High-voltage transmission lines have proliferated across the country, pushed by population growth, increasing consumer electrical use, and a trending public preference for wind energy generated far from urban centers. With new lines come new right-of-way demands and, inevitably, the use of eminent domain to secure that right-of-way. In condemnation proceedings, landowners seeking to maximize their recovery may seek to persuade juries that the general public fears that high-voltage power lines will harm human health, thereby decreasing market values and increasing just compensation. Most courts recognize that the balance of the scientific research does not support a claim that transmission lines actually cause adverse health effects. Nonetheless, most courts will admit evidence of public fear to ensure the landowner receives just compensation for any genuine decrease in market value. In light of this reality, this article presents trial strategies for addressing fear-based damage claims in condemnation cases.
A 345,000-volt or 500,000-volt transmission line typically consists of a single-pole or lattice structure, up to 190 feet tall, and spaced between 1,000 and 1,500 feet apart. The easements are typically 150 to 250 feet wide with the power poles located in the center. Depending on elevation and other factors, the structures can be visible from far outside the easement. Because the test for just compensation is based on the fair-market-value difference after the taking, see, e.g., Olsen v. United States, 292 U.S. 246, 255 (1934), landowners claim that buyers often refuse to purchase property encumbered by or near a transmission line, and when they are willing to purchase, it is only for a substantially reduced price. But it can be difficult for landowners to quantify the effects of a transmission line on market value. Where good comparable sales are not available, or where they do not demonstrate a significant value difference, landowners may claim an additional basis for market damage: People will not buy land or homes near a high-voltage transmission line because they fear the electromagnetic fields (EMFs) created by operation of the line will harm human health. Broad-based claims about what the buying public will or will not do, and the “public perceptions” of EMFs in the market place, can be difficult to quantify and present at trial in a persuasive manner. The best trial strategy is to present direct evidence of market sales near transmission lines in a compelling visual form.