Ruling Against Power Line Suit Affirmed

The California Supreme Court on Thursday unanimously affirmed a lower court’s decision that bars homeowners from suing utilities for alleged property value losses caused by fear of electromagnetic fields generated by power lines.

Lawsuits against utility companies alleging damages caused by electromagnetic fields, or EMF, began to proliferate about five years ago amid growing public concern that EMF could cause cancer. Thursday’s sweeping decision may put an end to those suits, a utility attorney said.

“This is a resounding victory,” said Greg Barnes, assistant general counsel for San Diego Gas & Electric. “This is a seven-nothing decision basically killing the most outrageous mass tort promotion effort our nation’s ever seen.”

San Diego Gas & Electric was sued in 1993 by a San Clemente couple, Martin and Joyce J. Covalt, who alleged that the utility’s 1990 addition of lines to a power pole on their property increased the EMF level so much that it created a fear of cancer in the minds of potential homeowners.

As a result, the Covalts said, they were unable to sell their home for its market value.

At the heart of the Covalt case was the question of whether the state Public Utilities Commission’s jurisdiction over the placement of power lines barred property damage suits for loss of value due to electromagnetic fields generated by the lines.

The Covalts’ attorney had argued that the trial courts and not the PUC should be allowed to determine whether EMF is harmful. Scientific studies have differed over whether there is any link between exposure to electromagnetic fields and health problems.

Justice Stanley Mosk, writing the court’s decision, upheld an appellate court’s ruling that to allow lawsuits against utilities for alleged damages resulting from EMF would “impermissibly interfere with a broad regulatory policy” of the PUC.

“This decision is a frontal attack on the fundamental right to private property in California,” said Michael E. Withey, the Covalts’ Seattle-based attorney, in a statement. “The supposed ‘judicial conservatives’ on the court have sided with big government and the monopolies to the detriment of the little guy.”

Withey said the Covalts will consider appealing to the U.S. Supreme Court “in light of the important federal constitutional issues at stake.”

Among those issues, he said, is “the important notion that private property should not be taken without just compensation.”

But at San Diego Gas & Electric, Barnes said the state high court’s 75-page decision was conclusive. “It is a resounding affirmation of the PUC’s expertise, caring and authority to resolve these issues of the safety of electromagnetic fields,” he said.

The California Building Industry Assn. filed a brief on behalf of the Covalts, arguing that because the PUC doesn’t have the authority to award damages, homeowners must be allowed to sue for damages in court.

Arthur F. Coon, the attorney who represented the building industry in the case, said Thursday that he was disappointed by the court’s decision.

Coon said he believes the court’s decision will make it more difficult to pursue lawsuits in other states for damages against utilities as a result of electromagnetic fields generated by power lines.

“A lot of people are going to look at this decision, because California is the leader” in judicial review, Coon said. But Coon said concerns about the potential harm caused by EMF are so widespread, and the resulting loss of property value so damaging, that such lawsuits will not go away entirely.

“It won’t put an end to them,” he said.

The utility doubled the number of power lines bolted to the grid looming over the Covalts’ tennis court in 1990, shortly after the couple moved into their 5,000-square-foot estate in upscale Mariner’s Point.

In their lawsuit, the couple alleged that the increase in EMF harmed the health of their 4-year-old son, who had been previously diagnosed as mildly autistic, and put the rest of the family at risk. They also alleged that the value of their home, which they said should have been worth $1.5 million, dropped dramatically.

On appeal, they dropped the claim of damages to their son’s health and focused on the harm they said had been done to their property rights.

In 1994, the couple abandoned the house and allowed the lender to foreclose. It was later sold for $425,000.