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Defending Against EMF Property Devaluation Cases

Fortnightly Magazine - February 1 1995

Late last year, New York's highest court, the Court of Appeals, ruled that the owner of property adjacent to a utility's high-power electrical transmission lines could seek damages for a decrease in the market value of the property caused by the fear that the power lines might cause cancer, even if such a fear was not medically or scientifically reasonable. That decision has already begun to change the outlook on electromagnetic field (EMF) litigation for utilities.

For one thing, the New York case-which followed similar decisions by courts in a number of other states, including Florida and Kansas-is likely to influence the remaining courts across the country that have not yet faced this legal issue. If that occurs, the national rule likely will become that, generally speaking, a decrease in the market value of real estate attributable to widespread concern over EMF's will be sufficient for property owners to make damage claims against utility companies, regardles of whether the concern is reasonable.Science Irrelevant

The New York decision suggests that scientific studies of the allegedly harmful health effects of EMF may not be relevant in property devaluation cases-and, indeed, may be inadmissible. Because there has been no scientific consensus on the posited link between EMFs and cancer, plaintiffs in EMF suits have had a rather difficult barrier-in legal terms, causation-to surpass. Now, at least in property devaluation cases, that barrier may have been removed.

The New York decision is also likely to radically change the focus of EMF litigation. Plaintiffs and their attorneys will probably show less interest in personal injury lawsuits, and significantly greater interest in EMF property devaluation cases.

Indeed, EMF property devaluation cases would seem destined to eclipse in number and monetary value the EMF personal injury cases filed to date: A report in Science magazine indicated that the owners of approximately 10 million acres of land and 1 million homes in the United States, with a market value of $100 billion, may be able to assert that their property is subject to EMF levels from power lines in excess of typical household background levels.

It is important to understand, however, that mere assertions do not imply that the claims are valid. At least two recent studies by the utility industry-a 1992 study by the Florida Power & Light Co. and a 1993 report by the Kansas City Power & Light Co.-have indicated that property values were not negatively affected by the proximity of transmission lines. Thus, utilities always have the right to mount a defense on the merits to all devaluation cases filed against them. Toward that end, prudent utilities should begin to focus on EMF property devaluation litigation now.Just Compensation

Property owners concerned about EMF from power lines can assert a number of different claims against utilities, ranging from nuisance (that is, a claim that something affects the property owners' use and enjoyment of their property) and trespass (that is, a claim that something-such as EMF waves-is entering their property) to inverse condemnation or eminent domain. Most of the cases filed to date are, and many of those