Conditional Innocence and the Myth of Consent: The Subtle Coercion of CERCLA's Contiguous Property Owner Protection. (2024)

INTRODUCTION

The roots of environmental regulation of private property for thebenefit of the public began, for the Western world, more than 400 yearsago in the form of personal litigation. (1) It was the lone plaintiffwho, through particular use of the nuisance suit, began to expand thescope of available legal remedies for ecological grievances--sometimesin defiance of procedural formalities of the English feudal courtsystem. (2) For centuries, common law courts remained the chief legalavenue for resolving environmental disputes between private parties. (3)American courts eventually labeled these suits as either nuisance (4) ortrespass actions. (5) With the exception of a rare quarrel overinterstate pollution, (6) the burden of pursuing environmentalregulation was largely left to the individual disgruntled plaintiff andthe extent of his annoyance with his neighbor.

At the close of the nineteenth century, however, political andsocial policies began to influence the course of environmentallitigation. Judicial opinions began to engage in equitable balancingbetween environmental and economic concerns, with a heavy bias in favorof promoting a profitable national market. (7) Instead of following thetraditional rule of granting injunctions for established nuisanceactivities, (8) courts weighed the plaintiffs' property interestsagainst the social utility of the defendant's action. (9) This newmethod of analysis for common law nuisance actions, combined with thepublic health crises of the Industrial Revolution, released a wave offederal regulatory legislation across the United States. (10) The firstdecade of the twentieth century saw the introduction of laws aimed asequally at regulating trade as guarding public health, such as the LaceyAct of 1900, (11) the Pure Food and Drug Act of 1906, (12) and theInsecticide Act of 1910. (13) But after World War II, Congress began totarget private industries solely on the basis of environmental concerns,specifically for pollution control. (14) A fear that the world hadbecome a nuclear test zone filled with untold amounts of seepingradioactive waste fanned the flame of federal regulatory legislation.(15)

In the late 1960s and early 1970s, the modem notion ofenvironmental regulation began to take shape. New statutes like theNational Environmental Policy Act, (16) Endangered Species Act, (17)Clean Air (18) and Clean Water (19) Amendments, Toxic Substances ControlAct, (20) and Resource Conservation and Recovery Act ("RCRA")(21) established clear precautionary measures for protection of naturalresources and public health. But these acts did little to address thethousands of sites, scattered across the United States, already filledwith chemical byproducts from years of experimental technologicaltesting. In response to a growing national concern after events like theLove Canal disaster, (22) Congress passed the ComprehensiveEnvironmental Response, Compensation, and Liability Act("CERCLA") in 1980. (23)

Since its adoption, CERCLA has been the subject of substantial,ongoing litigation. The original legislative purpose of CERCLA was toempower the government to apportion liability among parties responsiblefor the thousands of abandoned landfills that threatened public healthand safety. (24) Perhaps the most controversial aspect of CERCLA is itsimposition of strict liability on a wide range of individuals whopreviously owned or currently own polluted land. (25) The broad sweep ofthis liability has been tempered, in some respects, by subsequentadditions of affirmative defenses. While the statute imposes strictliability on those who have caused or may have caused the release ofhazardous waste into the environment, it also correctly exemptsotherwise innocent contiguous landowners whose property has becomecontaminated by migrating pollution. (26) This exemption is conditioned,however, on the property owner's guarantee of "fullcooperation, assistance, and access" to persons conducting responseactions on site for the duration of the operation. (27) Refusal to grantaccess to government agents necessarily results in the loss of theaffirmative defense and the possibility of CERCLA liability for anycleanup costs or damages from the hazardous waste. (28)

This Article examines the relationship between the conditionalstatus of innocence CERCLA offers under the contiguous property ownerprovision and the Fifth Amendment right of landowners to receive justcompensation for governmental taking of private property. Itspecifically argues that, under current law, innocent landowners pay ahigh price for release from CERCLA liability. Access to property ofcontiguous landowners is generally obtained through the consent of theowner. But while consenting to government access for response actionspreserves the shield to CERCLA liability, it also often prevents thelandowner from successfully bringing a suit for just compensation if theuse and enjoyment of his or her land arc destroyed by thegovernment's continued access. (29) In other words, a propertyowner whose land is contaminated through no personal fault (andpotentially through the fault of the government itself) may be forced tochoose between liability for the hazardous waste under CERCLA and theloss of the right to exclusive control of the land, even if the owner isnot compensated for the government's occupation of the property.Consequently, CERCLA's contiguous property owner defense requiresinnocent landowners to surrender their constitutional rights to bringFifth Amendment compensation claims against the United States. Theconditions of this affirmative defense create a subtle coercion that maytechnically survive judicial scrutiny but contradicts the publicpolicies of both waivers of constitutional rights and theunconstitutional conditions doctrine. (30)

The easiest solution to this problem is to amend CERCLA'srequirements for the contiguous property owner defense to exclude thegrant of full, perpetual access to contaminated property. It is unlikelythat many landowners will refuse to cooperate with the EnvironmentalProtection Agency's ("EPA's") remedial procedures,even without compensation, but removing the coercive conditions of thestatute would allow the statutory defense to serve its intended purposeof protecting innocent property holders without compelling them tosurrender ownership rights. Owners would be free to entertain otheroptions for remedial action, negotiate access agreements with thegovernment, and perhaps most importantly--accurately assess the cost ofunrestricted government access as cleanup efforts perpetuate. (31)

I. CERCLA's COERCIVE REPUTATION: THE HUNT FOR PRPS

A. From CERCLA to Super fund

Almost as soon as CERCLA was adopted, legislators realized they hadunderestimated the problem posed by hazardous waste sites across thenation. The initial scope of the statute was a five-year, $1.6 billionprogram to address "orphan" dump sites--which, by EPAestimates in 1980, affected one in six groundwater systems serving lessthan ten thousand persons and one of every three larger systems. (32) By1985, however, some estimates put the number of abandoned hazardouswaste sites in the United States as high as 20,000. (33) The HouseCommittee on Energy and Commerce described the issue as follows:

[In 1980,] most believed that cleaning up a site was relativelyinexpensive and involved removing containers or scraping a few inchesof soil off the ground....Today, five years later, our understanding of the problem posed byabandoned hazardous chemicals is entirely different. The [EPA] Officeof Technology Assessment now estimates there may be as many as 10,000Superfund sites across the Nation, or an average of 23 sites perCongressional district.... We now understand that a cleanup frequentlygoes far beyond simple removal of barrels. It often involves years ofpumping contaminated water from aquifers. (34)

In light of the discovery of the magnitude of hazardous waste sitesand the expense of remedial action. Congress enacted the SuperfundAmendments and Reauthorization Act ("SARA") of 1986. (35) SARAextended certain CERCLA initiatives and authorized extra funding overthe next eight years. (36) Furthermore, SARA established the right ofpotentially responsible parties ("PRP"s) to seek contributionfrom other PRPs, thus opening the door for third party interpleading.(37) Just as the scope and term of CERCLA's applicability expandedto match the unanticipated gravity of the nation's pollutionsituation, so too the nature of CERCLA liability began to expand.

CERCLA was a departure from the traditional model oftwentieth-century federal regulatory legislation in at least one crucialway: it was not truly regulatory. Instead of establishing a supervisoryprogram, Congress created a framework for imposing strict liability forpast and present hazardous substance releases. (38) The ultimate goal ofCERCLA was to promote expedient and efficient remediation of pollutedsites. (39) Accordingly, the statute provided EPA with a range ofoptions to motivate response efforts. For instance, EPA may issue anadministrative order to direct a responsible party to abate the dangerof a hazardous substance release, (40) obtain injunctive relief to orderthe abatement, or undertake the abatement itself using Supcrfundresources and then sue the responsible party for reimbursem*nt. (41) Thefederal government is also permitted to delegate cleanup decisions tothe states or to impose state standards for remedial procedures when"applicable" or "relevant and appropriate." (42) Butfederal to state delegation rarely happened in the early years of CERCLAenforcement, (43) perhaps because of the all-encompassing nature of thestatute's liability scheme.

There arc four categories of PRPs contemplated under CERCLA: (1)current owners and operators of sites responsible for the release ofhazardous waste; (2) former owners or operators of the sites at the timewaste disposal occurred; (3) any person who arranged for the disposal ofthe waste; and (4) any person who accepted the hazardous waste fortransport. (44) Essentially, any party who participated in the processof creating or disposing of hazardous waste is on the hook for the costof cleanup, whatever that may be. (45) Furthermore, current ownerliability exists regardless of whether the owner had anything to do withthe original pollution; a person who purchases property contaminatedsixty years ago is still potentially liable today for that hazardouswaste. (46)

Liability for hazardous waste pollution under CERCLA is not onlystrict but also, in some cases, joint and several. Unless the harm isdivisible, liability for cost recovery actions brought under [section]107(a) is joint and several, (47) while liability for contributionactions brought under [section] 113(f) is several only. (48) In 1983,the United States sought reimbursem*nt from twenty-four defendants forthe costs of remedial action at the disposal site of the Chem-Dynetreatment facility. (49) The defendants, who were collectively involvedin different stages of the generation and transport of hazardous waste,argued that they should not be held jointly and severally liable forcleanup costs. (50) The court held, instead, that the deletion ofreferences to joint and several liability in the final version ofSuperfund was not intended to reject joint and several liability but"to have the scope of liability determined under common lawprinciples, where a court ... will assess the propriety of applyingjoint and several liability on an individual basis." (51)

In 1986, CERCLA was held to be retroactive in its imposition ofliability. (52) In United States v. Northeastern Pharmaceutical Co., thegovernment brought an action, under RCRA, against a pharmaceuticalcompany for illegally disposing of drums containing hazardous waste.(53) The disposal took place in 1979 and the government's actionwas originally commenced in August of 1980. (54) However, in August of1982, the government amended its complaint to allege retroactiveliability under CERCLA, which had been enacted after the commencement ofthe suit. (55) Despite the defendant's contention that its conductwas neither negligent nor unlawful at the time it occurred in 1979, andthe fact that nothing in the statute expressly provided forretroactivity, the court found that CERCLA liability applied topre-enactment conduct. (56)

In the late 1980s and early 1990s, CERCLA's reputation wassolidified as a coercive imposition of inescapable liability on anenormous pool of PRPs. In 1986, the U.S. Court of Appeals for the EighthCircuit found that suits for recovery of costs of removal and remedialactions were regarded as actions for restitution and, consequently, noright to jury trial attached to these proceedings. (57) District courtssubsequently split as to whether a right to jury trial existed forcontribution claims under CERCLA [section] 113(f). (58) The onlyappellate court that addressed the issue held that a [section] 113(f)claim was essentially equitable and no right to jury trial attached.(59)

B. Conditional Innocence Under the Small Business Liability Reliefand Brownfields Revitalization Act

At the end of the twentieth century, environmental legal scholarsincreased their outcry against CERCLA for unfairly penalizing anyone whoowned or had ever owned land contaminated by hazardous waste disposalsites. (60) The result was that many of these sites, known as"brownfields," were largely neglected by the privatedevelopers who could most afford to purchase and rehabilitate them. (61)In 2002, Congress addressed the rising concern that the far reach ofCERCLA's liability scheme had set back the original legislativepurpose of cleaning up and restoring hazardous waste sites across theUnited States by enacting the Small Business Liability Relief andBrownfields Revitalization Act ("Small Business LiabilityProtection Act"). (62) The Small Business Liability Protection Actinstituted a variety of exemptions to Superfund accountability. (63)

Although SARA had established an innocent purchaser defense, thedefense did not promote investment in brownfields because it onlyapplied to owners who had neither actual nor constructive knowledge ofthe polluted nature of the property at the time of purchase. (64) TheSmall Business Liability

Protection Act created new defenses for brownficld rcdevelopers andcontiguous property owners (65) to "provide incentives forinvestors to purchase and redevelop... usually vacant or mothballedparcels of industrial or commercial property in economically depresseddowntown urban areas that sit idle out of fear by potential investorsthat the property is possibly contaminated." (66) Section 221 ofthe Small Business Liability Protection Act amended [section] 107 ofCERCLA by exempting landowners whose property is contiguous to andcontaminated by a release of a hazardous substance from the property ofanother from PRP status. (67)

The contiguous property owner defense, however, requires that thecontiguous landowner (1) not have caused the contamination; (2) not beaffdiated with the contaminating party in any type of agency capacity;(3) exercise due diligence at the time of purchase and be unaware ofcontamination; and (4) take reasonable steps to stop any continuingrelease and prevent future release. (68) Nestled in the middle of theseexpected and unremarkable qualifications, however, is a requirement thatthe landowner cooperate with the response actions ordered by thegovernment. Section 107(q)(1)(A)(iv) conditions the availability of thedefense on whether

the person provides full cooperation, assistance, and access to personsthat are authorized to conduct response actions or natural resourcerestoration at the vessel or facility from which there has been arelease or threatened release (including the cooperation and accessnecessary for the installation, integrity, operation, and maintenanceof any complete or partial response action or natural resourcerestoration at the vessel or facility). (69)

Shortly after CERCLA was amended to include the contiguous propertyowner defense, commentators speculated that the new language actuallyexpanded the liability of adjacent landowners. (70) Instead of relyingon what appeared to be the common interpretation of the statute--that anotherwise innocent landowner could not be held accountable for hisneighbor's pollution--the Small Business Liability Protection Actplanted a legal minefield through which a landowner must successfullynavigate (or, alternatively, fail) to qualify for the affirmativedefense. Whereas a PRP attempting to install monitoring wells on aneighbor's contaminated contiguous property had previously beenrequired to pay for such access as part of its good faith requirementsunder an administrative or consent order, the amended language placedthe burden on contiguous landowners to exercise "appropriatecare" in preserving their defenses--a phrase many believed coerceda grant of access. (71) This necessary grant of access to the contiguouslandowner's property to avoid liability for hazardous wastepollution immediately aroused Fifth Amendment concerns. (72) Theseconcerns are justified based on the applicable law and policy of casesat the intersection of Fifth Amendment takings and environmentalregulatory jurisprudence.

II. A BRAND NEW GAME: ACCESSING AN INNOCENT OWNER'S LAND

A. Carefully Constructed Consent

Sections 104(b) and (e) of CERCLA are designed to enable EPA easyaccess to a PRP's property for purposes of both gatheringinformation required to assess response actions and carrying out suchactions. (73) PRPs are required to provide EPA with requestedinformation and to permit EPA to enter contaminated sites, inspect them,and to take samples of soil, water, and other things. (74) In the eventa PRP denies required access, EPA may either issue an administrativeorder to prohibit interference with entry or go to court to obtaincompliance with its request for entry. (75) Should the court determinethat noncompliance with a request for access has been"unreasonable," it may assess a civil penalty of up to $25,000for each day that access was denied to the government. (76) In short,CERCLA compels access to the contaminated properties of PRPs to conductresponse and remedial actions and to prevent the release of hazardouswaste.

Contiguous property owners who do not fall under PRP status, andwhose land does not contain the source (or "plume") ofcontamination, cannot challenge a remediation order in federal courtonce access to land is granted and a remedial plan of action is issued.(77) Historically, courts have held that [section] 104(e) authorizesentry on adjacent properties in order to reach a contaminated site andto carry out an approved response activity. (78) However, if the purposeof the access is to determine whether remedial action is warranted atall, and no emergency circ*mstance allows for response agents to enter,(79) the authority of EPA to access property hinges on the consent ofthe landowner. (80)

CERCLA requires EPA to request the consent of landowners beforepursuing other options to access property. (81) Although EPA retains themore time-consuming option of issuing a unilateral demand for access ifit is reasonable to believe that the contiguous property poses a threatof rerelease of the hazardous substance into the environment, (82) thereasonableness of such demands may then be challenged in court. (83) EPAguidance documents specifically explain the importance of consent asfollows:

Consent is the preferred means of gaining access for all activitiesbecause it is consistent with EPA policy of seeking voluntarycooperation from responsible parties and the public.......If practicable under the circ*mstances, consent to entry should bememorialized in writing.... Although oral consents arc routinelyapproved by the courts, a signed consent form protects [EPA] by servingas a permanent record of a transaction which may be raised as a defenseor in a claim for damages many years later. If a site-owner isunwilling to sign a consent form but nonetheless orally agrees to allowaccess, EPA should document this oral consent by a follow-up letterconfirming the consent. (84)

For the vast majority of cases involving preliminary investigationsof properties, EPA relies on simple, one-page consent forms signed bylandowners. (85) These documents include both general grants of propertyaccess to EPA personnel for the purpose of taking samples and drillingboreholes for soil and groundwater collection, as well as catch-allprovisions for "other inquiry actions at the property as may benecessary to determine nature, extent and potential threat to humanhealth and the environment." (86) EPA guidance documents rejectattempts to negotiate the terminology and conditions of entry because ofthe risk of imposing compensation obligations on EPA. (87) If consent isdenied, EPA personnel are instructed to "explain EPA'sstatutory access authority, the grounds upon which this authority may beexercised, and that the authority may be enforced in court." (88)

In the event that EPA agents are successful in persuading alandowner to sign a consent form (a high likelihood if the discussionincludes the loss of the contiguous property owner defense and potentialimposition of liability for thousands of dollars in cleanup costs orfees for denial of access), the form will reflect that the owner"g[a]ve this written permission voluntarily with the full knowledgeof [his or her] right to refuse and without threats or promises of anykind." (89) Two parts of this statement are likely to be untrue forcontiguous property owners. First, while a property owner may have had"full knowledge" of the right to not sign the form, it is muchless likely that he or she knowingly signed away the ability to bring asuccessful claim for compensation against the government for any damageto, or prolonged use of, the property. (90) Second, if the propertyowner did sign the consent form with such knowledge, it is highlyunlikely that the permission was truly given voluntarily. (91)

B. Why Waiver Won't Work

The policy behind waiver of constitutional rights is essential tounderstanding whether an innocent landowner has been coerced intogranting access that destroys his or her right to bring a compensationclaim against the government. For several reasons, EPA's consent toaccess forms signed by property owners cannot be construed as waivers ofa right to later sue the government for, specifically, the right todemand just compensation from the government if private property istaken for public use. (92)

Although parties may validly contract to waive due process rightsin both civil and criminal contexts, an agreement to surrender afundamental right is never presumed. (93) In both civil and criminalmatters, courts must indulge "every reasonable presumption againstwaiver" of a constitutional right. (94) Accordingly, courts must beable to positively determine the presence of language surrendering aknown right (95) and should avoid finding an implicit waiver of anyconstitutional privilege. (96)

In Cienega Gardens v. United States, the U.S. Court of Appeals forthe Federal Circuit addressed whether a waiver of a takings claim wasimplicit in a use agreement entered into between the government andprivate parties pursuant to a housing project. (97) The governmentargued that the private parties waived their right to bring a takingsclaim by acknowledging the receipt of valuable and sufficientconsideration as part of an alleged release agreement. (98) The courtrejected the government's argument and refused to find that therewas an implicit waiver of the private parties' right to bringtakings claims contained in the use agreements."

Similarly, other circuit courts have held that, to be effective, awaiver must purposefully release a right one knows that he or shepossesses and that it is highly unlikely that a valid release can beinferred absent any express manifestation. (100) An effective waiverrequires actual and complete knowledge of the nature of the right andalso of the consequences of surrender. (101) Therefore, a valid waivercannot occur if the party does not understand that consenting togovernment access will bar any claim for compensation if remedialmeasures destroy the value of the property.

Furthermore, any ambiguity concerning a waiver of a constitutionalright is strictly construed in favor of preserving the right. (102)Contractual waivers are assessed on a number of factors, includingwhether (1) unequal bargaining power exists between the parties; (2)both parties appreciated the importance and full impact of the waiver;and (3) the party waiving its right received consideration in return.(103) Courts will also examine the clarity and precision of thecontractual provision in determining whether the waiver was knowinglymade. (104) If a party to the document is not expressly made aware ofthe significance of a waiver provision in an agreement, the waiver isunlikely to be considered valid. (105)

Combining these factors with the government's burden to provethe propriety of seeking the waiver makes it highly unlikely that atypical EPA consent to access form could be a valid and knowing waiverof a constitutional right. (106) Unfortunately, safeguards againstforfeiture of a constitutional right only seem to apply if the agreementis explicitly labeled a "waiver," not if it merely functionsas one. Therefore, while it may be very difficult for a landowner towaive the right to bring a takings claim based on judicial safeguards,it is fairly easy to accomplish the same result through consent. Mostconsent to access agreements have been interpreted as providing thegovernment with an affirmative defense rather than as waivers of theproperty owner's right to sue. (107) Consequently, while aplaintiff may file suit notwithstanding having signed a consentagreement, the government can use the agreement as a bar againstrecovery. (108) Even though an executed consent to access form will notconstitute a knowing relinquishment of the landowner's right to suethe government, this agreement can operate as the functional equivalentof a waiver.

III. COERCION OR CONTRACT: LOSING THE INVERSE CONDEMNATION CLAIM

A. The Danger of Consent

What happens if the government's remedial action has destroyedthe use and enjoyment of a contiguous property owner's land? If thegovernment has "taken" a landowner's private property forpublic use, the remedy is to seek just compensation under the FifthAmendment Takings Clause (109) or the Tucker Act. (110) The TakingsClause is "designed to bar [g]overnment from forcing some peoplealone to bear public burdens which, in all fairness and justice, shouldbe borne by the public as a whole." (111) It is not necessary thatthe government take physical possession of the property for a taking tobe found, only that the owner lose most of his or her interest in, orenjoyment of, the property. (112) When the government acts in itseminent domain capacity, the implication is that it has appropriated theprivate property of an owner for some ulterior purpose without theowner's consent. (113)

The same is true for inverse condemnation claims in which alandowner seeks compensation for the government's use of his or herprivate property before any official condemnation proceedings have beeninstituted. (114) To avoid potential takings liability, governmentagencies often try to postpone condemnation by seeking the consent ofthe landowner to access the property. (115) The landowner's consent(or lack thereof) to the government's actions is crucial to thesuccess of the inverse condemnation suit. (116)

Most disputes involving the interplay between landowner consent andinverse condemnation claims have been resolved in state courts. Severalstate court opinions have held, pursuant to both federal and statetakings clauses, that lack of consent is a prerequisite for establishinga successful inverse condemnation or takings claim. (117) In City ofCibolo v. Koehler, landowners in Texas brought a takings claim againstthe city for construction of a drainage channel across their property.(118) The city claimed that a drainage easem*nt agreement signed by thelandowners had "conclusively negate[d] the Koehlers' takingsclaim as a matter of law because... the casem*nt conclusivelyestablished] that the Koehlers consented to the easem*nt...." (119)The court allowed the Koehlers to present their claim only because theyhad challenged the validity of the easem*nt agreement itself andprevented the city from conclusively establishing consent. (120) Thecourt relied on article 1, [section] 17 of the Texas Constitution (121)in noting that "if the [d]rainage [e]asem*nt were not void, [theKoehlers] would likely be unable to establish absence ofconsent...." (122)

In Yamagiwa v. City of Half Moon Bay, a federal district courtfollowed Supreme Court of California precedent in recognizing thatconsent is a defense to an inverse condemnation suit but the scope ofconsent is dispositive of an inverse condemnation suit. (123) Theconsent defense failed in Yamagiwa because the city was unable to provethat the plaintiff consented to the exact use the city made of herproperty. (124) The court held that while consent functions as a defenseto an inverse condemnation claim in much the same way as a trespass ornuisance action, "the applicability of the defense turns on theconsent." (125) The court accordingly based its determination ofwhether a taking had occurred on the scope of the consent given by theplaintiff--if the government had not acted outside of that scope, theplaintiff would have no right to compensation. (126)

In McElmurray v. Augusta-Richmond County, the Court of Appeals ofGeorgia relied on both state (127) and federal (128) precedent to holdthat property owners who consent to government action cannot obtain aninverse condemnation remedy. (129) The federal precedent, Janowsky v.United States, held that, for purposes of the Fifth Amendment, a takingnever occurs "when the property owner agrees to allow his propertyto be used by the government." (130) The judgment in Janowsky wasvacated in 1998 by the Federal Circuit because the court found thatthere was evidence that the "consent" at issue had beencoerced. (131) The court in McElmurray considered this case"reversed in part on other grounds" and still relied on theoriginal Janowsky analysis of consent when addressing the takings claimat issue. (132)

Other than the language in Janowsky, few federal cases haveexpressly addressed the role of consent in an inverse condemnationclaim. Two opinions from the late 1990s, however, offer conflictingviewpoints on the issue. In Scogin v. United States, a landowneroperated a wood treatment facility on fifty-three acres of land and4,000 feet of navigable waterway in the Bayou Bonfouca in Slidell,Louisiana. (133) After the Bayou Bonfouca site was listed on theSuperfund National Priorities List ("NPL") in 1983, EPA askedfor access to Scogin's contiguous, uncontaminatcd land. (134)Eventually, the plaintiff signed an agreement allowing EPA access toinvestigate and monitor groundwater readings for two months but wouldnot extend the grant any further. (135)

After a unilateral order compelled access to the property for alength of time beyond the two months necessary to carry out the cleanupremedy, Scogin negotiated a lease with a contractor for EPA at the site.(136) Later, when Scogin attempted to bring suit alleging a taking ofhis land, the court held that the lease agreement "appcar[ed] toconstitute a consent to the governmental activity on his property"and, consequently, meant that any damages recovered would be reduced bythe amount of compensation provided pursuant to the lease. (137) Thecourt, in dicta, stated that an owner's grant of permission toanother to access his property means "the 'right toexclude' has been relinquished and not taken." (138) Scoginhas been subsequently interpreted to mean that a landowner'sconsent to government access and activity on property defeats a laterclaim for compensation. (139)

In 1997, the U.S. District Court for the Northern District of NewYork reached the opposite conclusion. In Juliano v.Montgomery-Otsego-Schoharie Solid Waste Management Authority, Albert andJudene Juliano brought an inverse condemnation claim against a New YorkPublic Authority ("MOSA"). (140) MOSA had been given the powerto condemn real property within its area of operation for theestablishment of a solid waste facility. (141) The plaintiffs signed anagreement with MOSA in which they were compensated $1,000 for a grant ofaccess for entry and testing of their premises. (142) MOSA subsequentlyinstalled monitoring wells on the property and designated it as apotential site for a proposed sanitary landfill. (143) The plaintiffseventually brought suit for both a regulatory taking of their propertythrough MOSA's designation and a physical taking through theinstallation of the monitoring wells. (144) The court dismissed theregulatory taking claim as unripe (145) but held that theplaintiffs' land had been taken through the installation of themonitoring wells. (146)

MOSA argued that the signed testing agreement evidenced validconsent, which limited any subsequent damage claims. (147) The courtnoted that, although the plaintiffs' decision to enter into thetesting agreement appeared facially voluntary, the fact that New Yorkeminent domain law "deprived [p]laintiffs of the power torefuse" access negated even the possibility of consent. (148) Theplaintiffs' argument was that they had been coerced into signingthe testing agreement because they would have been compelled to complywith the request regardless. (149) The court agreed:

A material distinction exists between a consent form freely enteredinto and an agreement entered into that contemplates activities on[p]laintiffs' property which, but for MOSA's statutory authority toforce entry, [p]laintiffs would not have allowed.... In the presentcase[,] New York [e]minent [d]omain [l]aw section 404 authorized amandatory physical occupation of [p]laintiffs' property. Accordingly,sufficient evidence exists to raise a genuine issue of material fact asto whether [g]overnment compulsion was present, thus obviating[p]laintiffs' consent. (150)

Several scholars have advocated for this distinction betweenconsent granted based on knowledge of the government's ultimateright to compel cooperation and other forms of consent "freelyentered into." (151) Unfortunately, however, while Juliano clearlycalls into question the validity of such consent, most courts haveadopted the rationale in Scogin--holding that even the most technicaland nominal indication of consent defeats an otherwise meritoriousinverse condemnation claim. (152) The distinction in Juliano has beenlargely rejected in lieu of holding that a grant of access agreement isa valid contract and not coercive merely because the United States is aparty. (153)

B. How Sovereign Did It Seem?

Beyond the scope of explicit inverse condemnation claims, federalcourts have considered whether parties can voluntarily consent tosimilar agreements with the government. A line of federal case lawindicates that the government is generally not liable for a taking whenit acts in a proprietary capacity as a mere party in a contractualrelationship. (154) The dispositive determination is the extent to whichthe government acts in its "sovereign" capacity. (155)

In Textainer Equipment Management v. United States, the governmentleased storage containers from the plaintiffs through a third party butfailed to return all of the rented materials by the end of the lease.(156) The lease, however, provided a buyout option at a reducedgovernmental rate for any containers that were not returned to theplaintiffs. (157) When the buyout condition was activated, theplaintiffs brought a takings claim against the United States for theunreturned containers. (158) Relying on the dicta in Scogin, (159) thecourt held that "[w]here a property owner grants the governmentpermission to use or occupy the plaintiffs' property by agreement,the government's use or occupation of that property does not giverise to a taking." (160) The court concluded that to prove ataking, the plaintiffs had to show that the government had appropriatedsome property other than that which had been addressed in the lease.(161)

When analyzing the sovereign acts doctrine, it is important todistinguish between the government's role as a party to aconsensual agreement acting in its proprietary capacity and as aregulator acting in its sovereign capacity. (162) Generally, onlysovereign acts are subject to the Takings Clause. (163) Although rightsarising out of a contract with the government are "protected by theFifth Amendment," (164) if rights are voluntarily created bycontract, a takings theory has a limited application. If the governmentinterferes with contractual rights, the appropriate claim is generallyone for breach of contract, not a takings claim. (165) Most case lawconcerning the intersection of contract and takings claims addresses thecontractual claims first and holds that if a claimant is successful on abreach of contract claim, he or she cannot then recover on a takingstheory. (166) It thus follows that if the government does not performsome action beyond the scope of consent granted in a consent-to-accessform, a plaintiff cannot recover for breach of contract. At the sametime, the plaintiff may not be able to recover through inversecondemnation or takings claims. (167)

In Stockton East Water District v. United States, the plaintiffbrought a claim against the government for breach of the contractualterms related to certain water restrictions. (168) After determiningthat the government had not breached the contract, (169) the court heldthat the government had acted primarily in its commercial (orproprietary) capacity and not as a sovereign regulator; therefore, theplaintiffs could not assert a takings claim. (170) The same has beenheld in cases where the issue of the government's breach was notaddressed prior to a dismissal of the takings claim. (171) A minorityapproach restricts this "cither/or" constraint of claims tosituations where a plaintiff first recovers in contract, (172) but mostcourts focus on the availability of a claim and not the result. (173)

As long as the relationship between the individual and thegovernment is purely a matter of contract and the government is notbelieved to be acting in its sovereign capacity, the government actssolely in its proprietary capacity. (174) Recourse for any disagreementwill then be limited to pursuing a breach of contract action, not a suitbased on a taking. (175)

C. Finding Fifth Amendment Coercion

The question becomes, in what circ*mstances has a party validlycontracted with the government such that a takings claim is negated?When is the consent in question truly free of coercion from theoverbearing threat of CERCLA liability and enforcement? Where coercionexists there cannot be consent. (176) To prove coercion, a party mustshow (1) that some wrongful act or threat from the other party to thetransaction and (2) that the party was overcome by fear and"precluded from using free will." (177) Courts look at thetotality of the circ*mstances to determine whether consent was truly aproduct of the individual's free choice and not a submission tosome overbearing force of authority. (178)

For consent to be valid in a Fourth Amendment analysis, thegovernment must usually show that the consent was not only"unequivocal" and "knowingly given" but also givenwithout coercion, "implied or express." (179) There are manyclear acts of coercion, such as threats of detention or arrest. (180)However, in a Fifth Amendment context, the distinction betweenpersuasion and coercion--which determines the presence or absence of ataking--is "highly fact-specific and hardly simple todetermine." (181)

Economic coercion has been held to exist only where the landownerhad "no alternative but to submit to it"--even when thegovernment threatens to impose large fines for (allegedly) unreasonabledenial of access or the economic liability of CERCLA responsibility forthe spread of hazardous waste. (182) Even though the threatening of ajudicial penalty for withholding consent has been deemed coercive, themere presence of a signed consent form is considered to suggestvoluntariness to the agreement. (183) For example, in United States v.Ownbey Enterprises, Inc., Ownbey, a small oil company in Georgia,challenged a previously entered into consent order with EPA on thegrounds that the owner had signed the agreement under duress andcoercion. (184) Ownbey claimed that the threat of "exorbitantfines" prevented him from exercising his constitutional right tochallenge the validity of the consent order. (185) The court ruled thatthe possible imposition of fines could not be considered a form ofcoercion because the amount and imposition of the fines were at thediscretion of the court rather than EPA. (186) Furthermore, the factthat defendant did not understand the scope of EPA's legalauthority to issue unilateral orders did not constitute duress becauseEPA made no illegal threat of action--a required finding for thepresence of duress. (187)

The court ultimately held that a defendant is not coerced into acontract merely because the defendant was reluctant to agree to theterms, the terms were unfavorable for him, or the negotiating processwas unfair because of the parties' unequal bargaining power. (188)Instead, the court held that Ownbey had the viable option of notagreeing to the consent order and forcing EPA to issue a unilateralorder that could have been contested in a judicial proceeding. (189) Thefact that the defendant had two very clear alternatives showed that hewas not forced to sign the consent order. (190)

In Janowsky v. United States, the Federal Circuit suggested thatthere may be more to the distinction recognized in Juliano betweenagreements freely entered into and the "coerced consent" incontracts negotiated with the government, which have the power to compelits ultimate desired result. (191) The Janowskys entered into a contractwith the government to assist in an FBI investigation, which wouldinvolve use of the Janowskys' vending machine business. (192) Theparties exchanged a number of agreements that reflected the fact itwould be necessary for Mr. Janowsky to sell his business after theconclusion of the operation. (193) It was agreed that if the businessappraised for less than $300,000, the FBI would pay Janowsky thedifference between the appraisal and that amount. (194) Before anyagreement was officially signed, but after Janowsky was inadvertentlyexposed as a FBI informant, his continued cooperation in theinvestigation was secured through the FBI's threat that it wouldwithdraw protection of Janowsky and his family if he pulled out of theoperation. (195)

The Janowskys sued the FBI, alleging that the government took theirvending machine business without just compensation. (196) The trialcourt found that the Janowskys acted voluntarily and that no takingsclaim could exist in such circ*mstances. (197) However, on appeal, thecourt held the Janowskys were coerced because their protection wasconditioned upon Mr. Janowsky's continued participation in theoperation. (198) The court further held that, although the Janowskys didnot necessarily have a right to FBI protection, the FBI"co-ercively interfered with the Janowskys' propertyright" in their vending business by threatening to withholdprotection. (199)

IV. A NOTE ON THE UNCONSTITUTIONAL CONDITIONS DOCTRINE

The conclusion of the Janowsky opinion offered one further insightinto the takings analysis issue on appeal. In addressing the validity ofMr. Janowsky's consent, the court recognized that his agreement towork with the FBI in the sting operation had been conditioned on thegovernment's protection of his family. (200) The court then notedthat this situation likely implicated the unconstitutional conditionsdoctrine. (201) Although no person is entitled to receipt of agovernment benefit, there are restraints on the government'sability to deny citizens receipt of federal benefits. (202) Forinstance, the government may not withhold a benefit from a citizen forany reason that infringes on his or her constitutionally protectedinterests. (203) A person therefore cannot be required to surrender aFifth Amendment right to receive just compensation for a governmentaltaking in exchange for a discretionary benefit if the benefit isunrelated to the property. (204)

Regarding benefits that are related to the property, the governmentmay encourage and obtain participation in federal regulatory programs byoffering "attractive incentive[s]" or "threatening towithdraw" federal benefits based on participation. (205) Compliancewith a condition attached to a federal benefit will not usually beconsidered federal coercion. (206) Where states or individuals are freeto accept or reject the offered benefit, Congress may attach lawfulconditions to the benefits. (207) However, when there is a communicationof a required condition for receipt of a benefit, courts often examinelanguage of the communication at issue to determine if it is coercive.(208) While documents that use "should" or "may"clearly communicate that "there has been no order compelling the[party] to do anything," (209) the use of compelling language (suchas "must") in government communications suggests coercion.(210)

CONCLUSION

Since its inception, the scope of CERCLA has been expanding inresponse to the needs and concerns of the nation, but it has beensimultaneously plagued by its coercive reputation. The far-reachingscope of its liability scheme has been tempered by a variety ofconditional defenses for cooperative landowners. The current state ofthe contiguous property owner defense adopted in the Small BusinessLiability Protection Act presents adjacent landowners who are victims ofmigrating hazardous substances with an unconscionable option. The onlyway to avoid the imposition of CERCLA liability caused by a third party,including potentially the government itself, (211) is to grant free andunrestricted access to EPA and other response agents for the duration ofthe approved remedial measures.

However, most landowners do not understand the significance of theone-page, non-negotiable consent-to-access forms they are offered byEPA. Signing one of these forms likely destroys the ability to everbring a successful takings or inverse condemnation claim, regardless ofthe nature or duration of the government's occupation of theproperty. While such a forfeiture of a constitutional right shouldinvoke "full knowledge" requirements and other presumptionsagainst the finding of a valid surrender, these safeguards will likelynot apply because the agreement is not technically a waiver.

The landowner is, therefore, pigeonholed into asserting the defenseof coercion to challenge the validity of the agreement. However, thisdefense is not likely to succeed given the voluntary wording containedwithin the government's grant of access forms and court precedentviewing such agreements as contracts where the government merely acts asone party to a transaction. Unless the landowner is able to prove thatthe government acted outside of its proprietary capacity, even anobjectively unfair agreement will be enforced against the propertyowner.

The result of this setup is that a contiguous property owner isfunctionally compelled to grant the government unrestricted access tothe owner's land, thereby effectively relinquishing the right toseek just compensation while simultaneously facing the imposition ofliability for hazardous waste, which the landowner possibly had noknowledge of or part in disposing. CERCLA's contiguous propertyowner defense is conditioned on what is, at best, extremely questionableconsent in its voluntariness and scope. However subtle, this coercionstill haunts the statute and the innocent landowners affected by it.

The simplest correction to avoid setting this trap for innocentlandowners is to remove the grant of full and unrestricted access tocontaminated properties from CERCLA's list of requirements for thecontiguous property owner defense. EPA would still be free to negotiatewith landholders for grants of access but would do so withoutthreatening to impose liability for hazardous waste if the access is notgiven without compensation. While many landowners will likely be willingto grant EPA access to clean up contaminated property even without apromise of compensation, eliminating the statute's coercive landaccess requirements would give the defense its proper effect ofprotecting innocent property holders without demanding they surrendertheir ownership rights.

Trayce Hockstad (*)

(*) Special thanks to Regional Counsel at Environmental ProtectionAgency, Region 111 and Office of General Counsel for including me on achallenging, rewarding exploration of this issue in my final year as alaw student.

(1.) See Cantrel v. Church (1601) 78 Eng. Rep. 1072 (establishingthat a nuisance action for interference with a right of way could bebrought and successfully argued "by a stranger, who hath nothing todo with the Land").

(2.) See Aldrcd's Case (1611) 77 Eng. Rep. 816 (Lord co*ke).William Aldred brought suit to prevent the spread of "corruptedair" emanating from a neighbor's piggery. Id. Although thistype of suit was generally brought by a "novel disseisin"action, which provided a successful plaintiff with the remedy of areturn to the status quo, Aldred successfully brought "an action onthe case" so that he might be awarded damages. DANIEL R.COQUILLETTE, THE ANGLO-AMERICAN LEGAL HERITAGE 245 (2004).

(3.) Robert V. Percival, Regidatorv Evolution and the Future ofEnvironmental Policy, 1997 U. CHI. LEGAL F. 159, 161.

(4.) See, e.g., Susquehanna Fertilizer Co. v. Malonc, 73 Md. 268(1890) ("[N]o place can be convenient for the carrying on of abusiness which is a nuisance, and which causes substantial injury to theproperty of another.").

(5.) See, e.g., Keppel v. Lehigh Coal & Navigation Co., 200 Pa.649 (1901).

(6.) See New Jersey v. City of New York, 284 U.S. 585 (1931); NewYork v. New Jersey, 256 U.S. 296 (1921); Georgia v. Tenn. Copper Co.,206 U.S. 230 (1907); Missouri v. Illinois, 200 U.S. 496 (1906).

(7.) See, e.g., Robert G. Bone, Normative Theory and Legal Doctrinein America Nuisance Law: 1850 to 1920, 59 S. CAL. L. REV. 1101, 1159,1177-84 (1986) (describing the development of the "balancing ofconveniences" doctrine in Pennsylvania courts). Bone criticizes theapplication of the doctrine as follows: "Damages could notadequately compensate for a residential plaintiff's injury sincethe value of plaintiffs property right could not be measured in monetaryterms. Denying injunctive relief in residential plaintiff cases ineffect reduced the value of the nonfungible residential use to afungible quantity." Id. at 1178.

(8.) Jared A. Goldstein, Equitable Balancing in the Age ofStatutes, 96 VA. L. REV. 485, 493 (2010) (noting that abatement was"ordinarily required" after establishing a nuisance"regardless of how profitable or important the nuisance-makingactivity was").

(9.) See, e.g., Richard's Appeal, 57 Pa. 105, 107, 114 (1868)(holding that injunction was not appropriate to prevent an iron smelterfrom discharging soot over a plaintiff's land because the ironworks represented a $500,000 investment and employed more than 1,000men).

(10.) See Robert L. Rabin, Federal Regulation in HistoricalPerspective, 38 STAN. L. REV. 1 189, 1189-90(1986) (crediting the riseof administrative law in the 1960s and 70s and increasing federalregulation to a "response to unanticipated economic crises,emerging risks to public health and safety, and shifting publicsentiments towards disadvantaged classes"); see also the WhitePhosphorous Matches Act, Pub. L. No. 62-118, 37 Stat. 81 (1912) (taxingthe use of white phosphorous in match manufacturing to prevent diseaseoutbreak).

(11.) 16 U.S.C. [section][section] 3371-78 (2018).

(12.) Pub. L. No. 59-384, 34 Stat. 768 (1906).

(13.) Pub. L. No. 61-152, 36 Stat. 331 (1910).

(14.) See Water Pollution Control Act, Pub. L. No. 80-845, 62 Stat.1155 (1948).

(15.) Robert V. Percival, Environmental Federalism: HistoricalRoots and Contemporary Models, 54 MD. L. REV. 1141, 1157 (1995).

(16.) Pub. L. No. 91-190, 83 Stat. 852 (1970).

(17.) Pub. L. No. 93-205, 87 Stat. 884 (1973).

(18.) Pub. L. No. 91-604, 84 Stat. 1676 (1970).

(19.) Pub. L. No. 92-500, 86 Stat. 816 (1972).

(20.) Pub. L. No. 94-469, 90 Stat. 2003 (1976).

(21.) Pub. L. No. 94-580, 90 Stat. 2795 (1976). RCRA sets out aframework for proper management of solid waste, both hazardous andnon-hazardous. Id.

(22.) In 1978, a canal, which had been converted by the HookerChemical Company to a landfill for hazardous waste, exploded after thearea received a record amount of rainfall. Eckardt C. Beck, The LoveCanal Tragedy, EPA J. (Jan. 1979),https://archive.cpa.gov/epa/aboutepa/love-canal-tragcdy.html. Hazardouswaste leaked into the groundwater causing chemical burns, birth defects,and widespread environmental destruction. Id.

(23.) Pub. L. No. 96-510, 94 Stat. 2767 (1980) (codified as amendedat 42 U.S.C. ch. 103 (2018)); see also 42 U.S.C. ch. 103 [hereinafterCERCLA].

(24.) H.R. REP. NO. 99-253, pt. 1 (1985).

(25.) Christopher D. Man, The Constitutional Rights of Non-SettlingPotentially Responsible Parties in the Allocation of CERCLA Liability,27 ENVTL. L. 375, 376 (1997) ("[CERCLA] is widely criticized asunfair because it imposes retroactive, strict, and joint and severalliability upon a broad class of persons whom Congress has deemed'responsible' for hazardous waste contamination.").

(26.) CERCLA [section] 9607(q)(1)(A).

(27.) Id. [section] 9607(q)(1)(A)(iv).

(28.) See id.

(29.) See infra Section III.A.

(30.) The unconstitutional conditions doctrine restricts thegovernment's ability to condition the receipt of benefits generallyheld out to the public or qualifying individuals on surrender orcompromise of a constitutional right. Such situations are prone toamount to government coercion. See B&G Enters, v. United States, 43Fed. CI. 523, 527 (1999).

(31.) The diminution in the value of private property by loss ofthe right to exclude the government has been recognized by the federalgovernment many times. See, e.g., Hendler v. United States, 952 F.2d1364, 1374 (Fed. Cir. 1991) ("In the bundle of rights we callproperty, one of the most valued is the right to sole and exclusivepossession--the right to exclude strangers, or for that matter friends,but especially the Government." (alteration in original)); In reEtter, 756 F.2d 852, 859 (Fed. Cir. 1985) ("The essence of allproperty is the right to exclude....").

(32.) S. REP. NO. 99-11, at 2 (1985).

(33.) Id.

(34.) H.R. REP. NO. 99-253, pt. 1, at 54-55 (1985).

(35.) Pub. L. No. 99-499, 100 Stat. 1613 (1986).

(36.) Id. at 1645.

(37.) Id. at 1647-48.

(38.) Percival, supra note 15, at 1163.

(39.) Jasmine M. Starr, Note, Making Good Neighbors: Liability forPassive Migration of Hazardous Waste Under CERCLA, 31 ECOLOGY L.Q. 435,439 (2004).

(40.) CERCLA [section] 9606 (2018).

(41.) Id. [section] 9607.

(42.) Id. [section] 9621(d).

(43.) Adam Babich, Our Federalism, Our Hazardous Waste, and OurGood Fortune, 54 MD. L. REV. 1516, 1534-35 (1995).

(44.) CERCLA [section] 9607(a).

(45.) See Michael V. Hernandez, Cost Recovery or Contribution?:Resolving the Controversy over CERCLA Claims Brought by PotentiallyResponsible Parties, 21 HARV. ENVTL. L. REV. 83, 90-92 (1997) (notingtwo types of actions for enforcing liability on PRPs: (1) cost recoveryclaims of a non-PRP cleanup agent against a PRP under [section] 107(a)of CERCLA and (2) contribution claims of one PRP against another under[section] 113(0). Some courts have further delineated the allocation ofliability in various claims of PRPs brought against other PRPs. See id.at 106-13.

(46.) See Starr, supra note 39, at 440.

(47.) See United States v. Monsanto Co., 858 F.2d 160, 171-72 (4thCir. 1988).

(48.) Hernandez, supra note 45, at 84.

(49.) United States v. Chem-Dyne Corp., 572 F. Supp. 802 (S.D. Ohio1983).

(50.) Id. at 804.

(51.) Id. at 808.

(52.) United States v. Ne. Pharm. Co., 810 F.2d 726 (8th Cir.1986).

(53.) Id. at 729-30.

(54.) Id. at 730.

(55.) Id.

(56.) Id. at 732-33.

(57.) Id. at 729.

(58.) Compare Am. Cyanamid Co. v. King Indus., Inc., 814 F. Supp.209, 213-15 (D.R.I. 1993) (finding no right to jury trial), with UnitedStates v. Shaner, No. 85-1372, 1992 WL 154618 (E.D. Pa. June 15, 1992)(finding a right to jury trial).

(59.) Hatco Corp. v. W.R. Grace & Co. Conn., 59 F.3d 400, 414(3d Cir. 1995).

(60.) See Reichhold Chems., Inc. v. Textron, Inc., 888 F. Supp.1116, 1129 (N.D. Fla. 1995) ("While it may seem inequitable, themere migration of contaminants from adjacent land constitutes disposalfor the purposes of CERCLA, and passive downstream landowners are liablefor the cleanup costs resulting from their neighbors'activities."); Colin Crawford, Medical Monitoring and the Future ofCERCLA: Reinvigorating the Superfund Law's ConsequentialistPurpose, 28 ARIZ. ST. L. J. 839, 840 (1996) ("People with differentpolitical philosophies and divergent views on the appropriate role ofenvironmental protection nonetheless often agree that various CERCLAprovisions, and in particular its imposition of joint and severalliability, are an unjust practice."); Melody A. Hamel, Comment, The1970 Pollution Exclusion in Comprehensive General Liability Policies:Reasons for Interpretations in Favor of Coverage in 1996 and Beyond, 34DUQ. L. REV. 1083, 1122 (1996) ("The strict liability scheme ofCERCLA is often criticized as Hawed and unfair.").

(62.) Pub. L. No. 107-118, 115 Stat. 2356 (2002) [hereinafter SmallBusiness Liability Protection Act].

(63.) See id.

(64.) See Starr, supra note 39, at 442-43.

(65.) See Small Business Liability Protection Act [section] 221.

(66.) AMCAL Multi-Hous., Inc. v. Pac. Clay Prods., 457 F. Supp. 2d1016, 1028 (CD. Cal. 2006).

(67.) CERCLA [section] 107(q)(1)(A).

(68.) Id. [section] 107(q)(1)(A)(i)-(iii), (v)-(viii). Compliancewith information requests and reporting requirements is also a conditionof the defense. Id.

(69.) Id. [section] 107(q)(1)(A)(iv).

(70.) See Schnapf, supra note 61, at 267 ("It has been a rareinstance when a property owner whose property has been impacted by aplume migrating from an off-site source has been held liable underCERCLA.").

(71.) Id.

(72.) See id.

Presumably, a contiguous owner will have to allow access to PRPs toconduct response actions in order to be deemed to have exercised"appropriate care" and no longer be able to demand compensation as acondition for access to the property. It is quite possible that a courtmay conclude that a contiguous property owner who denies access to PRPsto conduct response actions or refuses to allow institutional controlsto be placed on property because of inadequate compensation may havenot exercised "appropriate care" and be liable under CERCLA.

Id.

(73.) See CERCLA [section] 9604(b), (e) (2018).

(74.) Id. [section] 9604(e).

(75.) Id. [section] 9604(e)(5).

(76.) Id. [section] 9604(e)(5)(B)(ii).

(77.) United States v. Tarkowski, 248 F.3d 596, 601 (7th Cir.2001).

(78.) United States v. Charles George Trucking Co., 682 F. Supp.1260, 1273 (D. Mass. 1988).

(79.) See CERCLA [section] 9606(a); B.F. Goodrich Co. v. Murtha,697 F. Supp. 89, 95-96 (D. Conn. 1988) (discussing the "imminentand substantial endangerment" standard).

(80.) Tarkowski, 248 F.3d at 601 ("[D]istinguishing betweencases in which the agency cither is rightfully on the land to performremedial measures or does not have to be on the land because the orderis directed to the landowner... and cases in which the agency must getaccess to the land to execute remediation."). The court denied therequest based on "very limited evidence of an environmental hazardthat... [EPA] has put forward to justify its request for an accessorder," because if the "ground for going on the property is toundertake remedial measures, the court cannot perform its duty ofdetermining whether the agency's proposed action is arbitrary orcapricious without considering whether the measures proposed are areasonable basis for authorizing what would otherwise be atrespass." Id. at 601-02.

(81.) Reeves Bros. v. EPA, 956 F. Supp. 665, 673 (W.D. Va. 1995)(citing CERCLA [section] 9604(e)(5)(A)).

(82.) See CERCLA [section] 9604(e)(3)(C).

(83.) Tarkowski, 248 F.3d at 601 ("[W]hen an access order issought, judicial jurisdiction clicks in; the arbitrary and capriciousstandard clicks in").

(84.) Memorandum from Thomas L. Adams, Jr., Assistant Admin'rEPA, to RPA Regional Admin'rs 4, 6 (June 5, 1987),https://www.epa.gov/sites/production/files/2013-09/documents/cont-access-mem.pdf) [hereinafter OSWER Directive].

(85.) See e.g., EPA, CONSENT FOR ACCESS TO PROPERTY,https://www.epa.gov/sites/production/files/2015-08/documents/tba-access-form.pdf (last visited Mar. 10, 2019).

(86.) Id.

(87.) OSWER Directive, supra note 84, at 7.

Persons on whose property EPA wishes to enter often attempt to placeconditions upon entry. EPA personnel should not agree to conditionswhich restrict or impede the manner or extent of an inspection orresponse action, impose indemnity or compensatory obligations on EPA,or operate as a release of liability. The imposition of conditions ofthis nature on entry should be treated as denial of consent and awarrant or order should be obtained.

Id.

(88.) Id. at 6.

(89.) CONSENT FOR ACCESS TO PROPERTY, supra note 85.

(90.) See Roger D. Schwenkc, Regulatory Access to ContaminatedSites: Some New Twists to an Old Tale, 26 WM. & MARY ENVTL. L. &POL'Y REV. 749, 750 (2002) ("Many landowners also probablybelieve that when an agency demanding access goes too far, they areprotected by their right to assert a claim of there being a'taking' of their property. However... that right andopportunity is very limited.").

(91.) Id. at 750 n.4 ("[T]here is very little real voluntary'consent' associated with many such documents received byEPA.").

(92.) U.S. CONST, amend. V.

(93.) D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 186(1972).

(94.) Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937).

(95.) Fuentes v. Shevin, 407 U.S. 67, 95 (1972) (finding no waiverwhen "the contractual language relied upon does not, on its face,even amount to a waiver"). "[W]aiver of constitutional rightsin any context must, at the very least, be clear." Id. (emphasisadded).

(96.) Krieg v. Seybold, 481 F.3d 512, 517 (7th Cir. 2007) ("Inany event, waiver of a constitutional right must be clear andunmistakable."); Ricker v. United States, 417 F. Supp. 133, 139-40(D. Me. 1976) ("To be effective, waiver of a constitutional rightmust be voluntary, knowing, and intelligently made.").

(97.) 503 F.3d 1266, 1273-74 (Fed. Cir. 2007).

(99.) Cienega Gardens, 503 F.3d at 1273.

(100.) See, e.g., Hatfield v. Scott, 306 F.3d 223, 229 (5th Cir.2002) ("Constructive consent to a waiver is not generallyassociated with the surrender of constitutional rights."); LakeJames Cmty. Volunteer Fire Dep't v. Burke Cty., 149 F.3d 277 (4thCir. 1998). The Fourth Circuit qualified valid contractual waivers ofconstitutional rights as follows:

The contractual waiver of a constitutional right must be a knowingwaiver, must be voluntarily given, and must not undermine the relevantpublic interest in order to be enforceable. Under these principles,courts have routinely enforced voluntary agreements with the governmentin which citizens have, for example, given up the right to sue throughreleases and covenants not to sue the government.

Id. at 280.

(101.) Hatfield, 306 F.3d at 229-30 (noting the holder of the rightmust possess "actual knowledge of the existence of the right orprivilege, full understanding of its meaning, and clear comprehension ofthe consequence of the waiver"); see also Cullen v. Fliegner, 18F.3d 96, 105 (2d Cir. 1994) (finding the plaintiff did not waive theright to present his claims to an Article 111 court unless he"possessed an awareness" that he was waiving that right); ErieTelecomms., Inc. v. City of Erie, 853 F.2d 1084, 1096 (3d Cir. 1988)(waiver of a constitutional right must be made "with fullunderstanding of the consequences" of the waiver).

(102.) Urban Developers LLC v. City of Jackson, 468 F.3d 281, 306(5th Cir. 2006); see also Gete v. INS, 121 F.3d 1285, 1293 (9th Cir.1997) (stating that principles governing waiver of constitutional rightsapply equally in criminal and civil contexts).

(103.) D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, at 187-88(1972).

(104.) See, e.g., Weaver v. N.Y. City Emps.' Retirement Sys.,717 F. Supp. 1039, 1045 (S.D.N.Y. 1989) (finding a violation ofplaintiff's due process rights because a notice of termination ofbenefits was "so confusing that a reasonable lay person would nothave known that he had an opportunity in fact to contestdefendants' finding").

(105.) See, e.g., Ricker v. United States, 417 F. Supp. 133, 139-40(D. Me. 1976) (finding a violation of property owners' due processrights as (1) there was no waiver because a signed mortgage did no morethan state the government's right to foreclose on the property and(2) even if the language might be construed as a waiver, the governmentmade no showing that the owners were actually made aware of thesignificance of the fine print relied on as a waiver of constitutionalrights).

(106.) Emmert Indus. Corp. v. City of Milwaukie, 450 F. Supp. 2d1164, 1178-79 (D. Or. July 7, 2006) ("[T]he government mustdemonstrate the propriety of seeking a waiver of a constitutional rightin light of both its legitimate interest in a waiver, if any, and thebenefit to be conferred upon the adverse party.").

(107.) See, e.g., Scogin v. United States, 33 Fed. Cl. 285, 291(1995); Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d829, 844 (Tex. 2010).

(108.) See, e.g., Kirby Lake Dev., Ltd., 320 S.W.3d at 844.

(109.) U.S. CONST, amend. V ("[N]or shall private property betaken for public use, without just compensation.").

(110.) 28 U.S.C. [section] 1491(a)(2) (2018) (providingjurisdiction in the Court of Federal Claims for takings actions againstthe United States).

(111.) Penn Ctr. Transp. Co. v. New York, 438 U.S. 104, 123 (1978)(quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)).

(112.) Aris Gloves, Inc. v. United States, 420 F.2d 1386, 1391(Fed. CI. Ct. 1970). The specifics of what types of governmental actionsconstitute physical and regulatory takings are beyond the scope of thisArticle. For a thorough breakdown of the current status of typical EPAresponse actions and what amounts to a government taking, see Hendler v.United States, 952 F.2d 1364 (1991).

(113.) Seneca Nation of Indians v. New York. 206 F. Supp. 2d 448,533 (W.D.N.Y. 2002); see also Warner/Elektra/Atl. Corp. v. Cty. OfDuPage, 991 F.2d 1280,1284 (7th Cir. 1993) ("Laws authorizingcondemnation entitle a governmental entity... to take private propertyfor its own use without lhe owner's consent." (emphasisadded)).

(114.) United States v. Clarke, 445 U.S. 253, 257 (1980).

(115.) See OSWER Directive, supra note 84, at 4.

(116.) See 8 NICHOLS ON EMINENT DOMAIN [section] G14E.01 at n.6(Matthew Bender, 3rd. ed.) ("Implicit in an inverse condemnationclaim is the notion that the government action at issue was without thelandowner's consent.").

(117.) See, e.g., Kirby Lake Dev., Ltd. v. Clear Lake City WaterAuth., 320 S.W.3d 829, 844 (Tex. 2010) ("A person who consents tothe governmental action cannot validly assert a takings claim.");Krambeck v. City of Gretna, 254 N.W.2d 691, 694 (Neb. 1977)("Eminent domain is defined generally as the power of the nation ora state, or authorized public agency, to take or to authorize the takingof private property for a public use without the owner'sconsent...."); Pondcrosa Domestic Water Improvement Dist. v. VanWyck, No. 1 CA-SA 15-0251, 2015 WL 6696816, at *2 (Ariz. Ct. App. Oct.29, 2015) ("Any waivers or consents the District has obtained mayconstitute 'affirmative defenses' to inverse condemnationclaims by [land]owners relating to the taking."); VLX Props, v. S.States Utils., Inc., 792 So.2d 504, 510 (Fla. Dist. Ct. App. 2001)(finding no taking of pond water for storage when the owner consented tothe use); Rahm v. Mo. Pub. Serv. Co., 676 S.W.2d 906, 908 (Mo. Ct. App.1984) (finding prior property owners had consented to the challengedland use and "any entitlement for damages for trespass or inversecondemnation ceased").

(118.) No. 04-11-00209-CV, 2011 WL 5869683, at *1 (Tex. Ct. App.Nov. 23, 2011).

(119.) Id. at *5.

(120.) Id. at *7.

(121.) TEX. CONST, art. 1, [section] 17 ("No person'sproperty shall be taken, damaged, or destroyed for or applied to publicuse without adequate compensation being made, unless by the consent ofsuch person...."). Other state courts have relied on similarlanguage in takings clauses of their constitutions. See. e.g., Huard v.Town of Pelham, 986 A.2d 460, 466 (N.H. 2009) ("Under Part 1,Article 12 of the New Hampshire Constitution, '[n]o part of aman's property shall be taken from him, or applied to public-uses,without his consent.'").

(122.) Koehler, 2011 WL 5869683, at *5.

(123.) 523 F. Supp. 2d 1036, 1104 (N.D. Cal. 2007).

(124.) Id.

(125.) Id. at 1104-05.

(126.) Id.

(127.) 618 S.E.2d 59, 63 (Ga. Ct. App. 2005). In Barwick v.Roberts, the Supreme Court of Georgia held that a plaintiff'sexpress consent to the use of his property defeated his claim under theGeorgia constitution takings provision; "Private property shall notbe taken, or damaged, for public purposes, without just and adequatecompensation being first paid." 16 S.E.2d 867, 870 (Ga. 1941). Eventhough this provision does not expressly state that consent is a part ofanalysis, the court concluded it was so. Id.

(128.) McElmurray, 618 S.E.2d at 63.

(129.) Id. at 63-64.

(130.) 23 Cl. Ct. 706, 716-17 (1991), rev'd in part, vacatedin part 133 F.3d 888 (Fed. Cir. 1998). Timothy Janowsky agreed to assistthe FBI in an undercover investigation that involved the use ofJanowsky's vending company as a front for the operation. Id. at707. When the government refused to buy the vending company after theconclusion of the project, despite having allegedly promised Janowskythat it would, Janowsky brought an inverse condemnation suit. Id. Thecourt held that property owners who voluntarily deliver property to thegovernment and later seek compensation may have a remedy throughcontract principles but cannot maintain an inverse condemnation claim.Id. at 711-12.

(131.) Janowsky v. United States, 133 F.3d 888, 892 (Fed. Cir.1998).

(132.) McElmurray, 618 S.E.2d at 62 n.2.

(133.) 33 Fed. Cl. 285, 286 (1995).

(134.) Id.

(135.) Id. at 286-87.

(136.) Id. at 288.

(137.) Id. at 293.

(138.) Id. at 292.

(139.) See Schwenke, supra note 90, at 791; see also TextainerEquip. Mgmt. v. United States, 99 Fed. Cl. 211, 218 (2011).

(140.) 983 F. Supp. 319, 321-22 (N.D.N.Y. 1997).

(141.) Id.

(142.) Id. at 322.

(143.) Id. at 323.

(144.) Id.

(145.) Id. at 324.

(146.) Id. at 328.

(147.) Id. at 329.

(148.) Id.

(149.) Id. at 322 n.1.

(150.) Id. at 329.

(151.) See, e.g., Schwenke, supra note 90, at 750 n.4.

(152.) See, e.g., BMR Gold Corp. v. United States, 41 Fed. Cl. 277,283 (1998); Tex-tainer Equip. Mgmt. v. United States, 99 Fed. CI. 211,218 (2011).

(153.) Brace v. United States, 72 Fed. CI. 337, 359-60 (2006).

Even were judicial takings cognizable, it is hard to fathom how aconsent decree could meet the requirements for a taking, among which isthe presence of a compelled acquiescence. Such decrees are hybrids partorder, part contract--and obviously reflect the agreement of theparties, often to provisions that would be beyond the power of thecourt to impose without the parties' consent.

Id.; see also Local No. 93 v. City of Cleveland, 478 U.S. 501, 519(1986); Johnson v. United Slates, 49 Fed. CI. 648, 654 (2001),aff'd, 317 F.3d 1331 (Fed. Cir. 2003); SEC v. Credit Bancorp, Ltd.,290 F.3d 80, 91 (2d Cir. 2002).

(154.) See Textainer, 99 Fed. Cl. at 218 ("The government hasnot taken property where it acts in its proprietary capacity pursuant toa contract right; to effect a taking, the government must act pursuantto its sovereign powers or invoke sovereign protections."); seealso Janicki Logging Co., Inc., v. United States, 36 Fed. CI. 338, 346(1996) (holding that there was no taking when the Forest Service"acted in a proprietary capacity as a party to a contract andpurported to exercise its rights for which it bargained").

(155.) Textainer, 99 Fed. Cl. at 218.

(156.) Id. at 212.

(157.) Id. at 212-13.

(158.) Id.

(159.) 33 Fed. CI. 285, 291 (1995) ("[A] property ownerrelinquishes the right to exclude when the owner consents to the entry,use, and occupation of subject property.").

(160.) Id. at 218; see also J.J. Henry Co. v. United States, 411F.2d 1246, 1249 (Ct. Cl. 1969).

The clear thrust of the authorities is that where the governmentpossesses property under the color of legal right, as by an expresscontract, there is seldom a taking in violation of the Fifth Amendment.The amendment has limited application to the relative rights inproperty of parties... voluntarily created by contract.

Id.

(161.) Textainer, 99 Fed. Cl. at 218-19; see also BMR Gold Corp. v.United States, 41 Fed. Cl. 277, 282-83 (1998) (dismissing aplaintiff's takings claim when he had consented to the MarineCorp's access to his property because "[a]lthough the right toexclude others from one's property is a compensable Fifth Amendmentinterest, a property owner relinquishes the right to exclude when theowner consents to the entry, use, and occupation of the subjectproperty.").

(162.) David W. Spohr, (When) Does a Contract Claim Trump a TakingsClaim? Lessons from the Water Wars, 2 WASH. J. ENVTL. L. &POL'Y 125, 136 (2012).

(163.) Nwogu v. United States, 94 Fed. CI. 637, 661 (2010),aff'd in part, rev'd in part 497 Fed. App'x 952 (Fed.Cir. 2012); see also Envtl. Safety Consultants, Inc. v. United States,95 Fed. CI. 77, 100 (2010).

(164.) Lynch v. United States, 292 U.S. 571, 579 (1934).

(165.) St. Christopher Assocs. v. United States, 511 F.3d 1376,1385 (Fed. Cir. 2008); see also Baggett Transp. Co. v. United States,969 F.2d 1028, 1034 (Fed. Cir. 1992); Sun Oil Co. v. United States, 572F.2d 786, 818 (Ct. Cl. 1978).

(166.) See Stockton E. Water Dist. v. United States, 583 F.3d 1344,1369 (Fed. Cir. 2009); Castle v. United States, 301 F.3d 1328, 1341-42(Fed. Cir. 2002); Hughes Commc'ns. Galaxy, Inc. v. United States,271 F.3d 1060, 1070 (Fed. Cir. 2001). No language from these opinionsindicates that this prioritization is an application of theconstitutional avoidance doctrine.

(167.) Hughes Commc'ns. Galaxy, Inc., 271 F.3d at 1070(holding that when parties validly contract with the government"remedies arise from the contracts themselves, rather than from theconstitutional protection of private property rights").

(168.) 75 Fed. Cl. 321, 324 (2007), modified in part, 76 Fed. Cl.497 (2007), aff'd in part, vacated in part 583 F.3d 1344.

(169.) Id. at 363-64 (2007).

(170.) Id. at 373-74.

(171.) See, e.g., Klamath Irrigation Dist. v. United States, 67Fed. Cl. 504, 532, 535 (2005) (holding that the "availability ofcontract remedies is sufficient to vitiate a takings claim, even if itultimately is determined that no breach occurred" and that thetakings claim was "entirely subsumed within the contractclaim," even where the government successfully asserted a defense).

(172.) See, e.g., Henry Hous. Ltd. v. United States, 95 Fed. Cl.250, 256 (2010); Consumers Energy Co. v. United States, 84 Fed. Cl. 152,158 (2008); System Fuels, Inc. v. United States, 65 Fed. Cl. 163, 172-73(2005); see also Detroit Edison Co. v. United States, 56 Fed. Cl. 299,300-02 (2003) (holding that a plaintiff must actually win a breach ofcontract claim to warrant dismissing a takings claim).

(173.) Spohr, supra note 162, at 146.

(174.) Janicki Logging Co., Inc., v. United States, 36 Fed. Cl.338, 346 (1996).

(175.) Hughes Commc'ns. Galaxy, Inc. v. United States, 271F.3d 1060, 1070 (Fed. Cir. 2001). "Taking claims rarely arise undergovernment contracts because the [g]overnment acts in its commercial orproprietary capacity in entering contracts, rather than in its sovereigncapacity." Id.

(176.) Bumper v. North Carolina, 391 U.S. 543, 550 (1968). Seegenerally Gouled v. United States, 255 U.S. 298, 306 (1921) (holdingthat misrepresentation, overt coercion, intimidation, fraud, trickery,and deceit vitiate consent).

(177.) Hsue Tung v. Peters, No. AW--09--576, 2009 WL 5206627, at *3(D. Md. Dec. 23, 2009).

(178.) United States v. Garcia, 56 F.3d 418, 422 (2d Cir. 1995);see also Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)("[T]he question whether a consent... was in fact'voluntary' or was the product of duress or coercion, expressof implied, is a question of fact to be determined from the totality ofall the circ*mstances.").

(179.) United States v. Jeter, 394 F. Supp. 2d 1334, 1347 (D. Utah2005).

(180.) Cuviello v. City of Stockton, No. CIV. S--007--1625 LLK/KJM,2009 WL 9156144, *17 (E.D. Cal. Jan. 26, 2009).

(181.) A&D Auto Sales, Inc. v. United States, 748 F.3d 1142,1154 (Fed. Cir. 2014).

(182.) Lee v. Wal-Mart Stores, Inc., 34 F.3d 285, 290 (5th Cir.1994).

(183.) Eidson v. Owens, 515 F.3d 1139, 1147-48 (10th Cir. 2008).

(184.) 789 F. Supp. 1145, 1149, 1151 (N.D. Ga. 1992). Thecourt's opinion names the company as the defendant, although itaddresses the owner's interactions with EPA in what is presumablyan agency capacity. See id. at 1147-48. For purposes of its holding, thecourt made no mention of the degree to which a company's rights arecoextensive with that of the owner. See generally id.

(185.) Id. at 1149.

(186.) Id. at 1152.

(187.) Id.

(188.) Id.

(189.) Id.

(190.) Id.; see also United States v. Hajduk, 396 F. Supp. 2d 1216,1227 (D. Colo. 2005) (finding defendants' consent lawful even whenthe government stated prior to the consent agreement that a sampling boxwas to be installed on defendants' property regardless of consent,and defendants did not have an option to refuse).

(191.) See generally 133 F.3d 888 (Fed. Cir. 1998).

(192.) Id. at 889.

(193.) Id.

(194.) Id. at 890.

(195.) Id.

(196.) Id. at 892.

(197.) Id.

(198.) Id.

(199.) Id.

(200.) Id.

(201.) Id.

(202.) Id. (citing Perry v. Sindermann, 408 U.S. 593, 597 (1972)).

(203.) Id. (citing Perry, 408 U.S. at 597).

(204.) Dolan v. City of Tigard, 512 U.S. 374, 385 (1994).

(205.) Adolph v. FEMA, 854 F.2d 732, 736 n.3 (5th Cir. 1988).

(206.) Id. (citing Steward Machine Co. v. Davis, 301 U.S. 548,589-90 (1937)).

(207.) See B&G Enters, v. United States, 43 Fed. CI. 523, 527(1999) (finding that FEMA could not be charged with an unconstitutionaltaking because no "unconstitutional conditions [were] attached tothe benefits" of the NFIP program and "coercion by the[g]overnment" was not present).

(208.) See, e.g., Cmty. Fin. Servs. Ass'n of Am. v. FDIC, 132F. Supp 3d 98, 121 (D.D.C. 2015).

(209.) Holistic Candlers & Consumers Ass'n v. FDA, 664F.3d 940, 944 (D.C. Cir. 2012); see also In re Diamantis, No. 13-11201,2014 WL 1203182, at *6 (U.S. Bankr. N.D. Ohio Mar. 24, 2014) (finding nocoercion or duress where a debtor signed an agreement in order to retaindisability benefits after communications with employer were found to be"necessary to explain the debtor's options and to solicit hisagreement").

(210.) See Schwenke, supra note 90, at 750 n.4 (stating there is"very little real voluntary consent" present in theseagreements).

(211.) See generally Waverley View Inv'rs, LLC v. UnitedStates, 135 Fed. Cl. 750 (2018).