Environmental Law

Covenants can burden future interests, at least where environmental protection is concerned

/ Easements, Environmental Law, Servitudes

A California appellate court interpreted a conveyance to include both a fee simple subject to condition subsequent with a right of entry in the grantor and a conservation easement limiting the property as “natural open space.” While it is not clear the court interpreted the conveyance correctly, it is significant that the court found that an easement (or covenant) can coexist with a right of entry. If structured correctly, such a conveyance would mean that a grantor can both require title to be forfeited to the grantor (or its assignees) if the current possessor violates a conservation condition and can bind the grantor or its assignees who exercise the right of entry with the same condition in the form of an easement or covenant. Canyon Vineyard Estates I, LLC v. DeJoria, 2022 WL 1183373 (Cal. Ct. App. 2022). One might think that the grantor must choose between imposing an easement or …

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Supreme Court opens federal courts to a floodgate of takings cases

/ Environmental Law, Historic Preservation Law, Zoning

In a 5-4 decision, the Supreme Court overruled Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) and held that owners aggrieved by state regulations they believe took their property without just compensation can immediately sue for relief in federal courts under 42 U.S.C. §1983 even if state law would have provided just compensation through administrative procedures. Knick v. Twp. of Scott, — U.S. — (2019). The line-up is what one would expect with Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh and Thomas in the majority and Justices Kagan, Breyer, Ginsburg, and Sotomayor in the dissent. Roberts wrote the majority opinion and Kagan wrote the dissent. Thomas concurred. The argument for allowing federal court relief is that it makes it realistically possible for federal courts to determine whether states have denied property without just compensation. Previously, the owner had to exhaust state remedies up through the state supreme …

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Hawaii Supreme Court recognizes property right to clean air

/ Due Process, Environmental Law, Nuisance

The Supreme Court of Hawaii ruled in In re Maui Elec. Co., 2017 Haw. LEXIS 284 (2017) (for majority opinion click here; for dissenting opinion click here) that the state constitution confers a property right to a clean and healty environment sufficient and that the Sierra Club has standing to bring a lawsuit challenging the granting of a power plant permit to a coal-fired plant because its emissions will contribute to air pollution and arguably violated standards contained in the federal Clean Air Act. Because the claim is based on state law and heard in state court, federal court prudential and constitutional limitiations in standing, such as led to similar claims being thrown out of federal court in cases like Kivalina, does not apply to the state court proceedings. The Hawaii Constitution guarantees each person “the right to a clean and healthful environment, as defined by laws relating to environmental quality.” Haw. …

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Regulatory taking of water rights

/ Environmental Law, Takings, Water Rights

In a prior post, I explained the holding of a Texas Supreme Court opinion that held that regulation of water rights might constitute a regulatory taking. The text of that post is at the end of this one. A subsequent case involving similar facts actually held that limits on withdrawal of groundwater designed to preserve water for drinking purposes actually took the property rights of water rights owners who had received permits to use the water to irrigate their pecan crops. That case is Edwards Aquifer Auth. v. Bragg, 421 S.W.3d 118 (Tex. Ct. App. 2013) and it meant that the regulation in question could not be enforced without just compensation. It was expected that the Texas Supreme Court would hear that case on appeal to affirm or overrule its holding but surprisingly, the court has denied appellate review. Edwards Aquifer Auth. v. Bragg, 2015 Tex. LEXIS 400 (Tex. 2015). That either suggests approval …

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Nuisance claim against nuclear weapons plant proceeds

/ Environmental Law, Nuisance

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.

No nuisance claim without physical invasion or harm

/ Environmental Law, Nuisance

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.

Groundwater ownership in Texas

/ Environmental Law, Takings, Water Rights

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 …

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Two Circuits allow global warming lawsuits against power companies

/ Environmental Law, Nuisance, Tribal Property

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).

Back yard windmill controversy on Cape Cod, Massachusetts

/ Environmental Law, Nuisance, Zoning

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

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