The Pew Charitable Trusts

When Kentucky's Democratic-controlled House and Republican-led Senate both voted unanimously to expand brownfields programs last week, they committed the Bluegrass State to a decade-long push to make investment in cleaning up abandoned industrial sites more attractive to private redevelopers.

They also signed on to one of the few nationwide environmental causes to generate real interest in both major political parties since Congress first acted to protect natural resources and public health and set up the Environmental Protection Agency over 30 years ago.

Growing numbers of state lawmakers and regulators are thinking of brownfields less in terms of strict environmental protection and more as part of a broader economic development strategy, a conceptual shift that has the support of President George W. Bush.

Now, legislation gathering strong support in the U.S. Senate would virtually eliminate the threat of liability lawsuits that advocates see as the last great impediment to a renaissance of the nation's industrial ruins.

While most states shield voluntary, private-sector efforts to restore contaminated lands, provisions under the Comprehensive Environmental Response, Compensation and Liability Act ( CERCLA ), commonly known as Superfund, make the sites legal hot potatoes in the eyes of some prospective developers

State and local leaders are calling attention to their ongoing cleanup efforts and urging the expansion of EPA partnerships in a series of hearings this month on Capitol Hill. And they have voiced strong support for Rhode Island Sen. Lincoln Chafee's S.350 , the "Brownfield Revitalization and Environmental Restoration Act of 2000," which now has 55 co-sponsors, 21 of whom are Chafee's fellow Republicans.

"The support for this bill covers the political spectrum from Rick Santorum, Jeff Sessions, Sam Brownback and Jesse Helms to Ted Kennedy, Chuck Schumer and Chris Dodd and everywhere in between," said Senate Environment and Public Works Committee Chairman Robert Smith (R-N.H.).

The bill authorizes $150 million per year for FY2002 through FY2006 for state, local and tribal efforts to assess and restore selected sites. An additional $50 million per year would boost existing state cleanup programs.

Advocates agree the key provision of the federal legislation is the liability protection.

A report released last October by the National Governors' Association (NGA) estimated that state programs "have successfully facilitated reuse of more than 40,000 sites," less than ten percent of such locations nationwide.

"Brownfields legislation should remove a significant hurdle to brownfields cleanup by providing redevelopers with protection from federal Superfund liability," EPA Administrator and former New Jersey governor Christine Todd Whitman said last month.

Whitman has served as the brownfields point person for the overtly state-friendly Bush administration at a flurry of Congressional hearings and environmental policy meetings that have addressed state interests and brownfields strategy in recent weeks. President Bush made passage of brownfields legislation his top environmental priority in his February address to Congress.

Brownfields are typically defined as abandoned or underused properties where pollution, or the specter of it, has scared potential investors away for fear of high cleanup costs and liability lawsuits. They range from rural gas stations to urban chemical plants. Credible estimates suggest that as many as half a million of them darken urban landscapes across the country.

Much of the thinking on how to reclaim brownfields and work them back into the economy has come from the states. Policymakers in nearly every state have tinkered with grant and loan funds, tax credits, revised cleanup criteria and liability protection mechanisms ever since a handful of states like Illinois, Minnesota and North Carolina pioneered the first voluntary remediation programs in the late 1980s.

The Dakotas are the only two states without a brownfields program in place, according to the centrist, Washington-based Northeast-Midwest Institute.

"The innovation was in the states," says attorney John Pendergrass, who has tracked the evolution of brownfields policy and for the Environmental Law Institute since 1988 and directs ELI's biennial Analysis of State Superfund Programs.

Pendergrass says the quality of state voluntary programs is still very uneven.

The Senate bill attempts to respond to issues raised by skeptics of current state and EPA brownfields initiatives by:

• creating a brownfields inventory and boosting public information resources;
• encouraging broader citizen participation;
• and deferring EPA involvement until a state's invitation, interstate contamination or evidence of "an imminent and substantial endangerment to public health, welfare or the environment" prompted federal action.

Environmental groups find fault with voluntary programs that allow cleanups tailored to future uses and downplay public involvement. They also want federal authorities to review state programs before offering more money for grants or loans to redevelopers.

"Some states can be enormously unreliable in ensuring that business interests comply with the law. In these states, informed citizens, acting in their proper role as private attorneys general, are often the last best hope for adequate enforcement of public health and environmental laws," Grant Cope of the U.S. Public Interest Research Group told senators in February.

A December 2000 General Accounting Office ( GAO ) report found another weakness in current cleanup efforts: a failure to demonstrate clear links between public investments and environmental and economic results.

GAO evaluated EPA's brownfields programs and those in five of the "most innovative" states: Massachusetts, Michigan, New Jersey, Pennsylvania and Wisconsin.

The report found that EPA spent $246.9 million on brownfields projects from FY1995 to FY2000. Half of the money went into program and site-specific assessments with the rest either filling state and local loan coffers or providing job training for assessments and cleanups. The five states GAO surveyed spent a total of $136 million, most of which funded evaluation and cleanup grants.

Recognizing differences between the thrust and methods of EPA and state-level efforts, GAO concluded that "state attempts to track program accomplishments are limited, as are EPA's, by an inability to know with certainty whether the government's assistance was essential to achieving a cleanup, redevelopment, or other result."

Such criticisms have failed to dampen enthusiasm for the brownfields approach. Earlier this month, the Senate committee voted 15-3 to send the bill to the Senate floor without amendment, having turned aside strong pro-business modifications from the three Republicans who eventually voted against the bill, Oklahoma Sen. James Inhofe, Idaho Sen. Mike Crapo and Missouri Sen. Christopher "Kit" Bond.

Beyond Kentucky's comprehensive bill, legislatures in at least 14 other states are mulling program enhancements that would mirror innovations tested by the reputed cleanup leaders profiled by NGA and GAO. The bills include tax credit measures in Connecticut, Florida, Indiana, Mississippi, New York; aid for highway improvements on redeveloped sites in Iowa; and the addition of grants to existing loan programs in Oregon.

California lawmakers are weighing an environmental insurance program similar to one piloted by Massachusetts in the last three years. And Connecticut "smart growth" legislation includes ramped up support for brownfields projects as part of its overall plan to reduce sprawl, save open space and spur prosperity.