Shutting down a creative attempt to recoup costs from the federal government for groundwater contamination, the U.S. Court of Federal Claims dismissed a one-billion-dollar inverse condemnation claim for lack of subject matter jurisdiction. Sacramento Suburban Water Dist. v. U.S., No. 17-860 C (Fed. Cl. Jan. 31, 2018). Senior Judge Hodges found that the California hexavalent chromium groundwater limits the Plaintiff referred to in its complaint were not yet in effect, and therefore the case failed to meet the “case or controversy” requirement of the U.S. Constitution. Id. at 1.

In 2014, California passed a regulation that limited hexavalent chromium in public drinking water to ten parts per billion. A California court later invalidated those limits and remanded the regulation back to the California State Water Resources Control Board for further rulemaking. Meanwhile the Sacramento Suburban Water District (the “District”) found chromium at levels above ten parts per billion in an aquifer utilized by the District as a source of drinking water for the public. Alleging the chromium contamination resulted from manufacturing activities at the nearby McClellan Air Force Base, the District filed an inverse condemnation action against the United States as principal of the now-decommissioned base and sought damages.

Judge Hodges quickly pointed out that the California chromium regulations were not to take effect until 2020, if at all, pending new limits promulgated by the California State Water Resources Control Board. Because an “inverse condemnation action cannot be based on regulations that may or may not affect plaintiff’s property two years hence,” the court determined that the District had failed to state a concrete injury. Furthermore, the expensive equipment that the District installed to treat the chromium contamination resulted in “self-inflicted” damages according to the court as any maximum limit on chromium in drinking water was merely speculative at the time.

The court reiterated that cases premature for adjudication will be dismissed. As an increasing number of states raise their maximum concentration levels for drinking water, the constitutional notion of ripeness and actual controversy will likely continue to play an important role in litigation.