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Posted August 13, 2007

Cannon Teams Up with Former Student on Book About Reclaiming Toxic Waste Sites

Jonathan Z. Cannon

A book co-edited by Professor Jonathan Z. Cannon, director of the Environmental and Land Use Law Program, and a former student of his, Gregg P. Macey ’06, now a patent litigator in New York City, may help the Environmental Protection Agency (EPA) and local governments devise strategies for putting former hazardous waste sites back into productive use. The book, “Reclaiming the Land, Rethinking Superfund Institutions, Methods and Practices,” was published in spring 2007 by Springer.

Superfund is the common name for the U.S. law officially known as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which was enacted by Congress in 1980 in response to the Love Canal disaster in 1978. The Superfund law was created to protect people from heavily contaminated toxic waste sites that have been abandoned.

“The book took shape from an interdisciplinary project funded under a cooperative agreement with the EPA that created the Center of Expertise in Superfund Site Recycling at the University,” said Cannon, who joined the Law School faculty in 1998 following a six-year stint at the EPA, including three years as general counsel.

Macey, who had been teaching at the University of Virginia’s School of Architecture during his first year at the Law School, had just earned a Ph.D. in urban planning from MIT. He was looking for a project to build on some of the research he conducted as a doctoral student.

“I approached Jon Cannon as a student but was quickly welcomed into the collaboration as a colleague,” explained Macey, who works at the law firm Kirkland & Ellis. “We share a mutual interest in land use and environmental regulation, which made for many stimulating conversations. We set to work, and I drafted a prospectus to shop around to publishers, organizing the research of systems analysts, economists, planners, lawyers, and other specialists under the broader rubric of ‘adaptive management.’”

Cannon explained that adaptive management asks the question, “What are we going to do with these sites? Are we going to put fences around and leave them vacant because we’re afraid or are we going to convert them into useful, productive applications?”

“The need for a better approach to contaminated sites became clear to me when I was researching the petrochemical industry,” Macey explained. “Local groups in places such as West Dallas would offer to take me on ‘toxic tours,’ which are meant to draw attention to a range of challenges in their communities, including Superfund sites. Watching children emerge through a ‘containment’ fence from near a pile of lead slag on one of those properties, you get a sense of the magnitude of the problem.”

The authors and co-editors of the book argue that Superfund sites should be restored to usable land rather than left vacant. “Tackling the problem of environmental restoration where it’s needed is a big issue and the question, at least for me, is how can you harness the market and the resources of government to bring about these restorations?” Cannon asked.

Even after a site is cleared, more work needs to be done to mitigate the stigma attached to the site. “People don’t want to be around them,” Cannon said. “They’re leery of them.”

“And rightfully so,” added Macey. “Residents often have to struggle for years to encourage a remedial action. They witness how the structure of the laws, resource constraints, a lack of political will, and most importantly limits to what science and engineering can tell us limit the program’s effectiveness. And some sites, over many years, are even revisited as what is viewed as an ‘acceptable’ level of contamination is adjusted. Why not admit to some of this ignorance at the outset and reshape the program to account for it?”

According to Cannon, the EPA and the Center believe that it’s important to get contaminated sites that have been cleaned up back into use. “These sites represent valuable lands that, in a lot of cases, are in and around urban areas. The idea is that you’ll be able to push resources back into areas that have already been developed, reduce the pressure to develop new areas and at the same time strengthen communities.”

Given the high level of emotions often swirling around affected communities, and inherent political pressure from all sides in such reclamation projects, can the adaptive management approach work?

“We believe it can,” Macey said. “The approach represents over 30 years of experience managing vast ecosystems. It offers the right mix of tools—monitoring, looking at causality in new ways, new styles of program evaluation—for the task at hand. The trick lies in finding the right mix of tools, which suggests the importance of citizen participation.”

“There’s a case we cite in Hagerstown, Maryland,” Cannon offered, “where, instead of going forward with a federal plan, the federal government sat down with all the stakeholders, representatives of the planning commission and the local community where the site was involved, and had a number of intense meetings. Folks were given information and then asked to visualize alternative uses for the site and to evaluate those uses.”

That effort resulted in a plan that the owner of the site “was happy to implement,” Cannon said. The plan “turned it back into an economically productive use that satisfied the neighbors, [and it] was adopted by the local planning commission.” The whole process took 18 months to hash out, but Cannon noted that “Time you have to spend at the beginning of the process you’ll arguably save at the back end because people aren’t arguing and fighting so much and there’s a pathway that’s clear for people to proceed.”

Cannon suggested the concepts of environmental redevelopment and the restoration of abused sites have a broader application.

“I’m hopeful that some of the ideas in the book could be transferred to other settings as well. I’m very interested in the translation of federal programs through local institutions. People don’t like to be told what to do with their community or properties next to them without having some input. The federal government has to modify its basic instinct to come in over the top and say how things are going to be. They need to consult with local people to make the policies. I think if there’s some larger benefit to the book, that’s it.”
• Reported by Ken Reitz