As real estate development and leasing begin to emerge slowly from the dark days of the Great Recession, it’s important to remember that environmental considerations should not take a back seat to getting a deal done. In commercial leasing, just as in the purchase-and-sale context, parties disregard or minimize environmental issues at their peril. While there are many good reasons for doing some environmental due diligence, the primary reason can be summed up in five words - joint and several strict liability.
The Washington Model Toxics Control Act (“MTCA”), as well as federal statutes such as the Comprehensive Environmental Response Compensation & Liability Act (“CERCLA”), encourage, with a somewhat heavy hand, the expeditious cleanup of contamination. Liability under both MTCA and CERCLA can arise solely because of a party’s status and without regard to whether the party caused contamination.
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