The U.S. Court of Appeals for the Second Circuit last week upheld the trial court’s dismissal of a plaintiff’s allegations that several utilities exposed her to high levels of electromagnetic fields in violation of the U.S. Constitution. Barnett v. Carberry, No.10-1342-cv (2d Cir. 4/20/11).
Here at MassTortDefense we often explore the creative approaches of the plaintiffs’ bar. Here’s a real “creative” one.
Plaintiff brought a purported Section 1983 civil rights action against a state licensing agency and several utility companies alleging that they exposed her home to unusually high levels of electromagnetic fields (“EMFs”) in violation of her property and privacy rights and her rights to due process and equal protection of law. Barnett claimed that she and her husband suffer from significant health problems allegedly caused by EMF emissions from a power line located 40 feet away from their home. They also allege that their home is now unmarketable.
The district court rejected the federal claims and declined to exercise jurisdiction over any pendent state law claims. On appeal, Barnett emphasized that she was not asking the court to declare that there is a constitutional right to a healthful environment. See MacNamara v. Cnty. Council of Sussex Cnty., 738 F. Supp. 134, 141-43 (D. Del.), aff’d, 922 F.2d 832 (3d Cir. 1990). Rather, she was asking that the court recognize that the asserted constitutional right to be safe and secure in one’s home includes the right to be free from an “unreasonable” level of EMFs under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
The court of appeals reviewed the relevant case law and, not surprisingly, concluded that no case establishes a constitutional or common-law privacy or property right to be free from an unreasonable level of EMFs. The related privacy argument asserted, at best, that the government and utilities “failed” to protect her home from EMF emissions — again never recognized. To the extent that plaintiff challenged defendants for permitting her home to be “intruded upon” by unreasonably high levels of EMFs, she was forced to concede at argument that no legislature or administrative agency has even determined what levels of EMFs would be “unreasonably high.” Indeed, that is a scientific policy question better decided by the legislature than the courts. Cf. City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (stating that the judiciary may not “sit as a super-legislature to judge the wisdom or desirability of legislative polic[ies]” in areas that do not implicate fundamental rights or suspect classifications); Cellular Phone Taskforce v. FCC, 205 F.3d 82, 91 (2d Cir. 2000) (characterizing argument that agency should increase safety margin as “a policy question, not a legal one”).
Plaintiffs, at least for now, need to stick to conventional tort theories. And defense counsel won’t get to practice toxic torts and constitutional law at the same time.