Petition for Writ of Certiorari — Cotter Corporation, et al., Petitioners v. Nikki Steiner Mazzocchio, et al.
Supreme Court briefMar 10, 2025
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In the Supreme Court of the United States
COTTER CORPORATION; COMMONWEALTH EDISON
COMPANY,
PETITIONERS,
v.
NIKKI STEINER MAZZOCCHIO; ANGELA STEINER KRAUS,
RESPONDENTS.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
BRIAN O. WATSON
LAUREN E. JAFFE
RILEY SAFER HOLMES &
CANCILA LLP
1 S. Dearborn St.
Ste. 2200
Chicago, IL 60603
(312) 471-8700
JENNIFER STEEVE
100 Spectrum Center Dr.
Ste. 650
Irvine, CA 92618
(949) 359-5515
LISA S. BLATT
Counsel of Record
CHARLES L. MCCLOUD
KIMBERLY BROECKER
ROHIT P. ASIRVATHAM
CHRISTOPHER J. BALDACCI
WILLIAMS & CONNOLLY LLP
680 Maine Avenue, S.W.
Washington, DC 20024
(202) 434-5000
lblatt@wc.com
QUESTION PRESENTED
Under the Atomic Energy Act (AEA), private persons may possess, use, and dispose of specific nuclear materials only if authorized by federal statute or regulation.
Handlers of these nuclear materials must comply with
comprehensive safety regulations, including federal limits
on the radioactive material they may release and the levels of radiation to which they may expose the public. For
decades, these federal requirements have been understood to preempt state regulation of nuclear safety. See
Pacific Gas & Elec. Co. v. State Energy Res. Conservation
& Dev. Comm’n, 461 U.S. 190, 212 (1983).
As amended by the Price-Anderson Act (PAA), the
AEA also provides a federal cause of action for “public liability action[s],” including torts arising out of a statutorily-defined “nuclear incident.” 42 U.S.C. § 2014(ii). Because of federal field preemption, the federal courts of appeals have long uniformly held that federal nuclear safety
regulations provide the standard of care in such actions.
In the decision below, however, the Eighth Circuit created a circuit split, expressly rejecting the other circuits’
view and holding that state standards of care, as determined by local juries, serve as the standard of liability in
actions under the PAA. The question presented is:
Whether federal nuclear safety regulations preempt
state tort standards of care in public liability actions.
(I)
II
PARTIES TO THE PROCEEDING
Petitioners Cotter Corporation (N.S.L.) and Commonwealth Edison Company were defendants in the district court and appellants in the Eighth Circuit. St. Louis
Airport Authority was a defendant in the district court
and an appellant in the Eighth Circuit. DJR Holdings,
Inc., f/k/a Futura Coatings, Inc., was also a defendant in
the district court but was not a party on appeal. Respondents Nikki Steiner Mazzocchio and Angela Steiner Kraus
were plaintiffs in the district court and appellees in the
Eighth Circuit.
III
CORPORATE DISCLOSURE STATEMENT
Petitioner Cotter Corporation (N.S.L.) is a wholly
owned subsidiary of General Atomics Uranium Resources, LLC. No publicly held corporation owns 10% or
more of Cotter Corporation (N.S.L.)’s stock.
Commonwealth Edison Company is a wholly owned
subsidiary of Exelon Energy Delivery Company, LLC.
No publicly held corporation owns 10% or more of Commonwealth Edison Company’s stock.
IV
RELATED PROCEEDINGS
There are no proceedings in state or federal trial or
appellate courts, or in this Court, directly related to this
case under Supreme Court Rule 14.1(b)(iii) except as follows:
• Mazzocchio v. Cotter Corp., No. 4:22-cv-292, E.D.
Mo. (Sept. 8, 2023) (denying defendants’ motions to dismiss on the basis of federal preemption)
• Mazzocchio v. Cotter Corp., No. 4:22-cv-292, E.D.
Mo. (Nov. 1, 2023) (granting motion certifying appeal)
• Mazzocchio v. Cotter Corp., No. 23-3709, 8th Cir.
(Oct. 30, 2024) (affirming the denial of the motions to dismiss)
• Mazzocchio v. Cotter Corp., No. 23-3709, 8th Cir.
(Dec. 18, 2024) (denying petition for rehearing en banc
and panel rehearing)
V
TABLE OF CONTENTS
Page
OPINIONS BELOW ........................................................ 1
JURISDICTION .............................................................. 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ................................ 2
STATEMENT ................................................................... 2
A.
Legal Background ........................................... 5
B.
Factual Background ....................................... 9
REASONS FOR GRANTING THE PETITION ...... 11
I.
The Decision Below Expressly Created a 5-1
Split Over the Standard of Care in Public
Liability Actions .................................................. 12
II.
The Question Presented is Important,
Recurring, and Squarely Presented ................. 16
III. The Decision Below is Incorrect........................ 21
CONCLUSION ............................................................... 28
VI
TABLE OF AUTHORITIES
Page
Cases:
Abdullah v. Am. Airlines, Inc.,
181 F.3d 363 (3d Cir. 1999) .......................................... 27
Cook v. Rockwell Int’l Corp.,
618 F.3d 1127 (10th Cir. 2010) .................................... 12
Cook v. Rockwell Int’l Corp.,
790 F.3d 1088 (10th Cir. 2015) .............................. 11, 25
Duke Power Co. v. Carolina Envt’l Study Grp., Inc.,
438 U.S. 59 (1978) ....................................................... 5, 7
El Paso Nat. Gas Co. v. Neztsosie,
526 U.S. 473 (1999) ......................................................... 8
English v. Gen. Elec. Co.,
496 U.S. 72 (1990) ..................................................... 5, 22
Geier v. Am. Honda Motor Co.,
529 U.S. 861 (2000) ....................................................... 24
Gilstrap v. United Air Lines,
709 F.3d 995 (9th Cir. 2013) ........................................ 27
In re Cotter Corp., (N.S.L.),
22 F.4th 788 (8th Cir. 2022) ......................................... 10
In re Hanford Nuclear Reserv. Litig.,
534 F.3d 986 (2008) ................................................. 15, 16
In re TMI Litig. Cases Consol. II (“TMI I”),
940 F.2d 832 (3d Cir. 1991) .............................. 13, 21, 25
In re TMI (“TMI II”),
67 F.3d 1103 (3d Cir. 1995) ............................ 4, 6, 15, 17
Kurns v. R.R. Friction Prods. Corp.,
565 U.S. 625 (2012) ....................................................... 24
McMunn v. Babcock & Wilcox Power Gen. Grp.,
869 F.3d 246 (3d Cir. 2017) .......................................... 13
Nieman v. NLO, Inc.,
108 F.3d 1546 (6th Cir. 1997) ............................ 3, 14, 25
VII
Page
Cases—continued:
O’Conner v. Commonwealth Edison Co.,
13 F.3d 1090 (7th Cir. 1994) ............................ 14, 21, 25
Pacific Gas & Elec. v. State Energy Res.
Conservation & Dev. Comm’n,
461 U.S. 190 (1983) ............................................... 3, 6, 22
Pinares v. United Techs. Corp.,
973 F.3d 1254 (11th Cir. 2020) .................................... 15
Riegel v. Medtronic, Inc.,
552 U.S. 312 (2008) ................................................. 24, 26
Roberts v. Fla. Power & Light Co.,
146 F.3d 1305 (11th Cir. 1998) .................. 14, 15, 21, 27
Silkwood v. Kerr-McGee Corp.,
464 U.S. 238 (1984) ........................................... 22, 26, 27
United States v. Locke,
529 U.S. 89 (2000) ......................................................... 24
Va. Uranium, Inc. v. Warren,
587 U.S. 761 (2019) ....................................................... 23
Constitution, Statutes and Regulations:
U.S. Const., art. VI, cl. 2 ...................................................... 2
28 U.S.C.
§ 1254 ............................................................................... 2
§ 1292 ............................................................................. 10
VIII
Page
Statutes and Regulations—continued:
42 U.S.C.
§ 2012 ........................................................................... 5, 7
§ 2013 ............................................................................. 18
§ 2014 ................................................. 2, 6, 7, 8, 17, 24, 25
§ 2021 ......................................................... 7, 8, 16, 22, 23
§ 2077 ............................................................................... 6
§ 2092 ............................................................................... 6
§ 2201 ............................................................................... 6
§ 2210 ..................................................... 2, 7, 8, 10, 24, 25
§ 2111 ............................................................................... 6
§ 17373 ........................................................................... 27
Pub. L. No. 85-256,
71 Stat. 576 (1957) .......................................................... 7
Pub. L. No. 100-408,
102 Stat. 1066 (1988) .................................................... 27
Mo. Rev. Stat. § 516.100 .................................................... 20
10 C.F.R.
§ 20.105 (1970) ........................................................... 9, 26
§ 20.106 (1970) ........................................................... 9, 26
§ 20.1101 .......................................................................... 6
§§ 20.1201-1302 ............................................................... 6
§ 20.1301 .................................................................... 6, 26
§ 20.1801 .......................................................................... 6
§ 20.2001 .......................................................................... 6
§ 20.2202 .......................................................................... 6
89 Fed. Reg. 86,918 (Oct. 31, 2024) ................................... 21
Other Authorities:
Atomic Heritage Found., Project Sites,
https://tinyurl.com/3ytje2m2 ....................................... 17
IX
Page
Other Authorities—continued:
Brief for the United States as Amicus Curiae,
English v. Gen. Elec. Co., 496 U.S. 72 (1990)
(No. 89-152), 1989 WL 1128199................................... 19
Brief for the United States as Amicus Curiae,
Nielson v. Priv. Fuel Storage, L.L.C.
(No. 04-575) ................................................................... 19
Brief for the United States as Amicus Curiae
Supporting Petitioners, Va. Uranium, Inc. v.
Warren, 587 U.S. 761 (2019) ....................................... 19
Ryan Browne, Why Big Tech is turning to
nuclear to power its energy-intensive AI
ambitions, CNBC (Oct. 16, 2024),
https://tinyurl.com/2a5ejaz3 ........................................ 21
Dep’t of Energy, Locations,
https://tinyurl.com/3x7rz6at ........................................ 19
Dep’t of Energy, Radioactive Waste,
https://tinyurl.com/4vwpr293 ...................................... 19
Dep’t of Energy, Secretary Chris Wright Delivers
Welcome Remarks to DOE Staff
(Feb. 5, 2025), https://tinyurl.com/4x2tuznm ............ 21
Tim Echols, Why Nuclear Energy is a Matter of
National Security, Pub. Utils. Fort.,
Sept. 2017, https://tinyurl.com/5n6k647c ................... 18
H.R. Rep. No. 100-104, pt. 1 (1987) .................................. 27
Lance N. Larson, Cong. Rsch. Serv., IF11201,
Nuclear Waste Storage Sites in the United
States (Apr. 13, 2020) ................................................... 17
NRC, List of Power Reactor Units (Feb. 21, 2025),
https://tinyurl.com/2v3uzpb8....................................... 17
NRC, Nuclear Materials,
https://tinyurl.com/3ur5phtk ....................................... 16
X
Page
Other Authorities—continued:
NRC, The Price-Anderson Act: 2021 Report to
Congress (Dec. 2021),
https://tinyurl.com/4bcr5ktd ....................................... 20
NRC, Treaties and Conventions (Nov. 6, 2023),
https://tinyurl.com/3amvfsmx ..................................... 18
Nuclear Energy Inst., U.S. Nuclear Plants,
https://tinyurl.com/552jkajn ........................................ 16
In the Supreme Court of the United States
COTTER CORPORATION; COMMONWEALTH EDISON
COMPANY,
PETITIONERS,
v.
NIKKI STEINER MAZZOCCHIO; ANGELA STEINER KRAUS,
RESPONDENTS.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
Petitioners Cotter Corporation (N.S.L.) and Commonwealth Edison Company respectfully petition for a
writ of certiorari to review the judgment of the United
States Court of Appeals for the Eighth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals is available at 120
F.4th 565. Pet.App.3a-11a. The opinion of the district
court is available at 2023 WL 5831960. Pet.App.20a-47a.
JURISDICTION
The judgment of the court of appeals was entered on
October 30, 2024. A timely petition for rehearing en banc
(1)
2
and for panel rehearing was denied on December 18, 2024.
This Court has jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
U.S. Const., art. VI, cl. 2 provides:
This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
42 U.S.C. § 2014(ii) provides:
The term “public liability action”, as used in section
2210 of this title, means any suit asserting public liability.
A public liability action shall be deemed to be an action
arising under section 2210 of this title, and the substantive
rules for decision in such action shall be derived from the
law of the State in which the nuclear incident involved occurs, unless such law is inconsistent with the provisions of
such section.
42 U.S.C. § 2014 is reproduced in full, infra,
Pet.App.48a.
42 U.S.C. § 2210 is reproduced in full, infra,
Pet.App.60a.
STATEMENT
In the decision below, the Eighth Circuit openly broke
ranks with five courts of appeals and upset the long-settled and uniform rule on an issue of enormous and recurring national importance: the standard of liability in tort
suits arising from nuclear incidents. Five circuits hold
3
that federal law provides the standard of care in such
suits. The Eighth Circuit recognized this consensus, but
decided to “take a path different from [its] sister circuits,”
and held that state standards of care govern.
Pet.App.10a-11a. That enormously consequential holding
shatters the predictable and uniform liability regime for
the nuclear industry that has existed for decades.
Ever since the federal government relinquished its
monopoly over fissionable material in 1954, the federal
government has maintained exclusive control over the
regulation of nuclear safety. As this Court has long held,
“the federal government has occupied the entire field of
nuclear safety concerns, except the limited powers expressly ceded to the states.” Pacific Gas & Elec. v. State
Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190,
212 (1983).
Thus, when it comes to tort liability stemming from
nuclear activities, the uniform view across every court of
appeals to confront the question—the Third, Sixth, Seventh, Ninth, and Eleventh Circuits—had been that “federal law determines the standard of care and preempts
state tort law.” Nieman v. NLO, Inc., 108 F.3d 1546, 1553
(6th Cir. 1997). The nuclear industry has for decades operated on the basis of this stable, predictable rule that so
long as companies comply with federal regulations, no liability will result.
That uniform regime ended with the decision below.
The Eighth Circuit recognized that if a state had attempted to regulate petitioners’ activity in this case via
“nuclear safety statutes or regulations,” such statutes or
regulations would be preempted. Pet.App.7a (cleaned up).
And the Eighth Circuit “recognize[d] that other circuits
have held that federal law preempts state standards of
4
care” in suits like this one. Pet.App.10a. The Eighth Circuit nonetheless “disagree[d]” with those circuits and held
that juries applying state standards of care in case-bycase adjudications will determine the standards by which
the nuclear industry must abide. Pet.App.10a.
The question presented is critically important. Absent this Court’s intervention, disuniform liability regimes
will govern the nation’s 18,000 radioactive materials licensees and the operators of our 94 nuclear reactors that
power tens of millions of homes, not to mention the federal
contractors and others who handle radioactive materials
at the government’s behest. Congress has long understood that federally calibrated regulation of nuclear safety
is critical to achieve both public safety and robust nuclear
development, both of which implicate bedrock national interests. Yet under the decision below, nuclear operators
in the Eighth Circuit—home to seven nuclear reactors—
must now go forward with “no real guidance” about how
to avoid liability under a regime that “allow[s] juries to fix
the standard case by case and plant by plant.” In re TMI
(“TMI II”), 67 F.3d 1103, 1115 (3d Cir. 1995). Instead of a
uniform federal standard, lay juries will impose liability
based on their hindsight view of what safety measures
companies should have utilized decades ago—as in this
case, where the alleged misconduct occurred over 50 years
ago. The Eighth Circuit’s rule also opens the door to strict
liability for even safe operations that met the strictest federal safety standards.
This Court’s intervention is especially needed now,
given our increasing reliance on nuclear energy and nuclear defense. Development may be chilled or become
cost-prohibitive if operators “acting in the utmost good
faith and diligence could still find [themselves] liable for
5
failing to meet such an elusive and undeterminable standard,” see id., or are unsure what standard their operations
must meet because it will be determined only in hindsight
by a jury.
This case presents an ideal vehicle for review. The issue is cleanly presented and was dispositive below. As the
district court explained, applying the other circuits’ rule
“would lead to the dismissal of [this] action.” Pet.App.15a.
Moreover, the Eighth Circuit denied rehearing en banc.
And the five other circuits are exceedingly unlikely to all
overrule their decades-old precedents anytime soon. Only
this Court can restore uniformity to this vitally important
area of the law.
A.
Legal Background
1. “Until 1954, the use, control, and ownership of all
nuclear technology remained a federal monopoly.” English v. Gen. Elec. Co., 496 U.S. 72, 80 (1990). But seeking
to encourage nuclear development, Congress passed the
Atomic Energy Act of 1954, which allowed the Atomic Energy Commission (AEC) to license private nuclear energy
providers, subject to “strict supervision by the … Commission.” See Duke Power Co. v. Carolina Envt’l Study
Grp., Inc., 438 U.S. 59, 63 (1978).
In authorizing the private use of nuclear materials,
Congress has always emphasized two crucially important
and mutually reinforcing goals: encouraging nuclear development, which is “vital to the common defense and security,” and ensuring that nuclear development does not
endanger “the health and safety of the public.” 42 U.S.C.
§ 2012(a), (d). To that end, Congress vested the NRC, the
successor to the AEC, with authority to create the “standards … to govern” nuclear material, and has instructed
6
the NRC to do so in line with those twin goals of development and safety. Id. § 2201(b).
As part of the regulatory regime, Congress prohibited
persons from transferring, delivering, or taking title to
“source,” “byproduct,” or “special nuclear” material without a license. 42 U.S.C. §§ 2077(a), 2092, 2111(a). “Source
material” includes uranium. Id. § 2014(z). Companies licensed to possess, utilize, or transport source, byproduct,
or special nuclear material are subject to 10 C.F.R. Part
20, which sets standards for handling, storing, and disposing of such material, and sets associated monitoring and
reporting requirements. See, e.g., 10 C.F.R. §§ 20.1101,
20.1801, 20.2001, 20.2202.
Part 20 also sets strict federal radiation dosage limits.
See, e.g., id. §§ 20.1201-1302. These are the levels of radiation to which workers and members of the public can be
exposed as a result of licensed activities, over and above
the background radiation that individuals naturally experience in their day-to-day lives. See, e.g., id. § 20.1301(a).
“These regulations represent the considered judgment of
the relevant regulatory bodies—the Federal Radiation
Council, EPA, AEC, and NRC—on the appropriate levels
of radiation to which the general public may be exposed.”
TMI II, 67 F.3d at 1113-14.
2. The federal government unsurprisingly has always
been in charge of setting these uniform and predictable
regulatory standards of care. Indeed, as this Court recognized 40 years ago, “the federal government has occupied
the entire field of nuclear safety concerns, except the limited powers expressly ceded to the states.” Pacific Gas,
461 U.S. at 212.
The preemptive sweep of federal nuclear safety regulation is recognized throughout the AEA. For instance,
7
through § 2021, Congress (with numerous caveats and
safeguards) authorized states “to regulate” certain nuclear materials “for the protection of the public health and
safety from radiation hazards,” but only if the state first
enters into an agreement with the NRC. Any state regulation must also be “coordinated and compatible” with federal standards. 42 U.S.C. § 2021(g).
Congress also maintains control of liability stemming
from injuries caused by nuclear incidents. A few years after Congress passed the AEA, Congress recognized that
the nation’s nuclear power industry was struggling to get
on its feet, as fear of ruinous liability dissuaded private
companies from entering the market. In response, Congress passed the Price-Anderson Act. Pub. L. No. 85-256,
71 Stat. 576 (1957). The PAA creates an indemnification
scheme for NRC commercial licensees, federal contractors, and third parties to reduce the burden of civil liability
related to nuclear incidents. Nuclear licensees can be required to carry a certain amount of private insurance, but
the government will indemnify licensees for liability above
that amount. See 42 U.S.C. § 2210(a), (c). This scheme
was designed to “encourage[] the development of the [private] atomic energy industry.” Duke Power Co., 438 U.S.
at 64 (quoting 42 U.S.C. § 2012(i)).
In 1988, Congress amended the PAA to create a nationally uniform federal cause of action for injuries related
to certain nuclear activity. The Act gives district courts
jurisdiction over any “public liability action,” which is “any
suit asserting public liability.” 42 U.S.C. § 2014(ii). “Public liability” is defined as “any legal liability arising out of
or resulting from a nuclear incident.” Id. § 2014(w) (emphasis added). And a “nuclear incident” is
8
any occurrence, including an extraordinary nuclear occurrence, within the United States causing, within or outside the United States, bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising
out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source,
special nuclear, or byproduct material.
Id. § 2014(q). In other words, a public liability action is
any legal action claiming that the hazardous properties of
federally regulated nuclear material caused injury to a
person or property.
Notably, this cause of action “aris[es] under” § 2210,
and is therefore always federal. Id. § 2014(ii). The PAA
thus “transforms into a federal action” any public liability
action, regardless of the substantive law underlying the
complaint. El Paso Nat. Gas Co. v. Neztsosie, 526 U.S.
473, 484 & n.6 (1999). The PAA thus “resembles” “complete preemption” of any state causes of action arising
from a nuclear incident. Id.
The PAA further provides that “the substantive rules
for decision” in a public liability action “shall be derived
from the law of the State in which the nuclear incident involved occurs, unless such law is inconsistent with the provisions of [§ 2210],” the core provision of the PAA. 42
U.S.C. § 2014(ii). Section 2014(ii) layers onto statutory
provisions that displace any state law that regulates nuclear safety, absent federal agreement to the contrary.
See, e.g., id. § 2021(b) (providing that states “shall have authority to regulate the materials covered … for … safety
from radiation hazards” if they enter a consent agreement
with the NRC). And § 2210, among other things, limits
punitive damage awards that could be imposed under
state law. Id. § 2210(s).
9
B.
Factual Background
1. Like the AEA itself, this case traces its origins
back to the Manhattan Project. During World War II, the
government contracted with Mallinckrodt to process uranium in St. Louis. Pet.App.4a, 22a-23a. As part of its operations, Mallinckrodt transported radioactive source material to a storage site near the St. Louis Airport.
Pet.App.4a-5a, 23a. That source material was then transported to another site one mile away known as “Latty Avenue.” Pet.App.5a, 23a.
This case arises out of Cotter’s handling of those
source materials from 1969-1973. In 1969, the AEC licensed Cotter to possess and use the source material at
Latty Avenue. See Pet.App.23a; Am. Compl. ¶¶ 44-45, No.
4:22-cv-292 (E.D. Mo. Feb. 7, 2023), ECF No. 44
(“Compl.”). Cotter allegedly dried out most of the material (to make it lighter and easier to transport), loaded it
onto railcars, and shipped it to Cotter’s plant in Colorado.
See Pet.App.5a; Compl. ¶ 50. This process was substantially completed in 1973, and Cotter allegedly transported
the remaining material, mixed with other soil, to a local
landfill. Pet.App.5a; Compl. ¶ 50. Between 1969 and 1973,
Cotter was an AEC licensee and subject to the then-existing AEC regulations, including the radiation dosage caps
and specific limitations on the release of radioactive material. See 10 C.F.R. §§ 20.105, 20.106(a) (1970).
Five decades later, in 2022, two plaintiffs sued Cotter
(along with three other defendants) in Missouri state
court, asserting a variety of state law claims, including
negligence, negligence per se, and strict liability. Compl.
¶ 1. The complaint alleges that in the process of drying,
loading, and disposing of the material, Cotter released radioactive material into Coldwater Creek—which ran along
10
the Latty Avenue site. Pet.App.5a. The particles allegedly travelled into a St. Louis-area floodplain, contaminating plaintiffs’ nearby properties and giving plaintiffs cancer. Pet.App.23a; Compl. ¶¶ 21-22, 47, 75-76. Yet plaintiffs do not allege that federal regulators ever cited Cotter
for violating the applicable radiation limits for public areas
during the relevant period.
2. Cotter removed to federal court because Cotter’s
alleged activity constituted a “nuclear incident” under the
PAA, and therefore plaintiffs’ claims were properly a public liability action. See In re Cotter Corp., (N.S.L.), 22
F.4th 788, 793 (8th Cir. 2022). Petitioners then moved to
dismiss, arguing that federal regulations established the
exclusive standard of care, and the complaint lacked any
allegations raising a plausible inference that federal regulations had been violated during the relevant period. See
Pet.App.4a, 20a-21a.
The district court acknowledged that “every circuit
court to consider this issue has held federal law preempts
state law standards of care.” Pet.App.43a. The district
court nevertheless denied the motions to dismiss. Because the court could not identify a provision in § 2210 indicating that state standards of care were preempted, the
court perceived a congressional intent to allow states to
“regulate in this area.” Pet.App.36a-38a.
After denying the motions to dismiss, the district
court certified the issue for appeal. Pet.App.12a-19a. The
court noted that “the question of law is controlling because
… the potential imposition of Defendants’ proposed [federal] standard [of care], would lead to the dismissal of the
action.” Pet.App.15a. The Eighth Circuit took jurisdiction under 28 U.S.C. § 1292(b).
11
3. The Eighth Circuit affirmed. The court acknowledged that under longstanding authority, states cannot
enact and enforce statutes and regulations governing the
conduct at issue in this case. Pet.App.7a (citing Cook v.
Rockwell Int’l Corp., 790 F.3d 1088, 1098 (10th Cir. 2015)
(Gorsuch, J.)). The court, however, held that such
preemption does not extend to state standards of care applied in “after-the-fact” tort suits. Pet.App.10a (quoting
Cook, 790 F.3d at 1098). In doing so, the court conceded
that it was taking “a path different from [its] sister circuits,” which have uniformly “held that federal law
preempts state standards of care in a public liability action.” Pet.App.10a-11a.
4. The Eighth Circuit denied rehearing en banc on
December 18, 2024. Pet.App.2a.
REASONS FOR GRANTING THE PETITION
This case presents an acknowledged circuit split on a
critically important legal issue: the standard of liability in
tort suits arising from nuclear incidents. In the opinion
below, the Eighth Circuit held that liability in PAA public
liability actions is determined by state tort standards of
care. In reaching that result, the Eighth Circuit admitted
that it was breaking the consensus—shared among the
Third, Sixth, Seventh, Ninth, and Eleventh Circuits—that
federal law displaces state tort standards of care in such
actions.
The question presented is important, recurring,
squarely presented, and demands a national resolution.
The Eighth Circuit’s decision upends the longstanding liability rule for nuclear handlers in seven states—home to
seven nuclear power reactors—exposing them to liability
based on amorphous state standards of care applied by jurors after the fact. Handlers of radioactive materials
12
could thus be forced to choose between practices that will
appease hindsight-driven local juries and practices that
best comply with exacting federal requirements—and
may even be forced to abandon the nuclear energy and defense industries altogether. The Eighth Circuit’s rule is
untenable and risks thwarting Congress’ efforts to ensure
adequate nuclear safety and adequate nuclear development.
Only this Court can restore uniformity and ensure
that nuclear handlers near Minneapolis, Minnesota, and
Jefferson City, Missouri, are subject to the same liability
rules as handlers near Philadelphia, Pennsylvania, or Moline, Illinois. This case is an ideal vehicle in which to resolve the split: The issue is squarely presented and outcome-determinative on paradigmatic facts. The petition
should be granted.
I.
The Decision Below Expressly Created a 5-1 Split Over the
Standard of Care in Public Liability Actions
There is a clear and acknowledged circuit split on the
question presented. “[F]ive … circuits have concluded
federal nuclear safety standards control in a PAA action,
rather than traditional state tort standards of care.” Cook
v. Rockwell Int’l Corp., 618 F.3d 1127, 1144 n.19 (10th Cir.
2010). The Eighth Circuit below became the first circuit
to hold the opposite. And the Eighth Circuit doubleddown on that holding by denying rehearing en banc. Absent this Court’s intervention, this split will undermine
predictability and result in grossly disparate consequences for the nuclear industry based on the happenstance of where an alleged nuclear incident occurred.
1. The majority view—entrenched for nearly thirty
years—is that federal nuclear safety regulations provide
the exclusive standard of care in public liability actions.
13
The Third Circuit was the first to reach this conclusion, holding that “the duty the defendants owe the plaintiffs in tort” in a public liability action “is dictated by federal law.” In re TMI Litig. Cases Consol. II (“TMI I”),
940 F.2d 832, 858 (3d Cir. 1991). The issue originally arose
in litigation involving nearly two thousand plaintiffs suing
for injuries related to the nuclear accident and associated
radiation leak at the Three Mile Island facility. Id. at 836.
The Third Circuit explained that this Court has held that
“the safety of nuclear technology [is] the exclusive business of the Federal Government, and … Congress, by permitting the states to regulate for purposes other than for
protection against radiation hazards, reemphasized the
state and federal governments’ respective spheres.” Id. at
858 (cleaned up). The court therefore concluded that
“states are preempted from imposing a non-federal duty
in tort, because any state duty would infringe upon pervasive federal regulation in the field of nuclear safety, and
thus would conflict with federal law.” Id. at 859.
The Third Circuit also emphasized the importance of
federal field preemption related to nuclear safety. If “the
state adopts … stricter safety standards[,] … the state
will create a disincentive to nuclear power that is in conflict with federal law. If more lenient standards are imposed, the state will undercut federal safety efforts.” Id.
at 860 n.22. Thus, the Third Circuit concluded “the plaintiffs’ rights will necessarily be determined … by reference
to federal law, namely the federal statutes and regulations
governing the safety and operation of nuclear facilities.”
TMI I, 940 F.2d at 860. That holding was reaffirmed in
the Third Circuit as recently as 2017. See McMunn v.
Babcock & Wilcox Power Gen. Grp., 869 F.3d 246, 263 (3d
Cir. 2017).
14
The Seventh Circuit reached the same conclusion:
“[F]ederal regulations must provide the sole measure of
the defendants’ duty in a public liability cause of action.”
O’Conner v. Commonwealth Edison Co., 13 F.3d 1090,
1105 (7th Cir. 1994) (emphasis added). In that case, a pipefitter sued an Illinois nuclear facility, claiming that he had
negligently been exposed to excessive radiation while
working and that the state standard of care applied. Id. at
1093, 1103. But the court disagreed. “[T]he field of nuclear safety has been occupied by federal regulation,” the
court emphasized; “there is no room for state law.” Id. at
1105. A “non-federal duty in tort” would effectively regulate nuclear safety and therefore “conflict with federal
law.” Id. (citation omitted). It would also be “inconsistent
with the Price-Anderson scheme” to impose additional
state standards on nuclear operators, as the PAA was
meant to foster and encourage the private development of
nuclear energy. Id.
When the Sixth Circuit confronted the question, it
adopted the reasoning of the Third and Seventh Circuits.
Nieman, 108 F.3d at 1553. In Nieman, a property owner
sued a nuclear processing facility over an alleged uranium
leak. Id. at 1547. The court “agree[d] with the [Seventh
and Third Circuit’s] analyses of preemption in O’Conner
and TMI II,” that “federal law determines the standard of
care and preempts state tort law.” Id. at 1553.
The Eleventh Circuit’s rule is the same: “[F]ederal
regulations must provide the sole measure of the defendants’ duty in a public liability cause of action.” Roberts v.
Fla. Power & Light Co., 146 F.3d 1305, 1308 (11th Cir.
1998) (quoting O’Conner, 13 F.3d at 1105). In so holding,
the court acknowledged it was joining “virtually every federal court to consider the issue.” Id. The Eleventh Circuit
15
applied that rule to dismiss a public liability action claiming that a Florida nuclear power plant gave a plaintiff cancer, because there were no allegations that the plant
breached the maximum federal dosage requirements. Id.
at 1307-08. As the Eleventh Circuit recently reiterated,
“[i]t is beyond dispute that Congress intended for the federal government, and not the states, to have control over
issues of nuclear injury.” Pinares v. United Techs. Corp.,
973 F.3d 1254, 1263 (11th Cir. 2020).
The Ninth Circuit rounds out the consensus of circuit
courts, holding that “federal law preempts states from imposing a more stringent standard of care than federal
safety standards” in public liability actions. In re Hanford
Nuclear Reserv. Litig., 534 F.3d 986, 1003 (2008). In Hanford, thousands of plaintiffs alleged that emissions from a
World War II-era plutonium-production facility gave
them cancer and other diseases. Id. at 995. The plaintiffs
insisted that the facility was strictly liable under state law,
even if the plant complied with applicable federal dosage
regulations. Id. at 996. The Ninth Circuit disagreed. “To
allow a jury to decide on the basis of a state’s reasonableness standard of care would ‘put juries in charge of deciding the permissible levels of radiation exposure and, more
generally, the adequacy of safety procedures at nuclear
plants—issues that have explicitly been reserved to the
federal government.’” Id. (quoting TMI II, 67 F.3d at
1115). The Ninth Circuit also recognized that “the clear
weight of authority”—including “[e]very federal circuit”—agreed. Id. at 1003.
2. The Eighth Circuit expressly rejected this consensus. The court below “recognize[d] that other circuits
have held that federal law preempts state standards of
care in a public liability action.” Pet.App.10a (citing Hanford, 534 F.3d at 1003). But it “disagreed” with each of
16
those courts, finding no “persuasive reason” to conclude
that state tort standards of care are preempted. Id.
This case manifestly would have come out differently
in most other circuits: The district court expressly
acknowledged that applying the rule from the other circuits “would lead to the dismissal of the action.”
Pet.App.15a. Thus, had Cotter dried and shipped source
material in New Jersey instead of Missouri, this case
would have been dismissed. Instead, Cotter risks liability
based on what a lay jury deems tortious. Only this Court
can restore uniformity.
II. The Question Presented is Important, Recurring, and
Squarely Presented
It is difficult to overstate the importance of the question presented. 94 nuclear reactors across 28 states power
tens of millions of homes and avoid hundreds of millions of
metric tons of carbon emissions yearly.1 Meanwhile, over
18,000 entities and individuals have licenses from the NRC
(or a § 2021(b) agreement) to transfer, use, and possess
source, byproduct, or special nuclear materials.2 The nuclear industry has operated for decades on the basis of the
stable consensus rule that so long as federal regulations
are followed, no liability will result. The decision below
upended that consensus.
1. The decision below effects a startling expansion of
liability within the Eighth Circuit—home to seven nuclear
Nuclear Energy
nyurl.com/552jkajn.
1
2
Inst.,
U.S.
Nuclear
Plants,
NRC, Nuclear Materials, https://tinyurl.com/3ur5phtk.
https://ti-
17
reactors and many spent nuclear fuel and other Manhattan Project sites.3 Public liability under the PAA is already broad—it encompasses “any suit asserting” “any
legal liability arising out of or resulting from a nuclear incident.” 42 U.S.C. § 2014(w), (ii) (emphases added). In the
Eighth Circuit, however, handlers of nuclear materials
will now be subject to unpredictable, disparate, case-bycase standards of care. This new regulation-by-adjudication regime would “give no real guidance to operators and
would allow juries to fix the standard case by case and
plant by plant. An operator acting in the utmost good faith
and diligence could still find itself liable for failing to meet
such an elusive and undeterminable standard.” TMI II,
67 F.3d at 1115. Liability would turn on modern-day lay
jurors’ perception of whether a handler of radioactive materials acted reasonably, potentially decades after the
events in question. This expansion of civil liability would
chill development of nuclear energy, the very thing the
AEA and PAA were created to promote, and it would foster unlimited and unpredictable liability, the very thing
the public liability action was created to eliminate.
The Eighth Circuit’s rule could also place nuclear operators in an impossible situation, forcing them to conform
to procedures and practices that lay juries perceive as reasonable, even if such procedures are inconsistent with—or
outright contradict—federal safety standards and the applicable license. For instance, a jury applying state tort
law might conclude that state law requires intense involvement of personnel (exposing more workers to radiation) or
See NRC, List of Power Reactor Units (Feb. 21, 2025), https://tinyurl.com/2v3uzpb8; Lance N. Larson, Cong. Rsch. Serv., IF11201,
Nuclear Waste Storage Sites in the United States 2 (Apr. 13, 2020);
Atomic Heritage Found., Project Sites, https://tinyurl.com/3ytje2m2.
3
18
more disruptive handling or inspections of hazardous materials (risking the spread of particulate matter). Jurors
may also conclude that nuclear handlers should remove or
relocate stored or deposited material, even where the safest solution for the public is to leave the material in place.
The end result would be to require nuclear material handlers to shift investment away from the proven federal
safety standards and toward ill-advised requirements
crafted by plaintiffs and juries, defeating Congress’ goal
to protect the “health and safety of the public.” 42 U.S.C.
§ 2013(d). Juries applying state law might also decide to
impose strict liability for the handling of nuclear material.
Such a dramatic expansion of liability could force companies to end operations that are safe by any regulatory
measure.
Permitting state common law to dictate nuclear safety
operations in this way will also undermine the careful
measures that Congress and the regulatory agencies have
chosen to maximize public safety, development, and the
myriad federal policy interests implicated by nuclear activity. Unlike juries, the federal government must consider a variety of factors when setting nuclear safety
standards, including the role that nuclear technologies
play in American foreign policy and national security. See,
e.g., Tim Echols, Why Nuclear Energy is a Matter of National Security, Pub. Utils. Fort., Sept. 2017, at 54, 66,
https://tinyurl.com/5n6k647c. The United States has also
entered into treaties “for the control of special nuclear materials and atomic weapons.” 42 U.S.C. § 2013(c); see also
NRC,
Treaties
and
Conventions,
https://tinyurl.com/3amvfsmx (Nov. 6, 2023). And the restrictions
placed on domestic handlers of nuclear materials are central to such treaty obligations. Leaving the standard of
liability in the hands of jurors applying state law threatens
19
the regulatory architecture that the federal government
has crafted over the last century.
The Eighth Circuit’s rule also threatens to disrupt
critical government contractors. The Department of Energy contracts with many private companies to handle radioactive materials, including defense contractors involved with the development, production, and upkeep of
America’s nuclear arsenal. See Dep’t of Energy, Locations, https://tinyurl.com/3x7rz6at. These contractors
continue to store and dispose of radioactive waste leftover
from the Manhattan project—a task which, even if all nuclear development stopped tomorrow, would continue indefinitely. Dep’t of Energy, Radioactive Waste, https://tinyurl.com/4vwpr293. Exposing these contractors to public liability actions based on state tort law instead of federal regulatory standards of care would mark a historic
expansion of liability.
The United States has consistently argued to this
Court that all state regulations of nuclear safety are
preempted by the AEA. See, e.g., Brief for the United
States as Amicus Curiae at 11, Nielson v. Priv. Fuel Storage, L.L.C. (No. 04-575) (“Congress has preempted the
field of nuclear safety regulation.”); Brief for the United
States as Amicus Curiae Supporting Petitioners at 14, Va.
Uranium, Inc. v. Warren, 587 U.S. 761 (2019) (No. 161275) (same); Brief for the United States as Amicus Curiae, English v. Gen. Elec. Co., 496 U.S. 72 (1990) (No. 89152), 1989 WL 1128199, at *12 (calling the rule “well established”). Yet the decision below threatens to impose a
shadow body of regulation, not announced in advance, and
crafted by lay jurors.
2. Cases involving the standard for liability under the
PAA also recur frequently. Cotter alone has been sued by
more than 500 plaintiffs since 2012, and continues to face
20
at least two other pending putative class actions relating
to its activity at Latty Avenue. These cases—seeking
many millions in liability—would be judged under the
Eighth Circuit’s erroneous rule. More broadly, there
were 243 alleged “nuclear incidents” under the statute between 1957 and 2018. NRC, The Price-Anderson Act:
2021 Report to Congress xx (Dec. 2021), https://tinyurl.com/4bcr5ktd. Liability associated with these cases
has been expensive—in the same time period, insurers
paid approximately $522 million in losses and expenses
(not adjusted for inflation). Id. at xx, 1-2 & n.4. If the
Eighth Circuit’s rule is allowed to stand, more plaintiffs
who develop illnesses or injuries may try their hand at a
public liability action in the hopes of winning in front of a
sympathetic jury under a malleable state standard of care.
Moreover, PAA liability is not only forward looking.
Many states toll the statute of limitations in a tort suit until a plaintiff is capable of ascertaining his or her injury.
See, e.g., Mo. Rev. Stat. § 516.100. In such cases, if a plaintiff develops cancer later in life and alleges it was caused
by a radiation exposure as a child, a handler of nuclear materials could be liable decades in the future. This case illustrates the point: The actions at issue in this case occurred between 1969 and 1973. Pet.App.23a. Yet the
Eighth Circuit’s rule would permit jurors today—who will
inevitably Monday morning quarterback those decadesold safety decisions—to judge the lawfulness of those actions.
And the question presented grows in importance by
the year as nuclear energy becomes a more integral part
of the national economy. Just last month, the new Secretary of Energy used his opening remarks to the Department to set goals of “[m]oderniz[ing] America’s nuclear
stockpile” and “unleash[ing] commercial nuclear power.”
21
Dep’t of Energy, Secretary Chris Wright Delivers Welcome Remarks to DOE Staff (Feb. 5, 2025), https://tinyurl.com/4x2tuznm. In addition, electricity demands related to artificial intelligence and cloud computing have
caused large tech companies to expand nuclear energy development. See, e.g., Ryan Browne, Why Big Tech is turning to nuclear to power its energy-intensive AI ambitions,
CNBC (Oct. 16, 2024), https://tinyurl.com/2a5ejaz3. And
the NRC has proposed regulations that would clarify the
licensing process for certain advanced nuclear reactors.
See Risk-Informed, Technology-Inclusive Regulatory
Framework for Advanced Reactors, 89 Fed. Reg. 86,918
(Oct. 31, 2024). The Eighth Circuit’s rule stands squarely
in the way of these kinds of developments.
3. This case is also an ideal vehicle to address the split.
The decision below was narrowly focused on the legal
question of whether federal law provides the standard of
care in a public liability action. And the holding on the
question presented was outcome-determinative. As the
district court noted in its order certifying an appeal, “the
question of law is controlling because resolution of the
standard of care, and the potential imposition of Defendants’ proposed standard, would lead to the dismissal of the
action.” Pet.App.15a. Indeed, the issue was dispositive in
most cases in the circuit split discussed above. See Roberts, 146 F.3d at 1308; O’Conner, 13 F.3d at 1094, 1105,
1107; see also TMI I, 940 F.2d at 859-60.
III. The Decision Below is Incorrect
Review is also warranted because the Eighth Circuit
erred in holding that state tort law provides the standard
of care in PAA public liability actions like this one. Just as
federal law preempts formal state regulation of the activity at issue in this case, federal law likewise preempts state
standards of care governing the same.
22
1. In PAA public liability actions, federal nuclear
safety regulations provide the standard of care. This
Court, the Eighth Circuit, and every other federal court of
appeals to confront the question has held that direct state
regulation of nuclear safety is preempted by federal law.
This Court made that abundantly clear in 1983, explaining
“the federal government has occupied the entire field of
nuclear safety concerns.” Pacific Gas, 461 U.S. at 212.
And the Court has reiterated ever since that “states are
precluded from regulating the safety aspects of nuclear
energy.” Silkwood v. Kerr-McGee Corp., 464 U.S. at 238,
240-41 (1984).
That conclusion was firmly rooted in the statutory history and structure. See supra pp. 6-7. Until 1959, “no significant role was contemplated for the States” regarding
the “national security, public health, and safety” aspects
of nuclear materials. English, 496 U.S. at 81 (cleaned up).
Then, in 1959, when Congress amended the AEA to “increase the States’ role,” Congress did so narrowly. Id.
Through § 2021(b), Congress authorized states (with numerous caveats and safeguards) “to regulate” the nuclear
materials that give rise to public liability actions, including
“[s]ource materials,” “for the protection of the public
health and safety from radiation hazards.” But a state
may do so only if the state first enters into an agreement
with the NRC specifically allowing such regulation, and so
long as the state regulation is “coordinated and compatible” with the NRC’s regulations. 42 U.S.C. § 2021(b), (g).
It is therefore well settled that without such an agreement, states generally have no authority to regulate the
safety of those nuclear materials within federal regulatory
jurisdiction. See Pacific Gas, 461 U.S. at 210-12 & n.25
(citing 42 U.S.C. § 2021). As every member of the Court
23
recently agreed, states cannot “regulate the activities discussed in § 2021” in order to “regulat[e] nuclear safety”
“without an NRC agreement.” Va. Uranium v. Warren,
587 U.S. 761, 770 (2019) (opinion of Gorsuch, J.); id. at 78788 (opinion of Ginsburg, J.); id. at 795-96 (Roberts, C.J.,
dissenting).
But that is exactly what the Eighth Circuit’s rule allows. Here, plaintiffs allege that Cotter mishandled radioactive source material and that the ensuing spread of radiation caused them to develop cancer. Plaintiffs further
contend that Cotter’s alleged mishandling of that source
material violated various state-law standards of care, even
though the NRC never authorized such standards. Thus,
by permitting plaintiffs’ claim to proceed, the Eighth Circuit has held that state law imposes the standard that Cotter had to follow (and the steps others must take in the
future) to avoid liability stemming from radiological safety
hazards when undertaking § 2021 activities concerning
§ 2021 materials—despite Missouri and others never having been authorized by the NRC to regulate nuclear
safety. As every member of the Court explained in Virginia Uranium, that is precisely the kind of state-law regulation of nuclear safety that federal law does not permit.
2. The Eighth Circuit correctly recognized that “absent an agreement between the NRC and a state,” a state
cannot regulate the activities at issue in this case via “nuclear safety statutes or regulations.” Pet.App.7a (cleaned
up). Thus, the Eighth Circuit acknowledged that Missouri
could not have attempted to regulate Cotter’s activity in
this case by statute or formal regulation, given federal
preemption. See Pet.App.7a. The court erred in not applying that same conclusion to state tort standards of care.
24
a. The Eighth Circuit relied primarily on the definition of “public liability action” in 42 U.S.C. § 2014(ii). Under that provision, Congress provided that “the substantive rules for decision in” public liability actions “shall be
derived from the law of the State in which the nuclear incident involved occurs, unless such law is inconsistent with
the provisions of [42 U.S.C. § 2210].” The Eighth Circuit
reasoned that because § 2014(ii) provides that the “law of
the State” applies “unless such law is inconsistent with the
provisions of [§ 2210],” state standards of care apply unless § 2210 itself directly preempts them. Pet.App.8a-9a.
That is incorrect.
The Eighth Circuit erred by skipping over a key question: what is “the law of the State” for purposes of a public
liability action? With respect to state laws regulating nuclear safety, this Court has already provided the answer:
When federal law “occup[ies] the entire field … to the exclusion of state regulation,” federal law displaces any
overlapping state standard within the preempted field.
Kurns v. R.R. Friction Prods. Corp., 565 U.S. 625, 637
(2012) (cleaned up). In other words, federal law is “the law
of the State” where, as here, federal law speaks to the issue the State is attempting to regulate. There is “no exception for state common-law duties and standards of
care.” Id. This is true under any theory of preemption.
See, e.g., Geier v. Am. Honda Motor Co., 529 U.S. 861, 872
(2000). After all, “[s]tate tort law that requires” defendants “to be safer … than the model the [federal agency]
has approved disrupts the federal scheme no less than
state regulatory law to the same effect.” Riegel v. Medtronic, Inc., 552 U.S. 312, 325 (2008). Accordingly, where
federal law sets the standard of care, that standard “may
not be supplemented by laws enacted by the States.”
United States v. Locke, 529 U.S. 89, 114 (2000).
25
State law still has an important role to play in public
liability actions. State law may generally fill gaps not provided by federal law, such as the statute of limitations or
the substantive law for other elements of the tort claim,
such as damages. See, e.g., Nieman, 108 F.3d at 1559-60
(applying state law limitations in a public liability action);
42 U.S.C. § 2210(s) (limiting but not supplanting state law
damage awards). But “Congress recognized that state law
would operate in the context of a complex federal scheme
which would mold and shape any cause of action grounded
in state law.” O’Conner, 13 F.3d at 1100. Because Congress has preempted state tort standards of care by
preempting all state regulation of the conduct at issue in
these suits, the “law of the State” when it comes to the
standard of care is dictated by federal law.
b. The Eighth Circuit resisted this conclusion under
the rationale that the federal preemption of state regulations and statutes here does not extend to tort standards
of care. Citing a Tenth Circuit opinion by then-Judge Gorsuch, the Eighth Circuit reasoned that Congress often
“entrusts before-the-fact regulation to a federal agency
while leaving at least some room for after-the-fact state
law tort suits.” Pet.App.10a (quoting Cook, 790 F.3d at
1098). But there is no textual basis for distinguishing between these two kinds of state regulation. Under the
Eighth Circuit’s interpretation of § 2014, direct state regulation of nuclear safety would be “the law of the State,”
and thus not preempted in a public liability action.
Furthermore, the fact that there is “some room” for
tort suits does not mean that state law sets the standard
of care in those suits. After all, this is not a garden variety
tort suit—it is a federal cause of action that Congress specifically designed to provide uniform and predictable resolution to claims arising from nuclear incidents. See TMI
26
I, 940 F.2d at 857. When injured plaintiffs sue under this
provision, states are not free to impose whatever standard
of liability they choose in such suits given the extremely
pervasive scheme of federal safety regulation involved.
Instead, as explained above, this Court’s precedents make
clear that when federal law preempts the field, it is the
uniform federal law, not the varying laws of 50 States, that
sets the standard.
This case well illustrates the reasons for that rule.
The federal scheme advances the twin goals of development and safety. See supra p. 5. And interference by juries applying state-law standards of care after the fact, no
less than interference by state agencies or legislators,
threatens to undermine those objectives. In fact, this
Court has recognized that “tort law, applied by juries under a negligence or strict-liability standard, is less deserving of preservation” than a “state statute, or a regulation
adopted by a state agency,” given that state lawmakers
and regulators can “at least be expected to apply [a] costbenefit analysis” in promulgating such statutes and regulations. Riegel, 552 U.S. at 325 (emphasis added). Lay juries, in contrast, are free to impose liability based on any
number of considerations, even if they are directly contrary to national policy and interests. State standards of
care in this realm, as much as state regulations, could create direct conflicts with federal requirements and may
sometimes render it impossible to comply with federal requirements while avoiding liability under state standards.
See, e.g., 10 C.F.R. § 20.1301; 10 C.F.R. §§ 20.105, 20.106
(1970).
c. Finally, the Eighth Circuit read Silkwood for the
proposition that “state tort law would apply” in these
cases. Pet.App.7a (quoting Silkwood, 464 U.S. at 252).
But, as courts of appeals have explained, Silkwood had
27
nothing to do with the appropriate standard of care in
these suits.4 Silkwood was about remedies, holding that
then-existing federal law did not preempt state punitive
damages remedies. 464 U.S. at 258. The petitioner in that
case sought review only of the court of appeals’ “ruling
with respect to the punitive damages award,” not the
standard of care applied. Id. at 246. Nor did the standard
of care matter in Silkwood, given that “Silkwood’s exposure to radiation … was two and one-half times the
amount permitted by federal regulations.” Roberts, 146
F.3d at 1308 n.5. And even Silkwood’s narrow remedial
holding was swiftly abrogated by statute. See Pub. L. No.
100-408, 102 Stat. 1066, 1078 (1988).
On top of that, Silkwood was decided four years before Congress passed the 1988 PAA amendments that federalized public liability actions. That timing is all the more
significant given that Silkwood’s reasoning was driven by
the Court’s reading of the then-existing legislative history.
See 464 U.S. at 251-56. Subsequent legislative history, including for the 1988 amendments, suggests that federal
law preempts state standards of care. See, e.g., H.R. Rep.
No. 100-104, pt. 1, at 18 (1987). In any event, Congress’
subsequent legislation in this area—which includes ratification of a binding international nuclear treaty based on
Congress’ finding that the PAA “provides a predictable legal framework,” see 42 U.S.C. § 17373—was against the
backdrop of the uniform view of the courts of appeals that
federal law would provide the standard of care in these
suits, and ratified that view.
See, e.g., Abdullah v. Am. Airlines, Inc., 181 F.3d 363, 375 (3d Cir.
1999); Gilstrap v. United Air Lines, 709 F.3d 995, 1006 (9th Cir. 2013);
Roberts, 146 F.3d at 1308 n.5.
4
28
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
BRIAN O. WATSON
LAUREN E. JAFFE
RILEY SAFER HOLMES &
CANCILA LLP
1 S. Dearborn St.
Ste. 2200
Chicago, IL 60603
(312) 471-8700
JENNIFER STEEVE
100 Spectrum Center Dr.
Ste. 650
Irvine, CA 92618
(949) 359-5515
MARCH 18, 2025
LISA S. BLATT
Counsel of Record
CHARLES L. MCCLOUD
KIMBERLY BROECKER
ROHIT P. ASIRVATHAM
CHRISTOPHER J. BALDACCI
WILLIAMS & CONNOLLY LLP
680 Maine Avenue, S.W.
Washington, DC 20024
(202) 434-5000
lblatt@wc.com
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.