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The Effect of Joint and Several Liability under Superfund on Brownfields

Author

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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.

Suggested Citation

  • Howard F. Chang & Hilary Sigman, 2005. "The Effect of Joint and Several Liability under Superfund on Brownfields," Departmental Working Papers 200508, Rutgers University, Department of Economics.
  • Handle: RePEc:rut:rutres:200508
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    References listed on IDEAS

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    1. 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 205-236, January.
    2. Chang, Howard F. & Sigman, Hilary, 2007. "The effect of joint and several liability under superfund on brownfields," International Review of Law and Economics, Elsevier, vol. 27(4), pages 363-384, December.
    3. 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.
    4. 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 559-568, January.
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    6. 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.
    7. 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, May.
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    11. 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 331-370, October.
    12. 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.
    13. 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.
    14. 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.
    15. 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 445-462, June.
    16. 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 543-558, January.
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    Citations

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    Cited by:

    1. 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.
    2. 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.
    3. Alfred Endres & Tim Friehe, 2015. "The Compensation Regime in Liability Law: Incentives to Curb Environmental Harm, Ex Ante and Ex Post," Environmental & Resource Economics, Springer;European Association of Environmental and Resource Economists, vol. 62(1), pages 105-123, September.
    4. Linn, Joshua, 2013. "The effect of voluntary brownfields programs on nearby property values: Evidence from Illinois," Journal of Urban Economics, Elsevier, vol. 78(C), pages 1-18.
    5. Friehe, Tim & Langlais, Eric, 2017. "Prevention and cleanup of dynamic harm under environmental liability," Journal of Environmental Economics and Management, Elsevier, vol. 83(C), pages 107-120.
    6. 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.
    7. Alfred Endres & Tim Friehe & Bianca Rundshagen, 2015. "Environmental liability law and R&D subsidies: results on the screening of firms and the use of uniform policy," Environmental Economics and Policy Studies, Springer;Society for Environmental Economics and Policy Studies - SEEPS, vol. 17(4), pages 521-541, October.
    8. 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, May.
    9. Endres, Alfred & Friehe, Tim, 2011. "R&D and abatement under environmental liability law: Comparing incentives under strict liability and negligence if compensation differs from harm," Energy Economics, Elsevier, vol. 33(3), pages 419-425, May.
    10. Chang, Howard F. & Sigman, Hilary, 2007. "The effect of joint and several liability under superfund on brownfields," International Review of Law and Economics, Elsevier, vol. 27(4), pages 363-384, December.

    More about this item

    Keywords

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

    JEL classification:

    • Q5 - Agricultural and Natural Resource Economics; Environmental and Ecological Economics - - Environmental Economics
    • K32 - Law and Economics - - Other Substantive Areas of Law - - - Energy, Environmental, Health, and Safety Law
    • R3 - Urban, Rural, Regional, Real Estate, and Transportation Economics - - Real Estate Markets, Spatial Production Analysis, and Firm Location

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