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Ealr, Volume 34, Number 3 Boston College Environmental Affairs Law Review Volume 34 Number 3 Smart Brownfields Redevelopment for the 21st Century Symposium Articles Converting Brownfield Environmental Negatives into Energy Positives Steven Ferrey [pages 417–478] Abstract: There is a new paradigm for evaluating landfills. While landfills are contaminated repositories of hazardous wastes, they also are brown- fields that can be redeveloped for renewable energy development. It is possible to view landfills through a new lens: As endowed areas of renew- able energy potential that can be magnets for a host of renewable devel- opment incentives. Landfills also are critical resource areas for the con- trol of greenhouse gases. Landfill materials decompose into methane, a greenhouse gas that is more than twenty times more potent—molecule for molecule—than carbon dioxide. This Article traces the molecular composition of waste in landfills, analyzing the chemical stew that brews in these repositories. Without doubt, landfills in America are brownfields. And many of these landfills leak and cause public health risks. This Arti- cle also analyzes the potential to utilize landfill gas for electricity produc- tion or as a thermal resource. It evaluates the energy potential at munici- pal sewage treatment plants and the ability to utilize the land at landfills to host wind turbines. The environmental regulatory envelope that sur- rounds landfill operation is explored. Also analyzed are the various incen- tives that foster renewable energy development and are applicable to landfill brownfields development. These include tax credits, tax-pref- erenced financing, renewable energy credits under state renewable port- folio standard (RPS) systems in twenty-two states, and direct renewable trust fund subsidies in sixteen states, as well as net metering available in forty states. Finally, creative techniques to mitigate derivative environ- mental liability under Superfund, the Resource Conservation and Recov- ery Act (RCRA), and similar state laws that can accompany energy opera- tions at a landfill, are suggested. Funding Opportunities for Brownfield Redevelopment Julianne Kurdila & Elise Rindfleisch [pages 479–502] Abstract: Many financial tools are available to redevelopers of former in- dustrial and commercial sites, commonly known as “brownfields.” Be- cause the money is often tied to federal, state, or local government pro- grams, time is usually a factor in such transactions. This Article explores the various financial mechanisms available to brownfield redevelopers, including government funding sources, insurance claims, and cost recov- ery from parties who are found responsible for the contamination. A Tale of Two Brownfield Sites: Making the Best of Times from the Worst of Times in Western Pennsylvania’s Steel Valley Nancy Perkins [pages 503–532] Abstract: In the past decade, two attractive multi-use developments have sprung up on the banks of western Pennsylvania’s Monongahela River, improving vast brownfields where large steel plants once stood. The communities that are home to these projects—Homestead and Pitts- burgh’s South Side neighborhood—have unquestionably benefited from these developments, but those benefits have not been evenly distributed. This Article compares these two projects from an environmental justice perspective. It concludes that Homestead is an environmental justice community, and that it has not fared as well as the Southside in the distri- bution of the benefits associated with brownfield redevelopment. The benefits that are most lacking in Homestead are those related to commu- nity empowerment and community identity as reflected in the develop- ment itself. Professor Perkins suggests that states amend their brownfield programs to better prepare environmental justice communities well in advance of development in order to assure that projects maximize these important community identity features. The Uniform Environmental Covenants Act: Why, How, and Whether Kurt A. Strasser [pages 533–558] Abstract: With contaminated land, it sometimes makes sense to do a par- tial cleanup, rather than a complete one, and combine the cleanup with land use restrictions and continuing obligations to monitor the land. The Uniform Environmental Covenants Act creates a new state law property interest to make these restrictions and obligations permanent and en- forceable. It addresses issues created by traditional common law doctrines that were hostile to permanent land restrictions, as well as more contem- porary problems presented by tax liens, eminent domain, and adverse possession. This Article reviews the Act’s legal infrastructure for creating, enforcing, and modifying the terms of the land use restrictions and moni- toring obligations. The Article argues that the Act’s legal infrastructure provides parties with the legal certainty needed to encourage future cleanups, while also protecting against environmental risks that the resid- ual contamination could otherwise pose. These cleanups, often financed as part of the property’s redevelopment, are particularly useful because they are a way to return blighted properties to the stream of commerce. The Act has drawn some criticism, primarily for not going further with its protections, and these are reviewed at the end of the Article. Brownfield Redevelopment in the European Union Bernard Vanheusden [pages 559–576] Abstract: Brownfields not only occur in the United States, but in every industrialized country and region. The European Union is currently con- fronting the challenge of regulating these sites. This Article offers a com- parative survey of different legal approaches within both the European Union and the United States toward dealing with brownfields. As a case study, it outlines important developments in the Flemish region of Bel- gium. It is clear that more and more Member States are searching for dif- ferent measures to deal with soil remediation in general, and brownfields in particular. However, the shortage of knowledge and information re- garding brownfield development creates myraid difficulties with the start- up and realization of potential brownfield projects. Additionally, and with regard to funding schemes, no consideration is made of the sustainability of the methods used to redevelop these sites. Essay Nature’s Trust: A Legal, Political and Moral frame for Global Warming Mary Christina Wood [pages 577–604] Abstract: This essay portrays the urgency of global warming and dis- cusses the role of environmental law in bringing about this crisis. It ex- plains why our regulatory system ignored this problem for too long and offers a property-based perspective to frame government’s responsibility in confronting climate crisis. Note Playing Chicken at the WTO: Defending Animal Welfare-Based Trade Embargoes Under GATT’s Moral Exception Edward M. Thomas [pages 605–637] Abstract: The European Parliament recently adopted a proposal mandat- ing higher welfare standards for chicken used in meat production, includ- ing a provision that would regulate or prohibit the importation of chicken not produced with the same high standards. Final passage of such a law would likely raise a World Trade Organization (WTO) com- plaint by a chicken-exporting nation. This Note argues that under WTO precedent, a carefully crafted import ban could survive such a challenge by invoking the moral exception to the General Agreement on Tariffs and Trade (GATT). In order to defend its regulation, however, the Euro- pean Union must first attempt to negotiate a resolution with its trading partners, allow a flexible timeframe for nations to comply, provide excep- tions for producers who abide by high standards, and mandate the same standards for both domestic and foreign producers. This Note argues that the European Union should follow these steps, and not back down from passing a much-needed law to improve animal welfare. CONVERTING BROWNFIELD ENVIRONMENTAL NEGATIVES INTO ENERGY POSITIVES Steven Ferrey* Abstract: There is a new paradigm for evaluating landfills. While landfills are contaminated repositories of hazardous wastes, they also are brown- fields that can be redeveloped for renewable energy development. It is possible to view landfills through a new lens: As endowed areas of renew- able energy potential that can be magnets for a host of renewable devel- opment incentives. Landfills also are critical resource areas for the con- trol of greenhouse gases. Landfill materials decompose into methane, a greenhouse gas that is more than twenty times more potent—molecule for molecule—than carbon dioxide. This Article traces the molecular composition of waste in landfills, analyzing the chemical stew that brews in these repositories. Without doubt, landfills in America are brownfields. And many of these landfills leak and cause public health risks. This Arti- cle also analyzes the potential to utilize landfill gas for electricity produc- tion or as a thermal resource. It evaluates the energy potential at munici- pal sewage treatment plants and the ability to utilize the land at landfills to host wind turbines. The environmental regulatory envelope that sur- rounds landfill operation is explored. Also analyzed are the various incen- tives that foster renewable energy development and are applicable to landfill brownfields development. These include tax credits, tax-pref- erenced financing, renewable energy credits under state renewable port- folio standard (RPS) systems in twenty-two states, and direct renewable trust fund
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