Legal Commentary

I teach an introductory Environmental Law class as well as two seminars on environmental topics, Global Climate Change and U.S. Law and International Environmental Law.  Figuring out how to apportion climate change coverage between these courses proves a challenge.  In part because of a diligent and successful public interest litigation strategy (that has forced the consideration of climate change under statutes ranging from environmental impact review to endangered species and clean water), climate change has both practical and legal ramifications under a host of environmental statutes.

I have long thought of hazardous waste site remediation as one of the few core areas of environmental law relatively unaffected by climate change (and thus a safe, climate-free topic for the introductory course).  However, recent articles describing the projected climate change-related increase in the frequency of major (100-year) storm events as well as draft policy regarding green remediation issued by the New York State Department of Environmental Conservation (recommending, in particular, that hazardous waste sites be remediated with an eye to reducing associated greenhouse gas emissions), prompted me to think about ways that climate change may impact hazardous site remediation as well.  

By way of general background, the primary strategies for remediating a hazardous waste site are to remove the contaminated materials and treat/dispose of them elsewhere or leave the contamination in place and either treat the materials in situ or impose institutional controls (such as deed restrictions) and/or engineering controls (such as caps) designed to limit future exposure.  Leaving contamination in place with institutional and/or engineering controls is frequently far less expensive than removal, treatment, and disposal, and is thus often the remedial option favored by potentially responsible parties. However, one of the key considerations for environmental regulators in deciding whether to approve a remedy that leaves contamination in place is whether future exposure to the remaining contaminants may occur as a result of extreme weather events, like 100-year storms.  (So, for example, where sediments are contaminated but have naturally been covered by a layer of uncontaminated sediments, will erosion during a 100-year storm event bring the buried contaminated sediment to the surface?)  Similarly, one of the key considerations in the design and evaluation of engineering controls (containment systems) is whether they will withstand extreme events like 100-year floods and 100-year storms.  For a description of how the EPA models storm events during site remediation, see EPA?s Contaminated Sediment Remediation Guidance for Hazardous Waste Sites. In light of the above, does climate change ? and the associated increased frequency in extreme weather events ? raise the bar for the selection of remedies reliant on institutional and/or engineering controls?