Environmental law has developed from the common-law doctrine of nuisance. In modern times, it is based on the principle of reserving and protecting the human environment in an undamaged and healthy condition and in creating an enjoyable and harmonious relationship between man and the environment.
To avoid or prevent the destruction and degradation of the natural environment, several measures have been adopted by the federal government, congress, and state legislatures.
This environmental protection effort was initiated by Congress in l969 with the enactment of the National Environmental Policy Act (NEPA) and has continued with the passage of laws and regulations dealing with wetlands, flood plain zoning, coastal zones, pollution (air, water, and noise), and hazardous or radio-active waste.
The following is a list of statutes enacted by the federal government applying exclusively to environmental protection. These federal statutes contain provisions creating liens on real property for the purpose of reimbursing the government for the costs it may incur in the cleanup of pollution or other related expenses.
This list does not include statutes which may contain environmental provisions as a part of regulations not focused solely on the environment:
- Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. Section 9601 et seq. (known as CERCLA or Superfund);
- Superfund Amendments and Reauthorization Act of 1986. Pub. L. No. 99-499,
100 Stat. 1613 (Known as SARA);
- Clean Air Act, 42 U.S.C. Section 7901 et seq.;
- Clean Water Act, 33 U.S.C. Section 1251 et seq.;
- National Environmental Policy Act, 42 U.S.C. Section 4231 et seq. (known
- Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.
(known as RCRA);
- The Refuse Act, 33 U.S.C. Section 407 et seq.;
- Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq. (known as
- The Safe Drinking Water Act, 42 U.S.C. Section 300(f) et seq. (known as SDWA).
The Environmental Protection Lien Endorsement (T-36)
The Environmental Protection Lien Endorsement (T-36) is designed to provide certain assurances concerning environmental protection liens. You should only issue this endorsement if the property is improved for residential purposes or if you are insuring a construction loan to add residential improvements. If requested to provide this endorsement on other than 1-4 family property, please contact a Texas Underwriter. The endorsement is to be attached only to a mortgagee policy and not to an owner policy.
Paragraph (a) of the endorsement provides assurances that there are no environmental liens filed in the local records in accordance with state law or filed in the federal district court clerk's office which could have priority over the insured mortgage unless they are excepted in the policy. In order to provide this assurance when issuing the endorsement, you only need to review your local records and also to review any EPA liens that have been mailed to you by Stewart Title Guaranty Company. You are not required to check the federal district court clerk's office under any circumstances when issuing the T-36 Endorsement on residential property (improved or involving a construction loan for improvements).
In order to provide the assurance afforded by paragraph (b) of the endorsement, you may simply use the T-36 endorsement. You may secure these forms from the Stewart Forms and Information Department. We have reached an agreement with Fannie Mae authorizing us to add an exclusion from coverage as to certain matters which were not intended to be included within the scope of environmental protection liens. Such matters included nuisance statutes, fire hazard statutes, weedcutting liens and other similar matters. Should any of the lenders raise question about the additional "Excluded Matters" in this endorsement, please inform them that Fannie Mae has agreed that such is acceptable language.
As a result of our agreement with Fannie Mae, we state "None" under paragraph (b) of the T-36 endorsement.
You must collect the $50.00 premium prescribed in R-11(g).
Issuance of a Mortgagee Policy Without the T-36
In order to issue a mortgagee policy (which provide some coverage regarding recorded environmental protection liens) without attaching the T-36 endorsement you are not required to check the federal district court clerk's office for environmental liens provided that you check your local records and review any EPA liens mailed to you by Stewart Title Guaranty Company for applicable exceptions. No additional generic exception to liens filed in the federal district court clerk's office is necessary. If you are specifically aware that the property is a hazardous waste or superfund site, please call a Texas Underwriter.