Property Law Developments—Joseph William Singer

The Tenth Circuit is allowing a nuisance claim to proceed against a nuclear power plant, finding it not to be preempted by the Price-Anderson Act, 42 U.S.C. §2014, a federal regulatory statute. Cook v. Rockwell Intl Corp., 2015 WL 3853593 (10th Cir. 2015). Property owners claimed damage from the nuclear weapons manufacturing plant causes by releases of plutonium and other hazardous substances from the plant.

The Maryland Court of Appeals ruled in Exxon Mobil Corp. v. Albright, 67 A.3d 1061 (Md. 2013) that property owners near a gas station where 26,000 gallons of gasoline spilled from an underground tank could not sue for nuisance when their wells have not yet been contaminated. The neighbors were not allowed to sue for emotional damages, for reduction of the fair market value of their property or for future costs of medical monitoring. Most courts reach the same result although a few courts have allowed damages in such cases for nearby properties when the reduction in fair market value is substantial.

The Texas Supreme Court has issued a somewhat confusing opinion holding that landowners own the groundwater beneath the surface of their land. In Edwards Aquifer Auth. v. Day, No. 08-0964 (Feb.24, 2012), the Texas Supreme Court held that a water regulation commission may have taken an owner’s groundwater rights without just compensation under the Penn Central test when it limited an owner’s groundwater rights to the amounts of water he had historically taken from the land. The court found a state law that defined the amount of groundwater one can withdraw based on historical uses to be a potential taking of property because it believed an owner should not lose the right to withdraw vested rights in groundwater just because the landowner had failed to exercise his right to withdraw it in the past. The court did not overturn the state’s free use or absolute ownership rule for groundwater that allows owners to withdraw water without liability to neighboring owners whose wells are dried up or whose water amounts are reduced. It did hold that the landowner “owns” the groundwater beneath the surface and that use of several factors, including but not limited to historical uses, might constitute a legitimate regulatory measure. The court remanded for a determination of whether the state statutes, as applied to this owner, constituted a taking of property under the multi-factor Penn Central test. The case leaves groundwater regulation in Texas in a state of great uncertainty since the allowable parameters of regulation of groundwater are now in doubt. The Court cautioned that it did not believe its ruling would be disruptive and the legislature remained empowered to enforce environmental laws regulating water withdrawal without violating the takings clause. At the same time, it suggested that environmental regulation of water might require compensation of owners whose rights to withdraw water are restricted.

A federal court in California refused to allow the Native Village of Kivalina to sue 24 energy and utility companies for causing global warming and causing environmental changes that may well require the entire village to relocate. The court held, in Native Village of Kivalina v. Exxon Mobil Corp., 2009 WL 3326113 (N.D. Cal. 2009), that the question was nonjusticiable because it was impossible to prove causation.

However, both the Second and Fifth Circuits have recently allowed cases to proceed which claim that defendants contributed to global warming and thus caused a public nuisance and/or violated the plaintiffs’ property rights protected by a variety of doctrines, including trespass, negligence, and private nuisance. See Comer v. Murphy Oil USA, 2009 WL 3321493 (5th Cir. 2009); Connecticut v. American Electric Power Co., Inc., 582 F.3d 309 (2nd Cir. 2009).

The Planning Board in Bourne, Massachusetts rejected an application from a home owner to install a 132-foot tall windmill in her back yard that would have generated enough electricity to power her home. Some people in other towns, including Vineyard Haven, Mass. have succeeded to getting permission to install these devices. read article