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The Effect of Joint and Several Liability under Superfund on Brownfields

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  • Howard F. Chang

    ()
    (University of Pennsylvania Law School)

  • Hilary Sigman

    ()
    (Rutgers University and NBER)

Abstract

In response to claims that the threat of Superfund liability deters the acquisition of potentially contaminated sites or "brownfields" for redevelopment, the federal government and the states have enacted laws or adopted programs to protect purchasers from liability. This protection may be unwarranted, however, if sellers can simply adjust the price of contaminated property downward to compensate buyers for the liabilities associated with the property. We present a formal model of joint and several liability under Superfund that allows us to distinguish four different reasons that Superfund liability may discourage the purchase of contaminated property despite the tendency for land prices to reflect the expected transfer of liability to the buyer. The previous literature has overlooked the four effects that we identify, which all arise because a sale may increase the number of defendants in a suit to recover cleanup costs. First, a sale may increase the share of liability that a seller and a buyer may expect to pay as a group. Second, a sale may increase the amount of damages that the government can expect to recover from the defendants at trial. Third, a sale may increase the total litigation costs that a buyer and a seller may face as a group. Fourth, game theory suggests that a sale may increase the amount that the government can expect to extract from defendants in a settlement.

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Bibliographic Info

Paper provided by Rutgers University, Department of Economics in its series Departmental Working Papers with number 200508.

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Date of creation: 20 Sep 2005
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Handle: RePEc:rut:rutres:200508

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Keywords: Environmental policy; Real estate; Contaminated sites; Hazardous waste;

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References

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  1. Tom H. Tietenberg, 1989. "Indivisible Toxic Torts: The Economics of Joint and Several Liability," Land Economics, University of Wisconsin Press, vol. 65(4), pages 305-319.
  2. Kris Wernstedt & Peter B. Meyer & Anna Alberini, 2006. "Attracting private investment to contaminated properties: The value of public interventions," Journal of Policy Analysis and Management, John Wiley & Sons, Ltd., vol. 25(2), pages 247-369.
  3. Segerson Kathleen, 1993. "Liability Transfers: An Economic Assessment of Buyer and Lender Liability," Journal of Environmental Economics and Management, Elsevier, vol. 25(1), pages S46-S63, July.
  4. Polinsky, A. Mitchell & Rubinfeld, Daniel L., 1988. "The deterrent effects of settlements and trials," International Review of Law and Economics, Elsevier, vol. 8(1), pages 109-116, June.
  5. Kahan, Marcel, 1996. "The incentive effects of settlements under joint and several liability," International Review of Law and Economics, Elsevier, vol. 16(4), pages 389-395, December.
  6. Hilary Sigman, 2006. "Environmental Liability and Redevelopment of Old Industrial Land," Departmental Working Papers 200609, Rutgers University, Department of Economics.
  7. Easterbrook, Frank H & Landes, William M & Posner, Richard A, 1980. "Contribution among Antitrust Defendants: A Legal and Economic Analysis," Journal of Law and Economics, University of Chicago Press, vol. 23(2), pages 331-70, October.
  8. Kornhauser, Lewis A & Revesz, Richard L, 1994. "Multidefendant Settlements: The Impact of Joint and Several Liability," The Journal of Legal Studies, University of Chicago Press, vol. 23(1), pages 41-76, January.
  9. Spier, Kathryn E, 1994. "A Note on Joint and Several Liability: Insolvency, Settlement, and Incentives," The Journal of Legal Studies, University of Chicago Press, vol. 23(1), pages 559-68, January.
  10. Wernstedt, Kris & Alberini, Anna & Heberle, Lauren & Meyer, Peter, 2004. "The Brownfields Phenomenon: Much Ado about Something or the Timing of the Shrewd?," Discussion Papers dp-04-46, Resources For the Future.
  11. Donohue, John J, III, 1994. "The Effect of Joint and Several Liability on the Settlement Rate--Mathematical Symmetries and Metaissues about Rational Litigant Behavior: Comment," The Journal of Legal Studies, University of Chicago Press, vol. 23(1), pages 543-58, January.
  12. Kathleen Segerson, 1994. "Property Transfers and Environmental Pollution: Incentive Effects of Alternative Policies," Land Economics, University of Wisconsin Press, vol. 70(3), pages 261-272.
  13. Boyd, James & Harrington, Winston & Macauley, Molly K, 1996. "The Effects of Environmental Liability on Industrial Real Estate Development," The Journal of Real Estate Finance and Economics, Springer, vol. 12(1), pages 37-58, January.
  14. Klerman, Daniel, 1996. "Settling Multidefendant Lawsuits: The Advantage of Conditional Setoff Rules," The Journal of Legal Studies, University of Chicago Press, vol. 25(2), pages 445-62, June.
  15. Chang, Howard F & Sigman, Hilary, 2000. "Incentives to Settle under Joint and Several Liability: An Empirical Analysis of Superfund Litigation," The Journal of Legal Studies, University of Chicago Press, vol. 29(1), pages 205-36, January.
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Citations

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Cited by:
  1. Hilary Sigman, 2010. "Environmental Liability and Redevelopment of Old Industrial Land," Journal of Law and Economics, University of Chicago Press, vol. 53(2), pages 289-306, 05.
  2. Linn, Joshua, 2012. "The Effect of Voluntary Brownfields Programs on Nearby Property Values: Evidence from Illinois," Discussion Papers dp-12-35, Resources For the Future.
  3. Endres, Alfred & Friehe, Tim, 2011. "Incentives to diffuse advanced abatement technology under environmental liability law," Journal of Environmental Economics and Management, Elsevier, vol. 62(1), pages 30-40, July.
  4. Hilary Sigman & Sarah Stafford, 2011. "Management of Hazardous Waste and Contaminated Land," Annual Review of Resource Economics, Annual Reviews, vol. 3(1), pages 255-275, October.
  5. Sheila M. Olmstead, 2010. "The Economics of Water Quality," Review of Environmental Economics and Policy, Association of Environmental and Resource Economists, vol. 4(1), pages 44-62, Winter.

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