Brannon v. Babcock & Wilcox Co.

SCIRICA, Circuit Judge,

concurring.

I join in the judgment of the court, and join Parts I, II and VI of the majority opinion. I write separately because I would approach this constitutional issue in a somewhat different manner.

I.

Every grant of federal jurisdiction must fall within one of the nine categories of cases and controversies enumerated in Article III. See, e.g., Hodgson v. Bowerbank, *862 5 Cranch (9 U.S.) 303, 3 L.Ed. 108 (1809). We are concerned here with the Arising Under clause, whose function has long been debated. Under a traditional reading, the clause was intended only to ensure that federal courts are available to determine issues of federal law. Under this reading, when a particular jurisdictional grant embraces cases involving only state law issues, it falls outside the constitutional purview of the federal courts. However, under various theories of “protective jurisdiction,” Congress may validly confer jurisdiction over any case, regardless of the sources of law, if that jurisdiction serves to “protect” a federal interest. 1

As does the majority, I would sustain § 2210(n)(2) under the traditional interpretation. I believe that public liability actions, as a class, contain sufficient substantive federal issues to bring the jurisdictional grant within the limits of Article III. As I see it, the difficulty here is that these issues may not arise in every public liability action. The Priee-Anderson Act and other federal statutes contain safety regulations, waivers of defenses, insurance and indemnification provisions, and liability limitations that will affect many, but not necessarily all, state law claims arising out of nuclear incidents. This case, therefore, raises the question of the extent to which Congress may confer federal jurisdiction over state law cases that will not necessarily implicate substantive federal questions.

II.

As a preliminary matter, I note certain factors that I would not rely upon to sustain the constitutionality of § 2210(n)(2). I would not place any emphasis on the definitional questions involved in deciding whether an action falls within the scope of the Amendments’ jurisdictional grant. Nor would I rely on the fact that the public liability action “replaces” most state law causes of action arising out of nuclear incidents. In my opinion, Congress intended for state law to provide the substantive rules of decision for all public liability actions. Consequently, I believe § 2210(n)(2) grants federal jurisdiction over state law causes of action. Although federal statutes and regulations are likely to play a role in many public liability actions, I do not perceive substantive federal questions present at the outset of every such case.

The constitutionality of § 2210(n)(2) is unaffected by the fact that a court must decide various issues of federal law before determining that a particular claim quali *863 fies as a public liability action. At the outset of every case brought under § 2210(n)(2), a court must decide whether a “nuclear incident” has occurred. See 42 U.S.C. § 2014 (w), § 2014(q) (1988). The court must also determine whether the plaintiffs claim does not fall within the definition of “public liability” because it is a workmen’s compensation claim, arises out of an act of war, or is an exempted property damage claim. Id. § 2014(w). Finally, the court is directed to apply the law of a particular state. Id. § 2014(hh).

Under Osborn, the federal ingredients necessary to satisfy Article III must be substantive in the sense that “the title or right set up by the party, may be defeated by one construction of the constitution or law of the United States, and sustained by the opposite construction.” Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 822 , 6 L.Ed. 204 (1824). Purely jurisdictional provisions cannot create the federal ingredient necessary to support “arising under” jurisdiction. See Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480, 495-496 , 103 S.Ct. 1962, 1972-1973 , 76 L.Ed.2d 81 (1983). In Verlinden, the Court faced the unusual situation where the jurisdictional provisions of the Foreign Sovereign Immunities Act (“FSIA”) incorporated substantive federal defenses. Under the FSIA, a finding that there is no federal jurisdiction means that “the plaintiff will be barred from raising his claim in any court in the United States.” Id. at 497 , 103 S.Ct. at 1973 . Here, by contrast, a finding that a particular claim does not fall within the definition of “public liability” does not preclude the plaintiff from pursuing that claim in state court under a different name. Such a finding does not affect the substantive rights of any party, as required under the Osborn rule.

The choice of law provision is not strictly jurisdictional in the same sense. However, whenever Congress provides original federal jurisdiction over state law claims, a federal court must decide the choice of law question. If such provisions could sustain arising under jurisdiction, there would be no constitutional limits on Congress’ powers. Because jurisdiction under § 2210(n)(2) is concurrent, § 2014(hh) goes somewhat further than an ordinary choice of law rule. If a public liability action proceeds in state court, federal law requires that court to apply the law of the state where the nuclear incident occurred, even if state law would otherwise look to the law of some other state. Therefore, federal law might alter the substantive law applied in some state court actions. Nevertheless, I would not sustain a grant of federal jurisdiction based on the effect of federal law on state court actions.

The inquiry is unchanged by the fact that Congress chose to create a “new” federal cause of action, rather than simply provide for federal jurisdiction over state law claims. If Congress had truly pre-empted state law causes of action and replaced them with federal claims governed by federal rules of decision, the Amendments would clearly be constitutional. For example, Article III would not be contravened if Congress had intended for courts to apply federal common law in public liability actions. In Textile Workers Union v. Lincoln Mills, 353 U.S. 448 , 77 S.Ct. 912 , 1 L.Ed.2d 972 (1957), the Court similarly avoided constitutional difficulties by construing § 301 of the Labor Management Relations Act as authorizing the application of federal common law. However, if state law, as opposed to federal statutory or common law, provides the rules of decision, it should make no difference that Congress has chosen to rename certain causes of action under the rubric of “public liability actions.”

I believe Congress intended for state law, acting of its own force, to provide the rules of decision in public liability actions. In Pennsylvania v. General Public Utilities Corp., 710 F.2d 117, 122 (3d Cir.1983), we held that federal common law has no application in the actions before us now. I do not believe Congress intended for the Amendments to overturn this result. On the contrary, Congress apparently reaffirmed it. Unlike § 301 of the LMRA, Congress expressly referred to state law as providing the rules for decision. Moreover, *864 Congress did not refer to “general” state law, but intended that public liability actions be governed by the separate law of each state where a particular incident occurs. As one report noted,

Rather than designing a new body of substantive law to govern such cases, however, the bill provides that the substantive rules for decision in such actions shall be derived from the law of the State in which the nuclear incident involved occurs, unless such law is inconsistent with the Price-Anderson Act.

H.R.Rep. No. 104, Part 1, 100th Cong., 1st Sess. at 18 (1987) (emphasis added) [hereinafter “House Report”]. See also id. at 5 (“Liability is determined under applicable state tort law.”). Consequently, unlike under § 301 of the LMRA, I believe state law remains “an independent source of private rights.” Lincoln Mills, 353 U.S. at 457 , 77 S.Ct. at 918 .

Defendants stress that § 2014(hh) provides that the rules of decision in public liability actions are to be “derived from” state law. However, I would not read these words as authorizing the application of federal common law, or the selective application of state law. Such a reading is not supported by the structure of the Amendments. For example, § 2210(n)(2) provides for concurrent jurisdiction. If a public liability action is not removed, it may proceed in state court. Are these state courts to apply federal law which is “derived from” the law of their own state, but which is somehow different from that state law? Similarly, § 2014(hh) requires courts to apply the law of the state in which a particular accident occurred. Thus, unlike under § 301 of the LMRA, courts could not fashion a uniform body of federal law applicable to public liability actions. Cf. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 249-58 , 104 S.Ct. 615, 621-27 , 78 L.Ed.2d 443 (1984) (detailing Congress’ intent that the Atomic Energy Act should not preempt state tort liability). There would also be some potential for forum-shopping, as a defendant might remove a case to federal court when it desires that a particular state law rule be disregarded.

Having determined that state law remains an independent source of private rights, I would not place any emphasis on the fact that state law may have been “incorporated” into federal law. Mere incorporation of state law cannot by itself satisfy Article III. If it could, every purely jurisdictional grant would become constitutional if Congress simply added language declaring that state law operates as federal law. See, e.g., Goldberg-Ambrose, The Protective Jurisdiction of the Federal Courts, 30 UCLA L.Rev. 542, 558 (1983) (Incorporation alone cannot satisfy Article III because it “does not generate any new independent federal rights or obligations.”). The mere presence of some state law issues in an otherwise federal cause of action will not invalidate a jurisdictional grant. See, e.g., Osborn, 22 U.S. (9 Wheat.) at 819-20 . But where Congress has simply provided a federal forum for the adjudication of state law claims, the constitution requires some further justification. Other statutes which follow the same incor-porational scheme as the Amendments, such as the Outer Continental Shelf Lands Act and the Federal Tort Claims Act, should be scrutinized independently. 2 Cf. Federal Deposit Ins. Corp. v. George-Howard, 153 F.2d 591, 593-94 (8th Cir.) (sustaining former F.D.I.C. jurisdictional provisions under Osborn and other decisions involving instrumentalities of the federal government), cert. denied, 329 U.S. 719 , 67 S.Ct. 53 , 91 L.Ed. 623 (1946).

III.

In Verlinden, the Supreme Court held that the scope of the constitutional grant of *865 “arising under” jurisdiction is broader than the scope of the statutory federal question grant under 28 U.S.C. § 1331 . See 461 U.S. at 495 , 103 S.Ct. at 1972 . Under the statutory grant, federal jurisdiction is authorized only for those actions that satisfy the “well-pleaded complaint” rule. See, e.g., Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149 , 29 S.Ct. 42 , 53 L.Ed. 126 (1908). Similarly, under the general removal statute, a defendant may not remove an action that does not satisfy the well-pleaded complaint rule. See, e.g., Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808 , 106 S.Ct. 3229, 3232 , 92 L.Ed.2d 650 (1986). Under that rule, a plaintiff cannot bring an action in federal court based upon anticipated federal questions that may arise in a defense. Thus, because the constitutional grant is broader, it must encompass at least some cases where no federal question is apparent from the complaint.

In Stibitz and Kiick, we held that the actions before us now do not satisfy the well-pleaded complaint rule, because they are founded entirely in state law. The Amendments specifically provide for federal jurisdiction over the same cases. Therefore, we are squarely presented with the question of defining the “gap” between the scope of the statutory grant and the limits of Article III. As the majority notes, these limits remain largely unexplored. The Amendments create a “new” federal cause of action encompassing most claims arising out of any “nuclear incident.” However, instead of prescribing new federal rules of decision, or authorizing the application of federal common law, Congress directed that the rules of decision are to be “derived from the law of the State where the nuclear incident involved occurs, except where such law is inconsistent with the provisions of [the Price-Anderson Act].” 42 U.S.C. § 2014 (hh) (1988). I believe the Amendments thereby grant federal jurisdiction over a class of state law claims in which the existence of substantive federal questions, although likely, is only speculative. Until some substantive federal statute or regulation is implicated, a public liability action will proceed entirely on state law grounds.

The Supreme Court has not had occasion to explore fully the extent to which Congress may confer federal jurisdiction over cases in which the application of federal law is speculative. In Verlinden, the Court recognized that Osborn can be read broadly to validate all such jurisdictional grants, but noted that some have questioned a principle that would permit “-‘assertion of original federal jurisdiction on the remote possibility of presentation of a federal question.’ ” 461 U.S. at 492-93 , 103 S.Ct. at 1971 (quoting Textile Workers v. Lincoln Mills, 353 U.S. 448, 482 , 77 S.Ct. 912, 934 , 1 L.Ed.2d 972 (1957) (Frankfurter, J., dissenting)). However, the Court left that question open, stating that

We need not resolve that issue or decide the precise boundaries of Art. Ill jurisdiction ... since the present case does not involve a mere speculative possibility that a federal question may arise at some point in the proceeding. Rather, a suit against a foreign state under [the FSIA] necessarily raises questions of substantive federal law at the very outset, and hence clearly “arises under” federal law, as that term is used in Art. III.

Id. at 493 , 77 S.Ct. at 939-40 .

I believe this case raises that question. As I note below, I do not believe the holding in Verlinden ultimately rests on the fact that substantive federal questions are present at the outset of every case brought under the FSIA. In any event, the Amendments do not mandate a similar application of federal law at the outset of every public liability action. Rather, we must determine whether various federal statutes and regulations affecting nuclear power, although not necessarily implicated in every public liability action, are sufficient to bring the jurisdictional grant within the confines of Article III.

It is difficult to formulate a bright-line test for this inquiry. As with the federal question statute, “determinations about federal jurisdiction require sensitive judgments about congressional intent, judicial power, and the federal system.” Merrell *866 Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 810 , 106 S.Ct. 3229, 3233 , 92 L.Ed.2d 650 (1986). I believe the answer lies in evaluating the reasons that may have led Congress to provide for original federal jurisdiction even though the existence of federal questions is somewhat speculative. I would sustain § 2210(n)(2) because I believe a federal court should be open to determine the important federal questions that might arise in public liability actions, and to implement the federal scheme for the orderly disposition of large-scale nuclear accident litigation. Although Congress could have ensured that purely state law cases remained in state court by providing for appellate or removal jurisdiction upon the raising of a federal question, I believe it had valid reasons for establishing original federal jurisdiction over public liability actions.

A. THE PRECEDENTS

In my opinion, the prior case law does not dictate the applicable standards when Congress has granted federal jurisdiction over cases in which the existence of federal questions is speculative. Although Osborn and Verlinden do not require the invalidation of the jurisdictional grant at issue here, I do not believe they provide a complete framework for deciding the precise issue confronting us.

1. Osborn

As noted in Verlinden, the breadth of Osborn’s holding has been debated. Osborn certainly could have been decided on narrower grounds. The case involved a frontal attack on federal authority by the State of Ohio. Despite the Supreme Court’s earlier holding in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 , 4 L.Ed. 579 (1819), Ohio challenged the constitutionality of the Bank’s immunity from state taxation. Chief Justice Marshall could have sustained the jurisdictional provision based on the federal constitutional issues present in the case, but instead he found the necessary “federal ingredient” in the Bank’s charter. Because the federal charter created the Bank and bestowed upon it all its legal capacities, the charter “itself is the first ingredient in the case — is its origin — is that from which every other part arises.” 22 U.S. (9 Wheat.) at 825 .

This reasoning formed the basis for the holding in Osborn’s companion case, Bank of the United States v. Planters’ Bank, 22 U.S. (9 Wheat.) 904 , 6 L.Ed. 244 (1824). In that case, the Court upheld the Bank’s ability to sue in federal court upon a contract. In Osborn , the Court noted that every such case involves preliminary questions regarding the Bank’s ability to sue and make contracts. Although it is unlikely that the question of the Bank’s ability to sue would ever be litigated,

[t]he question forms an original ingredient in every cause. Whether it be, in fact, relied on or not, in the defence, it is still a part of the cause, and may be relied on. The right of the plaintiff to sue, cannot depend on the defence which the defendant may choose to set up. His right to sue is anterior to that defence, and must depend on the state of things when the action is brought.

22 U.S. (9 Wheat.) at 824.

This reasoning implies a broad scope for the Arising Under clause, under which Congress may confer federal jurisdiction “whenever there exists in the background some federal proposition that might be challenged, despite the remoteness of the likelihood of actual presentation of such a federal question.” Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 471 , 77 S.Ct. 912, 928-29 , 1 L.Ed.2d 972 (1957) (Frankfurter, J., dissenting). If this were the rule, there would be virtually no limit to Congress’ authority. It is difficult to conceive of a case in which some federal issue could not be raised by some party at some point in the litigation. Perhaps because of this fact, Osborn’s broad holding has largely been limited to similar cases involving federal charters and federal instrumen-talities. See, e.g., Pacific Railroad Removal Cases, 115 U.S. 1 , 5 S.Ct. 1113 , 29 L.Ed. 319 (1885) (federally chartered railroads); Kaiser v. Memorial Blood Center of Minneapolis, Inc., 938 F.2d 90 (8th Cir.1991) (American Red Cross); Federal Deposit Ins. Corp. v. George-Howard, 153 *867 F.2d 591, 593-94 (8th Cir.) (F.D.I.C.), cert. denied, 329 U.S. 719 , 67 S.Ct. 53 , 91 L.Ed. 623 (1946). In cases involving the federal question statute, the Supreme Court has recognized these limitations, indicating that “the doctrine of the charter cases [is] to be treated as exceptional, though within their special field there [is] no thought to disturb them.” Gully v. First Nat’l Bank, 299 U.S. 109, 114 , 57 S.Ct. 96, 98 , 81 L.Ed. 70 (1936); see also Romero v. International Terminal Operating Co., 358 U.S. 354 , 379 n. 50, 79 S.Ct. 468 , 484 n. 50, 3 L.Ed.2d 368 (1959) (Railroad Removal Cases was an “unfortunate decision”); Puerto Rico v. Russell & Co., 288 U.S. 476, 485 , 53 S.Ct. 447, 450 , 77 L.Ed. 903 (1933) (refusing to extend doctrine); cf. 28 U.S.C. § 1349 (1988) (limiting federal jurisdiction over federally chartered corporations where the United States owns less than half of the stock). In Mesa v. California, 489 U.S. 121, 136-39 , 109 S.Ct. 959, 968-70 , 103 L.Ed.2d 99 (1989), the Court strongly indicated that a grant of federal jurisdiction over all claims involving federal officers would be invalid.

But even if the reasoning in Osborn is extended beyond cases involving federal charters, it does not necessarily require us to sustain § 2210(n)(2). In Osborn , the court emphasized that the Bank’s federal charter formed an “original ingredient in every cause” involving the Bank. 22 U.S. (9 Wheat.) at 824. The federal question regarding the Bank’s ability to sue or be sued is an element of every case, regardless of whether it is actually raised. See Note, The Theory of Protective Jurisdiction, 57 N.Y.U.Law Rev. 933, 970 (1982) (“The ‘original ingredient’ is ... properly defined as a federal issue that comprises a logical component of plaintiff’s cause of action, whether or not this issue is in dispute or explicitly raised.”). Here, by contrast, there is no substantive federal question that is a predicate to every public liability action. Defendants, although indemnified and licensed by the federal government, do not derive their legal existence from an act of Congress. There are numerous federal questions that may arise in public liability actions. But these questions would not be “original ingredients” in the sense that the term is used in Osborn , because it would not necessarily be possible to raise them in every case.

2. Verlinden

In Verlinden, the Court likewise stressed the fact that substantive federal issues are present at the outset of every FSIA case. Although such cases will generally proceed entirely on state law grounds, a court must determine that the defendant is not immune before assuming jurisdiction. Unlike in Osborn , these issues are not merely hypothetical, but must be addressed in every case. Therefore, because the existence of substantive federal questions was not merely speculative, the Court found no occasion to examine the breadth of Osborn .

However, this reasoning rests to a large degree on the peculiar way in which Congress chose to draft the FSIA. In non-FSIA cases, sovereign immunity ordinarily is raised as a defense to a plaintiff’s cause of action. Unless a defendant chooses to litigate the issue, it will not be raised. There will be numerous cases against sovereign defendants in which immunity is clearly unavailable. Under the FSIA, however, a court must ascertain at the outset whether immunity exists, regardless of whether the parties choose to litigate the issue. See Verlinden, 461 U.S. at 494 n. 20, 103 S.Ct. at 493 n. 20. Thus, by drafting the statute to require courts to address federal immunity defenses at the outset of every case, Congress transformed what might have been a speculative federal question into a “necessary” federal ingredient.

I do not believe the constitutionality of a jurisdictional statute should depend on such drafting peculiarities. In the FSIA, Congress could have permitted defendants to raise sovereign immunity as a federal defense, rather than requiring the issue to be decided as a jurisdictional prerequisite. If Congress had done so, the federal ingredient would have been no less substantial. Similarly, in cases that would otherwise involve only state law, Congress could always require that some substantive federal *868 defense be addressed at the outset. For example, in public liability actions, it could have required the court to determine that the defendant has no Eleventh Amendment immunity, even if the Eleventh Amendment is implicated in only a small fraction of cases. Article III would have few practical limits if the constitutional inquiry turns solely on whether Congress requires that some federal defense be addressed in every ease.

I believe Verlinden must ultimately rest upon more than the statutory requirement that immunity be confronted at the outset of every case. If the immunity issues were of little federal concern, or would be implicated in only a small number of cases, the fact that they must necessarily be addressed should not affect the Article III inquiry. Rather, the Court stressed that “[ajctions against foreign sovereigns in our courts raise sensitive issues concerning the foreign relations of the United States, and the primacy of federal concerns is evident.” Id. at 493 , 103 S.Ct. at 1971 . The Court also emphasized that the FSIA represents a “comprehensive regulatory statute.” Id. at 497 , 103 S.Ct. at 1973 .

But even if Verlinden rests upon the particular way in which Congress drafted the FSIA, it would not control here. As I have noted, there are no substantive federal questions present at the outset of every public liability action. Congress has not chosen to require courts to address substantive federal defenses in every case. Rather, we must rely upon the existence of substantive federal issues that will likely, but not necessarily, arise in every case.

B. DISCUSSION

Because the scope of the Arising Under clause is broader than its statutory counterpart, a jurisdictional grant is not unconstitutional merely because a federal question is not apparent from the plaintiffs complaint. Because of the complex involvement of federal law in the wide range of state law cases, it is difficult to determine when Congress has exceeded its authority in providing original federal jurisdiction when federal issues are only speculative. Nevertheless, I believe it is possible to identify factors that should guide the inquiry.

One important factor is the likelihood that substantive federal issues will arise in a particular class of cases. Article III strikes a balance between the legitimate domains of state and federal courts. If a particular jurisdictional grant encompasses only a small proportion of cases in which a federal question will ever be raised, the incursion on state court authority might be considered too large. I would therefore determine whether Congress’ grant of jurisdiction bears a substantial relationship to the federal interest in ensuring that a federal court be available to enforce federal law. Although it will not be possible to estimate with mathematical certainty the likelihood that federal questions will arise in a particular class of cases, we can examine the relationship between the scope of the jurisdictional grant and the ultimate rationale for providing original federal jurisdiction.

In this vein, Congress has alternatives to providing original federal jurisdiction when federal questions are not directly implicated in the plaintiff’s cause of action. In addition to federal appellate review, Congress may provide for federal removal jurisdiction upon the raising of a federal question. The dissent in Osborn felt that these were the only permissible methods of conferring federal jurisdiction when the existence of federal questions is speculative. See 22 U.S. (9 Wheat.) at 889 (Johnson, J., dissenting) (“I see no practical mode of determining when the case does occur, otherwise than permitting the cause to advance, until the case for which the constitution provides shall actually arise.”). See also Mesa v. California, 489 U.S. 121 , 109 S.Ct. 959 , 103 L.Ed.2d 99 (1989) (avoiding constitutional difficulties by interpreting federal officer removal statute as authorizing removal only when a federal defense is raised); Lincoln Mills, 353 U.S. at 481-82 , 77 S.Ct. at 933-34 (Frankfurter, J., dissenting).

Osborn establishes that Congress is not necessarily relegated to providing appellate *869 or removal jurisdiction when the existence of federal questions may be speculative. Nevertheless, if there are any limits on the ability of Congress to confer original jurisdiction over such cases, the availability of this option is a factor to be considered. In Osborn , the Court rejected appellate jurisdiction as an alternative, because a claimant under federal law should not be relegated to “the insecure remedy of an appeal, upon an insulated point, after it has received that shape which may be given to it by another tribunal, into which he is forced against his will.” 22 U.S. (9 Wheat.) at 822-23. In situations such as Osborn , where Congress is specifically concerned with state hostility to federal interests, this factor might carry weight. In Verlinden, the Court was concerned that sensitive issues of foreign relations would be implicated if an immune foreign sovereign were forced to litigate in state court. Consequently, it is important for a federal court to decide federal immunity issues in an exercise of original jurisdiction.

But Congress may have other valid reasons for desiring that federal courts assume original, rather than appellate or removal, jurisdiction. For example, if potential federal issues are intertwined with the merits of the case and cannot be discerned at an early stage of litigation, appellate or removal jurisdiction might not adequately ensure that a federal court could fully adjudicate all aspects of federal law. Conversely, if federal issues are collateral to the merits, or easily discerned at the outset of the case, the need for original jurisdiction would be lessened. The existence or lack of a valid preference for original jurisdiction should be an important factor when Congress has granted such jurisdiction over cases that do not satisfy the well-pleaded complaint rule.

Guided by these principles, I would examine the ways in which federal law could be implicated in public liability actions. The Amendments provide the options of original federal jurisdiction and immediate removal for almost all claims asserting “any legal liability” on account of a nuclear incident. This definition apparently encompasses any state law cause of action, but the vast majority would presumably sound in tort. In general, there are three important ways in which federal issues could be implicated in these actions. First, a federal statute or regulation might be relevant in determining the applicable standard of care. Second, in the event of an extraordinary nuclear occurrence, federally indemnified defendants may be required to waive certain defenses. Third, various federal statutes or regulations affect a plaintiffs amount of recovery in certain cases, as well as the allocation of costs among defendants and the federal government.

1. Federal Standard of Care

The majority relies primarily on the preemption of state tort law duties by federal regulations. In the cases before us, at least some plaintiffs have alleged negligence per se predicated on defendants’ failure to follow applicable federal safety regulations. Similar claims will doubtless arise in many public liability actions. Nuclear power is subject to pervasive federal regulation, and it is likely that a tort suit arising out of a nuclear incident will touch on some issue governed by federal standards. Absent an express federal cause of action for the violation of federal safety standards, incorporation of those standards into state tort claims would probably not satisfy the well-pleaded complaint rule. See Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 , 106 S.Ct. 3229 , 92 L.Ed.2d 650 (1986). In any event, we are bound by our decisions in Stibitz and Ki-ick, which imply as much. However, the constitutional inquiry is not limited by such considerations. If Congress had granted original federal jurisdiction only over state law claims incorporating federal standards, such a grant would likely be constitutional. Federal law would be a non-speculative ingredient in every case.

As I see it, the difficulty here is that § 2210(n)(2) encompasses more than just actions incorporating federal standards of care. Public liability actions include virtually all claims based upon any legal liability arising out of a nuclear incident. Conceivably, some actions might not sound in tort at *870 all, and others could implicate areas of activity not explicitly governed by federal standards. See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 255 , 104 S.Ct. 615, 625 , 78 L.Ed.2d 443 (1984) (state tort law principles apply to nuclear accidents unless “expressly supplanted.”). Although many or all of the cases before us now may contain claims based upon the violation of federal regulations, we are met with a facial challenge to the constitutionality of the entire jurisdictional grant, and have not been asked to restrict its application to such cases.

Moreover, it is not clear to me that Congress has precluded state law tort suits predicated on standards of care that do not conform to federal regulation. As the majority notes, in Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Commission, 461 U.S. 190 , 103 S.Ct. 1713 , 75 L.Ed.2d 752 (1983), the Court held that the Atomic Energy Act pre-empts all state regulation of nuclear safety. But in Silkwood v. Kerr-McGee Corp., 464 U.S. 238 , 104 S.Ct. 615 , 78 L.Ed.2d 443 (1984), the Court considered the holding of Pacific Gas in the context of private tort law. In Silkwood , the Court held that Congress did not intend to preempt punitive damages awards under state tort law. The Court relied on the legislative history of the Price-Anderson Act, which indicated that Congress intended to retain all state tort law remedies. The Court noted that “Congress assumed that traditional principles of state tort law would apply with full force unless they were expressly supplanted,” and that the defendant has the burden of demonstrating pre-emption. Id. at 255 , 104 S.Ct. at 625 . It also indicated that a state may impose strict liability for nuclear accidents. Id. at 254, 256 , 104 S.Ct. at 625 . See also Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 186 , 108 S.Ct. 1704, 1712-13 , 100 L.Ed.2d 158 (1988) (Characterizing Silkwood as finding that “Congress was willing to accept regulatory consequences of application of state tort law to radiation hazards even though direct state regulation of safety aspects of nuclear energy was pre-empt-ed.”).

If state tort law may hold a nuclear plant operator strictly liable, or establish some other standard of care that does not conform to federal regulation, the federal law quotient in public liability actions would be decreased. As noted in the majority opinion, notwithstanding Silkwood , at least two district courts have found that the Price-Anderson Act pre-empts state tort suits that do not adopt federal regulations as the standard of care. See Hennessy v. Commonwealth Edison Co., 764 F.Supp. 495 (N.D.Ill.1991); O’Conner v. Commonwealth Edison Co., 748 F.Supp. 672 (C.D.Ill.1990). In Hennessy, however, the court left open the issue of whether state law may impose strict liability for nuclear incidents. 3

Unlike the majority, I would not decide these issues here. Regardless of whether state tort law may impose a standard of care that differs from federal norms, that law will often incorporate federal standards, and therefore a large number of public liability actions will rest upon alleged violations of federal regulations. In other cases, defendants will raise these is *871 sues in defense. Because federal safety-regulations will play an integral role in a large proportion of such actions, Congress could validly desire that a federal court be open to interpret these regulations when they become an issue.

But I would not predicate the constitutionality of § 2210(n)(2) solely on the likelihood that federal safety regulations will play a role in public liability actions. If Congress wishes to ensure that federal courts decide these important issues, it need not grant broad original jurisdiction over all state law claims. Congress could have provided original jurisdiction where the plaintiffs cause of action directly incorporates a violation of federal law, and removal jurisdiction where the defendant raises a federal regulatory issue in defense. Although there might be some disruption of the proceedings in the latter instance, it is likely that such federal defenses could be raised early enough to avoid undue hardship. As I note below, though, I believe Congress had other valid reasons for providing original jurisdiction here.

2. Waivers of Defenses

Under § 2210(n)(l), Congress provided that in the event of certain extraordinary nuclear occurrences (“ENOs”), the Nuclear Regulatory Commission or the Secretary of Energy may require potential defendants to waive various state law defenses. The effect of these waivers would be to create a uniform federal strict liability standard for covered accidents. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 65-66 , 98 S.Ct. 2620, 2626-27 , 57 L.Ed.2d 595 (1978) (citing S.Rep. No. 1605, 89th Cong., 2d Sess. 6-10 (1966)). The statute gives detailed descriptions of the issues and defenses to be waived, and provides that the waivers “shall be effective regardless of whether such issue or defense may otherwise be deemed jurisdictional or relating to an element in the cause of action.” 42 U.S.C. § 2210 (n)(l) (1988). The waivers are expressly made judicially enforceable. Id.

It appears likely that Congress could provide original federal jurisdiction over those nuclear incidents to which the § 2210(n)(l) waivers would apply. The waivers essentially define a federal cause of action for certain covered accidents. But there are problems with relying on these provisions alone to sustain § 2210(n)(2). First, § 2210(n)(l) applies only to ENOs, while § 2210(n)(2) applies to all nuclear incidents. The Nuclear Regulatory Commission has conclusively determined that the TMI incident was not an ENO, and that decision is not subject to judicial review. See id. § 2014(j). Consequently, § 2210(n)(l) has no application to the cases before us. Although we are met with a facial challenge, and need not rely solely on factors applicable to this case, I would not place much emphasis on § 2210(n)(l) in sustaining § 2210(n)(2). Not only does § 2210(n)(l) apply only to a limited class of public liability actions, but that class of cases can be ascertained by reference to a single administrative pronouncement. See 10 C.F.R. § 140.83 (1991) (ENO determination ordinarily made within 90 days of incident). Thus, if § 2210(n)(l) were the sole predicate for federal jurisdiction, Congress could have easily narrowed the scope of the grant to include only cases in which it might be implicated.

Prior to the Amendments, Congress provided original jurisdiction only for ENOs. Given the effect of § 2210(n)(l) on liability for such occurrences, this earlier version of § 2210(n)(2) would certainly stand on stronger constitutional ground. But the application of § 2210(n)(l) would be speculative even in those instances. The waivers apply only in certain enumerated cases. See 42 U.S.C. § 2210 (n)(l)(A)-(F) (1988). Moreover, they apply only to the extent that liability has been indemnified or insured. Finally, the statute does not mandate that administrative officials require waivers in every insurance policy or indemnification contract. Nevertheless, in the event of an ENO, the determinations of whether and how the waivers apply would be substantive federal questions arising in almost every ease. Under Verlinden, these determinations would probably be *872 sufficient to sustain a narrower grant of jurisdiction over cases arising out of ENOs.

3. Financial Protection Scheme, Indemnification Provisions, and Liability Limitations

The central focus of the Price-Anderson Act is its comprehensive scheme for insuring and indemnifying nuclear power plant licensees and contractors, and for limiting and apportioning liability arising out of nuclear incidents. These provisions were enacted primarily in response to the nuclear power industry’s concerns that potential liability would hinder the development of nuclear power. See generally Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 63-67 , 98 S.Ct. 2620, 2625-27 , 57 L.Ed.2d 595 (1978).

a. Statutory Scheme

The Nuclear Regulatory Commission is authorized to require power plant licensees and contractors to carry a certain amount of insurance or other forms of “financial protection.” 42 U.S.C. § 2210 (a), (b) (1988). In addition to the amounts available from private sources, licensees must participate in an industry-wide “retrospective” insurance plan that assesses “deferred premiums” after a nuclear incident when it appears that the primary protection will be exceeded. Id. § 2210(b). This plan has the effect of spreading excess liability across the entire industry. The Commission is required to indemnify licensees for public liability in excess of the required level of insurance. Id. § 2210(c). Thus, indemnification makes up the difference between the required level of insurance and the Act’s liability limitations. Indemnification also extends to any other person who may be liable for public liability, which ensures that every victim will be compensated from some source. Id. §§ 2014(t), 2210(c). Special insurance and indemnification provisions apply to certain government contractors. Id. § 2210(d).

The Act places limits on the aggregate liability for a single nuclear incident. Id. § 2210(e). For larger facilities and licensees required to carry more than $560,000,-000 in insurance, the limit is the amount of required insurance. For larger facilities, the limit also includes a surcharge to cover legal fees in certain instances. For other licensees, the limit is $560,000,000, except that it is somewhat lower when the required insurance is less than $60,000,000. Other limits are applicable to contractors specially covered under § 2210(d), and incidents occurring outside the United States. For nuclear incidents occurring after August 20,1988, the Amendments also prohibit the awarding of punitive damages, and immunize certain lessors. Id. § 2210(s), (r) (for effective date, see Price-Anderson Amendments Act of 1988, Pub.L. 100-408, § 20 (a), 102 Stat. 1066 , 1084). The Act ensures aggregate recovery by plaintiffs up to the limits set in § 2210(e). A certain amount of liability will be covered by the required insurance, and the government must indemnify the defendant for the balance.

If the limits are exceeded, special provisions apply. Upon the motion of any interested party, the federal district court in the district where the nuclear incident occurred must determine whether the aggregate liability may exceed the limits provided in the Act. Id. § 2210(o)(l). If the court determines that the limits may be exceeded, it must formulate a distribution plan to “insure the most equitable allocation of available funds.” Id. § 2210(o )(1)(C). This plan must include allocations for latent injury claims which may not be discovered until a later time. Id. No payment may exceed 15% of the liability limits without prior court approval. Id. § 2210(o )(1)(A). Payment of legal fees is also subject to restrictions. Id. § 2210(o )(2). If the liability limits are exceeded, Congress is directed to provide full and prompt compensation for the unsatisfied liability. Id. § 2210(e)(2), § 2210(i).

b. Financial Protection and Indemnification Provisions

An important feature of the Price-Anderson Act is its “omnibus coverage” scheme. See, e.g., House Report, Part 1 at 5. In return for limiting defendants’ liabili *873 ty in certain instances, the Act ensures compensation up to those limits from either required insurance or government indemnification. See Duke Power, 438 U.S. at 90-92 , 98 S.Ct. at 2639-40 (assured compensation is adequate substitute for limited liability). There will be virtually no cases in which compensation will not come from one of these federally-mandated sources. As one report notes, “the insurance and other financial protection requirements, indemnities, and limitations on liability cover any person found liable for damages from a nuclear incident.” House Report, Part 3 at 16. 4 Therefore, these provisions arguably constitute federal ingredients applicable to every public liability action.

But the financial protection and indemnification scheme does not affect the defendant’s liability under state law. Rather, it ensures that any judgment can be satisfied once it has been entered. Thus, these provisions are probably not “original ingredients” of the plaintiffs’ cause of action. 5 Article III would likely permit Congress to provide original federal jurisdiction over actions requiring government indemnification, if only because the United States would become a party. When the government believes that it will be required to make indemnity payments in a particular action, it is authorized to take over that action and approve any settlement. Id. § 2210(h).

But government indemnification will not be necessary in every public liability action, as it applies only to liability not covered by required insurance. As for the financial protection provisions, federal questions involving them may arise at various stages of a public liability action. All insurance policies must be approved by the Commission and conform to its regulations. See 10 C.F.R. §§ 140.10-91 (1991). Consequently, any questions regarding the conformity of a policy to federal regulations would involve substantive issues of federal law. The Commission must approve every policy, and has published detailed sample forms. See id. §§ 140.15(d), 140.91. But every interpretation of the terms of individual policies would not necessarily involve federal questions.

The omnibus coverage scheme substantially increases the likelihood that federal questions will arise in public liability actions. No claim can be satisfied without reference to this comprehensive scheme. The remaining question is whether Congress had a valid reason for granting original federal jurisdiction over all cases that might implicate these issues, rather than creating some other scheme under which purely state law cases could remain in state court. Federal insurance and indemnifica *874 tion questions are largely collateral to the merits of the plaintiff’s cause of action, affecting only the source of funds from which a judgment or settlement could be satisfied. Because of this fact, Congress could have authorized federal declaratory judgment suits in which defendants, insurance companies, and the government could resolve whatever federal law disputes might arise.

The prospect of federal indemnification might create a valid reason for conferring original federal jurisdiction, because it is not always possible to know at the outset of the case whether the government will be required to indemnify a claim. Factual development will often be necessary before it can be determined that a particular accident is not covered by insurance, or that the limits of financial protection will be exceeded. By this time, it may be somewhat onerous to remove a case to federal court. But this argument could be made of almost every grant that raises the possibility that a federal question might be implicated in some cases. The government is authorized to intervene in public liability actions as soon as it believes it will be required to indemnify a party. Congress could have authorized removal in those instances, as it has under the federal officer removal statute. With respect to that statute, the Court has indicated that any other scheme would be unconstitutional. See Mesa v. California, 489 U.S. 121 , 109 S.Ct. 959 , 103 L.Ed.2d 99 (1989) (interpreting 28 U.S.C. § 1442 (a)(1)). ' In addition, because the indemnification issues do not directly affect the merits of the plaintiffs’ case, the necessity for original jurisdiction is decreased.

c. Liability Limitations

The liability limitations, including the ban on punitive damages, arguably constitute “original ingredients” under Osborn , assuming its broad reasoning is extended past its specific domain. 6 The right to recover damages is generally considered an element of any tort claim. As the Supreme Court has recognized, the Act’s liability cap abrogates common law rights of recovery. See Duke Power, 438 U.S. at 88 , 98 S.Ct. at 2638 . Consequently, it could be argued that the federal liability limitations form an “ingredient” in any state law cause of action, whether or not they are implicated in a particular case. It is an open question whether a federal remedial scheme governing state law claims is sufficient to sustain a jurisdictional grant. 7 In Verlinden, the Supreme Court expressly did not decide whether the FSIA’s ban on punitive damages could constitute the federal ingredient necessary to sustain jurisdiction. See Verlinden, 461 U.S. at 495 n. 22, 103 S.Ct. at 1972 n. 22 (discussing 28 U.S.C. § 1606 ).

I do not believe that the liability limitations are “original ingredients” because they are not necessarily implicated in every case. If the limits are not exceeded and the plaintiff would not otherwise have *875 sought punitive damages, the federal limitations would not be implicated. The Price-Anderson Act does not replace state law remedies in all eases. Rather, it only limits them in certain instances. The application of the liability limitations is therefore speculative, and they do not form “original ingredients” in the Osborn sense. Unlike the factors noted in Osborn , they do not form “unexpressed” elements in every claim.

Nevertheless, Congress was clearly concerned with the prospect that the liability limits might be exceeded. The federal questions discussed above, although important considerations, do not completely explain why Congress amended § 2210(n)(2) to provide for original federal jurisdiction over all nuclear incidents. A central concern was that “consolidation of claims in a single court would be essential for the orderly distribution of the limited funds available and to assure reservation of sufficient funds for victims whose injuries may not become manifest until long after the accident.” House Report, Part 1 at 18. Congress felt that such concerns were present even when an incident was not serious enough to qualify as an ENO. Id.

When it appears that the liability limits may be exceeded in a particular case, a comprehensive federal distribution scheme is put in place. See 42 U.S.C. § 2210 (o) (1988). These statutory provisions ensure that plaintiffs whose claims are adjudicated or settled quickly will not prejudice the recovery of other victims. A federal court is directed to formulate and implement a plan that will ensure equitable distribution of limited funds. Of particular concern with nuclear incidents is the prospect of “latent injury claims which may not be discovered until a later time.” Id. § 2210(o)(l)(G).- These distribution provisions, together with the liability limits, create substantive federal questions applicable whenever a determination has been made under § 2210(o)(l). The federal questions are substantive in the Osborn sense because the plaintiff’s right to recovery can be defeated by federal law.

As with other substantive federal issues that might arise in public liability actions, the application of these provisions is speculative. The question remains, then, whether Congress had other options that would have allowed state courts to retain jurisdiction over cases involving only state law issues. Congress could have authorized removal of pending cases upon the determination that the liability limits may be exceeded. Similarly, Congress could have retained the pre-Amendments scheme, under which a federal court was authorized to formulate a distribution plan that would also apply to cases pending in state courts. The federal distribution plan is expressly made effective throughout the United States. Id. § 2210(o )(1)(C). This provision was retained for those cases that remain in state court under current law. Consequently, Congress could have ensured that federal law issues be determined by a federal court without also authorizing federal jurisdiction over state law claims that will never involve those issues.

But I believe the prospect that the limits might be exceeded establishes a valid reason for providing the option of original federal jurisdiction. Unlike the ENO determination, the § 2210(o)(l) determination cannot necessarily be made soon after the nuclear incident. The full scope of potential liability, including latent liability, may not be known until a later time. By this time, Congress’ concern for the “equitable allocation of available funds” may have been compromised. Initial consolidation of cases would help avoid the premature dissipation of the insurance fund before a § 2210(o)(l) determination can be made. Even before such a determination, the federal courts are authorized to create a “special caseload management” panel if cases arising out of the nuclear incident will have an unusual impact on the court’s work. Id. § 2210(n)(3). The panel is specifically authorized to establish priorities for the equitable distribution of claims. If all cases must remain in state court pending a § 2210(o )(1) determination, the federal distribution scheme may be rendered less effective.

*876 The case for original jurisdiction is strengthened by the fact unlike insurance and indemnification issues, federal issues regarding the distribution of limited funds are not completely collateral to the litigation over the merits of the plaintiffs’ case. In addition to discerning the facts necessary to make the § 2210(o)(l) determination, a court must examine the conduct of the litigants to determine whether legal costs may be awarded from the insurance fund. 42 U.S.C. § 2210 (o )(1)(D) (1988). Such a determination affects the plaintiffs’ recovery, because legal costs authorized under § 2210(o )(1)(D) are included when deciding whether the liability limits have been exceeded. Id. § 2210(e)(1). Original jurisdiction helps ensure that a federal court can adjudicate facts necessary for the application of federal law. Cf. P. Bator, P. Mishkin, D. Meltzer & D. Shapiro, Hart & Weschler's The Federal Courts and the Federal System 984 (3d ed. 1988) (“[I]t would be universally conceded that a ... constitutional function of the federal courts is ... to establish the facts determinative of the application of federal lav/ even if the law’s content and applicability are undisputed.”). Because the effectiveness of the federal distribution scheme depends in part upon facts adduced during litigation on the merits of the case, the importance of original jurisdiction is increased. Congress should not be limited to authorizing a federal court to issue orders relating to cases pending in state courts.

Congress has admittedly decreased the effectiveness of its own scheme by providing for concurrent jurisdiction. If only some public liability actions are removed to federal court, a concurrent state court adjudication might compromise Congress’ desire for the equitable distribution of limited funds. There is no provision for rescinding judgments that have already been satisfied, and a federal court cannot manage the conduct of ongoing state court litigation as it can for federal actions. In addition, a state court adjudication on a question of state or federal law would most likely be binding in a subsequent federal case involving the same defendant. See 28 U.S.C. § 1738 (1988). Congress clearly envisioned that § 2210(n)(2) would be used to consolidate most claims arising out of a nuclear incident. The defendants have removed all cases arising out of the TMI incident, and Congress has further encouraged consolidation by authorizing removal on the motion of the government. But such complete consolidation will not necessarily occur. Nevertheless, the federal scheme would be furthered even if only some cases arising out of a nuclear incident are consolidated.

IV.

In the current era, Article III imposes few practical limits on the ability of Congress to confer federal jurisdiction. Just as the Commerce Clause and the Tenth Amendment now provide only nominal checks on Congress’ ability to legislate substantively, Article III is a relatively minor impediment in the face of pervasive federal regulation. It is not difficult for Congress to enact some substantive law that would support federal jurisdiction over a particular class of cases. Nevertheless, it is still important to recognize constitutional limits when Congress grants original federal jurisdiction over state law claims. Unless Article III is broad enough to encompass protective jurisdiction, a jurisdictional grant must rest on more than a belief that a federal forum would be fairer or more efficient. There must be a sufficient substantive federal law component, and a reason why original federal jurisdiction is important to ensure federal court determinations of federal laws that may be implicated at some point in the litigation.

I would sustain § 2210(n)(2) based upon the substantial likelihood that public liability actions will involve federal questions regarding standards of care, insurance, and indemnification, combined with the need to protect a federal court’s ability to formulate and administer a plan for distributing funds if the liability limits are exceeded. Although the application of federal law may be somewhat speculative, Congress had valid reasons for providing the option of original federal jurisdiction. The Price-Anderson Act is a comprehensive regula *877 tory provision directed at ensuring a limited level of recovery for the victims of nuclear incidents, and equitably distributing compensation should those limits be exceeded. Verlinden holds that Article III is not contravened merely because federal questions are not apparent from the plaintiffs’ complaint, and upheld a statute where immunity defenses constituted the only federal ingredient. I believe the rationale for permitting original federal jurisdiction is at least as strong here as it was in Verlinden.

. Protective jurisdiction exists largely in the academic literature. See, e.g., Goldberg-Ambrose, The Protective Jurisdiction of the Federal Courts, 30 UCLA L.Rev. 542 (1983); Mishkin, The Federal "Question” in the District Courts, 53 Colum.L. Rev. 157 (1953); Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp.Probs. 216 (1948); Note, Over-Protective Jurisdiction?: A State Sovereignty Theory of Federal Questions, 102 Harv.L.Rev.1948 (1989); Note, The Theory of Protective Jurisdiction, 57 N.Y.U.L.Rev. 933 (1982); Note, Protective Jurisdiction and Adoption as Alternative Techniques for Conferring Jurisdiction on Federal Courts in Consumer Class Actions, 69 Mich.L.Rev. 710 (1971). Although it has been argued that protective jurisdiction was the actual basis for several Supreme Court decisions, the Court recently remarked that "[w]e have, in the past, not found the need to adopt a theory of 'protective jurisdiction’ to support Art. Ill 'arising under’ jurisdiction_” Mesa v. California, 489 U.S. 121, 137 , 109 S.Ct. 959, 969 , 103 L.Ed.2d 99 (1989).

Given the strong federal interest in nuclear power, the pervasiveness of federal regulation in the area, and the efficiency gains of consolidating litigation, it is likely that § 2210(n)(2) could be sustained under some or all protective jurisdiction theories. It appears that Congress enacted that provision in part because of the advantages of consolidating mass tort litigation in a single forum, regardless of the substantive federal issues involved. See, e.g., S.Rep. No. 218, 100th Cong., 2d Sess. 13, reprinted in 1988 U.S.Code Cong. & Admin.News 1476, 1488 ("[Cjonsolidation ... would avoid the inefficiencies resulting from duplicative determinations of similar issues in multiple jurisdictions... .’’); H.R.Rep. No. 104, Part 1, 100th Cong., 1st Sess. 18 (1987) (“These measures stem from the desire of Congress for equitable and uniform treatment of victims of a nuclear accident and the need to coordinate all phases of litigation that could result from a large nuclear accident."). Protective jurisdiction is subject to criticism based on its lack of textual foundation, and the difficulty in developing limiting principles. See Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 460-484 , 77 S.Ct. 912, 923-936 , 1 L.Ed.2d 972 (1957) (Frankfurter, J., dissenting). The traditional interpretation of the Arising Under clause, though, is not completely immune from the latter criticism.

. The constitutionality of these particular statutes have never been challenged, and they might be sustained without referring to their incorpo-rational provisions. The Lands Act may fall within the Admiralty clause of Article III, which does not require an independent federal law component. See The Propeller Genesee Chief v. Fitzhugh, 12 How. (53 U.S.) 443, 451-53, 13 L.Ed. 1058 (1852). The FTCA may be a valid application of the grant of federal jurisdiction over "Controversies to which the United States shall be a party." I express no opinion, however, on the constitutional bases of these statutes.

. In this respect, it should be noted that Congress has established as a matter of federal law what amounts to strict liability for many "extraordinary nuclear occurrences.” For those accidents, 42 U.S.C. § 2210 (n)(l) may require indemnified or insured defendants to waive certain state law defenses. Legislative history makes clear that Congress intended for these waivers to create a common standard of strict liability. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 65-66 , 98 S.Ct. 2620, 2626-27 , 57 L.Ed.2d 595 (1978) (citing S.Rep. No. 1605, 89th Cong., 2d Sess. 6-10, 1966 U.S.Code Cong. & Admin.News, 3201 (1966)). Given this fact, it is doubtful that Congress intended to forbid states from imposing strict liability for non-extraordinary nuclear incidents. If Congress intended to permit strict liability, it could be argued that it also intended to permit the less intrusive option of fault-based standards of care that are more stringent than federal regulations. It is even more likely that no conflict with the federal scheme would be posed by less stringent tort standards. The Amendments modify Silkwood’s primary holding that punitive damages are never pre-empted by federal law, but it is unclear to what extent the rest of its reasoning survives. The relevance of § 2210(n)(l) to this case is discussed below.

. The statutory definition of "persons indemnified” includes "any ... person who may be liable for public liability.” 42 U.S.C. § 2014 (t). Although the substantive indemnification provisions incorporate this definition, they can be read as extending only to accidents involving licensees who are required to carry financial protection. See id. § 2210(c); Silkwood v. Kerr-McGee Corp., 464 U.S. 238 , 251-52 n. 12, 104 S.Ct. 615 , 623 n. 12, 78 L.Ed.2d 443 (1984) (government indemnification available only to those required to maintain financial protection). There appears to be some tension between this reading of § 2210(c) and Congress' expressed intent of assuring compensation for every victim of a nuclear incident.

. It appears that the omnibus coverage scheme was designed in part to lessen the plaintiffs burden to identify the defendant whose actions caused the injury. See House Report, Part 3 at 16 ("[Rjegardless of whether a commercial power plant accident was caused by actions of the licensee, the plant manufacturer, or any other party, liability would be ‘channelled’ to the licensee and payment would be obtained from the compensation pool funded by utilities. This is another significant departure from normal tort law precepts, and is designed to ease the victim’s legal burden by obviating the need to identify the exact party at fault in order to recover damages.’’); see also id., Part 1 at 5. On its face, the Act does not alter state law liability principles, but only assures compensation once liability has been established. However, because every victim is assured of compensation, Congress apparently intended to abrogate any requirement that the victim'identify the actual tortfeasor. A court might still have to decide whether compensation will come from an insurance fund or from government indemnification, but the plaintiff would not have to identify a particular defendant. Lessening the plaintiffs burden in this manner would probably not create an original federal ingredient because this feature would not necessarily apply to every case.

. The ban on punitive damages applies only to nuclear incidents occurring after August 20, 1988, which does not include this case. As I have noted, however, plaintiffs have made a facial challenge to § 2210(n)(2), and we are therefore not necessarily precluded from considering factors applicable only to future cases. But I would not consider the ban on punitive damages to be integral to the validity of § 2210(n)(2). Consequently, even if I were to construe plaintiffs’ challenge as limited to the retroactive removal provisions of § 2210(n)(2), I would find the statute constitutional. It should also be noted that punitive damages remain available when the government is not obligated to make payments under an indemnification agreement. See 42 U.S.C. § 2210 (s) (1988).

. Compare Goldberg-Ambrose, The Protective Jurisdiction of the Federal Courts, 30 UCLA L.Rev. 542, 557-58 (1983) (When federal law controls the measure of damages, “the rights and obligations of the parties are defined at least in part by federal law, and a constitutional basis for federal jurisdiction exists without resort to an exotic theory of protective jurisdiction.") with Note, The Theory of Protective Jurisdiction, 57 N.Y.U.L.Rev. 933, 1012 (1982) (Limitation on punitive damages "is a regulation of the remedial power of the courts. All of the federal courts' remedial powers ... are creatures of federal law; they do not thereby raise federal questions.”). In Ives v. W.T. Grant Co., 522 F.2d 749 (2d Cir.1975), the court sustained federal jurisdiction under a portion of the Truth in Lending Act that authorized a federal remedy for state law claims. The court, however, did not discuss constitutional concerns.