I actually had this queued up and ready yesterday, but it apparently wasn't sent. Ed.

Daily Development for Wednesday, July 17, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

NUISANCE; ELECTROMAGNETIC EMISSIONS: Public Utility Commission does not have power to adjudicate private property rights. The intangible intrusion of electric fields, radiation and noise from high-power-line is neither an eminent domain taking, nor a trespass; but it may constitute an intentional nuisance. Public Service Co. of Colorado v. Van Wyck, 27 P.3d 377 (Colo. 2001).

Plaintiffs, property owners adjacent to high-power electricity lines sued the Public Service Company of Colorado, the owner of the lines for taking, trespass and intentional nuisance resulting from electric fields, radiation and noise encroaching on plaintiffs' property. The court held that the fact that the Colorado Public Utility Commission approved the lines did not bar plaintiffs from suing since the Commission does not have the power to adjudicate private property rights.

Electric fields, radiation and noise are intangible intrusions onto a property. Intangible intrusions do not form the basis of an eminent domain taking because they constitute neither a physical occupation of land nor a deprivation of the owners' use and enjoyment of the property. Intangible intrusions are a trespass only where the owner can show that they resulted in physical damage to the property. Noise, electrical fields and radiation cannot physically damage property, so their presence on property is not a trespass.

To succeed at a claim of intentional nuisance, a plaintiff must show that a defendant's conduct was intended to produce an unreasonable invasion which interfered with the plaintiff's use and enjoyment of the property or that defendant knew that such conduct resulted in, or was substantially likely to result in, an interference with the use and enjoyment of the land. The intangible intrusions here may have been an intentional nuisance if done intentionally. The court gave no explanation for its holding that the intrusion could be a deprivation of use and enjoyment in the nuisance context, but not in the takings context.

Comment 1: Although there is lots of talk about "emanations" and "fields," the court didn't necessarily buy into the science of these allegations. It acknowledged that there were also significant allegations that the noise generated by the transmission lines was unreasonable.

Comment 1: Defendants were attempting a ploy that worked in California - where the nuisance claim was avoided when the California court held that the Public Utility Commission had exclusive jurisdiction over the location and operation of electric transmission lines. San Diego Gas & Elec. Co. v. Supreme Court, 55 Cal. Rptr. 2d 724 (Cal. 1996) (the DIRT DD for 1/17/97). The Colorado court distinguishes San Diego on the grounds that the California Constitution provisions providing jurisdiction for the public utility specifically preempted private lawsuits, while Colorado's doesn't.

To the editor, California court's position made a lot of sense. We all want electricity, and we must trust the government to regulate how we receive it. Why should individuals be able to bring private nuisance actions against utilities, who are regulated in the way that they deliver the electricity and the methods by which they raise money for it? The costs of this litigation will be reflected in everyone's electric bills. Thus, if the utilities pay, it will be in effect a takings situation anyway. Civilization often intrudes on individual property values, such as in the case of the location of superhighways. Typically, when we're talking about broad impacts across the whole state (as opposed to individual locations, such as airports), no liability is imposed on government or the individuals involved. The Colorado Court acknowledges this principle when it denies a takings claim based upon nuisance (a theory permitted under the Colorado Constitution), pointing out that problems plaintiffs suffered are also borne by the public generally.

Comment 2: This all may be a tempest in a teapot, because an important consideration in the nuisance equation will be whether the defendant's activities meet regularly accepted norms, and regulatory standards will be critical factors in making that determination. The court concludes that to prove a nuisance, plaintiffs must show that the defendant's activities go beyond the standards of reasonable power line established by the PUC. It concludes, with three dissenters, that the PUC approval was general and not specific, and so that it might be possible to get around the PUC conclusion that the lines were reasonable. Good luck.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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