The Uniform Environmental Covenants Act: Why, How, and Whether

Abstract

With contaminated land, it sometimes makes sense to do a partial cleanup, rather than a complete one, and combine the cleanup with land use restrictions and continuing obligations to monitor the land. The Uniform Environmental Covenants Act creates a new state law property interest to make these restrictions and obligations permanent and enforceable. It addresses issues created by traditional common law doctrines that were hostile to permanent land restrictions, as well as more contemporary problems presented by tax liens, eminent domain, and adverse possession. This Article reviews the Act’s legal infrastructure for creating, enforcing, and modifying the terms of the land use restrictions and monitoring obligations. The Article argues that the Act’s legal infrastructure provides parties with the legal certainty needed to encourage future cleanups, while also protecting against environmental risks that the residual contamination could otherwise pose. These cleanups, often financed as part of the property’s redevelopment, are particularly useful because they are a way to return blighted properties to the stream of commerce. The Act has drawn some criticism, primarily for not going further with its protections, and these are reviewed at the end of the Article.