current state of brownfield law, her lack of engagement of the political issues surrounding federalism and the difficulties in implementing a national program for regulating the transfer of these polluted lands somewhat decreases the value of a book that has much in it worthy of careful consideration.

REFERENCE:

Kagan, Robert A. 1999. "Trying to Have It Both Ways: Local Discretion,

Central Control, and Adversarial Legalism in American Environmental

Regulation," 25 ECOLOGY LAW QUARTERLY 718.

Copyright 2000 by the author, Laura J. Hatcher.