The concept of assuming legal liability for past acts of pollution solely based on property ownership is a principle that seems foreign to our legal structure. If not foreign, arguably unfair. Yet the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq., ushered in a regulatory scheme that did just that. It can be argued that CERCLA has had one of the most profound effects on the acquisition and disposition of property in modern legal history. Unprotected landowners face potential joint and several liability for a host of expenses, the most significant of which is the cost to remediate property. This article examines a creative approach at avoiding this liability through the leasing of air rights.
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