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Washington Law Review

Paul W. Moomaw

Abstract

Jurisdictions across the United States are split on the issue of whether evidence of environmental contamination should be admissible to determine just compensation in an eminent domain proceeding. Jurisdictions that admit this evidence reason that environmental contamination is a property characteristic that necessarily affects the value of the property. Those that exclude the evidence cite procedural due process concerns and the risk of extra liability for the landowner. Washington's Model Toxics Control Act (MTCA) establishes a system of assigning liability and recovering cleanup costs for environmental contamination. No Washington court has addressed whether evidence of environmental contamination should be admissible to determine just compensation in an eminent domain proceeding. This Comment argues that, under MTCA and Washington eminent domain law, the evidence should not be admitted, because its admission (1) would violate the prohibition in Washington eminent domain law against speculative evidence, (2) would infringe upon the procedural due process rights of landowners under MTCA, and (3) may result in additional liability on the part of the landowners and extra recovery on the part of the condemning authority.

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