Note: Death by Arugula: How Soil Contamination Stunts Urban Agriculture, and What the Law Should Do About It

By Steven A. Platt. Full text here.

More and more people are growing food in urban environments. The benefits of urban farming are well documented. The government sees increased economic activity, society enjoys new social and educational opportunities and blight reduction, and the individuals farming eat inexpensive, fresh, locally sourced food. However, cities have fostered and hosted many industrial uses in the past, which presents the question: are the foods in urban gardens safe when grown in soil laden with heavy industrial pollutants? What options do urban farmers have when confronted with contaminated soil?

Urban gardeners may sue the responsible parties—if they can identify them—on tort theories or under statutes like CERCLA. However, the enormous costs and effort exacted by litigation greatly outweigh the benefits of urban agriculture, and may discourage people from bothering to clean up their soil to garden. Grants are available to remediate impacted soil, but too often their disbursement hinges on the commercial profitability of the proposed land use, which is not always the best metric for a successful urban garden. Because the evils of soil contamination are small individually, they escape legal attention, even though they present an enormous problem in the aggregate.

Statutorily operated hazardous substance funds reimburse parties that perform certain kinds of specific environmental cleanups, such as cleaning up after an underground storage tank leakage, or removing contamination on dry cleaning sites. This Note argues that policymakers should draw on the successes of these funds and create one tailored to urban agriculture. Given the fundamental flaws of addressing soil contamination extra-legally, a reimbursement fund is necessary for the continued propagation of urban agriculture.