Clearing the Brownfields: Offsetting the Risks to Sustainable Development of Contaminated Land

Abstract

This research develops eight recommendations for amendments to key Ontario legislation affecting Brownfield redevelopment that, if implemented, will reduce the liability and risk associated with the development of contaminated land and benefit stakeholders, such as, municipalities and developers. Utilizing the methodology of law and economics, this research examines the legal landscape in Ontario and expands the dialogue regarding the risks of developing contaminated land. Through this examination, this research uncovers the origins of the risks of Brownfield redevelopment and extrapolates recommendations for amendments to legislation and policy that balance the liability of Brownfield redevelopment with the protection of the environment. Recent developments in environmental law appear to increase environmental protection, but actually limit Brownfield redevelopment in Ontario by increasing liability and costs. The polluter pays principle that has been entrenched in Canadian law has governed the law in respect of contaminated lands for decades. However, as society evolves, the common law is forced to re-evaluate environmental protection in the face of contaminated lands. This evolution of the law is an attempt to intervene to correct a market failure that exists with respect to contaminated lands. The increased liability associated with Brownfield redevelopment translates into heightened costs to redevelop the land, which also severely threatens environmental justice in Ontario. The recommendations in this research will benefit stakeholders, the public, and the environment. With respect to stakeholders, it will be of assistance to municipalities, cities, developers, corporations, secured lenders, mortgage insurers and the government. The risks associated with Brownfield redevelopment can be offset by the recommended corrections to legislation regarding liability and stronger policies that create accessible programs and incentives to promote just, innovative, and sustainable redevelopment.