The Sixth Circuit today reversed summary judgment against landowners who claimed environmental harm to their property.  The plaintiffs alleged that leaks from a nearby uranium enrichment plant polluted their groundwater, surface water, and soil with radioactive and other substances, including trichloroethylene,  technetium-99, and polychlorinated biphenyls.  The district court denied class certification and dismissed the landowners’ claims, under Kentucky law, for intentional trespass, nuisance, and strict liability.

The court of appeals certified two state law questions to the Supreme Court of Kentucky.  The latter answered that intentional trespass didn’t require proof of actual harm and that any limitation on the owners’ ability to use her land counts as actual harm.  Applying those responses, the Sixth Circuit reinstated the plaintiffs’ claims.  It held that the landowners didn’t have to present evidence of injury to sustain their trespass claim and that, in any event, they did introduce enough proof to raise a fact question about injury-in-fact.  The court also concluded that the district court erred in disregarding the plaintiffs’ expert evidence of loss in value to their land and that federal law didn’t preempt the Kentucky law claims.  Smith v. Carbide & Chemicals Corp., No. 04-5323 (6th Cir. Nov. 2, 2007).

Barry Barnett

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