Sustainable Development Law & Policy

Volume 18 Issue 2 Spring/Summer 2018: Infrastructure in Article 2 the Context of Human Development

A New Nuclear Threat: The Tenth Circuit's Shocking Misinterpretation of Preemption Demanding an Amendment to the Price-Anderson Act

Stephanie Fishman American University Washington College of Law

Follow this and additional works at: https://digitalcommons.wcl.american.edu/sdlp

Part of the Agriculture Law Commons, Constitutional Law Commons, Energy and Utilities Law Commons, Environmental Law Commons, Food and Drug Law Commons, Health Law and Policy Commons, Human Rights Law Commons, Intellectual Property Law Commons, International Law Commons, International Trade Law Commons, Land Use Law Commons, Law and Society Commons, Law of the Sea Commons, Litigation Commons, Natural Resources Law Commons, Oil, Gas, and Mineral Law Commons, Public Law and Legal Theory Commons, and the Water Law Commons

Recommended Citation Fishman, Stephanie (2018) "A New Nuclear Threat: The Tenth Circuit's Shocking Misinterpretation of Preemption Demanding an Amendment to the Price-Anderson Act," Sustainable Development Law & Policy: Vol. 18 : Iss. 2 , Article 2. Available at: https://digitalcommons.wcl.american.edu/sdlp/vol18/iss2/2

This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Sustainable Development Law & Policy by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. A N EW N UCLEAR THREAT: THE T ENTH CIRCUIT'S SHOCKING MISINTERPRETATION OF PREEMPTION DEMANDING AN AMENDMENT TO THE PRICE-ANDERSON AcT Stephanie Fishman*

I NTRODUCTION a no-fault insurance-type system, in whi ch the fi rst 12.6 billi on 1 uc lear power will be th e key to Ame rica's energy of payout is industry-funded. 3 future. Whi le we still li ve in the wake of Soviet-era However, after twenty-fi ve years of litigati on, the United N nuclear stereotypes, th e horror of C hernobyl, and face States Court of Appeals fo r th e Tenth C ircuit ultimate ly held dilemmas on where to store the waste, nuc lear energy is the saf­ th at the plaintiffs in th e Rocky Flats case did not meet th e cri­ est, c leanest, and most reli ab le source. 1 A nuclear energy facility teri a to bring the ir sui t under th e PAA, and that they had to rely 14 can produce energy at a ninety-one percent effi ciency ra te, 24/7, solely on Col orado state tort law and assert a nuisance c laim. w ith zero carbon emissions. Additionall y, nuclear plants run on The court held that pl a intiffs a lleging injury fro m " lesser uranium- an e lement so energy-rich that a single fu el pell et the nu c lear occurrences"- that is, injuries fa iling to meet th e size of a fi ngertip contain s as much energy as 17,000 cubi c feet PAA's threshold of bodily injury or property damage- could 15 of natural gas, 149 gallons of oi l, o r one ton of coal- savin g recover damages under state tort law. This resul ted in more the United States nearl y twelve billion dollars a year in energy than $ 1 billion j udgment fo r a group of plaintiffs whose injury 16 costs. 2 Thus, the federal government maintains a strong interest was characteri zed as a " lesser nuc lear occurrence." The in propping up the nuclear industry, despite the sti gmas about characterization as a " lesser nuc lear occurrence" meant th at nuc lear waste. 3 th e damage at the Rocky Fl ats Pl ant did not constitute enough The Rocky Flats Plant is a nuclear weapons producti on fac il ­ harm to tri gger th e PAA compensation scheme; as a nuclear 17 ity located just sixteen mil es from the densely populated c ity of incident, the pl ant was persona lly liable." D enver. 4 Dow Chemical first operated the plant under a contract Despite how dangerous to the industry that fi g ure may w ith the federal government, and then Rockwell intern ati onal seem, the lasting consequences of the decision co uld be even Corporatio n acquired the contract. 5 However, plant operati ons graver. For instance, the Tenth C ircuit's decision provid es the ha lted in 1989 w hen the Federa l Bureau of Investi gation (FBI) pla intiffs with an option to circum vent the PAA's entire nuclear 18 ra ided the facility and un earthed indicati ons of environmenta l lia bility regime. The decision all ows a plaintiff to fi le a claim, c rimes.6 Pla nt wo rkers mi shandled radioactive waste and the regardless of the degree of nu clear harm and elevated PAA community theori zed that some of the waste had been poured criteri a, whi ch could result in a j udgement against the nuclear 1 into the ground, re leased into the a ir, and permeated the soil plant and effecti vely end th e energy innovation takin g place. 9 througho ut the area.7 As thi s news emerged, th e plant's ne igh­ Citizens injured in some way by a nuclear pl ant deserve com­ bors saw the ir prope rty va lues plummet. 8 Consequently, in 1990, pensati on and justi ce. Yet, in siding w ith the pla intiffs, th e the property owners fil ed a c lass acti on suit under Col orado state Tenth C ircuit overturned the PAA's vig ilantly crafted equilib­ tort law and the federally ma ndated Price-Anderson Act (PAA or rium of protecting th e public from harm created by radi oacti ve "the Act"), a lleg ing that th e operato rs of the nuclear pl ant neg- material, while defyin g the comprehensive nuclear li ability 20 1i gently mishandled high-threat radi oacti ve and nuclear materi ­ regim e fo r owners and operators of nuc lear faciliti es. Thi s a ls.9 T he dua l autho rity actio n proceeded in hopes of recovering result creates an incenti ve fo r defendants of nuclea r tort acti ons for damages caused by releases of plutonium and other hazard ­ to a ll ow Price-A nderson judgments against th em, which is 2 1 o us substances. 1 o likely preferabl e to th e liti gati on of a state tort claim . While The PAA, w hi ch was enacted in 1957 to promote the growth th e Tenth C ircui t's mi sin terpretati on of th e " nuclear inc ident" and innovati on of nuc lear enterprises, currently serves as in sur­ at Rocky Fl ats resul ted in a damages amount that exceeded th e ance coverage to nuc lear power pl ants in the event of an in cident compensation intenti onally all ocated for thi s type of event by 22 or accident. 11 The Act is designed to protect the nuclear industry Congress, it also contradi cted inth Circ uit and Fi ft h Circui t. against liability c la ims ari s in g fro m nuclear incidents w hil e Consequently, the decision w ill negati vely impact innovati on sti 11 ensuring compensati o n coverage for the genera l pub I ic.12 To promote the investment of nuc lear energy plants given th e nexus of low liabili ty and like lihood for risk, the Act establishes *J.D. Cand idate, Washington College o f Law 20 19

4 Sustainable Development Law & Policy in an industry critical to essential human services such as decrease dependence on fossil fuels. 36 The country was devel­ energy, power, and national security.23 oping nuclear weapons, aligning with the International Atomic The Tenth Circui t's decision renders nuclear market par­ Energy Agency (IAEA), and propping up nuclear power plants, ticipants susceptible to a new and undefined li ability. Th is and while nuclear innovation posed a number of safety risks, it uncertainty has a cascade of negative consequences. First, such was ordered as the first economic alternative to coal.37 Nuclear uncertainty threatens to destabilize and weaken the value of the power plants emit fewer radioactive materials into the environ­ PAA's compensation system by disrupting the settled expecta­ ment than a traditional coal-burn in g plant.38 tions of participants and investors in the nuclear market.24 Prior to 1957, an obstacle emerged for the deve lopment Second, it discourages added participation and investment in of cleaner energy. To transition from a government controlled nuclear energy within the United States.2s Further, it threatens industry to a privately operated facility conductin g innovative to make the United States an outli er among countries with com­ energy development an enormous amount of in surance was mercial nuclear energy programs, many of wh ich are governed required.39 insurers were unwilling and unable to provide risk by international nuclear li abi lity conventions predicated on coverage to this seem ingly perilous industry whose major prod­ the principles inherent in the PAA.26 Aside from the political uct possesses all the features of uninsurability.4°Consequent ly, and industrial consequences stemming from Cook v. Rockwell Congress passed the PAA as an amendment to the AEA, ensur­ International Corp. ,27 the decision may ultimately allow the ing substantial funds are avai lable to compensate the public in court to regulate the industry as a means to modify an industry the event of an accident.41 that is rapidly modernizing, effectively amending the definition The PAA's success comes from its twofold subsidy on the of a "nuclear incident" within the PAA.28 nuclear industry. First, it limits the amount of primary in surance This Article analyzes the preemption concerns raised by the that nuclear operators must carry- an uncalculated subsidy in Tenth Circu it decision in Cook v. Rockwell International Corp. , terms of in surance premiums that they do not have to pay.42 and the sweeping outcomes for the nuclear energy industry. Part This distorts electricity markets by masking nuclear power's II provides background in formation on the PAA, the federal law unique safety and security risks, and grants nuclear power an that preempts the Tenth Circuit decision, and compares the pre­ unfair and undesirable competitive advantage over other energy emption doctrine in similar energy contexts.29 Part III analyzes alternatives.43 Second, the PAA caps the liability of operators the extensive impacts that the Tenth Circuit's preemption misin­ in the event of a serious accident or attack, leaving taxpayers terpretation, and current posture of the law from this decision, responsible for most of the damages beyond.44 poses for nuclear energy compan ies, the power industries, and In passing the PAA, Congress capped the amount of li abil­ judicial review.30 Part Ill also acknowledges that while this was ity an energy company could face in the event of an accident. a bad judgment with negative repercussions for the legal and Through this program, the nuclear energy industry maintains nuclear communities, the definition ofa "nucl ear in cident" in the $43.2 billion in li abi li ty coverage by the federal government.45 Atomic Energy Act (AEA) should conform to the related defini­ Thus, the PAA creates exclusive li abi lity for nuclear operators tion of "nuclear damage" in the Convention on Supplementary for injury arising from a " nuclear incident," and supplies a Compensation for Nuclear Damage.3 1 This will ensure that the large pool of funds to ensure prompt and fair compensation for legal framework from the Cook decision has a limited impact citizens physically or economicall y injured.46 In turn, the PAA and is better defined going forward. 32 Communities should upholds the fra mework for nuclear plant insurance and sets an receive monetary compensation for injuries permeating out of upper limit on industry-wide li abi lity.47 The PAA worked well nuclear plants. Therefore, the PAA should be amended allow­ when insurance funds allocated under the Act disbursed approxi­ ing citizens injured from modern nuclear occurrences to merit mately $71 million in claims and litigation costs related to the compensation under the li ability regime specificall y designated 1979 accid ent at Three M ile lsland.48 The Act has proven so suc­ for that type of injury. cessful that Congress used it as a model for legislation to protect the public against potential losses or haim from other hazards.49 B ACKGROUN D II. This $12.6 billion makes capital in vestment in the nuclear A. OVERVI EW OF THE PRJCE-ANDERSON A CT (PAA): energy industry more attractive to in vestors because their risk is l CENTIVI ZING ENERGY I NNOVATION minimized and fixed. so Thus, the PAA incentivizes investment in an area of the energy industry whose development and innova­ Nuclear power plants and nuclear reactors are often located tion comes with potentially sign ificant risks. with in a few hours' drive of major cities, like Los Angeles Consequently, the Act is a doubl e-edged sword for the and New York. 33 The Three Mile Island plant, for example, is public that it purports to protect. While the legislation has a located near Philadelphia, Pennsylvania with a metropolitan provision to protect the people, it was primarily intended protect area radius encompassing over 2 million people.34 Such proxim­ the industry and bolster investor confidence.s 1 Congress care­ ity raises questions about the safety of the plant and the cost fully crafted the Act to create a federal nuclear liabi lity regime.s2 resulting from a nuclear accident. Congress enacted the PAA in The Act protected nuclear facility owners and operators from 1957 to provide answers to such questions.3s [n 1957, the United potentially crippling charges arising from state tort actions.s3 States wanted to promote the development of nuclear energy to For example, the Act contains an exclusive liability regime and

Spring/Summer 2018 5 a compre he ns ive fin ancial protecti o n sche me serving the dua l action pending in any State court or United States district purpose of protecting the public and encourag ing nuclear devel­ court sha ll be removed or transferred to the United States opment. 54 Additionally, Congress drafted the Act to minimize its district court having venue under this sub-section. 66 interference w ith state tort law.55 The Act's legislative hi story The relationship between the PAA and a state tort claim is repeatedly stressed the limited nature of the federal intrusion.56 hi erarchi cal. For example, the Supreme Court relied on the PAA On the li ability front, to facilitate prompt and equitable com­ as the primary remedy for addressing state tort claims in volvi ng pensation in the event of a " nuclear incident," the PAA channels the nuclear industry.67 Circuits agree that the legislati ve hi story liability exclu sively to the operator, without the need for claim­ of the PAA indicates that Congress intended that state tort law be ants to prove fa ult on onl y part of the operator or other entities the basis of sui ts resulting from nuclear accidents, the Act con­ at the facili ty. 57 A nother limitation of the PAA is the definition tains provisions that al ign significantly with the underlying state of " nuc lear in cident"; the Act defines it broadly as "any occur­ law even in the absence of an E 0 declaration.68 By extending rence . .. w ithin the United States causing . . . bodily injury, the PAA's coverage through the 1988 Amendments to the E 0 sickness, o r death, or loss of or damage to property, arising out criteria, Congress expressly granted ri ghts, otherwise unavail­ of o r resulting from the radioactive, toxic, or other hazardous able under state tort law. 69 properties of source, specia l nuclear, or byproduct materi al. " 58 The particularity of the words restrict the type of harm the PAA J. PRICE-ANDERSON ACT AMENDMENT OF 1966 AND 1988 provides coverage for, and in an era of modern technology and Cong ress has continua ll y extended the timeline of the advanced nuc lear research, ha rm could be in a lesser or different PAA's coverage, and it has made signifi cant changes to the lan­ form and not tri gger the Act. guage in the twenty-two years between 1966 and 1988. First, in Despite thi s broad definition of " nuc lear in cid ent," not 1966, Congress amended the PAA , requiring those indemnified every personal injury su it brought against Commission li cens­ under the Act to waive common law defenses, like contribu­ ees triggers the PAA's compensation sche me unless it is an tory negligence, if an action was raised after an "extraordinary extraordina ry nuclear occurrence ("E 0 " ).59 The accident nuclear occurrence."7°Co ngress expressed concern that aspects caus in g the harm must be s uffic iently severe to classify as an of state tort law, like statutes of limitation that were too short to ENO. One example where plainti ff's claims failed to meet the a llow actions following radiation exposure, could frustrate the ENO criteria was in Silkwood v. Kerr-McGee Corp. 60 This PAA's purpose of compensating victims of nuc lea r incidents.71 case is s ig nifi cant to current PAA preemption ana lysis because Congress believed th is approach refl ected the methodology it revolves around coverage for a nuclear occurrence being fou nd in the orig ina l PAA: " interfering with State law to the within federal jurisdiction. 61 The PAA issue in Silkwood was minimum extent necessary."72 Furthermore, the legis lative w hether the amendment impliedly preempted punitive dam­ hi story for the 1966 Amendments included that "a c la imant ages awarded in a s uit not brought pursua nt to the N uc lear would have exactly the same rights as today under ex isting la w, Regul atory Commission 's ("N RC") E 0 provisions.62 The including benefit of a rule of strict li ability if appli cable State Court found that Congress prohibited states from regulating law so provides."73 nuclear safety, but did not prohibit judicial recourse for those Following the events of T hree Mile Is land in 1979, injured by illegal conduct.63 Ultimately, the PAA expli c itl y Congress amended the PAA again in 1988. This second change draws a roadmap for th e procedural nuances associated with granted U nited States di strict courts o ri gin al and removal juris­ bring ing a nuc lear claim. di ction over " public li ability action" which "aris[es] o ut ofor as result from a nuclear inc id ent."74 The Act was amended because i. Price-Anderson Act Jurisdictional Elements the Three Mile Is land accident could not be consolidated in to T he Act has two provisions specifically conferring jurisdic­ federa l court since it did not reach the level of an "extraordi­ tion to federal trial courts. One provides that, when there ha nary nuclear incident."75 Thus, the 1988 Amendments solved been a nuclear incident, "any indemnitor or other interested per­ this issue by reducing the "extraordin ary" threshold at which son" may petition the federa l district court for a determination as the provisions of the PAA would a pply, making the Act less to whether the liability for the inc id ent may exceed the coverage ri g id. Means for acti on after the impleme ntati on of the 1988 64 mandated by the Act. Pursuant to this secti on, a federal di strict Amendments in c lude " legal li ability arisin g out of or resulting court mig ht find it necessary to supervise distribution from the from a nuclear incident," and no longer the requirement to have 65 indemnity fund . The second re levant section of the Price­ an EN0.76 A nderson Act provides in pertinent part: 2. THE R ELATIONSHIP B ETWEEN THE PRICE-ANDERSON ACT (2) With respect to any public li ability action arising out AND THE CONVENTION ON S UPPLEMENTARY COMPENSATION of or resulting from an extraordinary nuclear occurrence, The PAA proved successfu l e nough within the United the Un ited States di strict court in the district where the States to in form intern ational regulations on nuclear li ability. extraordinary nuclear occurrence takes pl ace . . . shall The Convention on Supplementary Compensation fo r uclear have orig in al jurisdictio n without regard to the citizen­ Damage (CSC) prov ides a g lobal nuclear liability and compen­ ship of any party or the amount in controversy. Upon sati on scheme.77 Its regime guarantees timely reimbursement motion of the defendant or of the Commission, any such

6 Sustainable Development Law & Policy when facin g particularized injury from intern ational nuc lear health and safety conditions, the contamin ation caused nearby energy in cidences. 78 In addition to maintaining intern ationa ll y residenti al property values to decline, prompting th e property agreed upon terms and defi ni tions, the CSC features the creation owners to file a lawsuit against the plant operators under both of an international insurance pool to supplement the amount the PAA and state nuisance law. 90 of compensation availabl e fo r nuclear damage resulting from In 2006, a federa l jury convicted Dow C hem ical and an in cident. 79 Mirroring the principles of the United States' Rockwell Intern ationa l Corporation o n charges of negligent PA A, the CSC functions as an internationally respected liabil­ conduct.91 Two years later, a Colorado federa l judge o rd ered ity stand ard fo r nuc lear damage adhered to across the globe.80 the companies to pay a total of $926 millio n in damages, Therefore, the definition of " nuclear damage" similarl y encom­ in cluding $549 million in prejudgment interest due to exten­ passes a broader spectrum of li abi li ty for an incident, accident, sive pre-trial delays.92 The Tenth Circuit vacated that decision or lesser occurrence.81 However, unlike the specifi c "nuclear in September 20 10, siding w ith the defendants in fi nding that incident" definition included in the PAA , the CSC's definition of plutonium contamination by itself was not adequate cause "nuclear damage" in cludes economic loss and impa irment of the to seek damages under the PAA, whi ch led to the plaintiffs' environment. 82 Di fferences in terminology, such as the example appeal on state law grounds.93 of "nuclear damage," make it easier and more math emati call y ln 20 15, after twenty-fi ve years of a complicated law suit efficient to receive compensation from a nuclear accident, which involving radiation forensics, nuclear experts, a variety of litiga­ is less financially devastating to the energy innovati on within the tion tri cks,94 and procedural reversals and remands,95 the Tenth nuclear industry. Circuit reversed the ho lding again in favor of the prope1ty own­ The CSC is significant for having borrowed concepts from ers. The Tenth Circuit held the c laim originally brought under th e PAA in its fo rmulation. However, w ith the advancement the PAA was invalid, and the case was alternatively a matter of nuclear technology and th e evolution of nuclear incidences of state tort law. 96 The pl aintiffs in the case were awarded over occurring at pl ants in the United States, the PAA should adopt $900 million plus interest, for a total award upwards of $ 1 bil­ the broader defi nition from the intern ationa l compensation plan li on.97 Jn stead of using money from the funding pool designed to that it helped create so that plaintiffs are likely to be compen­ compensate this type of harm, th e award came from the nuclear sated by a federal fund intended fo r this type of harm. plant's pocket. .98 The plaintiffs took advantage of this misj udg­ ment by abandoning the mecha ni sms and benefits provided B. THE CASE WITH THE BILLION D OLLAR P AY Our: by the PAA and pursuing the background state law nuisance SUMMARY OF COOK v. R OCKWELL I NTERNATIONAL CORP. claim instead.99 In response, the defendants argued that such an AND ASSOCIATED CONSEQUENCES OF THE DECISION action was preempted by the PAA, which the court of appeals A childhood in Colorado often consists of many outdoor ultimately rejected. 100 Thus, a ll owing non-PAA state law claims activiti es, such as playing in the mountai ns and swimming in for such " lesser occurrences" renders the Act's limitation on the many lakes and streams. Finding out that those streams were aggregate li ability meaningless. 101 contaminated with weapon-grade plutonium would be devastat­ ing. This is likely the story fo r anyone li ving outside of Denver C. TH E P REEMPT ION D OCTR I E AND ITS APPLICAT IO TO in the 1970s. TH E NUCLEAR FIELD With the in creased proliferation of nuclear energy, courts When state regulations conflict with a federal law, it triggers began seein g I iti gation against nuclear power pl ants in the Article YI of the U.S. Constitution, which declares: "[t]he laws area of negli gent handling of material. 83 Most notably, the of the United States which shall be made in pursuance thereof . claim in Cook v. Rockwell In ternational Corp. stemmed from . . sha ll be the supreme law of the land; and the judges in every the mi shandling of radi oacti ve waste at the nuclear weapons state shall be bound thereby, anything in the Constitution or facili ty located near downtown Denver.84 During the Co ld War, laws of any State to the contrary notwithstanding." 102 Thus, Dow Chemi cal and Rockwell Intern ational Corp. operated the a federal court may require a state to stop certain behavior it plant under contracts with the fe deral government. 85 Adjacent be li eves interferes or conflicts with a federal law. 103 This is the property owners c laimed harm began in 1989, when FBI Supremacy C lause, and it g ives rise to what is known as the agents raided th e plant and un earth ed signs of environmental doctrine of federal preemption.104 However, application of the crimes.86 Evid ence at tria l implied that pl ant workers di sposed preemption doctrine is rarely straightforward. 105 ln fact, the of radioactive waste into the ground, where the waste leaked preemption doctrine gets extremely complicated and controver­ into bodies of water; and released radioactive particles into sia l.1 06 As the Environmenta l Law Reporter notes, "ascerta ining the a ir, whi ch then migrated onto the soil around th e pl ant. 87 the presence of such federal- tate conflicts is largely a matter Unfortunately, the plant did not have a spotless environmental of statuto ry interpretation."107 When determining whether legacy prior to 1989 e ither. For example, the hi story of the Congress chose to expressly preempt state law, courts look to pl ant included plutonium fires in 1957 and 1969 that wafted the plain meaning and expli cit statutory command.108 However, toxic smoke over the Denver metropolitan area88 and leakin g when Congress fails to expressly address either the presence or barrels of radioactive waste and other small accidents contami­ scope of preemption w ithin the statute, courts must somehow nated downstream communities.89 In addition to diminished accommodate the tension between th e competing constitutional

Spring/Summer 2018 7 procedures. 109 Courts attempt this by inquiring into the purposes Resources Conservation & Development Commission, 127 the of the federal statutory scheme and by delving into the congres­ California Warren-Alquist Act required conditions for nuclear sional intent behind its enactment. 110 plant certification was more than an attempt to minimize radia­ This implied preemption presents more complicated ques­ tion hazards. 128 Therefore, the court scrutinized the extent offed­ tions for courts. Judges must look beyond the language of the eral preemption of state ability to control nuclear development federal statutes to determine whether Congress has occupied the beyond reducing radiation risks. 129 Thus, whether courts apply field in which the state is attempting to regulate, or whether the a broad and expansive preemption breakdown regarding states' enforcement of the state law frustrates the federal purpose. 111 ln nuclear regulations, as in Northern States, or a direct language determining whether to infer a congressional design excluding argument for preemption as in Pacific Legal Foundations, the state regulation, courts first examine the language and legislative rulings bode potentially unwell for enacted state laws attempt­ history of the federal statute. 112 Beyond that, they eschew any ing to regulate future nuclear energy development. 130 The AEA rigid formula and look instead to general criteria. For example, preempts laws regulation radiation hazards. general criteria like the pervasiveness of the federal regulatory In an attempt to clarify the regulatory power of federal scheme and the need for nationally uniform regulation.113 The and state authorities over nuclear development, Congress imprecision of these indicia give courts substantial leeway in added§ 274 to the AEA in 1959. 13 1 This amendment detailed determining whether implied preemption should be found in the procedure by which the AEA could transfer its regulatory particular cases. 114 authority over certain types of nuclear material to the states. 132 The next shift in the development of the preemption doctrine The PAA prohibited the Commission, however, from ceding its occurred during the 1940s. Within a six-year period, the Court authority over especially hazardous activities and materials. 133 decided Hines v. Davidowitz 11 5 and Rice v. Sante Fe Elevator Additionally, Section (k) of the 1959 amendment expressly pre­ Corp. 11 6 Although both decisions preserved the congressional served all state or local regulatory activities designed "for pur­ intent requirement for finding preemption, taken together they poses other than protection against radiation hazards." 134 Thus, greatly expanded the permissible scope of the Court's inquiry the expressions of congressional intent within the legislative his­ into legislative intent. 11 7 The Court in Hines held that preemp­ tory of the 1959 amendment demonstrated that Congress likely tion was proper where the state law "stands as an obstacle to the wished to preempt state law to some degree. 135 Building on this accomplishment and execution of the full purposes and objec­ explicit preemption, in 1988 when Congress enacted the PAA tives of Congress." 11 8 Rice went further, holding that preemp­ amendments, it transformed the "Price-Anderson landscape," tive intent could be inferred from such factors as the pervasive and resolved the tension between exclusive federal regulation of nature of the federal scheme or a dominant federal interest in the nuclear safety and state law compensation for injuries. 136 subject area. 11 9 Subsequently, after 2007, there was a tendency for III. ANALYSIS the Supreme Court to err on the side of broadly interpret­ To preempt state law causes of action and clarify liability ing preemption as a means to promote judicial efficiency. 120 under the PAA, Congress should amend the PAA by utilizing Conforming to the trend, at the Circuit Court level , when the negative impacts from Cook. Individuals should be liable for faced with facts involving state regulations of nuclear facili­ lesser "nuclear occurrences" because it will ensure damages are ties, federal regulations prevailed every time. 12 1 The Three paid from the fund and protect the longevity ofnuclear innovation. Mile Island incident in Pennsylvania, for instance, intensified The Tenth Circuit's misinterpretation of preemption prin­ national debate over the merits of nuclear power through the ciples calls for an amendment to the PAA that stimulates nuclear lens of a preemption scope. 122 To gain control over the future innovation while still heavily compensating the general public. of energy and power plants, several states enacted statutes to The Cook case gave the Tenth Circuit an opportunity to paint the impose restrictions and conditions on the siting of any new modern preemption stroke on an industry in desperate need of power reactors within their borders. 123 "While logical, these modernization. ft also gave the Tenth Circuit a chance to clarify state statutory restrictions ignite a legal dilemma as to which of preemption concerns and affirm the rationale surfacing out of the federal laws governing nuclear development preempt state its fellow Circuits. The United States' nuclear programs are and local regulatory authority." 124 essential to empowering the country. 137 In contrast to the less Several cases illustrate the premise that the federal gov­ reliable wind and solar energy options, nuclear energy provides ernment sought to reign supreme on nuclear safety issues. For the United States with a consistent and steady power source. 138 example, Northern States Power Co. v. Minnesota 125 represents Despite the advantages to nuclear innovation, hazardous events a federal case wrestling with the preemptive effect of nuclear contributed to public fear of the industry.139 However, the acci­ provisions of the AEA, where the Eighth Circuit found the state dent at Three Mile Island that created skepticism of nuclear incapable to impose radiation standards more restrictive than energy was two generations ago. 140 Since then, engineers have criteria defined by the Atomic Energy Commission. 126 The pre­ developed designs to avoid such failures. 141 Further, the Three emption analysis in Northern States was more straightforward Mile Island incident expressly met the criteria outlined in the in comparison to preemption analysis of the nuclear regulations PAA for liability coverage. 142 With the advancement of nuclear on the West Coast. In Pacific Legal Foundation v. State Energy technology and measures taken to insulate themselves from

8 Sustainable Development Law & Policy li ability within the industry, Congress and the regulators are at a on th e same alleged facts. 152 Si milarl y, the Ninth Circuit 153 has crossroads with the PAA and the terms and technical definitions reli ed on the language of the PAA taking precedence over state from the l 950's that it encompasses. 143 Based on the confining law in cases that closely parall eled the facts of Cook. The N inth procedural criteria of the PAA, and the way a pl ai ntiff may only Circuit consistently held that "[t]he PAA is the exclusive means raise a PAA claim if the techni cal benchmarks are satisfied, the of compensating victims fo r any and all claims arisi ng out of Tenth Circuit in Cook v. Rockwell int '/ Corp. misinterpreted nuclear incidents. " 154 preemption principles. Yet, in examining the consequences ln departing fro m other Circuits, the Tenth C ircuit's deci­ of th e Tenth Circuit's rationale in Cook, it is first essential to sion wi ll create un certainty in th e applicati on of the PAA. examine preemption concern s to understand how th e Tenth Application ambiguity wi ll particul arly impact a number Circuit establi shed the holding that directly co ntradicts that of of nu clear industry pl ayers th at are located within the Tenth other Circuits- reconci ling bad facts and creating consequenti al C ircuit, including Department of E nergy's ("DOE") Waste law. After examining the signifi cant impacts and wheth er the Isolation Pilot Pl ant fac ility (th e nation's onl y disposal facility decision was preempted, it is clear the decision precipitates an fo r hi gh-level nuclear waste), the Sandia National Laboratory, essential amendment to the PAA that will in turn protect nuclear and the Los Ala mos Nati o nal Laboratory, all of which are pl ants from having to pay billions in damages for mere occur­ important nati onal security facilities. 155 Simply by virtue of rences, and further protect nuclear innovation. their physical location, fac ilities in the Te nth C ircuit now face uncerta inty about their potential liability exposure even if a A. THE T ENTH CIRCU IT D EC ISION IN COOK IS nuclear incident never occurs. In addition to being an unprec­ SIGNiFICANT FOR CONFLICT! G WITH J UD ICIAL edented decision and contradicting other Circuits on analogous P RECEDE T, C ONGRESSIONAL INTENT, AND FOR OPENING cases, the Cook decision questions Congress's intent in deter­ THE LITIGAT ION FLOODGATES mining what scenarios merit coverage. The Cook decision is significant because it contradicts other Circuits, unravels congressional intent regarding the federal law, 2. THE COOK D ECISION U NRAVELS CONGRESSIONAL I NTEN T and widens the judicial door by creating the option to circum­ In Cook, the Tenth C ircuit substituted its views fo r the judg­ vent the PAA with a nuclear liability claim. The nuclear industry ment of Congress. The PAA is an example of a legislative eco­ in vested in innovation by trusting the PAA's nuclear li ability nomic scheme, in whi ch Congress has sought "to structure and regime.144 The Tenth Circ uit's decision jeopardi zes the industry accommodate th e burdens and benefits of economic li fe." 156 It is by creating new risks, in addition to the dangers associated with clear that Congress intended the PAA to provide a safety net of th e acti vity on its face. 145 For example, there is a real pro bability private insurance for government indemnificati on and claims of that nuclear owners and operators, and thus, government enti­ "public li ability" whi ch arise from a "nuclear incident." 157 Thi s is ti es, could be burdened with significant judgments- perhaps clear in part because Congress's amendment to the PAA in 1988 upwards of billions of dollars- in favor of plaintiffs who may includes all nuclear incidents with fe deral jurisdiction and pro­ not have suffe red harm that Congress deemed significant enough hibits punitive awards in certain circumstances. 158 Additionally, to warrant compensation under th e PAA. 146 If courts rely on the PAA does not allow recovery for claims such as psychi atric Cook in cases of all eged harmful occurrences compliance with damages or emotional distress not connected to physical bodily the fe deral safety standards would not provid e any protecti on. 14 7 injury.159 Moreover, as the Tenth C ircuit explained in another Cities could be subj ect to millions of doll ars in damages, as context, "the inclusion of certa in remedies and the exclusion of assessed by a lay jury, even though the hazard may constitute an others under the federal scheme would be completely under­ undetectable amount, like in th e Three Mile Island accident. 148 mined" if pl ainti ffs remained "free to obtain remedies unde r While the creation of new risks could be extensive, they are still state law that Congress rejected."160 The same principle holds hypothetical. Concrete applicati on of the decision's significance here: Congress specifically delineated the claims that plaintiffs begins with its lack of precedent. may bring related to nuclear harm under th e PAA.16 1 Permitting pl ainti ffs to make an overt end-run around th e federal nuclear J. COOK R EPRESENTS AN U NPRECEDENTED DECISION liability system to bring alternative claims under state law would The Cook court's decision represents a split with th e Fifth undermine the entire federal scheme. Circuit and is at odds with the reasoning of other Circuits to hear Then-Judge Gorsuch, in writing the Cook opinion, di scussed 149 a similar matter. For instance, the Tenth Circuit compl etely Congress's intent in drafting the PAA. 162 While he justified hi s disagreed with the holding of Cotroneo, and instead fo und sup­ narrow in terpretati on of intent by onl y looking at particular areas 150 port in the reasoning of the di ssent in Cotroneo. The Tenth of the language, he neglected the bi gger industry moti vati on Circuit departed from other Circuit decisions when choosing that Congress preserved, as shown in the many amendments to between a sui t under PAA or under state tort law. There have extend the PAA. 163 In substituting the court of appeals opinion been numerous nuclear li ability claim s tri ggered by narrowly for the intent of Congress, Judge Gorsuch leverages an angle 151 tailored state statutes within the other Circuit. Consistently, to the preemption analysis fo r strengthening hi s rationale. 164 th e court has held that a pl aintiff who asserted a PAA claim could Nevertheless, he mi ssed th e mark in analyzing the preemption not pursue a freestanding state-l aw claim outside the PAA based doctrine, whi ch determined the outcome of hi s decision .165 The

Spring/Summer 2018 9 Tenth Circuit claimed that the Supreme Court disfavors preemp­ B. THE PAA SHOULD HAVE PREEMPTED STATE TORT tion, a nd that the text of the PAA " merely affords a federal forum L AW rN THE T ENTH CIRCU IT 166 when a nuclear incident is 'assert[ed]' ." However, "[n]othing The Tenth Circuit's decis ion conflicts with every other in this la ng uage speaks to w hat happens when a nuclear incident C ircuit that has considered the preemptive nature of the PAA. 180 167 is alleged but unproven. " In addition to explicitly contradict­ The question for the court hinged on the determination of ing the intent of Congress and misinterpreting preemption prin­ whether the challenged state law is one that the federal law was ciples, Cook also could widen the litigation gate and lower the intended to preempt. thres hold for bringing a nucl ear liability claim to court. Notably, In looking beyond the express language of federal statutes in dec iding that the PAA is not a complete preemption statute, to determine whether Congress has occupied the field in which the opinion omitted any di scussion of several cases that the the state is attempting to regulate, whether a state law directly 168 defenda nts relied on in support of their pree mption argument. conflicts with federal law, or whether enforcement of the state The statutory terminology and nuclear labe ling in the PAA law might frustrate federal purposes, the Tenth Circuit misstated 169 contributed to the preemption misinterpretation. In its hold­ this analysis. If the court looked to the pervasiveness of the ing, the Tenth Circuit designated alleged but unproven " nuclear regulating federal scheme, the federal interest at stake with the incidents" as " lesser nuclear occurrences" and stated, " it's PAA, and the danger of frustrating federal goals in determining hard to conjure a reason why Congress would a llow plaintiffs whether a challenged state law can stand, the majority would to recover for a full panoply of injuries in the event of a large arrive at a different holding. nuclear incident but insist they get nothing for a lesser nuclear The PAA's liability scheme mirrors the preemption doctrine, 170 occurrence." Likewise, the PAA does not independently under which "the preemptive force of a statute is so extraordi­ define " occurrences," " nuclear occurrences," or " lesser nuclear nary" that normal state law claims are converted into federal 171 occurrences." There is hi s torical fluctuation on broadening claims for efficient and equitable resolutions.181 As the Court and narrowing technical terms in order to establish preemption acknowledged in El Paso Natural Gas Co. v. Neztsosie, the PAA interpretations. In acknowledging historical preemption con­ is analogous in its preemptive force to another federal legisla­ cerns presented in nuclear driven cases, the standards articulated tive system under the Employee Retirement Income Security by Hines and Rice, for example, were so broadly phrased that Act of 1974 ("ERISA") and the Labor Management Relations congressional intent to preempt could be found in any area of Act. 182 Moreover, the Tenth C ircuit should have applied the 172 comprehensive federal legis lation. analysis from Neztsosie to their decision in Cook.183 The Court 3. COOK OPENS COURT D OORS TO CIRCUMVENT PAA in Neztsosie observed that the 1988 Amendments provide "clear indications of the congressional aims of speed and efficie ncy" in Should future courts confronting a state law face-off with the resolution of claims.184 Federal legislative systems that create the PAA choose to follow the reasoning of Cook, many state exclusive federal causes of action, such as ERJSA and the PAA, laws a imed at limiting or conditioning nuclear growth will pre­ are more appropriately analogues than the Class Action Fairness vail in federal court.173 After Cook, anyone can sue a nuclear Act, which the Tenth Circuit cited by analogy in Cook. 185 power pla nt without needing to satisfy the nuclear inc ident Congress intended for the federal government to regulate requirements o utlined by the PAA. If plaintiffs prove they suf­ the safety aspects of the construction and operation of energy fered from a " nuclear incident," they are entitled to relief under facilities and power plants. 186 This rationale is consistent the PAA, s ubject to certain limitations provis ions built in " to with Sixth and Seventh Circuit holdings and their assessment ensure that liabilities arising from large nuclear incidents don't of intent. Those C ircuits found that Congress did not wish to shutter the nuclear industry ...." 174 However, if the plaintiffs create a stand-alone federal tort for a public liability action.187 cannot prove a " nuclear incident" under the PAA, but can prove The analysis provided that the substantive rules for decision in some sort of " lesser occurrence" or " lesser state law nuisance," such action shall be derived from state law, which, despite its they may proceed on their state law claims. 175 Thus, plaintiffs prior preemption concern, might encompass substantive issues can circumvent coverage fanned out by the PAA. There is now like the requisite duty of care and the burden of proof for cau­ the like lihood that owners and operators could be individually sation.1 88 Therefore, the vision was for state law to augment the charged with s ignificant judg ments without a cap- potentially federal regime substa ntively, not circumvent it. in the billions of dolla rs- in favor of litigants who may not have suffered harms that Congress deemed s ignificant enough to J. THE S UPREME COURT'S R OLE IN THE T ENTH CIRCUIT'S 176 warrant compensation under the PAA. Even if plaintiffs were PREEMPTION ANALYSIS unsuccessful, without the framework of the PAA, such cases The Tenth C ircuit's reliance on Silkwood v. Kerr-McGee 189 may s it in court for years in protracted, complex, and expensive is incorrect. After examining both the preemption doctrine 177 litigation. It is clear that the authority under state tort law generally and its application in the nuclear fi eld specifically, the 178 could lead to a better pay out. In examining the significant opinion in Silkwood maintains di sting uishable authority over impacts Cook may have on judicial efficiency and the industry, the Cook decision.190 In Silkwood, the Court, voting 5-4, found the consequences should stimulate an amendment to the defini­ that federal law did not impliedly preempt a $ 10 million dol­ 179 tion of a " nuclear incident." lar punitive damages award against a nuclear power plant for

10 Sustainable Development Law & Policy negli gently all owing employee, S ilkwood, to be contaminated that the state law confl icted with national poli cy and "st[ood] in with plutonium.191 While Silkwood held that Congres had no the way of federal, dipl omatic obj ectives." 206 intention, when it amended the AEA of 1954, of forbidding the Additiona ll y, the Tenth Circui t leveraged plain meaning to States to provide remedies fo r inj uries from radi ation. Congress omi t preempti on consideration in Cook. T he narrowly tai lored did wish to protect the nu clear industry from frivolous claims defi ni tion of a " nuclear incident" contributed to Judge Gorsuch 's that lacked scientific backing.192 Additiona ll y, Silkwood was misin terpretation of preemptio n. As discussed above, the scope decided in 1984, fo ur years before the 1988 A mendments to the of compensable claims under the PAA is c ircumscribed by the PAA, whi ch established the li ability action as the new and sole Act's definition of " nuc lear in cident" - i.e., "any occurre nce . federal cause of acti on. 193 Thus, the Tenth C ircuit needed to di s­ .. causing . . . bodily inj ury, sickness, death, o r loss of or dam­ tinguis h Cook fro m Silkwood since Cook posse sed the elements age to property arising out of or resulting from the rad ioactive, for complete preempti on. toxic, or other hazard ous properties of nuclear materi al. " 207 The Supreme Court made clear that federal law completely As a matter of law and until the Cook case, the defi ni tion of occupi es the fie ld of nuclear safety and preempts state action in " nuclear incident" establ ished the threshold for asserting a com­ thi s area. Therefore, courts be li eved that federal law similarl y pensable inj ury from a release of radiati on.208 A pl ain tiff w ho di ctates the duty a defendant owes to a pl a intiff in a public cann ot demonstrate bodily injury or property damage as defined li ability action.194 Regarding radi ati on injuries in Silkwood, by the PAA cannot meet the prerequisites fo r a li abili ty acti on, preemption should not be based on grounds "that the Federal and thus cannot mainta in any action for a radiation-re lated Government has so completely occupied th e fie ld of safety" that c laim.209 Therefore, when the cla im in Cook sati sfi ed w hat the state remedies are precluded.195 Instead the Court must deter­ Tenth C ircuit deemed as a " lesser nu clear occurrence," the court mine if " there is an irreconc il able confli ct between the federal argued that p laintiffs fa il ed to meet the PAA criteria, a nd thus, and state standards," or if the impositi on of state standards e liminated a preemption argument.210 The ambiguity in the fo r damages interferes wi th the purpose of the fe deral law. 196 definition of the term " lesser nuc lear occurrence" is a critical However, it is unclear ifthere is a di ffe rence between occupyin g problem emerging from the Cook decision. Given the evolv ing the fi eld and confli cting between standard s in thi s contex t. Thus, nature of the nuclear industry, th e defi nition permitting coverage any li ability acti on with significant federal ingredi ents sa ti sfyin g under the PAA is too narrow and has contributed to th e removal preemption is consistent with the facts all eged to have occurred of the PAA authority and the unprecedented damage award.211 in Cook at the Rocky Flats Plant. Moving forward, courts should consider the definiti o n of a Despite th e Supreme Court giving wide latitude to th e states nuclear incident more broadly when looking to apply PAA funds to regul ate nuclear power w ithin their borders and the signifi­ for li ability coverage. cance of Silkwood, the Cook decision es ta bl is hes new parameters T he Tenth C ircuit should have never been abl e to justi fy governing preemption in the energy neld.197 For example, the re li ance on state law for this matter. Radi atio n exposure and Tenth C ircuit erred when it downplayed its preemption analysis improper handling of nuclear waste has the same consequence in just because the defendants fa il ed to in voke implied preemption Colorado as in Florida or New York. The Tenth C ircui t's acti ons doctrine and appeared to disclaim re li ance on it. 198 The Tenth illustrate one of the reasons fo r federal preemptio n: the issue C ircui t also re li ed on the fact th at because both companies is too complex to place in the hands of appl y ing va ri ed state defl ected on conflict preemption principles by not addressing law causes of acti on.212 Whether or not courts could use state them, and the possibility of using preempti on as an affirm ati ve law causes of acti on and th eir own standard of care to regul ate defense, that the defendants fo rfeited any applicati on of pre­ nu clear safety through huge monetary awards was the underl y­ emption. 199 Regardless, just because the defendants appeared to in g po li cy issue addressed by th e Supreme Court in Silkwood. relinquish the argument of preemption as an affirmati ve defense, That was the "tension" the majori ty opinion foun d Cong ress should not mean that preemption di d not ex ist in thi s case.200 all owed w hen it did not create a federa l cause of action in Unlike in Silkwood, state standards interfe re with the purpose of the statute. The Cook verdict is exactl y the evil feared by the the PAA in Cook. 20 1 Therefore, the Tenth C ircui t's omission of a Silkwood di ssenters.213 While the Supreme Court's ana lysis of fe deral preemption argument is strongest w hen it hinges on the preemption questions in Silkwood demonstrates a willingness to fact that th e pl aintiffs fail ed to meet th e PAA criteri a of being a a ll ow greater state regul ati on of the nuc lear energy industry tha n nuclear inc ident. 202 However, the Tenth C ircuit did not rely on that w hi ch had previously been permi ssible under the Northern thi s as th eir j usti fication.203 States decision, there is a shi ft at th e C ircuit level to take back Even in circumstances outside of the nuclear incident arena, the federal rule when a nuc lear in cident is in volved. As a result, if any state regul ati on or law confl icts with a nationa li zed poli cy Cook obscured both the basis for its own parti cul ar outcome, as it may be preempted. In American Insurance Association v. well as the factors weighed by the Court in deciding preemption Garamendi,204 the Supreme Court considered the constitution­ cases in the nuclear fie ld in general. ality of a Cali fo rnia law designed to help Cali forn ia Holocaust surv ivors coll ect on unpa id in surance claims from Germa n in surance compani es.205 Despite the absence of any clear state­ ment preempting state laws such as Cali fo rni a's, the Court fo und

Spring/Summer 2018 II C. D ESTRUCTIVE Co SEQUE CES FOR TH E N UCLEAR D. SILVE R Lr IN G : JuDICIAL CATASTROPHE STIMULATES I N DUSTRY AND J UDICIAL E FFICIEN CY PAA AMEN DMENT Fo r the past several decades, a hi atus on building new The Cook decision represents a signifi cant departure from nuclear-power plants stymi ed the nuc lear industry.214 The rea­ existing case law, whi ch hold s that all egations even potenti all y sons for the ha lt in constructi o n have inc luded publi c outrage fa lling under the PAA preempted all state law claims based on over th e T hree Mile island me ltd own, increasing regul ati on, harm all egedl y caused by exposure to or contaminati on from a nd pl a nt o pe rators' need to in sure against a multitude of radioacti ve materials. 225 One positive aspect is that w hil e the ri sks.215 N uc lear energy compani es in vested in thi s industry in Tenth Circui t decision in Cook is preempted by federal law and re li ance of the PAA's th oroug h li a bility regime.216 The Tenth generates grave consequences fo r the nuclear energy industry, it C irc uit's o pinion enabl es communities and peopl e to circum­ may ultimate ly stimulate an additional amendment to the PAA, vent the PAA, with its punitive cap, and bring a claim under as a means to regulate coverage of an industry that is rapidly state to rt law, which could be fata l to the industry. Companies moderni z in g. An amendment to the technical definiti ons and a lready heavil y in vested in the nuc lear market can do little cri teria w ithin the PAA could ensure that a decision like Cook to mitigate this new ri sk. A nd compa ni es not yet in vested in does not occur in the fu ture. In amending the PAA,226 Congress the U nited States nuc lear m arket w ill be disco uraged to par­ was we ll aware that the PAA compensati on system must operate ti c ipate, in vest, or further expand- a result precisely contrary as a consistent part of a larger federal framework governing th e to co ng ressiona l and executive branch policy and intent.217 safe use of nuclear energy.227 Congress knew that "[n]umerous Additio na ll y, the Tenth Circ uit's decision threatens to destabi­ fe deral questions would necessarily arise in the course of litiga­ li ze the g lo ba l market fo r nuc lear ene rgy, w hich is an impo rtant ti on under this Act, and questions must be resolved consistently co mpo ne nt of the U nited S tates' e ne rgy mix, pa rti cul arl y in with the pervasive federal scheme."228 li g ht of c limate c ha nge concerns. N ot onl y does the decision The definition of a " nuc lear incident," as ori gina ll y pro­ put pressure o n further in vestment in Ameri can nuclear facili­ mulgated in the AEA, needs to be updated to confo rm to th e ti es, it a lso runs counter to intern ati ona ll y accepted nuc lear re lated definiti on of " nuc lear damage" in the Convention on li ability standards.218 Compa ni es are un w illing to parti c ipate Supplementary Compensati on (CSC).229 That way, when there in the nuc lear market in countries w here operator li ab ili ty and is a nuclear incident at a pl ant, a community may receive fe deral minimum cla im requirements do no t exist.219 For example, funds fo r the harm because the federal li ability will cover even India has not followed the internati o nal nuc lear li ability regu­ a nuclear occurrence, whi ch is less than an inc ident. Further, lati o ns because its nuc lea r li ability law provides, among other Congress should adopt the report language clarifying th at a things, tha t operators may have a ri g ht of recourse again st sup­ " nuclear incident" under th e fra mework of the PAA covers any pliers for nuclear damages.220 release of ra di oacti vity in excess of regul atory limits. Adopting The lack of li a bility regul ati o n conflicts with th e inter­ a federal in cident standard as th e liability action standard of nati ona l no rm of c hanneling a ll nuc lear responsibility to the care harmoni zes federal preemption w ith precedent. Ultimately, o perator. A nd no t surprising ly, the potentia l fo r nu clear sup­ Congress should amend the PAA to completely preempt state plie r li a bility in India has had the effect of discouraging many law causes of acti on, but also to clarify that public li ability under nuclear suppliers fro m engaging in the Indian nuc lear market, the PAA shoul d apply to lesser "nuclear occurrences." Such an inhibit ing that market's growth .22 1 Consequently, th e Tenth amendment would close th e loophole illustrated in Cook and C ircui t's decision to permit certain state tort claims fo r " lesser help the PAA better achi eve its goals.230 Adhering to the tech­ nuc lear occurrences" could well introduce a similar market­ ni cal criteri a of the CSC w ill strengthen Uni ted States nu clear da mpe ning effect in to th e U nited States that India experi­ safety credibility domesti call y and intern ati onall y. e nced .222 lt unle ashes pote ntiall y s ig nificant a nd uncertain The defendant's duty is to comply with the federal incident li a bility fro m the constra ints of the fede ral statute designed definiti on stand ards through whi ch the complete federal preemp­ to c urb it, discouragin g do mesti c a nd fore ig n actors fro m ti on of nuclear safety is effectuated.23 1 If the definin g language pa rti c ipating in the market. ln the process, the United States and compensable criteri a modifies in parall el fas hi on with th e " could lose cons iderabl e influence over sta ndards governing industry's innovati on, Congress's scheme to provide coverage to safety a nd waste manageme nt" and even a seat at th e nuc lear the nuclear community will remain intact. no nproliferatio n discussion tabl e.223 The wo rld may be unw ill­ ing to move toward potenti a ll y safer desig ns. In addition to CONCLUSION steering the private sector away fro m nuc lear investment, th e Given the deni al of certiorari , the Tenth C ircuit decision Cook decis ion w idens the judicia l door for more litigati o n.224 expands the scope of liability fo r nuclear power defendants in B ecause of this newly created framework, the size of the ver­ PAA cases, where the criteri a fo r PAA coverage is not met, and dict, and future inte rpretati o ns of the PAA's preemptive effect a ll ows plaintiffs to prevail under state tort law. However, the (or lack the reof), legal ana lysis movin g fo rw ard should di stin­ Tenth C ircuit should have fo und pl aintiff's claims preempted by guish Cook, a nd look to redefine the criteri a of the PAA in line fe deral law fo r occupying th e fi eld of safety compensation and w ith inte rnati ona l compensation co nventi o ns. frustrating the federal purpose. And w hil e the decision fosters an array of negative impacts to the nuclear industry, it precipitates

12 Sustainable Development Law & Policy the need to address the technical defin itions and criteria of the Supplementing Compensation, the PAA will resume the a ll­ Price-Anderson Act. Upon amend ing the definition of a "nuclear encompassing role that Congress intended and prevent future incident," pursuant to the language in the Conventi on of judi cial reliance on Cook. (i

E NDNOTES

See generally David Brown, Nuclear Power is Safest Way to Make 25 Liability for Nuclear Damage, WORLD N UC LEAR Ass' N, http://www. world­ Electricity, According lo Study, WAS H. PosT (Apr. 2, 20 11 ), https://www. nuclear.org/i n fo rmati on-Ii brary/sa fe ty-and-securi ty/sa fety-o f-p lants/I ia bi Ii ty­ washingtonpost.com/national/nuc lear-power-i s-safest-way-to-make-electricity­ for-n uc lear-damage .aspx (last visited Apr. 6, 20 18). according-to-2007-study/20 I I /03/22/ AFQUbyQC_ story.html?utm _term=. 26 See Mark Kin g, Federal Preemption of the State Regulation of Nuclear abb40f207826 (explaining th at nuclear power is safer and more re li able than Power: State Law Strikes Back - Silkwood v. Kerr-McGee Co111oration, 60 other forms of energy production and the danger of catastrophe is overstated). CHl.-K ENT L. REV . 989, 995 ( 1984). 2 Nuclear in 1he Energy Mix, N UC LEAR ENERGY INST., https://www.nei.org/ 27 790 F.3d I 088, I 090 ( I 0th C ir. 20 15). fundamenta ls/nuclear-in-the-energy-mix (last visited Apr. 6, 20 18). 28 See discussion infra Part 11 1.A.2 (ana lyzing how the Tenth Circu it's ho lding 3 See also U.S. Nuclear Power Policy, WORLD NUC LEAR Ass'N (Feb. 20 18), departed fro m Congressiona l intent). http://www.world-nuclear. org/in form a ti on-1ib rary/country-pro fi les/coun tri es-t­ 29 See infi·a Part II (provid ing background on the PAA); see also 42 U.S.C. z/usa-n uclear-power-po I icy.aspx (outl in in g how the U nited States governme nt § 22 1O( n) (20 12) (mandating the norma lly availab le defenses be wa ived);§ has supported nuc lear energy sin ce th e late 1990s). 22 1O( s) (descri bing the limits of puniti ve damages in an acti on ari sin g o ut of 4 See John Agui lar, Payouts lo Property Owners in Long-Running Rocky an ex traord inary nuc lear occurrence (ENO) mandate); Cook, 790 F.3d at I 095 Flats Suit Should Start in 2017, D ENVE R POST (A ug. 8, 20 16, 6:00 PM), http :// (holding that the defendants waived preem ption as an affirmative defense and www.denverpost. com/20 16/08/08/rocky-flats-payout-property-owners/ (noting that thi s sufficed as j usti fication to di sregard preemption). th e site occupies 6,500 acres of land). 30 See infra Pa rt Il l. A (an a lyzing the Tenth C ircuit's decision in Cook). 5 Dow Chemical-Rockwel/ 's Plutonium Nuisance & 31 See in fra Part 111. D (acknowledging the potentia l fo r a future PAA Price-Anderson Flats, MINING AWAR EN ESS (Jun e 24, 201 5), amendment); see also Intern ati ona l Atom ic Energy Agency, Convention on https://rnin ingawareness. wordpress.com/201 5/06/24/ Supplementary Compensation fo r N uclear D amage, July 22, 1998, l. A .E .A . dow-chem ica 1-rockwel ls-pl uton i um-nu isance-price-anderson-rocky-fl ats/. INFCIRC/567 (conta in in g internationa ll y accepted de fin iti ons to technical 6 Cook v. Rockwell lnt' l Corp., 6 18 F.3 d 11 27, 113 1 ( I 0th C ir. 20 I 0). nuclear terms in the Annex and establi shing th at the A nn ex to th e Convention See John McGahren, Implications of Cook v. Rockwell: Tenth Circuit Finds refl ects key princ ip les that nuc lear li abi lity laws should contain). Price-Anderson Act Does Not Preempt Nuisance Claim, K EY DEVE LOPMENTS 32 Part 11 1 a lso asse1ts that Congress sho ul d adopt the report language c larify­ IN ENV IRONMENTAL LA\V 8 1, 8 1-82 (Stanley D. Berger ed., 2015), available at ing that a nuclear inc ident, under the PAA, covers an y release o f radioacti vity in https://www.morganl ewis.com/-/media/fi les/publication/outside-publi cation/ excess of regulatory lim its, a nd those are the only ones compensable sin ce the chapter/chapter-6-key-developments-envi ronmenta l-law-20 I 5 .ashx (ex pl aining Nuc lear Regulatory Commission rema ins in the drafting phase of a new repo rt th at evidence of poll ution came out du ring liti gati on). to Congress on the proposed extension to the PAA. See infra Part 111. D. 8 Cook, 6 I 8 F.3 d at I 133 . 33 See generally Bi ll Dedman, Nuclear Neighbors: Population Rises Near US Cook v. Rockwell Int' I Corp., 15 1 F. R.D. 378, 380 (D. Colo. 1993). Reactors, NBC NEWS (Apr. 14, 20 11 , 7:00 PM ET), http://www.nbcnews.com/ 10 See id. at 382 (evidencing that the plainti ffs specifi ed pluton ium and vola­ id /4 25 5 5888/ns/us_ news-Ii fe /t/n uc !ear-n e igh bors-popula ti on-ri ses-near-us-reac­ ti le organic compounds in their lawsuit). tors/#. WY nqcN PytTY (provid ing an inte racti ve map of where active nuc lear I I U.S. DEP 'T OF ENER GY, REPORT TO CONGRESS ON THE PRICE-A NDERSON ACT I plants sit in relation to where a person lives); Joseph Strom berg, Do You Live ( 1999), https://energy.gov/sites/prod/fi les/gcprod/documents/paa-rep.pdf [here­ With in 50 Miles ofa Nuclear Power Plant?, SMITHSONIAN .COM (Mar. 13, 20 14), in after U.S. DEP'T OF ENERGY REPORT]. http :// www.sm ithson ian mag.com/sc ience-nature/do-you-1i ve-wit h in-50-rn i les­ 12 id. nuc lear-power-pl ant- 180950072/ (providing an inte ractive map of whe re acti ve 13 See generally Duke Power Co. v. Carolina Envtl. Study G rp., 438 U.S. 59, nuc lear p lants sit in relation to where a person li ves). 64-69 ( 1978) (finding that the Act survived a constitutiona l cha ll e nge in the 34 See Stromberg, supra note 32. Supreme Court). 35 See generally Arno ld W. Re itze, Jr. & Deborah J . Rowe, The Price-Ander­ 14 Cook v. Rockwell Int' ! Corp., 790 F.3 d I 088, I 090-9 1 ( I 0th C ir. 20 15). son Act- Limited Liability for the Nuclear Industry, 17 E. L.R. I 0, 185, I 0, 186 15 id. at I 096. ( 1987) (expla ining that the legislati ve intent o f PAA to address issues of safety 16 See McGahren, supra note 7 at 82-83 (expla ining the judic ia l process tha t fo r citizens living near nuclear power plants); 42 U.S.C. § 22 10-1 4(20 12). led to thi s decision). 36 U.S. DEP'T OF E N ER GY, T HE HISTORY OF N UCLEAR E NERGY, https: //energy. 11 Id. gov/ sites/prod/ fi les/The%20 H istory%20of1'/o20N uc lear% 20 Energy_ 0. pdf (last 18 See infi·a Part 111. A.3 (analyzin g th e potentia l impact of the Tenth Circ uit 's visited Mar. 28, 20 18) (di scussing nuclear energy as both a n affordable a nd a decision in Cook). non-fossil fu e l source). 19 See infi·a notes 2 17- 227 and accompany in g text (expla ining the nega­ 37 See id. (predicting that the nuc lear in d ustry wo uld not continue to grow any ti ve effect lesser c laim s have on nuc lear energy in vestment, innovati on and bigger due to public sentime nt and economics). production). 38 Compare What Are Nuclear Wastes and How Are They Managed?, WORLD 20 See Peti tion fo r Wri t of Certiorari at 2-3, Dow Chem. Co. v. Cook, 790 N UC LEAR Ass' N, http://www.world-nuclear. org/nuc lear-basics/what-are-nuc lear­ F.3d I 088 ( I 0th Cir. 20 15) (No. 15-79 1). wastes.aspx (last visited Mar. 19, 20 18) (provid ing in fo rmati on about the 21 See infra notes 2 15-2 16 and accompanyi ng text (high lighting why nuc lear impact of nuc lear wastes) with Natural Radiation in Was tes From Coal-Fired plant defendants will be incenti vized to submit to PAA judgements). Power Plants, U.S. EPA, https://www3.epa.gov/radtown/coal-fi red-power­ 22 See inji-a Part Ill.A. I (discussin g the Tenth Circuit's departure fro m the plants.htm l (last visited Mar. 19, 20 18) (provid in g information about the impact reasoning o f other circuits). of coal wastes). 23 M ark Zepezauer, "Take th e Ri ch OIT Wei fare," AZ: Odoni an Press, ( 1996), 39 See NUCLEAR INSU RA NCE AND DISASTER RELI EF, supra note 22. p. 86 (looking at how the damage at Chern obyl cost the Former Soviet Union 40 See generally 42 U.S.C. § 22 10(20 12) (outlining the indemni fica ti on and $358 bil lion in li ability). U.S. N UC LEA R REG . COMM' N, BACKGROUN DER ON limi tati on o f liab ility). N UC LEAR INSURANC E AND DISASTER RELI EF (Jan. 2018), https://www.nrc.gov/docs/ 41 See S. Rep. No. I 00-70, at 122 ( 1988) (striking a balance of provid in g M L0327/M L032730606.pdf [here inafter N UCLEA R INSU RA NCE AN D DISASTE R com pensation to injured c itizens whi le a lso mainta ining fu nds suffic ient to RELI EF ]. sustain and develop the industry). 24 See Peti tion fo r Writ of Certiorari at 5, Dow Chem. Co., 790 F.3d at I 088 (No. 15-79 1). continued on page 38

Spring/Summer 201 8 13