For a generation, government has drawn a line in the sand with respect to environmental contamination: If you foul our nest, you are legally and financially responsible. Your responsibility extends to past and present actions and into the perpetual future. This principle, known as "strict, joint and several, and retroactive liability" has become the single biggest shaping factor in the sea change in environmental behavior over the past 20 years.

Codified in both the federal Superfund law and Massachusetts' hazardous waste cleanup law (known as Chapter 21E), society and the legislature have sent a clear message: if you cause a hazardous waste site -- you're on the hook. You pay to clean it up, and you're responsible if someone else gets hurt or their property is damaged. No exceptions. This precept underlies the increasingly environmentally proactive behavior of companies around the country and in New England. While corporate ethics and responsibility provide flesh to the new environmental approaches of corporate leaders as diverse as SC Johnson, 3M, Stonyfield Farms and Polaroid, the "polluter pays" principle is the backbone. Without this financial underpinning, many positive company efforts would dry up in the desert of corporate finance and quarterly profit pressure.

Sadly, the Massachusetts House of Representatives violated this principle in the Brownfields Bill it passed last month. That bill, H.5299, would subsidize acknowledged environmentally responsible parties with tens of millions of dollars in tax breaks to help them defray the cost of cleaning up the messes they have made. Not only would it require taxpayers to kick in one quarter to one half the cost of removing hazardous wastes others had dumped or spilled, it would remove the key incentive that prevents companies from creating future waste sites: unending and unlimited liability. This is both a fiscally and philosophically flawed approach.

There are other disturbing points to the bill. Not all brownfields are created equal. For example, economically depressed areas such as Roxbury, New Bedford, and Lawrence, where property values are low and where waste sites are prevalent, need to be targeted first to realize the maximum economic development gain. Instead, the House bill has opened up the pool of potential sites for redevelopment moneys to roughly 50% of all municipalities in the state, including areas that don't need the funding incentive. This is simply not a fiscally prudent use of limited resources.

The bill also intrudes on common law rights by significantly raising the bar for individuals to bring suit for personal injury due to toxic waste. In reality, such claims are so rare and difficult to prove that there is little concern that redevelopers will be swamped with claims. Why, then, make it unnecessarily difficult for people who have been harmed to go to court against the parties that caused the harm?

The intent of H.5299 - to clean up waste sites so that they are used for economically productive activities rather than lying abandoned in the core of our communities - is not only sound public policy, but a pressing environmental need. The only way to relieve pressure on our dwindling reservoir of natural places is to re-use already developed property; "brownfields" thus represent a vital asset for both environmental protection and economic development.

The key element of the bill -- liability relief for third parties who did not cause contamination -- is sound. Fear of inherited liability drives potential developers and lenders from developed areas into untouched green space. The House's approach in this instance, however, risks throwing away two decades of broad-based progress in the blind pursuit of brownfield redevelopment incentives.

There is hope. The Senate can change the bill to remedy these flaws. It should not pass H.5299 in its current form and if it does, the Governor should not sign it.

Before Massachusetts takes this major step backwards, candidates should speak out on this issue: Do they wish to continue the positive progress we've made on environmental protection or would they turn back the clock by breaching the key environmental principle of the past 20 years? If the bill becomes law in its current form, challengers in legislative races this fall should ask incumbents to explain why they voted to subsidize polluters with millions of taxpayer dollars.

We need real brownfields reform in Massachusetts, but not at the price of weakening the backbone of our environmental protection system. Meaningful reform will protect innocent parties, target the most environmentally and economically distressed areas, preserve common law rights, and protect the future against the short term vision of the present.

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