In 2014, California passed legislation limiting the amount of “carcinogenic hexavalent chromium” in public drinking water to ten parts per billion, effective January 1, 2020. Following passage of the legislation, the Sacramento Suburban Water District, which provides water to 175,000 customers in Sacramento County, California, shut down some of its wells and installed expensive pollution equipment to comply with the new law.

In 2017, the Sacramento Suburban filed a taking suit in the U.S. Court of Federal Claims, alleging that the Government, through the actions of its agent, the McClellan Airforce Base, a military base in Sacramento County decommissioned in 2001, caused the chromium contamination of an aquifer from which Sacramento Suburban obtains some of its drinking water.

The Government moved to dismiss for lack of jurisdiction. The Court agreed, explaining that “any possibility that [Sacramento Suburban’s] water sources may be damaged in the future is speculative.” The Court stated that the taking claim was premature: “An inverse condemnation action cannot be based on regulations that may or may not affect the plaintiff’s property two years hence.” The Court therefore granted the Government’s motion to dismiss for lack of jurisdiction stating that the Plaintiff’s claim did not establish a “case or controversy,” as required by the U.S. Constitution, article III section 2.

Read Judge Hodges’ opinion here.