Defending Against EMF Property Devaluation Cases

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.