I dissent.
Defendant Aerojet-General Corporation (hereafter Aerojet) disposed of several million pounds of toxic chemicals on property now owned by *1105plaintiffs. This fact is undisputed. It was sued by both the United States Environmental Protection Agency (hereafter EPA) and also the People of the State of California (hereafter the People), on behalf of the Department of Health Services, the Hazardous Substance Account, and the Regional Water Quality Control Board. Specifically, the EPA sought to require Aerojet to “identify appropriate response action, if any, to be taken to abate alleged contamination from the Aerojet site . . . and to perform response actions necessary to remedy allegedly hazardous conditions” thereon. The People sought to require Aerojet to reimburse the state for response costs expended in connection with the contamination.1
Under a partial consent decree in which it entered in 1988 with the EPA and the People, Aerojet is required to meet specified interim obligations addressing drinking water supply wells and treatment of groundwater, and to complete a “Remedial Investigation/Feasibility Study” to identify and evaluate remedial alternatives for identified public health or environmental problems identified. Aerojet’s study apparently will not be completed until 1998; it is therefore not presently known what remediation efforts it will ultimately be required to undertake. According to the expert testimony at trial, however, there are dozens of ways to conduct the cleanup, some “fairly simple”; the company is still evaluating different abatement technologies to find the most cost-efficient method. In the meantime, toxic waste continues to migrate throughout the soil and has leaked from the surface into the groundwater.
The majority, adopting verbatim the opinion of the Court of Appeal, now hold that plaintiffs can recover nothing, either now or in the future, because they have not demonstrated that the contamination of their property can be abated at a “reasonable” cost. They reason that the nuisance must be deemed “permanent” and the claim is, accordingly, time barred.
I disagree. No previous case has required that the costs of remediating a nuisance are dispositive of the issue whether it is “continuing” or “permanent.” Moreover, through no fault of plaintiffs, the extent of feasible remediation and its costs may require years to determine. That does not mean, however, that the nuisance in this case cannot or will not eventually be abated—at least to the extent that governmental agencies determine is cost efficient and feasible—and is thus “permanent.”
The majority misconstrue the distinction between a “permanent” and “continuing” nuisance. Moreover, by enlarging the category of permanent *1106nuisances, they effectively reward Aerojet for its own delays in evaluating the costs and methods of remediation efforts that it is legally required to undertake.
As Justice Traynor explained in our seminal case, Spaulding v. Cameron (1952) 38 Cal.2d 265 [239 P.2d 625]: “In early decisions of this court it was held that it should not be presumed that a nuisance would continue, and damages were not allowed for a decrease in market value caused by the existence of the nuisance but were limited to the actual physical injury suffered before the commencement of the action. [Citations.] The remedy for a continuing nuisance was either a suit for injunctive relief or successive actions for damages as new injuries occurred. Situations arose, however, where injunctive relief was not appropriate or where successive actions were undesirable either to the plaintiff or the defendant or both. Accordingly, it was recognized that some types of nuisances should be considered permanent, and in such cases recovery of past and anticipated future damages were allowed in one action. [Citations.]
“The clearest case of a permanent nuisance or trespass is the one where the offending structure or condition is maintained as a necessary part of the operations of a public utility. Since such conditions are ordinarily of indefinite duration and since the utility by making compensation is entitled to continue them, it is appropriate that only one action should be allowed to recover for all the damages inflicted. It would be unfair to the utility to subject it to successive suits and unfair to the injured party if he were not allowed to recover all of his probable damages at once. [Citation.]
“A more difficult problem is presented, however, if the defendant is not privileged to continue the nuisance or trespass but its abatement is impractical or the plaintiff is willing that it continue if he can secure full compensation for both past and anticipated future injuries. To attempt categorically to classify such a nuisance as either permanent or not may lead to serious injustice to one or the other of the parties. Thus, if the plaintiff assumes it is not permanent and sues only for past damages, he may be met with the plea of res judicata in a later action for additional injury if the court then decides the nuisance was permanent in character from its inception. [Citation.] Similarly, if the initial injury is slight and plaintiff delays suit until he has suffered substantial damage and the court then determines that the nuisance was permanent, the defendant may be able to raise the defense that the statute of limitations ran from the time of the initial injury. [Citation.] On the other hand, if the defendant is willing and able to abate the nuisance, it is unfair to award damages on the theory that it will continue. [Citations.]
“Because of these difficulties it has been recognized that in doubtful cases the plaintiff should have an election to treat the nuisance as either permanent *1107or not. [Citations.] If the defendant is not privileged to continue the nuisance and is able to abate it, he cannot complain if the plaintiff elects to bring successive actions as damages accrue until the abatement takes place. [Citations.] On the other hand, if it appears improbable as a practical matter that the nuisance can or will be abated, the plaintiff should not be left to the troublesome remedy of successive actions. [Citations.]” (Spaulding v. Cameron, supra, 38 Cal.2d at pp. 267-269, italics added.)
We again endorsed the right of election in doubtful cases in Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862 [218 Cal.Rptr. 293, 705 P.2d 866]. “In case of doubt as to the permanency of the injury the plaintiff may elect whether to treat a particular nuisance as permanent or continuing. [ID . . . HD . . . [W]e should be particularly cautious not to enlarge the category of permanent nuisances beyond those structures or conditions that truly are permanent. Where some means of abatement exists, there is little or no incentive to make remedial efforts once the nuisance is classified as permanent.” (Id. at pp. 870, 872.)
The test for classifying nuisances as either continuing or permanent thus turns on whether the nuisance can be abated, or is such that the court will not enjoin its continuance. In this case, Aerojet is not privileged to continue the nuisance; nor is it “improbable as a practical matter that the nuisance can or will be abated.” (Spaulding v. Cameron, supra, 38 Cal.2d at p. 268.) Indeed, it has apparently agreed to remediate it. Until that remediation takes place, plaintiffs should be permitted to elect a remedy for “continuing” nuisance. Damages for such “continuing” nuisance are limited, however, to recovery for actual injury suffered within the three years immediately preceding.
The recent case of Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668 [15 Cal.Rptr.2d 796] correctly applied Spaulding in a similar context, also involving contamination of land. There, the property owners brought suit against the previous owners and their tenants for damages from a leaking underground fuel tank. The trial court granted summary adjudication for the defendants, on the ground that the suit was filed more than three years after the plaintiffs discovered the contamination. The Court of Appeal issued a writ of mandate, directing the trial court to vacate its order, and to permit the plaintiffs to proceed in an action for continuing nuisance.
The Court of Appeal emphasized: “[T]oday’s environmental awareness establishes beyond argument that there is simply no legitimate interest to be served by permitting this contamination to persist. Conversely, the well-documented tendency of such contamination to migrate, particularly in *1108groundwater, strongly supports a conclusion that the contamination should be cleaned up as promptly and as thoroughly as possible. Both considerations support application, in this case, of the courts’ general preference for a finding of continuing nuisance (or, at least, of a question close enough to empower the [plaintiffs] to proceed upon that theory). Such a finding will tend to encourage private abatement, and perhaps monetary cooperation in abatement efforts, if only to limit successive lawsuits. [Citations.] On the other hand a finding that the nuisance is permanent would leave the [plaintiffs] with private recourse barred, and with no practical motivation to proceed promptly and efficiently beyond that provided by the enforcement practices of governmental agencies acting at public expense. . . . [T]here were in this case none of the ‘solid structures’ such as buildings, railroads, or pipelines that have supported findings of permanent nuisance in other cases. [Citations.] That in this case abatement efforts may take considerable time and may never be wholly successful should not be permitted to dictate a result that would lessen incentives to proceed as promptly and effectively as possible to abate the contamination.” (Capogeannis v. Superior Court, supra, 12 Cal.App.4th at p. 682.)
In other recent cases involving damage to land from chemical contamination, our Courts of Appeal have similarly allowed plaintiffs to seek relief for a “continuing” nuisance to be abated. (See, e.g., Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 339-340 [23 Cal.Rptr.2d 377] [plaintiff stated a cause of action for “continuing nuisance” caused by discharge of hazardous substances from a neighboring natural gas processing plant]; Wilshire Westwood Associates v. Atlantic Richfield Co. (1993) 20 Cal.App.4th 732, 744-745 [24 Cal.Rptr.2d 562] [nuisance from leaking underground petroleum tanks was a “continuing nuisance”]; RFC Western, Inc. v. Meghrig (1994) 23 Cal.App.4th 1167, 1181 [28 Cal.Rptr.2d 676] [plaintiff entitled to allege that soil contamination constituted a “continuing nuisance”]; see also Arcade Water Dist. v. U.S. (9th Cir. 1991) 940 F.2d 1265, 1268-1269 [plaintiff entitled to allege that chemical pollution from a military laundry was a “continuing” nuisance].)
In light of the substantial evidence at trial concerning the ongoing spread of hazardous materials on plaintiffs’ property and Aerojet’s agreement to evaluate and carry out remediation efforts, I cannot agree with the majority that the nuisance is “permanent.” I conclude that the nuisance should be deemed “continuing” for statute of limitations purposes. This case raises additional questions of first impression concerning the limits, if any, on potential damages if complete abatement of the nuisance proves to be *1109impossible or unfeasible.2 Because the extent of the nuisance and the means of abatement are still uncertain, those issues are not, however, presently before us.
For these reasons, I would reverse the judgment of the Court of Appeal and remand with directions that a new trial be ordered limited to the issue of damages.
The petition of plaintiffs and appellants for a rehearing was denied June 20, 1996.
Aerojet’s statutory duty arises, inter alia, under the Comprehensive Environmental Response, Compensation, and Liability Act (hereafter CERCLA), 42 United States Code sections 9601-9675, and Health and Safety Code sections 25316 and 13050, subdivision (p).
Thus, even if Aerojet fully complies with any statutory obligations to remediate the contamination, there may be residual hazardous substances on plaintiffs’ property. CERCLA requires that cleanup orders by the EPA be “cost effective,” taking “into account the total short- and long-term costs of such actions, including the costs of operation and maintenance for the entire period during which [cleanup] activities will be required.” (42 U.S.C. § 9621(a).) Nor may a cleanup order require measures that are “technically impracticable from an engineering perspective.” (42 U.S.C. § 9621(d)(4)(C).) Similarly, state law requires the regional water quality control board to evaluate the “cost effectiveness of proposed alternative remedial action measures.” (Health & Saf. Code, § 25356.1, subd. (d)(5).) Under such circumstances, a possible approach might be to treat the unabated nuisance as “permanent” for damages purposes. (See Harrisonville v. Dickey Clay Co. (1933) 289 U.S. 334, 339-341 [77 L.Ed. 1208, 1212-1213, 53 S.Ct. 602] [finding “continuing” nuisance for statute of limitations purposes, but not damages]; Beatty v. Washington Metro. Area Transit Authority (D.C. Cir. 1988) 860 F.2d 1117, 1125 [274 App.D.C. 25] [“nuisances may be classified for two distinct purposes, one for the assessment of damages, and the other for application of the statute of limitations”].)