Scott H. Strauss and Susan M. Bernard are attorneys with the law firm of Spiegel & McDiarmid, which represents public agencies and local governments in the energy, environmental, communications, insurance, and transportation fields.
THE POSSIBLE HEALTH EFFECTS of electromagnetic fields are as hard to determine as EMF is to see. Increasingly evident, however, is the rapidly escalating public and political concern about the potential threats of the invisible radiation generated by electric appliances, household wiring, industrial machinery, and high-voltage transmission lines. Government publications, scientific journals, and even popular magazines such as the New Yorker and Family Circle have published major investigations about whether exposure to EMF results in adverse health effects, particularly leukemia and other cancers.
While there are scientists willing to weigh in strongly on both sides of the debate, the consensus lies somewhere along the spectrum between "no risk" and "major risk." Most EMF experts agree that, while there are no clear answers, there is cause for concern. As stated in a 1989 report by the congressional Office of Technology Assessment, "In our view, the emerging evidence no longer allows one to categorically assert that there are no risks. But it does not provide a basis for asserting that there is a significant risk."
A welcome result of the increased concern about EMF has been increased private and government-funded research. But another outcome is that federal, state, and local responses to possible hazards have pushed forward despite the lack of definitive data. Whether exposure to EMF causes or encourages cancer, what exposure levels are safe, and what people can do to protect themselves are critical questions that policymakers are being asked to face now, before scientists have reached any real conclusions. The consequence often has been inconsistent policies and programs and the possibility that money may have been spent in haste or the public inadequately protected.
The various federal agencies examining the issue have become mired in inter-office politics as they attempt to categorize the risks, leaving a regulatory vacuum. As a result, most of the action has been at the state and local levels, where agencies and courts have addressed a number of issues, usually involving high-voltage transmission lines. Policies have by no means been uniform. Recent actions by states and localities have ranged from cautious controls, such as requirements that power rights of way be widened, to outright prohibition of transmission line construction and similar projects.
Meanwhile, perhaps no one is more focused on EMF than this country's electric power companies. In part, of course, utilities have been forced to learn about EMF for the same reasons the regulatory authorities have public expressions of concern about the impact of EMF on adjacent properties have affected the ability of utilities to site new facilities, especially power lines. In addition, power companies are increasingly the targets of lawsuits alleging personal injuries or property damage due to exposure. As a result, many utilities, in particular municipally owned power systems, have made responding to public concerns about EMF a priority, taking sometimes costly actions because of public perception that it poses a health risk. The necessity of these actions, however, may not become clear unless and until a link between EMF exposure and adverse health consequences is firmly established.
ELECTROMAGNETIC FIELDS encompass the separate low-frequency, low-energy electric and magnetic fields produced by power lines, wiring, appliances, and other electric devices. Unlike X-rays and other ionizing radiation, EMF does not break chemical bonds. And unlike high-frequency non-ionizing microwaves, power fields do not cause significant tissue heating. The electric fields associated with EMF do not penetrate the body easily, and although some states have moved to regulate them, they are thought to have little effect on humans. But the magnetic fields do penetrate the body readily and have been shown to modify the biological functioning of living organisms. What remains unsettled is whether the magnetic fields caused by electric power use are indeed causing significant human health problems. The public policy dilemma is what actions to take, if any, in the absence of concrete proof.
To the public, the symbol of the potential danger is the high-voltage transmission lines that web the country. Some researchers contend that because of their greater intensity, the magnetic fields of toasters and other household appliances pose a potentially greater risk than power lines. However, the OTA points out that while the field close to a toaster may be quite high while it is in use, appliance fields fall off much faster with distance than those of power lines. Researchers do remain troubled about appliances that are used for extended periods close to the body, such as electric blankets, but most concern for public health remains focused on EMF produced by electric transmission and distribution facilities.
And despite the public association of towering high-voltage lines with EMF, most of the data assembled so far deal with the fields generated by distribution lines - those on the poles outside your house - as well as the other components of the electrical supply system. Most people are exposed on an ongoing basis to distribution lines, and epidemiological studies to date have focused on them rather than the more visible, and more symbolic, transmission lines. In addition, researchers do not know at what levels EMF exposure can be considered "safe" or "unsafe"; it cannot be assumed that lower exposures (e.g., from distribution as opposed to transmission lines) are necessarily safer. Indeed, some research has shown that biological effects of EMF exposure that appear at field strengths of certain levels will disappear at higher levels, only to reappear at still higher levels. This has made it impossible to conclude that the lower the dose, the lower the possible consequences, greatly complicating the efforts of public health agencies and utility commissions.
The first concerns about health effects of EMF exposure were raised in the Soviet Union, where in 1972 an investigation reported that workers in extra-high-voltage transmission switchyards suffered from a range of ailments. Since then, there have been many studies of effects of occupational exposures to EMF, both in the United States and abroad.
Three broad classes of studies compiled by OTA - human and animal cell experiments, whole animal experiments, and epidemiological studies - have raised the possibility that EMF may present some human health risks, in particular encouraging the growth of cancer cells. While some studies have shown what can be termed statistically significant correlations between EMF and certain health effects, no cause and effect relationship has yet been established.
To summarize this research briefly, experiments seeking to gauge the impact of EMF on cell behavior suggest that magnetic fields can affect brain cells and bone fracture healing, cause drops in hormone levels, and produce functional changes in isolated cells and tissues. Live animal studies have shown effects on the central nervous system, including animal circadian rhythms. These experiments also show an increased incidence of skin tumors in mice when applied simultaneously with known cancer promoters.
Epidemiological studies have the most potential to affect public policy. To date, they have focused on cancer incidence in children and cancer as a result of occupational exposure. Several case-control studies have evaluated the potential association between childhood cancer and homes near relatively high-voltage distribution lines.
The first assessment, conducted in Denver in 1979, found that children living near high-voltage distribution lines doubled their annual risk of cancer death, from 1 in 10,000 to 2 in 10,000. Similar follow-up studies led to mixed results. Probably the most important of these was a 1987 analysis funded by the New York State Power Lines Project, which was designed specifically to correct for weaknesses in the 1979 study. But, in addition to increasing the understanding of EMF exposure, the New York investigation essentially corroborated the 1979 results. In a more recent study by the University of Southern California, researchers found that childhood leukemia is not associated with normal household exposure to EMF, but again found that it is associated with proximity to power lines as well as with use of certain appliances such as hair dryers. More recently, researchers at Johns Hopkins University discovered that telephone workers exposed to low levels of EMF had a greater incidence of leukemia than a control group.
AT PRESENT, NO FEDERAL LAWS regulate electric and magnetic fields, although a bill aimed at setting federal standards and increasing EMF research and public information funding was proposed in Congress last year. Given the controversy already brewing over how to classify the potential risk posed by EMF, it is unlikely that in the next few years the federal government will do more than fund research.
An investigation by the EPA's Office of Research and Development, "Evaluation of the Potential Carcinogenicity of Electromagnetic Fields," released in draft form in October 1990, found that EMF was a "possible" carcinogen. While the issuance of the draft and its preliminary conclusion were news enough, the import of the EPA's study was nearly lost in controversy over claims that the cancer risk had been downgraded in the draft from probable to possible because of a purported concern by the agency and the White House about public policy implications.
Amidst public outcry of a whitewash, a committee of the EPA's Science Advisory Board recently completed its review of the draft and concluded that the danger may have been exaggerated. According to the SAB, the study fails to consider critical research published since 1989, and it contains insufficient data to conclude that EMFs are carcinogenic at all. The committee also found that there is insufficient information to designate specific values of magnetic field strength that may be hazardous to human health. As a result of this controversy, it may take a year or more to complete a final version of the report.
Meanwhile, seven states have set safety-based limits on electric field strength at the edge of power corridor rights of way, and voluntary standards have been issued by the American National Standards Institute. Two states, Florida and New York, have also imposed magnetic field strength limits for newly constructed ultra high-voltage power lines - transmission lines that carry 500 or more kilovolts. The limits effectively require that, for higher voltage lines, rights of way must be wide enough that the magnetic field measured at the edge is equivalent to the field typically found at the edge of rights of way of more traditional, lower voltage (usually 345 kilovolts) power lines. These new laws are based not on scientific pronouncement about the safe level of magnetic field exposure, but rather on the assumption that the status quo is publicly acceptable. However, even this approach is not without its costs; widening rights of way can be expensive.
EMF is also regulated, in a more piecemeal way, by local government bodies, state public utility commissions, and the courts. The City Commission of the Nashville suburb of Brentwood, Tennessee, passed an ordinance setting a magnetic field limit at only 4 milligauss at the edge of a right of way, a requirement that current transmission line project proposals could never meet; the limit under the New York and Florida laws is 200 milligauss. In Michigan and Tennessee, legislation was proposed this year that would impose a moratorium on new construction of certain power lines (in Michigan, over 100 kilovolts; in Tennessee, any high-voltage lines through a residential neighborhood). Similar legislation in Rhode Island was narrowly defeated.
MOST COURTS HAVE FOUND that owners of property adjacent to transmission lines should be compensated for any reduction in the value of their property resulting from people's fear of EMF-induced cancer -- even if there is no conclusive evidence that the fear is warranted. Other state courts or commissions have imposed technical and public benefit conditions on electric power projects. For example, despite the lack of proof of a correlation between EMF and cancer, the Colorado Public Utilities Commission requires numerous EMF reduction mechanisms and a plan for further research for all transmission line upgrades.
In a 1985 case, a school district sued Houston Lighting & Power Company to stop the construction of a 345-kilovolt transmission close to two existing schools and a planned one. The district argued that the utility's decision to locate the transmission line on the school property constituted "a callous disregard for the safety, health, and well-being of the 3,000 plus children." The trial court not only ordered the utility to restore the use of the land to the school district and to pay the district over $104,000 in compensation, but a jury also awarded $25 million in punitive damages. Although Houston Lighting & Power had not violated any law, the jury found that it had abused its discretion in using the school district's property and had erected the transmission line in reckless disregard of the district's use of its property. Ultimately, the state appeals court upheld the shutting down of the power line, and ruled that the jury "could have believed that the transmission line posed a risk to the children and that the uncertainty over the magnitude of that risk should dictate caution." (The punitive damage award later was set aside on technical legal grounds.)
Three recent cases may indicate a trend toward personal injury and wrongful death suits as well. The first suit was filed in a Washington State court against a municipal electric system alleged to be responsible for a teenager's leukemia. That case was dismissed. In the second, parents of a three-year-old child sued San Diego Gas and Electric Company, alleging that the utility knew or should have known that transmission, distribution, and feeder and equipment lines and step-down transformers located on and near the parents' property would result in two forms of kidney cancer allegedly developed before the child's birth. And in the third, a widow filed a pension claim alleging that exposure to EMF caused the leukemia death of her husband, a utility worker, who was employed by a municipal power system from 1982-87. The last two cases are still pending, and additional lawsuits cannot be far off.
In contrast to the court-by-court or city-by-city approach, last January the California Public Utilities Commission began the nation's first comprehensive EMF investigation. The CPUC seeks to develop and implement a "prudent regulatory response" to the potential health effects of EMF exposure from all potential sources, ranging from electric distribution facilities to cellular telephones. Key to the CPUC proceeding is the state's invitation to all of the potentially interested parties to submit initial and reply comments to a detailed set of questions. (In the case of the state's investor-owned electric and telecommunications utilities, which are regulated by the CPUC, the invitation was actually an order.) The CPUC seeks to develop a statewide research agenda, establish an appropriate research funding level, determine who should do the research and, finally, develop and implement mitigation measures.
The California proceeding is noteworthy for the absence thus far of significant conflicts among the participants. Although the commenters include private and consumer-owned utilities, environmental and citizen groups, and the CPUC's Division of Ratepayer Advocates, no one is promoting a moratorium on the construction of new utility facilities or, conversely, claiming that EMF exposure poses no health risk and need not be considered. Instead, participants ranging from Citizens for Safer Electromagnetic Fields to Southern California Edison Company recognize that EMF research is far from complete, meaning that certain regulatory actions must await the results of further scientific investigation. There also seems to be general agreement to disseminate information as soon as it becomes available and, pending the outcome of further research, to undertake interim measures to put the state in a position to act if it is deemed necessary in the future.
INDEED, WHAT POLICIES MAKE sense in the absence of definitive data on the dangers of EMF? The OTA report found that regulators and electric utilities have essentially five options. The first, to do nothing, is no longer available. EMF is likely to be a hot issue in any new transmission line siting or upgrade proceeding and is otherwise a matter of ratepayer attention and concern. Electric utilities and regulating bodies cannot ignore the issue.
The second is to make information about EMF available to the public, but to take no action. Some utilities and state commissions are apparently following this path.
Options three and four involve adopting field strength safety standards for transmission lines, and ignoring the potential risk from other EMF sources. (The OTA separates these options by the way in which the standards might be set.) This approach is being followed by the several states that have set power line field limits.
Finally, the OTA suggests adopting a strategy that allows, to the extent possible, the "prudent avoidance" of human exposure to power frequency fields. Prudent avoidance could mean, for example, routing new transmission lines to avoid human exposure, redesigning systems and grounding procedures, or widening rights of way. Existing distribution lines can be better balanced and grounded to limit the fields created. The OTA also recommends the redesign of household appliances and electric systems where feasible. Some electric blanket manufacturers are reportedly moving to reduce the magnetic fields created by new products, and the IBM and Apple computer companies are working on production of video display terminals with lower magnetic fields.
Public power systems in particular have embraced the dual principles of prudent avoidance and open communication with customers. Many have aggressive public information programs about EMF, and some, including Anaheim, Seattle, Los Angeles, and Colorado Springs, will on request measure electric and magnetic fields in or near customers' homes. This is not only good public relations; by measuring exposure levels the utility can get an idea of variations among neighborhoods. However, these systems take pains to explain to their customers that the utilities cannot interpret the results, since the significance to the customer's health of a particular reading is still unknown.
Last June, the Legislative and Resolutions Committee of the American Public Power Association adopted a resolution expressing the association's support for a national strategy to address and resolve the questions regarding EMF. Elements of the strategy include joint federal and private funding for research and an aggressive information program for APPA members, employees, and consumers.
Going beyond prudent avoidance and open communication, utilities are also working to limit the creation of EMF fields through technical measures. Many utilities are focusing on engineering solutions to EMF exposure, not just determining health effects. The ability to design and implement EMF reduction measures into new or existing electric facilities will be critical to undertaking future development projects.
A key component of determining what EMF avoidance measures are prudent is the reasonableness of the associated costs. For example, moving thirty-year-old power lines that pass over a school would be considered an unwarranted expenditure, but evaluating the proximity of proposed new transmission lines to schools, hospitals, and private homes is generally considered appropriate.
It is important to recognize that even the limited steps taken to deal with EMF so far have not been without their costs, and, as the issue moves into the hands of lawyers and policymakers, those costs are likely to continue to rise. Even power systems that follow the OTA's most aggressive prudent avoidance policy are nonetheless subject to tort suits and difficult and prolonged development battles. While the full impact of EMF concerns remains to be seen, the evidence to date shows that, for electric utilities, EMF may well be the most pressing environmental issue of the 1990s.
The above was published in the November/December 1991 issue of The Environmental Forum,
1616 P St. NW, Washington, DC. (C) 1991 Environmental Law Institute.