Amicus Brief — Silkwood v. Kerr-McGee Corp.

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No. 81-2159

threget 17 1982

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1981 ALEXANDER , stay

, 5 CLERK

BILL M. SILKWOOD, Administrator of the Estate

of KAREN G. SILKWOOD, Deceased

Appellant

KERR-MUGEE CORPORATION and KERR-MCGEE NUCLEAR

CORPORATION ,

Appellees

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT

BRIEF AMICUS CURIAE IN SUPPORT OF

JURISDICTIONAL STATEMENT

For the State of Nevada For the State of New York

HON. RICHARD H. BRYAN HON. ROBERT ABRAMS

Attorney General Attorney General

LARRY STRUVE, ESQ. EZRA I. BIALIK, ESQ.*

Chief Dpty. Atty. General Asst. Atty. General

Capital Complex Department of Law

Heroes Memorial Building Two World Trade Center

Carson City, Nevada 89710 New York, New York 10047

(212) 488-7565

For the State of Ohio

HON. WILLIAM J. BROWN

Attorney General

DENNIS MUCHNICKI, ESQ.

Asst. Atty. General

Office of the Atty. General

30 E. Broad St., 17th Floor

Columbus, Ohio 43215 *Counsel of Record

July 17, 1982 [list of amici continued on inside cover]

For the State of Alaska

HON. WILSON L. CONDON

Attorney General

DOUGLAS K. MERTZ, ESQ.

Asst. Atty. General

State Capital

Juneau, Alaska 99811

For the State of Arizona

HON. ROBERT K. CORBIN

Attorney General

ANTHONY B. CHING, ESQ.

Solicitor General

1275 W. Washington

Phoenix, Arizona 88007

For the State of Hawaii

HON. TANY S. HONG

Attorney General

MICHAEL A. LILLY, ESQ.

First Dpty. Atty. General

State Capitol

Honolulu, Hawaii 96813

For the State of Louisiana

HON. WILLIAM J. GUSTE, JR.

Attorney General

234 Loyola Avenue, 7th Fl.

New Orleans, La. 70112

For the State of Maine

HON. JAMES TIERNEY

Attorney General

PHILIP F.W. EHRENS III, ESQ.

Asst. Atty. General

State House, Station #6

Augusta, Maine 04333

For the State of Massachusetts

HON. FRANCIS X.

Attorney General

BELOTTI

STEPHEN M. LEONARD, ESQ.

JOANNE SHOTWELL, ESQ.

Asst. Attys. General

1 Ashburton Place, 19th Fl.

Boston, Massachusetts 02108

For the State of New Jersey

HON. IRWIN I. KIMMELMAN

Attorney General

JAMES J. CIANCA, ESQ.

Asst. Atty. General

Division of Law

R. J. Hughes Justice Complex

Trenton, New Jersey 98652

For the State of New Mexico

HON. JEFF BINGAMAN

Attorney General

BRUCE C. THRONE, ESQ.

PAUL BIDERMAN, ESQ.

Asst. Attys. General

P.O. Drawer 1508

Santa Fe. New Mexico 87503

For the State of South Carolina

HON. DANIEL R. MCLEOD

Attorney General

RICHARD P. WILSON, ESQ.

Asst. Atty. General

Post Office Box 11549

Columbia, South Carolina 29211

QUESTION PRESENTED

Whether the federal Atomic Energy Act pre-

empts the application of state punitive

damages law where defendant was found

guilty of oppressive or malicious inflic-

tion of personal injury and property dam-

age, and the injury was caused by pluto-

nium from defendant's federally regulated

nuclear facility.

TABLE OF CONTENTS

QUESTION PRESENTED.....ceeeccecseccevscescceelh

TABLE OF AUTHORITIES... ..seeeeeseeccececceee Wh

INTEREST OF AMICI... ccs eccecccsccccsceveesesech

STATEMENT OF i 606600¢000606000000660606660"

SUMMARY OF ARGUMENT.....seeeececscccsseseeeeed

ARGUMENT ..ccccccccccccccccccccccccscccscsseeed®

I. THE OKLAHOMA PUNITIVE DAMAGES STATUTE

NEITHER CONFLICTS WITH THE ATOMIC ENERGY

ACT NOR HAS CONGRESS EXPRESSED AN INTENT

THAT IT BE PREEMPTED BY THE ACT......-++0004+9

1. THERE IS NO CONFLICT BETWEEN THE FED-

ERAL AND STATE 6666600660600 006000066066600

A) Kerr-McGee could comply with fed-

eral nuclear regulation and at the same

time conform to the standard of care re-

quired by the Oklahoma exemplary damages

SE. 06 6600668600 0080668068080600060086006Rn

B) The Oklahoma statute does not

frustrate or present an obstacle to the

accomplishment of the full purposes of the

Atomic Energy ACt....cccccsccccccssccseesesestl

(1) Oklahoma tort law and the Atomic

Energy Act share the same ultimate pur-

pose of protecting public health and

|. . Pr rrrrrrrrrrrrrrrrrererrrrrireriiy |

(2) The Nuclear Regulatory Commission

lacks authority to promote nuclear ener-

gy by granting immunity to the nuclear

industry from state prohibitions against

oppressive, malicious or reckless hand-

ling of radioactive materials.........++..13

iii

2. CONGRESS HAS NOT EXPRESSLY PREEMPTED

STATE EXEMPLARY DAMAGES REMEDIES FOR

RADIATION INJURIES. .ccccccccccccccccsccsccsscah

3. NOWHERE IN THE ATOMIC ENERGY ACT MAY

BE FOUND AN IMPLIED CONGRESSIONAL INTENT

TO PREEMPT THE HISTORIC POWER OF STATES TO

APPLY ALL THEIR TRADITIONAL TORT REMEDIES

FOR PROTECTION OF THE PUBLIC AGAINST

ACTUAL RADIATION INJURIES... ..eeeeeeeeeeeeee 2d

A) The Court of Appeals failed to ap-

ply the standard criteria for determining

whether a state law has been impliedly

preempted by CONGreSS.....cescecscessesesees 2d

(1) intent of Congress as shown in

statute and legislative history...........25

(2) pervasiveness of the federal

regulatory SENSED. 000008 00be0ebeeebesessnl

(3) "nature of the regulated subject”.....32

a) Damage awards for injuries from

reckless, oppressive or malicious man-

agement of nuclear fac‘lities no more

reguire "national supervision" than

they would for a coal fired plant or

Other CMergy SOUrCE....ceccceccccsesessesedd

b) Congress has not expressed a

need for uniformity among the states

in the assessment of punitive damages

for reckless or malicious management

of nuclear facilities, or for any

other punitive measures with regard to

management of nuclear facilities..........35

(4) Whether state law “stands as an

obstacle to the accomplishment and

execution of the full purposes and

~ Objectives of Congress”... ..cceeecceeeceesd?

B) The Court of Appeals created a new

test for finding implied preemption never

before applied by the courts..........2+++..38

C) The Court of Appeals failed to

give effect to important presumptions

against preemption in this case.............39

(1) Considerations of federalism cre-

ate a presumption against preemption

of state health and safety protections

under traditional state police powers.....40

(2) State tort law cannot be preempted

in the absence of clear and unavoid-

able conflict with a federal statute......43

II. THE AWARD OF PUNITIVE DAMAGES IN THIS

CASE CAN BE EASILY DISTINGUISHED FROM THE

STATE REGULATION PREEMPTED IN NORTHERN

STATES POWER v. MINNESOTA.............++.-+.50

III. REVOCATION OF STATE PERSONAL INJURY

TORT REMEDY BY IMPLIED PREEMPTION RAISES

IMPORTANT ISSUES OF FEDERALISM AND MAY

VIOLATE THE TENTH AND FIFTH AMENDMENTS ......54

CONCLUSION... cccecsceces *e ee mM TT TTTTiTTTTtTiTlL

APPENDIX (23 OKLA. STAT. ™ Biebececsoseoeoescun

TABLE OF AUTHORITIES

Cases:

Askew v. American Waterways Operators,

Inc., 411 U.S. 325 (1973)... cece ee 30

Automobile Workers v. Russell,

U.S. ( PYTTTTTTITCT TT TTT

City of Burbank v. Lockheed Air Terminal,

i> Gan Guile GEO Laeeebcoecececceccoethe GF

City of Ne rt v. Fact Concerts,

re U.S. a7 Dt ptedhennshaceeeeneseoenn

City of Philadelphia v. New Jersey,

rey U.S. 617 } UL RRarrrereerre eee 23

Colorado Anti-Discrimination Commission

v. Continental Airlines, Inc., oi

372 U.S. 14, 722 lel

Cooley v. Board of Port Wardens,

2 BF OSS Te

De Canas v. Bica, 424 U.S. 351 (1976).......30

Duke Power Co. v. Carolina Environmental

Study Group, 438 U.S. 59 (1978)....27, 28, 55

Parmer v. United Brotherhood of Carpenters,

U.S. ( ne e6606600066066066066600

Peres v. United States,

U.S. ( Paine dhns eee encnseenn eee

Pade lity Federal S. & L. Assn. v. de la

Cuesta, —— U. Ss. os (June 28, ee 37

F for Lime and Avocado Growers, Inc. v.

Paul, 373 U.S. 132 (1963)...... 10, 33, 36, 42

Goldstein v. California,

0. ( Pocccecececocoseeesesoooemn

Greater Westchester v. City of Los les,

Cal. Rptr. ’ ’

cert. denied, 449 U.S. 820 (1981)..........49

Hines v. Davidowitz,

U. > ( Deocoeceoeeeceocesoseeeune 37

Jaffee v. ooo 663 F.2d 1226 (3rd Cir.

) (en c), cert. denied, 50 U.S.L.W.

3910 (May 18, eee

Jones v. Rath Packi Co.,

U.S. ( Toh eeeeseeesooosseesenennn

Linn v. Plant General Workers,

nt Pi. fr Cn + ost eeauenecoeseeeseseeen

Luther v. Shaw, 157 Wis. 234,

N.W. TEOESdcccccccccoececosescocosoeee

Mandel v. Bradley, 432 U.S. 173 (1977)......25

Maurer v. H ton, 309 U.S. 598 (1940).....41

Merrill Lynch, Pierce, Fenner and Smith,

Inc. v. Ware, 414 U.S. SEW Caveat oscoceccooll

Nader v. Allegheny Airlines,

426 U.S. 330 Ue eee et seq.

New York State Department of Social

Services v. Ae 413 U.S. 405

UEPTEI »0 sa sccsccccsocsessasecsscsccos se SSy 30

New York Telephone Co. v. New York

State Dept. of Labor, 440 U.S. 519

Vetatsatedebaedesocosceessoeene OO D @

Northern States Power Co. v. Minnesota,

F. (8th Cir. ),

aff'd mem., 405 U.S. 1035

(1972)... .ccceeee- 4, 8, 13, 21, 24, 50 et seg.

Reid v. Colorado, 187 U.S. 137 (1902)... 34 40

Rice v. Santa Fe Elevator Corp.,

U.S. ( PE ee

San Di Buildi Trades Council v.

Garmon, 359 U.S. 236 (1959). .cceeeeees- 48, 53

Sa v. Jones, 225 U.S. 501 (1912)....39, 42

Sears Roebuck & Co. v. Carpenters,

Silkwood v. Kerr-McGee Corp.,

667 F.2d 908 (10th Cir.

1961)... cccccccced, 14, 17, 21, 26, 33, 38, 43

Silkwood v. Kerr-McGee Corp., 485 F. Supp.

LOO 25

Seqccescocesocccoccescce Se

cert. denied, 449 U.S. 1096 (1981)......---32

seetoee v. Morton, 337 U.S. 252 (1964)....26

ain Vv. or Public Interest Research

Inc., San dbonoedeoe coun

Un uction Workers v. Laburnum

on Cor Ff U.S.

TYP PTrrTTyTTyTTTT TTT TT tit 47, 48

vii

Statutes:

Atomic Energy Act:

§ 2(e), 42 U.S.C. § 2OlL2Z(e).. ce cece ee eee ee l2

§ 3(d), 42 U.S.C. § 2OL3(A).. cee eee nnne ee 20

6 190, 42 U.8.C. § BBG. ccccccccccccccccesccae

§ 234, 42 U.S.C. § 2282......ceeeeeeeee3l, 32

§ 274, 42 U.S.C. § 2021........22, 34, 35, 51

Energy Reorganization Act of 1974:

$$ 2(a) & (b),-103, 42 U.S.C. $§ 5801(a)

SB Cb), SOLS (1976). cccccccccccccccecccccsccae

42 U.S.C. $§ 5801-5891, 715l(a) (1976)

(Sepp. TEX 1979). cccccccccccccceccccccscscoae

42 U.S.C. $§ 7112 (11), 7113, 7133 (6)......16

42 U.S.C. § 7112 (6) (Supp. III 1979)...16-17

Clean Air Act Amendments of 1977:

42 U.S.C. $§ 7416, 7422(C).....22ee0e0e-17-18

G2 OU.B.C. | FPEBRecccccccccccccceccccccccccc ae

42 U.S.C. §$§ 8301(b), 8302(b)(17),

B8322(a)(1l)i(c), 8352(a)(1)(c) (Supp.

BV BOGS) ccccccccccscccedsccceccceccsoccccccan

23 Gaia. Stat. & 9 CASBA. ccccccccccccscccccea

Other:

5 U.S.C. app. at 609,/84 Stat. 2086,

3 C.FP.R. ~ Ep errr TTT rTTTiTTtTl

16 C.PoRe. FG We UlSdeccccceccccccccccccccccsoke

45 Fed. Reg. 27590 (April 23, 1980).........28

46 Fed. Reg. 39580 (August 4, 1981).........12

S. Rep. No. 2298, 84th Cong., 2d Sess.

A eee? ee

S. Rep No. 93-980, 93rd Cong., 2d Sess. :

CO errr CTT TTTTTTfrheTP 16

H.R. Rep. Wo. 95-294, 95th Cong., lst Sess.

[tt Pcmneadenet obebondneneees bs6eoeeesae naa

H.R. Rep. Wo. 2043 and S. Rep. No. 1605,

89th Cong., 2d Sess. (1966)........28, 29, 31

Burcat, “Uncompensated Victims of Low

Level Radiation: Unnecessary Hostages

of the Price-Anderson Debate,"

15 Forum 847 Sa odééeen6ece eo coeeseonntl

viii

"Governmental Indemnity,” Hearings before

JCAE, 84th Cong., 2d Sess 44 (1956)........27

"Memorandum for the United States as

Amicus Curiae," (Northern States Power)....52

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

BILL M. SILKWOOD, Administrator of the

Estate of KAREN G. SILKWOOD, Deceased,

Appellant,

Vv.

KERR-MCGEE CORPORATION, a Delaware

Corporation, and KERR-McCGEE NUCLEAR

CORPORATION, a Delaware Corporation,

Appellees.

BRIEF AMICUS CURIAE IN SUPPORT OF

JURISDICTIONAL STATEMENT

The States joined herein file this brief

amicus curiae in support of Appellant's

Jurisdictional Statement, pursuant to Rule

36.1 of the Rules of the Supreme Court.

INTEREST OF AMICI

At issue here is the proper relationship

between Federal and State governments.

This is the first reported federal case

holding a state remedy for tortious ir-

radiation of persons or property preempted

under the Atomic Energy Act or where

exemplary damages have been singled out

tur preemption under any statute. In its

decision below, Silkwood v. Kerr-McGee

Corp., 667 F.2d 908 (10th Cir. 1981), the

Court of Appeals for the Tenth Circuit

ruled that it is unconstitutional to allow

a jury to impose punitive damages for op-

pressive or malicious conduct, 23 Okla.

Stat. § 9 (1951), if the injury was

caused by radioactive materials handled by

a company which was licensed by the Nucle-

ar Regulatory Commission (NRC). . *

The Court of Appeals’ holding introduces

a broad new preemption test to this sensi-

tive area of constitutional adjudication.

If not revérsed, this uncharted expansion

of federal preemption beyond its present

contours could seriously upset the careful-

ly maintained balance in federal-state re-

lations reflected in contemporary preemp-

tion doctrine. The decision of the Tenth

Circuit Court of Appeals ignores recent re-

finements of the doctrine by which this

Court has presumed valid the exercise of

traditional state police powers not in

clear and fundamental conflict with feder-

al law. It overlooks a decade of develop-

ment of Congressionally-approved state in-

volvement in radiation matters, the contem-

poraneous shift in Congressional emphasis

away from promotion of the nuclear indus-

try over other forms of energy, and the

transfer of energy promotion functions to

the Department of Energy, leaving the NRC

with the exclusive purpose of regulation

for public health and safety.

Moreover, it draws into question the ap-

plication of punitive damages law, and oth-

er state laws that provide civil or crimi-

nal penalties for willful or malicious con-

duct, in many areas where state law paral-

lels, or “substantially competes," 667

F.2d at 923, with federal regulation. The

Court of Appeals erroneously considered

this new expansive preemption test to have

been mandated by this Court's summary af-

firmance in Northern States Power Co. v.

Minnesota, 447 F.2d 1143, (8th Cir.

1971), aff'd mem. 405 U.S. 1035 (1972).

Amici consider this case to frame impor-

tant issues of federalism in which each of

the states is interested and upon which

this Court should provide guidance. By

this brief amicus curiae the states

joined herein support appellant's request

that the substantial federal question

which they present be accorded plenary

consideration by the Supreme Court, so

that the decision of the Court of Appeals

may be reversed.

STATEMENT OF THE CASE

The representative of the estate of Kar-

en Silkwood brought this tort action for

injury caused by plutonium from defend-

ant's federally regulated nuclear facil-

ity. The jury in this diversity suit, fin-

ding the defendants' conduct oppressive

and malicious, awarded, in addition to ac-

tual damages for personal and property in-

juries, $10 million in punitive damages.

The District Court upheld the punitive dam-

ages award, Silkwood v. Kerr-McGee

Corp., 485 F. Supp. 566, 590-91 (W.D.

Okla. 1979). Chief Judge Theis rejected

the claim that the federal preemption doc-

trine precluded award of common-law reme-

dies for radiation injuries. On defend-

ants’ appeal, this decision was reversed

in part by the Tenth Circuit, with Judge

Doyle dissenting, 667 F.2d at 922-23. Re-

hearing, and rehearing en banc, were de-

nied on February 19, 1982. Appellant's

Jurisdictional Statement was filed on May

20, 1982.

SUMMARY OF ARGUMENT

In numerous decisions the Supreme Court

has held that a heavy presumption lies

against finding preemption of state laws

enacted pursuant to the states' police pow-

ers, especially laws that protect public

health and safety. Moreover, the Court

has been particularly reluctant to find an

implied preemption of state tort law.

Such presumptions should have counseled

restraint in this case. But the Court of

Appeals nevertheless held preempted the

application of Oklahoma's punitive damages

law to the defendant's oppressive or mali-

cious handling of an ultrahazardous radio-

active material, without finding any con-

flict with federal law or any express

statement by Congress that the Atomic Ener-

gy Act was intended to have such broad pre-

emptive effect.

In fact, the Oklahoma statute is entire-

ly consistent with the Act's central pur-

pose, the protection of public health and

safety. Congress has expressly rejected

any purpose to compromise protection of

public health as a means of promoting

nuclear power, or any purpose to favor

nuclear power over other forms of energy

with a governmentally-sponsored advantage,

such as immunity from state tort law.

The Court of Appeals found the Oklahoma

statute impliedly preempted without apply-

ing to the Act and its legislative history

any of the accepted criteria for determin-

ing when Congress can be said to have im-

pliedly preempted state law. Instead the

Court of Appeals created an entirely new

criterion, unsupported by any precedent,

of whether a state law “substantially com-

petes” with federal law.

The application to this case of the cri-

teria approved by the Court for determin-

ing when a state law has been impliedly

preempted by Congress unmistakably reveals

that Congress did not impliedly preempt

the Oklahoma punitive damages law. On the

contrary, Congress has expressly stated

its intent that the preemption doctrine

applied in the Northern States Power

(NSP) case, 447 F.2d 1143, should not

apply to state regulation of airborne radi-

ation hazards. Congress also expressly

stated its intention that for injuries of

the kind suffered by Karen Silkwood, exist-

ing state tort remedies -- without any

exception for exemplary damages -- should

be preserved.

This case can be easily distinguished

from NSP, the only precedent of this

Court upholding federal preemption of

state legislation on nuclear matters.

There is no precedent for singling out

punitive damages from other state tort

remedies for preemption.

This case approaches the sensitive area

of state power that the Tenth Amendment

was designed to protect. It also raises

serious due process issues in that it

takes away the right to sue for full tort

recovery under state law without giving

any rights in return. The Act held here

to preempt state tort law creates no sub-

stitute private cause of action. By seri-

ously invading the historic powers of the

states, the Court of Appeals' preemption

decision sharply departs from the trend of

decisions by which this Court has sought

to preserve the constitutional balance be-

tween state and federal legislative compe-

tence and thereby safeguard an important

pillar of our democratic order.

ARGUMENT

I. TEE OKLAHOMA PUNITIVE DAMAGES STATUTE

NEITHER CONFLICTS WITH THE ATOMIC ENERGY

ACT NOR HAS CONGRESS EXPRESSED AN INTENT

THAT IT BE PREEMPTED BY THE ACT.

1. THERE IS NO CONFLICT BETWEEN THE FED-

ERAL AND STATE LAWS.

The two kinds of conflict recognized by

the Court as triggering supremacy clause

scrutiny are:

[A] a square conflict with particular

provisions of federal law or [B] gener-

al incompatibility with basic federal

objectives. City of Philadelphia v.

New Jersey, 437 U.S. 617, oot n.4

(1978).

A) Kerr McGee could ly with the

federal nuclear requ a same

time conform to the standard of care re-

gatred by the Oklahoma exemplary damages

This is not a “square conflict" case

where “compliance with both federal and

state regulations is a physical impossibil-

ity” or where there is an “inevitable col-

lision between the two schemes." Florida

Lime and Avocado Growers, Inc. v. Paul,

373 U.S. 132, 142-43 (1963). Kerr-McGee

can avoid oppressive, malicious or reck-

less handling of radioactive materials and

at the same time comply with the federal

policy that NRC licensees

should ... make every reasonable ef-

fort to maintain radiation exposures,

and releases of radioactive materials

in effluents to unrestricted areas, as

low as is reasonably achievable ....

10 C.F.K. § 20.1lic).

Obviously the Act and the NRC regula-

tions implementing the Act neither require

nor encourage any of the extremely hazard-

ous kinds of conduct for which exemplary

damages might be awarded under Oklahoma

law. Nor were any of the culpable acts

involved here “protected by federal law,"

Automobile Workers v. Russell, 356 U.S.

634, 640 (1958).

B) The Oklahoma statute does not

frustrate or present an obstacle to t

nt o ur es of the

At c Energy Act.

The Court has long held, in the words of

a well worn passage, that

Our primary function is to determine

whether ... [state] law stands as an

obstacle to the accomplishment and

execution of the full purposes and

objectives of Congress. Hines v.

Davidowitz, 312 U.S. 52, 67 (1941).

(1) Oklahoma tort law and the Atomic

Ener Act s et same ultimate

The central purpose of the Atomic Energy

Act and the Commission it establishes is

the protection of public health and safe-

ty. § 2(e), 42 U.S.C. § 2012(e). Tradi-

tional tort remedies, including punitive

damages, to the extent they are successful

in shifting the social costs of hazardous

enterprises back to those who profit from

them, accomplish this same purpose.

Although this case is the first tort re-

covery for radiation injury caused by an

NRC licensee, the NRC itself has admitted

that the normal "operation of [nuclear]

plants will cost human lives." 46 Fed.

Reg. 39580, col. 2 (Aug. 4, 1981). But

the peculiar nature of radiation makes

proof of the causal relationship between

any particular radiation injury and identi-

fiable wrongful conduct extremely diffi-

cult. See, @.g., Burcat, “Uncompen-

sated Victims of Low Level Radiation: Un-

necessary Hostages of the Price-Anderson

Debate,” 15 Forum 847 (1980).

Tort remedies thus providing inadequate

deterrence, prior regulation becomes a

vital means for preventing routine but non-

compensable harm to the public. But where

injury can be proven to have occurred as a

result of willful or reckless conduct,

punitive damages provide a complementary

means for achieving the same purpose of

deterring harmful conduct. The Court has

stated:

To hold that a state statute identical

in purposes with a federal statute is

invalid under the Supremacy Clause, we

must be able to conclude that the pur-

pose of the federal statute would to

some extent be frustrated by the state

statute. Colorado Anti-Discrimination

Commission v. Continental Airlines,

Inc., U.S. ’ ( ).

(2) The Nuclear Regulatory Sommis8ior

lacks authority to omote nuclear ener-

b rantin Mmunity to the nuclear

TIT From Seite ibitions ainst

° ee ehy malici Or reckless hand-

Tie of radioactive materials.

A federal purpose in addition to that of

health and safety, namely promoting nucle-

ar power, was found in Northern States

Power, 447 F.2d at 1153-54, and constitut-

ed an important ground for that court's

decision holding preempted a state regula-

tion more stringent but otherwise identi-

cal to an NRC regulation. The Court of

Appeals below apparently relied upon this

ground when it referred to "the strong

federal interest in atomic energy develop-

ment,” 667 F.2d at 922. But promotion of

nuclear power is no longer, if it ever

was, among the purposes of regulation

under the Atomic Energy Act. Although, as

shown below, the DOE may have authority

to promote nuclear power along with other

forms of energy, the issue here is the pre-

emptive effect of NRC regulation.

Energy Reorganization Acts

In response to concern that the Atomic

Energy Commission was using lax regulation

as a means to promote nuclear power, in

1974, after the decisions in Northern

States Power, Congress abolished the AEC

and created the NRC to focus exclusively

on the purpose of regulating nuclear power

to protect public health and safety; ERDA

(later DOE) was given the mission of using

subsidies and research to assist nuclear

power as well as other energy sources.

715l(a) (Supp. III 1979). Congress

expressly stated that,

a basic purpose of -his Act [is] to

separate the regulatory functions of

the Atomic Energy Commission from its

development and promotional functions,

which are transferred to [ERDA]. S.

Rep. 93-980, 93rd Cong., 2d Sess. 19

(1974).

Congress clearly expressed its intent that

nuclear power was not to be favored over

other sources of energy. Thus Congress

stated its policy to "develop ... all

energy sources." Energy Reorganization

Act of 1974, §§ 2(a) & (b), 103, 42

U.S.C. $§ S8Olia) & (bd), SO13 (1976).

Congress warned

ageceet an unwarranted priority being

given to any energy technology in

BRDA. S&S. Rep. 93-980 supra at 6, 16.

{Congress draftei the statute] to

place greater relative emphasis on non-

nuclear energy ... [and] designed ERDA

so that its nonnuclear missions are

fairly represented and funded along

with the nuclear missions of the new

agency .... Id. 14.

According “[e]nvironmental protection

and safety activities ... overriding

importance,” id, 17, Congress declared:

The mission of the new [Nuclear Regula-

tory] Commission is to ensure the safe-

ty and security of the nuclear indus-

try ... and the radioactive fuels used

to fuel it. Id, 2.

In the DOE Act Congress clearly stated

its intent that federal energy policy be

developed in cooperation with the states

and in deference to their needs. 42 U.S.C.

$§ 7112(11), 7113, 7133(6). This Act

again showed that if Congress was biased

toward any particular form of energy, it

was not nuclear. On the contrary, Con-

gress sought,

major emphasis on the development and

commercial use of solar,

geothermal,

recycling and other technologies utili-

zing renewable resources. 42 U.S.C.

§ 7112(6) (Supp. III 1979).

It would be facetious to suggest that a

plaintiff should be denied punitive dam-

ages for injuries sustained from a reck-

lessly erected windmill or geothermal fa-

cility because that would interfere with

Congressional policy to promote renewable

energy technologies. But nothing distin-

guishes this proposition from the asser-

tion that "federal interest in atomic ener-

gy development," 667 F.2d at 922, is a

ground for preempting the state punitive

damage award in this case.

Clean Air Act Amendments 4

In 1977 Congress even more strongly re-

confirmed its intent not to promote nu-

clear power over other forms of energy

and not to grant immunity from state law

as a means of promotion. In the Clean Air

Act Amendments of that year Congress took

pains to expressly empower states to regu-

late airborne radiation. 42 U.S.C. §§

7416, 7422(c). The accompanying report

states unequivocally that,

under the Clean Air Act, emission lim-

itations may be enforced by citizen

suit and State and local governments

may adopt and enforce more stringent

standards than the federal emissic™ or

ambient air standards. [Footnote 8:

Thus the committee would not preempt

States from setting and enforcing

stricter air pollution standards for

radiation than the Federal standards

and would not follow the holding in

Northern States Power (citation omit-

ted) in the context of radioactive air

pollution]. These authorities and re-

quirements ... would apply equally to

radioactive pollutants, including

nuclear-related emissions from power

plants. H.R. Rep. No. 95-294, 95th

Cong., lst Sess. 43 & n.8, (1977).

(emphasis added)

Far from granting nuclear or any other

energy industry the advantage of immunity

from the costs of tort liability, Congress

again stated expressly that the

costs of protecting the public health

+++ Must be considered a cost of doing

business for the nuclear power indus-

try just as ... [it is] for the coal-

fired generating stations. Id., at

43.

Thus Congress has now eliminated the

thrust of the Northern States Power

decision. First, in 1974 it separated reg-

ulation and promotion of the production

and use of nuclear materials and directed

the NRC to regulate exclusively for protec-

tion of the public health and safety, and

then in 1977 it expressly empowered states

to impose regulations more stringent than

NRC regulations with respect to radioac-

tive air emissions.

Congress recently reconfirmed its intent

that federal agencies defer to state envi-

ronmental requirements in an Act intended

to promote coal, nuclear and other energy

sources alternative to petroleum and nat-

ural gas. 42 U.S.C. §$§ 8301(b), 8302(a)

(17), 8322(a)(1)(c), 8352(a)(1)(c) (Supp.

IV 1980).

If there were any residual purpose of

promotion left to NRC regulation under the

Atomic Energy Act it would now certainly

be peripheral to the statute's central pur-

pose to allow development of atomic energy

only insofar as it is "consistent ...

with the health and safety of the public."

Id. § 3(d), 42 U.S.C. § 2013(d).

Where conflict is found on a matter peri-

pheral to the central purpose of a federal

statute, the Court instructs that,

the proper approach is to reconcile

the operation of both statutory

schemes with one another rather than

holding one completely ousted. Mer-

rill Lynch, Pierce, Fenner and Smith,

Inc. v. Ware, 414 U.S. 117, 127

(1973).

An exemplary damages award is easily

reconciled with any such residual regula-

tory purpose. First, it punishes only the

most unreasonable kind of conduct. Sec-

ond, tort liability for punitive damages

is not prior regulation at all, but ad-

dresses only actual, not merely potential,

injuries. A single exemplary award in

over 25 years of commercial nuclear power

cannot realistically constitute a serious

impediment to further development of the

multi-billion dollar nuclear industry.

2. CONGRESS HAS NOT EXPRESSLY PREEMPTED

STATE EXEMPLARY DAMAGES REMEDIES FOR RADI-

ATION INJURIES.

As stated in Northern States Power,

no provision of the Atomic Energy Act

expressly declares that the federal

government shall have the sole and ex-

clusive authority to regulate radia-

tion emissions from nuclear power

plants. 447 F.2d at 1147.

Much less does the Atomic Energy Act, or

its legislative history, expressly preempt

any state common law or statutory remedies

for radiation injury. On the contrary,

Congress has generally relied upon state

tort remedies for remedying radiation

injuries, without limitation. The Court

below, while recognizing that Price-

Anderson generally leaves tort liability

for radiation injuries to state law,

infra p. 26, acknowledged:

Nowhere in the Price-Anderson Act or

its legislative history have we found

express mention of punitive damages.

667 F.2d at 922.

In language that was given preemptive

effect in NSP, § 274(k) provides:

Nothing in this section shall be

construed to affect the authority of

any State or local agency to regulate

activities for purposes other than

protection against radiation hazards.

As simply a savings clause, subsection (k)

says nothing express about preemption ex-

cept that it is not intended in areas not

covered by § 274. Moreover, the tort rem-

edies in question here are not "regula-

tions” at all. Regulations impose a gener-

al prior restraint on the conduct of all

affected actors in order to reduce the pos-

sibility of injurious consequences, there-

by necessarily restricting innocent and

harmless conduct in the process. By con-

trast, a punitive damages remedy focusses

only on actual injury caused by a specific

actor through malice and oppression.

3. NOWHERE IN THE ATOMIC ENERGY ACT MAY

BE FOUND AN IMPLIED CONGRESSIONAL INTENT

TO PREEMPT THE HISTORIC POWER OF STATES TO

APPLY ALL THEIR TRADITIONAL TORT REMEDIES

FOR PROTECTION OF THE PUBLIC AGAINST

ACTUAL RADIATION INJURIES.

Federal preemption may be effected by

"implicit legislative design". City of

Philadelphia v. New Jersey, 437 U.S. at

621. But preemption of the Oklahoma tort

remedy for radiation injury 1) impinges

upon the state's historic police power, 2)

affects matters of health protection

which have traditionally been committed to

state power, and also 3) interferes with

the enforcement of common law remedies for

the vindication of actual injury. Preemp-

tion of state power is never "lightly to

be presumed." New York State Department

of Social Services v. Dublino, 413 U.S.

405, 413 (1973). And in these enumerated

areas preemption is not to be implied un-

less Congressional intent to "effect that

result is clearly manifested," or there is

an irreconcilable "repugnance” to federal

law. Reid v. Colorado, 187 U.S. 137,

148 (1902).

A) The Court of Appeals failed to

apply the standard criteria for determin-

ng whether a state law has en impliedly

preempted by Congress.

Four criteria were set out in Northern

States Power Co. v. Minnesota, 447 F.2d

1143, 1146-47 (8th Cir. 1971), aff'd

mem. 405 U.S. 1035 (1972), for determin-

ing when Congress has impliedly intended

to preempt state law. They are 1) the

intent of Congress as shown by statute and

legislative history, 2) the pervasiveness

of the federal regulatory scheme, 3) the

nature of the regulated subject, and 4)

whether state law “stands as an obstacle

to the accomplishment and execution of the

full purposes and objectives of Congress."

There is some question whether these cri-

teria have the same force today as they

did when applied by the Eighth Circuit.

(A summary affirmance has weaker preceden-

tial value, e.g., Mandel v. Bradley,

432 U.S. 173, 176 (1977)). In any event

these criteria were virtually ignored by

the Court below.

(1) intent of Congress as shown in

To the extent Congress expressed any in-

tent concerning the survival of state reme-

dies for radiatiofi injuries, it clearly as-

sumed that traditional state tort remedies

would be freely available to radiation vic-

tims. See Silkwood v. Kerr-McGee

Corp., 485 F. Supp.566, 573-74 (W.D.

Okla. 1979). This Court has never made

any distinction between punitive damages

and other traditional remedies in applying

federal preemption, see cases cited in-

fra at pp. 43-46, and neither did Con-

gress when it enacted the Atomic Energy

Act.

The Court of Appeals opinion first says:

References in the Price-Anderson Act

that state law may determine tort lia-

bility may be read to permit punitive

as well as compensatory damages in

states like Oklahoma which permit

them. 667 F.2d at 922.

But the majority concludes, without citing

any statute or legislative history that,

with respect to “extraordinary nuclear

occurrences” ... the Price-Anderson

Act implicitly assumes that only

compensatory damages will be awarded.

In fact, the Price-Anderson Act scrupu-

lously avoids language that might suggest

only claims for compensatory damages are

covered by its insurance, indemnity and

liability limitation provisions. Rather

the Act uses broad language clearly includ-

ing exemplary damages within its scope,

such as “public liability claims", § 170

(a), 42 U.S.C. § 2210(a) and passim;

"suits for damage” id. (dad), (e), (1);

and “action” id. (h), (nm)(2). Cf. §

170(g) ("compensation"); Teamsters v.

Morton, 337 U.S. 252, 260 and nn. 15, 16

(1964) ("damages by him sustained," "“actu-

al damages"); City of Newport v. Fact Con-

certs, 453 U.S. 247, 264-65 (1981) ("com-

pensation," “indemnify"). Indeed, refer-

ence to “willful damages" in the legisla-

tive history suggests that the prospect of

punitive damages for radiation injuries

was expressly contemplated by Congress.

S. Rep. 2298, 84th Cong., 2d Sess. 8

(1956); “Governmental Immunity,” Hearings

before JCAE, 84th Cong., 2d Sess. 44, 316

(1956) (§$ 169-l(a)(6) of AEC-proposed

legislation mentioning damages from “bad

faith, willful misconduct or gross negli-

gence").

The Court of Appeals next cites in sup-

port of its preemption argument language

from Duke Power Co. v. Carolina Environ-

mental Study Group, 438 U.S. 59, 93

(1978), where the Court had occasion in an

entirely different context to allude to

the fact that Price-Anderson provides a

"mechanism for compensating victims," as

surely it does. But the Court could not

have intended this statement of a truism,

by mere implication, to dispose of such an

important question as whether NRC licenses

may also be constitutionally amenable to

actions for exemplary damages where appro-

priate under state law. The legislative

history of the Price-Anderson Act states

broadly and unqualifiedly that the Act

permits retention of state law with re-

spect to the cause of action and the

measure of damages. H.R. Rep. No.

2043 and S. Rep. No. 1605, 89th Cong.,

2d Sess. 9 (1966).

Finally, the Price-~-Anderson Act, what-

ever it might indicate, lacks materiality

to this case. This case involved no "ex-

traordinary nuclear occurrence” (ENO), the

prerequisite for coverage under Price-

Anderson. See 45 Fed. Reg. 27590 (April

23, 1980). Duke Power, 438 U.S. at 88-

89 n.33, states that before Price-Anderson

persons claiming radiation injuries re-

tained the,

right ... to utilize their existing

common law and state law-remedies to

vindicate any particular harm visited

upon them from whatever sources.

Tort law relating to radiation injuries

not resulting from an "ENO" was left

entirely unaffected by the Price-Anderson

Act ("in the absence of an extraordinary

nuclear occurrence ... traditional

concepts should be allowed to prevail;”

"minor claims ... remain subject to the

traditional rules of tort law.” H.R. Rep.

No. 2043, supra p. 28, at 11).

(2) pervasiveness of the federal

regulatory scheme

The Court of Appeals, presumably allud-

ing to this criterion, observed, without

discussion, that the "nuclear industry ...

is extensively regulated by a federal

agency,” 667 F.2d at 923. Automobiles,

airplanes, drugs and many other products

are extensively regulated by the federal

government yet remain subject to state

punitive damage claims when handled

recklessly or oppressively. As the Court

recently stated:

We reject ... the contention that pre-

emption is to be inferred merely from

the comprehensive character of federal

[legislation]. The subjects of modern

social and regulatory legislation of-

ten by their very nature require intri-

cate and complex responses from the

Congress, but without Congress neces-

sarily intending its enactment as the

exclusive means of meeting the prob-

lem. New York State Department of

Social Services v. Dublino, 413 U.S.

405, 415 (1973)