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

Author:Stephanie Fishman
Position:J.D. Candidate, Washington College of Law 2019
4Sustainable Development Law & Policy
A New NucleAr ThreAT: The TeNTh circuiTs
shockiNg MisiNTerpreTATioN of preeMpTioN
price-ANDersoN AcT
Stephanie Fishman*
Nuclear power will be the key to America’s energy
future. While we still live in the wake of Soviet-era
nuclear stereotypes, the horror of Chernobyl, and face
dilemmas on where to store the waste, nuclear energy is the saf-
est, cleanest, and most reliable source.1 A nuclear energy facility
can produce energy at a ninety-one percent efciency rate, 24/7,
with zero carbon emissions. Additionally, nuclear plants run on
uranium—an element so energy-rich that a single fuel pellet the
size of a ngertip contains as much energy as 17,000 cubic feet
of natural gas, 149 gallons of oil, or one ton of coal—saving
the United States nearly twelve billion dollars a year in energy
costs.2 Thus, the federal government maintains a strong interest
in propping up the nuclear industry, despite the stigmas about
nuclear waste.3
The Rocky Flats Plant is a nuclear weapons production facil-
ity located just sixteen miles from the densely populated city of
Denver.4 Dow Chemical rst operated the plant under a contract
with the federal government, and then Rockwell International
Corporation acquired the contract.5 However, plant operations
halted in 1989 when the Federal Bureau of Investigation (FBI)
raided the facility and unearthed indications of environmental
crimes.6 Plant workers mishandled radioactive waste and the
community theorized that some of the waste had been poured
into the ground, released into the air, and permeated the soil
throughout the area.7 As this news emerged, the plant’s neigh-
bors saw their property values plummet.8 Consequently, in 1990,
the property owners led a class action suit under Colorado state
tort law and the federally mandated Price-Anderson Act (PAA or
“the Act”), alleging that the operators of the nuclear plant neg-
ligently mishandled high-threat radioactive and nuclear materi-
als.9 The dual authority action proceeded in hopes of recovering
for damages caused by releases of plutonium and other hazard-
ous substances.10
The PAA, which was enacted in 1957 to promote the growth
and innovation of nuclear enterprises, currently serves as insur-
ance coverage to nuclear power plants in the event of an incident
or accident.11 The Act is designed to protect the nuclear industry
against liability claims arising from nuclear incidents while
still ensuring compensation coverage for the general public.12
To promote the investment of nuclear energy plants given the
nexus of low liability and likelihood for risk, the Act establishes
a no-fault insurance-type system, in which the rst $12.6 billion
of payout is industry-funded.13
However, after twenty-ve years of litigation, the United
States Court of Appeals for the Tenth Circuit ultimately held
that the plaintiffs in the Rocky Flats case did not meet the cri-
teria to bring their suit under the PAA, and that they had to rely
solely on Colorado state tort law and assert a nuisance claim.14
The court held that plaintiffs alleging injury from “lesser
nuclear occurrences”—that is, injuries failing to meet the
PAA’s threshold of bodily injury or property damage—could
recover damages under state tort law.15 This resulted in more
than $1 billion judgment for a group of plaintiffs whose injury
was characterized as a “lesser nuclear occurrence.”16 The
characterization as a “lesser nuclear occurrence” meant that
the damage at the Rocky Flats Plant did not constitute enough
harm to trigger the PAA compensation scheme; as a nuclear
incident, the plant was personally liable.”17
Despite how dangerous to the industry that gure may
seem, the lasting consequences of the decision could be even
graver. For instance, the Tenth Circuit’s decision provides the
plaintiffs with an option to circumvent the PAA’s entire nuclear
liability regime.18 The decision allows a plaintiff to le a claim,
regardless of the degree of nuclear harm and elevated PAA
criteria, which could result in a judgement against the nuclear
plant and effectively end the energy innovation taking place.19
Citizens injured in some way by a nuclear plant deserve com-
pensation and justice. Yet, in siding with the plaintiffs, the
Tenth Circuit overturned the PAA’s vigilantly crafted equilib-
rium of protecting the public from harm created by radioactive
material, while defying the comprehensive nuclear liability
regime for owners and operators of nuclear facilities.20 This
result creates an incentive for defendants of nuclear tort actions
to allow Price-Anderson judgments against them, which is
likely preferable to the litigation of a state tort claim.21 While
the Tenth Circuit’s misinterpretation of the “nuclear incident”
at Rocky Flats resulted in a damages amount that exceeded the
compensation intentionally allocated for this type of event by
Congress, it also contradicted Ninth Circuit and Fifth Circuit.22
Consequently, the decision will negatively impact innovation
*J.D. Candidate, Washington College of Law 2019
224813_AU_SDLP_Spg-Sum18.indd 4 10/18/18 1:52 PM
Spring/Summer 2018
in an industry critical to essential human services such as
energy, power, and national security.23
The Tenth Circuit’s decision renders nuclear market par-
ticipants susceptible to a new and undened liability. This
uncertainty has a cascade of negative consequences. First, such
uncertainty threatens to destabilize and weaken the value of the
PAA’s compensation system by disrupting the settled expecta-
tions of participants and investors in the nuclear market.24
Second, it discourages added participation and investment in
nuclear energy within the United States.25 Further, it threatens
to make the United States an outlier among countries with com-
mercial nuclear energy programs, many of which are governed
by international nuclear liability conventions predicated on
the principles inherent in the PAA.26 Aside from the political
and industrial consequences stemming from Cook v. Rockwell
International Corp.,27 the decision may ultimately allow the
court to regulate the industry as a means to modify an industry
that is rapidly modernizing, effectively amending the denition
of a “nuclear incident” within the PAA.28
This Article analyzes the preemption concerns raised by the
Tenth Circuit decision in Cook v. Rockwell International Corp.,
and the sweeping outcomes for the nuclear energy industry. Part
II provides background information on the PAA, the federal law
that preempts the Tenth Circuit decision, and compares the pre-
emption doctrine in similar energy contexts.29 Part III analyzes
the extensive impacts that the Tenth Circuit’s preemption misin-
terpretation, and current posture of the law from this decision,
poses for nuclear energy companies, the power industries, and
judicial review.30 Part III also acknowledges that while this was
a bad judgment with negative repercussions for the legal and
nuclear communities, the denition of a “nuclear incident” in the
Atomic Energy Act (AEA) should conform to the related deni-
tion of “nuclear damage” in the Convention on Supplementary
Compensation for Nuclear Damage.31 This will ensure that the
legal framework from the Cook decision has a limited impact
and is better dened going forward.32 Communities should
receive monetary compensation for injuries permeating out of
nuclear plants. Therefore, the PAA should be amended allow-
ing citizens injured from modern nuclear occurrences to merit
compensation under the liability regime specically designated
for that type of injury.
II. Background
A. Overview Of the Price-AndersOn Act (PAA):
incentivizing energy innOvAtiOn
Nuclear power plants and nuclear reactors are often located
within a few hours’ drive of major cities, like Los Angeles
and New York.33 The Three Mile Island plant, for example, is
located near Philadelphia, Pennsylvania with a metropolitan
area radius encompassing over 2 million people.34 Such proxim-
ity raises questions about the safety of the plant and the cost
resulting from a nuclear accident. Congress enacted the PAA in
1957 to provide answers to such questions.35 In 1957, the United
States wanted to promote the development of nuclear energy to
decrease dependence on fossil fuels.36 The country was devel-
oping nuclear weapons, aligning with the International Atomic
Energy Agency (IAEA), and propping up nuclear power plants,
and while nuclear innovation posed a number of safety risks, it
was ordered as the rst economic alternative to coal.37 Nuclear
power plants emit fewer radioactive materials into the environ-
ment than a traditional coal-burning plant.38
Prior to 1957, an obstacle emerged for the development
of cleaner energy. To transition from a government controlled
industry to a privately operated facility conducting innovative
energy development an enormous amount of insurance was
required.39 Insurers were unwilling and unable to provide risk
coverage to this seemingly perilous industry whose major prod-
uct possesses all the features of uninsurability.40 Consequently,
Congress passed the PAA as an amendment to the AEA, ensur-
ing substantial funds are available to compensate the public in
the event of an accident.41
The PAA’s success comes from its twofold subsidy on the
nuclear industry. First, it limits the amount of primary insurance
that nuclear operators must carry––an uncalculated subsidy in
terms of insurance premiums that they do not have to pay.42
This distorts electricity markets by masking nuclear power’s
unique safety and security risks, and grants nuclear power an
unfair and undesirable competitive advantage over other energy
alternatives.43 Second, the PAA caps the liability of operators
in the event of a serious accident or attack, leaving taxpayers
responsible for most of the damages beyond.44
In passing the PAA, Congress capped the amount of liabil-
ity an energy company could face in the event of an accident.
Through this program, the nuclear energy industry maintains
$43.2 billion in liability coverage by the federal government.45
Thus, the PAA creates exclusive liability for nuclear operators
for injury arising from a “nuclear incident,” and supplies a
large pool of funds to ensure prompt and fair compensation for
citizens physically or economically injured.46 In turn, the PAA
upholds the framework for nuclear plant insurance and sets an
upper limit on industry-wide liability.47 The PAA worked well
when insurance funds allocated under the Act disbursed approxi-
mately $71 million in claims and litigation costs related to the
1979 accident at Three Mile Island.48 The Act has proven so suc-
cessful that Congress used it as a model for legislation to protect
the public against potential losses or harm from other hazards.49
This $12.6 billion makes capital investment in the nuclear
energy industry more attractive to investors because their risk is
minimized and xed.50 Thus, the PAA incentivizes investment in
an area of the energy industry whose development and innova-
tion comes with potentially signicant risks.
Consequently, the Act is a double-edged sword for the
public that it purports to protect. While the legislation has a
provision to protect the people, it was primarily intended protect
the industry and bolster investor condence.51 Congress care-
fully crafted the Act to create a federal nuclear liability regime.52
The Act protected nuclear facility owners and operators from
potentially crippling charges arising from state tort actions.53
For example, the Act contains an exclusive liability regime and
224813_AU_SDLP_Spg-Sum18.indd 5 10/18/18 1:53 PM
6Sustainable Development Law & Policy
a comprehensive nancial protection scheme serving the dual
purpose of protecting the public and encouraging nuclear devel-
opment.54 Additionally, Congress drafted the Act to minimize its
interference with state tort law.55 The Act’s legislative history
repeatedly stressed the limited nature of the federal intrusion.56
On the liability front, to facilitate prompt and equitable com-
pensation in the event of a “nuclear incident,” the PAA channels
liability exclusively to the operator, without the need for claim-
ants to prove fault on only part of the operator or other entities
at the facility.57 Another limitation of the PAA is the denition
of “nuclear incident”; the Act denes it broadly as “any occur-
rence . . . within the United States causing . . . bodily injury,
sickness, or death, or loss of or damage to property, arising out
of or resulting from the radioactive, toxic, or other hazardous
properties of source, special nuclear, or byproduct material.”58
The particularity of the words restrict the type of harm the PAA
provides coverage for, and in an era of modern technology and
advanced nuclear research, harm could be in a lesser or different
form and not trigger the Act.
Despite this broad denition of “nuclear incident,” not
every personal injury suit brought against Commission licens-
ees triggers the PAA’s compensation scheme unless it is an
extraordinary nuclear occurrence (“ENO”).59 The accident
causing the harm must be sufciently severe to classify as an
ENO. One example where plaintiff’s claims failed to meet the
ENO criteria was in Silkwood v. Kerr-McGee Corp.60 This
case is signicant to current PAA preemption analysis because
it revolves around coverage for a nuclear occurrence being
within federal jurisdiction.61 The PAA issue in Silkwood was
whether the amendment impliedly preempted punitive dam-
ages awarded in a suit not brought pursuant to the Nuclear
Regulatory Commission’s (“NRC”) ENO provisions.62 The
Court found that Congress prohibited states from regulating
nuclear safety, but did not prohibit judicial recourse for those
injured by illegal conduct.63 Ultimately, the PAA explicitly
draws a roadmap for the procedural nuances associated with
bringing a nuclear claim.
i. Price-Anderson Act Jurisdictional Elements
The Act has two provisions specically conferring jurisdic-
tion to federal trial courts. One provides that, when there has
been a nuclear incident, “any indemnitor or other interested per-
son” may petition the federal district court for a determination as
to whether the liability for the incident may exceed the coverage
mandated by the Act.64 Pursuant to this section, a federal district
court might nd it necessary to supervise distribution from the
indemnity fund.65 The second relevant section of the Price-
Anderson Act provides in pertinent part:
(2) With respect to any public liability action arising out
of or resulting from an extraordinary nuclear occurrence,
the United States district court in the district where the
extraordinary nuclear occurrence takes place . . . shall
have original jurisdiction without regard to the citizen-
ship of any party or the amount in controversy. Upon
motion of the defendant or of the Commission, any such
action pending in any State court or United States district
court shall be removed or transferred to the United States
district court having venue under this sub-section.66
The relationship between the PAA and a state tort claim is
hierarchical. For example, the Supreme Court relied on the PAA
as the primary remedy for addressing state tort claims involving
the nuclear industry.67 Circuits agree that the legislative history
of the PAA indicates that Congress intended that state tort law be
the basis of suits resulting from nuclear accidents, the Act con-
tains provisions that align signicantly with the underlying state
law even in the absence of an ENO declaration.68 By extending
the PAA’s coverage through the 1988 Amendments to the ENO
criteria, Congress expressly granted rights, otherwise unavail-
able under state tort law.69
1. Price-Anderson Act Amendment of 1966 And 1988
Congress has continually extended the timeline of the
PAA’s coverage, and it has made signicant changes to the lan-
guage in the twenty-two years between 1966 and 1988. First, in
1966, Congress amended the PAA, requiring those indemnied
under the Act to waive common law defenses, like contribu-
tory negligence, if an action was raised after an “extraordinary
nuclear occurrence.”70 Congress expressed concern that aspects
of state tort law, like statutes of limitation that were too short to
allow actions following radiation exposure, could frustrate the
PAA’s purpose of compensating victims of nuclear incidents.71
Congress believed this approach reected the methodology
found in the original PAA: “interfering with State law to the
minimum extent necessary.”72 Furthermore, the legislative
history for the 1966 Amendments included that “a claimant
would have exactly the same rights as today under existing law,
including benet of a rule of strict liability if applicable State
law so provides.”73
Following the events of Three Mile Island in 1979,
Congress amended the PAA again in 1988. This second change
granted United States district courts original and removal juris-
diction over “public liability action” which “aris[es] out of or as
result from a nuclear incident.”74 The Act was amended because
the Three Mile Island accident could not be consolidated into
federal court since it did not reach the level of an “extraordi-
nary nuclear incident.”75 Thus, the 1988 Amendments solved
this issue by reducing the “extraordinary” threshold at which
the provisions of the PAA would apply, making the Act less
rigid. Means for action after the implementation of the 1988
Amendments include “legal liability arising out of or resulting
from a nuclear incident,” and no longer the requirement to have
an ENO.76
2. the relAtionshiP Between the Price-Anderson Act
And the convention on suPPlementAry comPensAtion
The PAA proved successful enough within the United
States to inform international regulations on nuclear liability.
The Convention on Supplementary Compensation for Nuclear
Damage (CSC) provides a global nuclear liability and compen-
sation scheme.77 Its regime guarantees timely reimbursement
224813_AU_SDLP_Spg-Sum18.indd 6 10/18/18 1:53 PM
Spring/Summer 2018
when facing particularized injury from international nuclear
energy incidences.78 In addition to maintaining internationally
agreed upon terms and denitions, the CSC features the creation
of an international insurance pool to supplement the amount
of compensation available for nuclear damage resulting from
an incident.79 Mirroring the principles of the United States’
PAA, the CSC functions as an internationally respected liabil-
ity standard for nuclear damage adhered to across the globe.80
Therefore, the denition of “nuclear damage” similarly encom-
passes a broader spectrum of liability for an incident, accident,
or lesser occurrence.81 However, unlike the specic “nuclear
incident” denition included in the PAA, the CSC’s denition of
“nuclear damage” includes economic loss and impairment of the
environment.82 Differences in terminology, such as the example
of “nuclear damage,” make it easier and more mathematically
efcient to receive compensation from a nuclear accident, which
is less nancially devastating to the energy innovation within the
nuclear industry.
The CSC is signicant for having borrowed concepts from
the PAA in its formulation. However, with the advancement
of nuclear technology and the evolution of nuclear incidences
occurring at plants in the United States, the PAA should adopt
the broader denition from the international compensation plan
that it helped create so that plaintiffs are likely to be compen-
sated by a federal fund intended for this type of harm.
B. The Case wiTh The Billion Dollar Pay ouT:
summary of Cook v. RoCkwell InteRnatIonal CoRp.
anD assoCiaTeD ConsequenCes of The DeCision
A childhood in Colorado often consists of many outdoor
activities, such as playing in the mountains and swimming in
the many lakes and streams. Finding out that those streams were
contaminated with weapon-grade plutonium would be devastat-
ing. This is likely the story for anyone living outside of Denver
in the 1970s.
With the increased proliferation of nuclear energy, courts
began seeing litigation against nuclear power plants in the
area of negligent handling of material.83 Most notably, the
claim in Cook v. Rockwell International Corp. stemmed from
the mishandling of radioactive waste at the nuclear weapons
facility located near downtown Denver.84 During the Cold War,
Dow Chemical and Rockwell International Corp. operated the
plant under contracts with the federal government.85 Adjacent
property owners claimed harm began in 1989, when FBI
agents raided the plant and unearthed signs of environmental
crimes.86 Evidence at trial implied that plant workers disposed
of radioactive waste into the ground, where the waste leaked
into bodies of water; and released radioactive particles into
the air, which then migrated onto the soil around the plant.87
Unfortunately, the plant did not have a spotless environmental
legacy prior to 1989 either. For example, the history of the
plant included plutonium res in 1957 and 1969 that wafted
toxic smoke over the Denver metropolitan area88 and leaking
barrels of radioactive waste and other small accidents contami-
nated downstream communities.89 In addition to diminished
health and safety conditions, the contamination caused nearby
residential property values to decline, prompting the property
owners to le a lawsuit against the plant operators under both
the PAA and state nuisance law. 90
In 2006, a federal jury convicted Dow Chemical and
Rockwell International Corporation on charges of negligent
conduct.91 Two years later, a Colorado federal judge ordered
the companies to pay a total of $926 million in damages,
including $549 million in prejudgment interest due to exten-
sive pre-trial delays.92 The Tenth Circuit vacated that decision
in September 2010, siding with the defendants in nding that
plutonium contamination by itself was not adequate cause
to seek damages under the PAA, which led to the plaintiffs’
appeal on state law grounds.93
In 2015, after twenty-ve years of a complicated law suit
involving radiation forensics, nuclear experts, a variety of litiga-
tion tricks,94 and procedural reversals and remands,95 the Tenth
Circuit reversed the holding again in favor of the property own-
ers. The Tenth Circuit held the claim originally brought under
the PAA was invalid, and the case was alternatively a matter
of state tort law.96 The plaintiffs in the case were awarded over
$900 million plus interest, for a total award upwards of $1 bil-
lion.97 Instead of using money from the funding pool designed to
compensate this type of harm, the award came from the nuclear
plant’s pocket..98 The plaintiffs took advantage of this misjudg-
ment by abandoning the mechanisms and benets provided
by the PAA and pursuing the background state law nuisance
claim instead.99 In response, the defendants argued that such an
action was preempted by the PAA, which the court of appeals
ultimately rejected.100 Thus, allowing non-PAA state law claims
for such “lesser occurrences” renders the Act’s limitation on
aggregate liability meaningless.101
C. The PreemPTion DoCTrine anD iTs aPPliCaTion To
The nuClear fielD
When state regulations conict with a federal law, it triggers
Article VI of the U.S. Constitution, which declares: “[t]he laws
of the United States which shall be made in pursuance thereof .
. . shall be the supreme law of the land; and the judges in every
state shall be bound thereby, anything in the Constitution or
laws of any State to the contrary notwithstanding.”102 Thus,
a federal court may require a state to stop certain behavior it
believes interferes or conicts with a federal law.103 This is the
Supremacy Clause, and it gives rise to what is known as the
doctrine of federal preemption.104 However, application of the
preemption doctrine is rarely straightforward.105 In fact, the
preemption doctrine gets extremely complicated and controver-
sial.106 As the Environmental Law Reporter notes, “ascertaining
the presence of such federal-state conicts is largely a matter
of statutory interpretation.”107 When determining whether
Congress chose to expressly preempt state law, courts look to
the plain meaning and explicit statutory command.108 However,
when Congress fails to expressly address either the presence or
scope of preemption within the statute, courts must somehow
accommodate the tension between the competing constitutional
224813_AU_SDLP_Spg-Sum18.indd 7 10/18/18 1:53 PM
8Sustainable Development Law & Policy
procedures.109 Courts attempt this by inquiring into the purposes
of the federal statutory scheme and by delving into the congres-
sional intent behind its enactment.110
This implied preemption presents more complicated ques-
tions for courts. Judges must look beyond the language of the
federal statutes to determine whether Congress has occupied the
eld in which the state is attempting to regulate, or whether the
enforcement of the state law frustrates the federal purpose.111 In
determining whether to infer a congressional design excluding
state regulation, courts rst examine the language and legislative
history of the federal statute.112 Beyond that, they eschew any
rigid formula and look instead to general criteria. For example,
general criteria like the pervasiveness of the federal regulatory
scheme and the need for nationally uniform regulation.113 The
imprecision of these indicia give courts substantial leeway in
determining whether implied preemption should be found in
particular cases.114
The next shift in the development of the preemption doctrine
occurred during the 1940s. Within a six-year period, the Court
decided Hines v. Davidowitz115 and Rice v. Sante Fe Elevator
Corp.116 Although both decisions preserved the congressional
intent requirement for nding preemption, taken together they
greatly expanded the permissible scope of the Court’s inquiry
into legislative intent.117 The Court in Hines held that preemp-
tion was proper where the state law “stands as an obstacle to the
accomplishment and execution of the full purposes and objec-
tives of Congress.”118 Rice went further, holding that preemp-
tive intent could be inferred from such factors as the pervasive
nature of the federal scheme or a dominant federal interest in the
subject area.119
Subsequently, after 2007, there was a tendency for
the Supreme Court to err on the side of broadly interpret-
ing preemption as a means to promote judicial efciency.120
Conforming to the trend, at the Circuit Court level, when
faced with facts involving state regulations of nuclear facili-
ties, federal regulations prevailed every time.121 The Three
Mile Island incident in Pennsylvania, for instance, intensied
national debate over the merits of nuclear power through the
lens of a preemption scope. 122 To gain control over the future
of energy and power plants, several states enacted statutes to
impose restrictions and conditions on the siting of any new
power reactors within their borders.123 “While logical, these
state statutory restrictions ignite a legal dilemma as to which of
the federal laws governing nuclear development preempt state
and local regulatory authority.”124
Several cases illustrate the premise that the federal gov-
ernment sought to reign supreme on nuclear safety issues. For
example, Northern States Power Co. v. Minnesota125 represents
a federal case wrestling with the preemptive effect of nuclear
provisions of the AEA, where the Eighth Circuit found the state
incapable to impose radiation standards more restrictive than
criteria dened by the Atomic Energy Commission.126 The pre-
emption analysis in Northern States was more straightforward
in comparison to preemption analysis of the nuclear regulations
on the West Coast. In Pacic Legal Foundation v. State Energy
Resources Conservation & Development Commission,127 the
California Warren-Alquist Act required conditions for nuclear
plant certication was more than an attempt to minimize radia-
tion hazards.128 Therefore, the court scrutinized the extent of fed-
eral preemption of state ability to control nuclear development
beyond reducing radiation risks.129 Thus, whether courts apply
a broad and expansive preemption breakdown regarding states’
nuclear regulations, as in Northern States, or a direct language
argument for preemption as in Pacic Legal Foundations, the
rulings bode potentially unwell for enacted state laws attempt-
ing to regulate future nuclear energy development.130 The AEA
preempts laws regulation radiation hazards.
In an attempt to clarify the regulatory power of federal
and state authorities over nuclear development, Congress
added § 274 to the AEA in 1959.131 This amendment detailed
the procedure by which the AEA could transfer its regulatory
authority over certain types of nuclear material to the states.132
The PAA prohibited the Commission, however, from ceding its
authority over especially hazardous activities and materials.133
Additionally, Section (k) of the 1959 amendment expressly pre-
served all state or local regulatory activities designed “for pur-
poses other than protection against radiation hazards.”134 Thus,
the expressions of congressional intent within the legislative his-
tory of the 1959 amendment demonstrated that Congress likely
wished to preempt state law to some degree.135 Building on this
explicit preemption, in 1988 when Congress enacted the PAA
amendments, it transformed the “Price-Anderson landscape,”
and resolved the tension between exclusive federal regulation of
nuclear safety and state law compensation for injuries.136
III. AnAlysIs
To preempt state law causes of action and clarify liability
under the PAA, Congress should amend the PAA by utilizing
the negative impacts from Cook. Individuals should be liable for
lesser “nuclear occurrences” because it will ensure damages are
paid from the fund and protect the longevity of nuclear innovation.
The Tenth Circuit’s misinterpretation of preemption prin-
ciples calls for an amendment to the PAA that stimulates nuclear
innovation while still heavily compensating the general public.
The Cook case gave the Tenth Circuit an opportunity to paint the
modern preemption stroke on an industry in desperate need of
modernization. It also gave the Tenth Circuit a chance to clarify
preemption concerns and afrm the rationale surfacing out of
its fellow Circuits. The United States’ nuclear programs are
essential to empowering the country.137 In contrast to the less
reliable wind and solar energy options, nuclear energy provides
the United States with a consistent and steady power source.138
Despite the advantages to nuclear innovation, hazardous events
contributed to public fear of the industry.139 However, the acci-
dent at Three Mile Island that created skepticism of nuclear
energy was two generations ago.140 Since then, engineers have
developed designs to avoid such failures.141 Further, the Three
Mile Island incident expressly met the criteria outlined in the
PAA for liability coverage.142 With the advancement of nuclear
technology and measures taken to insulate themselves from
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liability within the industry, Congress and the regulators are at a
crossroads with the PAA and the terms and technical denitions
from the 1950’s that it encompasses.143 Based on the conning
procedural criteria of the PAA, and the way a plaintiff may only
raise a PAA claim if the technical benchmarks are satised, the
Tenth Circuit in Cook v. Rockwell Int’l Corp. misinterpreted
preemption principles. Yet, in examining the consequences
of the Tenth Circuit’s rationale in Cook, it is rst essential to
examine preemption concerns to understand how the Tenth
Circuit established the holding that directly contradicts that of
other Circuits––reconciling bad facts and creating consequential
law. After examining the signicant impacts and whether the
decision was preempted, it is clear the decision precipitates an
essential amendment to the PAA that will in turn protect nuclear
plants from having to pay billions in damages for mere occur-
rences, and further protect nuclear innovation.
A. The TenTh CirCuiT DeCision in Cook is
signifiCAnT for ConfliCTing wiTh JuDiCiAl
PreCeDenT, CongressionAl inTenT, AnD for oPening
The liTigATion flooDgATes
The Cook decision is signicant because it contradicts other
Circuits, unravels congressional intent regarding the federal law,
and widens the judicial door by creating the option to circum-
vent the PAA with a nuclear liability claim. The nuclear industry
invested in innovation by trusting the PAA’s nuclear liability
regime.144 The Tenth Circuit’s decision jeopardizes the industry
by creating new risks, in addition to the dangers associated with
the activity on its face.145 For example, there is a real probability
that nuclear owners and operators, and thus, government enti-
ties, could be burdened with signicant judgments—perhaps
upwards of billions of dollars—in favor of plaintiffs who may
not have suffered harm that Congress deemed signicant enough
to warrant compensation under the PAA.146 If courts rely on
Cook in cases of alleged harmful occurrences compliance with
the federal safety standards would not provide any protection.147
Cities could be subject to millions of dollars in damages, as
assessed by a lay jury, even though the hazard may constitute an
undetectable amount, like in the Three Mile Island accident.148
While the creation of new risks could be extensive, they are still
hypothetical. Concrete application of the decision’s signicance
begins with its lack of precedent.
1. Cook RepResents an UnpReCedented deCision
The Cook court’s decision represents a split with the Fifth
Circuit and is at odds with the reasoning of other Circuits to hear
a similar matter.149 For instance, the Tenth Circuit completely
disagreed with the holding of Cotroneo, and instead found sup-
port in the reasoning of the dissent in Cotroneo.150 The Tenth
Circuit departed from other Circuit decisions when choosing
between a suit under PAA or under state tort law. There have
been numerous nuclear liability claims triggered by narrowly
tailored state statutes within the other Circuit.151 Consistently,
the court has held that a plaintiff who asserted a PAA claim could
not pursue a freestanding state-law claim outside the PAA based
on the same alleged facts.152 Similarly, the Ninth Circuit153 has
relied on the language of the PAA taking precedence over state
law in cases that closely paralleled the facts of Cook. The Ninth
Circuit consistently held that “[t]he PAA is the exclusive means
of compensating victims for any and all claims arising out of
nuclear incidents.”154
In departing from other Circuits, the Tenth Circuit’s deci-
sion will create uncertainty in the application of the PAA.
Application ambiguity will particularly impact a number
of nuclear industry players that are located within the Tenth
Circuit, including Department of Energy’s (“DOE”) Waste
Isolation Pilot Plant facility (the nation’s only disposal facility
for high-level nuclear waste), the Sandia National Laboratory,
and the Los Alamos National Laboratory, all of which are
important national security facilities.155 Simply by virtue of
their physical location, facilities in the Tenth Circuit now face
uncertainty about their potential liability exposure even if a
nuclear incident never occurs. In addition to being an unprec-
edented decision and contradicting other Circuits on analogous
cases, the Cook decision questions Congress’s intent in deter-
mining what scenarios merit coverage.
2. the Cook deCision UnRavels CongRessional intent
In Cook, the Tenth Circuit substituted its views for the judg-
ment of Congress. The PAA is an example of a legislative eco-
nomic scheme, in which Congress has sought “to structure and
accommodate the burdens and benets of economic life.”156 It is
clear that Congress intended the PAA to provide a safety net of
private insurance for government indemnication and claims of
“public liability” which arise from a “nuclear incident.”157 This is
clear in part because Congress’s amendment to the PAA in 1988
includes all nuclear incidents with federal jurisdiction and pro-
hibits punitive awards in certain circumstances.158 Additionally,
the PAA does not allow recovery for claims such as psychiatric
damages or emotional distress not connected to physical bodily
injury.159 Moreover, as the Tenth Circuit explained in another
context, “the inclusion of certain remedies and the exclusion of
others under the federal scheme would be completely under-
mined” if plaintiffs remained “free to obtain remedies under
state law that Congress rejected.”160 The same principle holds
here: Congress specically delineated the claims that plaintiffs
may bring related to nuclear harm under the PAA.161 Permitting
plaintiffs to make an overt end-run around the federal nuclear
liability system to bring alternative claims under state law would
undermine the entire federal scheme.
Then-Judge Gorsuch, in writing the Cook opinion, discussed
Congress’s intent in drafting the PAA.162 While he justied his
narrow interpretation of intent by only looking at particular areas
of the language, he neglected the bigger industry motivation
that Congress preserved, as shown in the many amendments to
extend the PAA.163 In substituting the court of appeals opinion
for the intent of Congress, Judge Gorsuch leverages an angle
to the preemption analysis for strengthening his rationale.164
Nevertheless, he missed the mark in analyzing the preemption
doctrine, which determined the outcome of his decision.165 The
224813_AU_SDLP_Spg-Sum18.indd 9 10/18/18 1:53 PM
10 Sustainable Development Law & Policy
Tenth Circuit claimed that the Supreme Court disfavors preemp-
tion, and that the text of the PAA “merely affords a federal forum
when a nuclear incident is ‘assert[ed]’.”166 However, “[n]othing
in this language speaks to what happens when a nuclear incident
is alleged but unproven.”167 In addition to explicitly contradict-
ing the intent of Congress and misinterpreting preemption prin-
ciples, Cook also could widen the litigation gate and lower the
threshold for bringing a nuclear liability claim to court. Notably,
in deciding that the PAA is not a complete preemption statute,
the opinion omitted any discussion of several cases that the
defendants relied on in support of their preemption argument.168
The statutory terminology and nuclear labeling in the PAA
contributed to the preemption misinterpretation.169 In its hold-
ing, the Tenth Circuit designated alleged but unproven “nuclear
incidents” as “lesser nuclear occurrences” and stated, “it’s
hard to conjure a reason why Congress would allow plaintiffs
to recover for a full panoply of injuries in the event of a large
nuclear incident but insist they get nothing for a lesser nuclear
occurrence.”170 Likewise, the PAA does not independently
dene “occurrences,” “nuclear occurrences,” or “lesser nuclear
occurrences.”171 There is historical uctuation on broadening
and narrowing technical terms in order to establish preemption
interpretations. In acknowledging historical preemption con-
cerns presented in nuclear driven cases, the standards articulated
by Hines and Rice, for example, were so broadly phrased that
congressional intent to preempt could be found in any area of
comprehensive federal legislation.172
3. Cook opens Court Doors to CirCumvent pAA
Should future courts confronting a state law face-off with
the PAA choose to follow the reasoning of Cook, many state
laws aimed at limiting or conditioning nuclear growth will pre-
vail in federal court.173 After Cook, anyone can sue a nuclear
power plant without needing to satisfy the nuclear incident
requirements outlined by the PAA. If plaintiffs prove they suf-
fered from a “nuclear incident,” they are entitled to relief under
the PAA, subject to certain limitations provisions built in “to
ensure that liabilities arising from large nuclear incidents don’t
shutter the nuclear industry . . . .”174 However, if the plaintiffs
cannot prove a “nuclear incident” under the PAA, but can prove
some sort of “lesser occurrence” or “lesser state law nuisance,”
they may proceed on their state law claims.175 Thus, plaintiffs
can circumvent coverage fanned out by the PAA. There is now
the likelihood that owners and operators could be individually
charged with signicant judgments without a cap—potentially
in the billions of dollars—in favor of litigants who may not
have suffered harms that Congress deemed signicant enough to
warrant compensation under the PAA.176 Even if plaintiffs were
unsuccessful, without the framework of the PAA, such cases
may sit in court for years in protracted, complex, and expensive
litigation.177 It is clear that the authority under state tort law
could lead to a better pay out.178 In examining the signicant
impacts Cook may have on judicial efciency and the industry,
the consequences should stimulate an amendment to the deni-
tion of a “nuclear incident.”179
B. The PAA Should hAve PreemPTed STATe TorT
lAw in The TenTh CirCuiT
The Tenth Circuit’s decision conicts with every other
Circuit that has considered the preemptive nature of the PAA.180
The question for the court hinged on the determination of
whether the challenged state law is one that the federal law was
intended to preempt.
In looking beyond the express language of federal statutes
to determine whether Congress has occupied the eld in which
the state is attempting to regulate, whether a state law directly
conicts with federal law, or whether enforcement of the state
law might frustrate federal purposes, the Tenth Circuit misstated
this analysis. If the court looked to the pervasiveness of the
regulating federal scheme, the federal interest at stake with the
PAA, and the danger of frustrating federal goals in determining
whether a challenged state law can stand, the majority would
arrive at a different holding.
The PAA’s liability scheme mirrors the preemption doctrine,
under which “the preemptive force of a statute is so extraordi-
nary” that normal state law claims are converted into federal
claims for efcient and equitable resolutions.181 As the Court
acknowledged in El Paso Natural Gas Co. v. Neztsosie, the PAA
is analogous in its preemptive force to another federal legisla-
tive system under the Employee Retirement Income Security
Act of 1974 (“ERISA”) and the Labor Management Relations
Act.182 Moreover, the Tenth Circuit should have applied the
analysis from Neztsosie to their decision in Cook.183 The Court
in Neztsosie observed that the 1988 Amendments provide “clear
indications of the congressional aims of speed and efciency” in
the resolution of claims.184 Federal legislative systems that create
exclusive federal causes of action, such as ERISA and the PAA,
are more appropriately analogues than the Class Action Fairness
Act, which the Tenth Circuit cited by analogy in Cook.185
Congress intended for the federal government to regulate
the safety aspects of the construction and operation of energy
facilities and power plants.186 This rationale is consistent
with Sixth and Seventh Circuit holdings and their assessment
of intent. Those Circuits found that Congress did not wish to
create a stand-alone federal tort for a public liability action.187
The analysis provided that the substantive rules for decision in
such action shall be derived from state law, which, despite its
prior preemption concern, might encompass substantive issues
like the requisite duty of care and the burden of proof for cau-
sation.188 Therefore, the vision was for state law to augment the
federal regime substantively, not circumvent it.
1. the supreme Courts role in the tenth CirCuits
preemption AnAlysis
The Tenth Circuit’s reliance on Silkwood v. Kerr-McGee189
is incorrect. After examining both the preemption doctrine
generally and its application in the nuclear eld specically, the
opinion in Silkwood maintains distinguishable authority over
the Cook decision.190 In Silkwood, the Court, voting 5-4, found
that federal law did not impliedly preempt a $10 million dol-
lar punitive damages award against a nuclear power plant for
224813_AU_SDLP_Spg-Sum18.indd 10 10/18/18 1:53 PM
Spring/Summer 2018
negligently allowing employee, Silkwood, to be contaminated
with plutonium.191 While Silkwood held that Congress had no
intention, when it amended the AEA of 1954, of forbidding the
States to provide remedies for injuries from radiation. Congress
did wish to protect the nuclear industry from frivolous claims
that lacked scientic backing.192 Additionally, Silkwood was
decided in 1984, four years before the 1988 Amendments to the
PAA, which established the liability action as the new and sole
federal cause of action.193 Thus, the Tenth Circuit needed to dis-
tinguish Cook from Silkwood since Cook possessed the elements
for complete preemption.
The Supreme Court made clear that federal law completely
occupies the eld of nuclear safety and preempts state action in
this area. Therefore, courts believed that federal law similarly
dictates the duty a defendant owes to a plaintiff in a public
liability action.194 Regarding radiation injuries in Silkwood,
preemption should not be based on grounds “that the Federal
Government has so completely occupied the eld of safety” that
state remedies are precluded.195 Instead the Court must deter-
mine if “there is an irreconcilable conict between the federal
and state standards,” or if the imposition of state standards
for damages interferes with the purpose of the federal law.196
However, it is unclear if there is a difference between occupying
the eld and conicting between standards in this context. Thus,
any liability action with signicant federal ingredients satisfying
preemption is consistent with the facts alleged to have occurred
in Cook at the Rocky Flats Plant.
Despite the Supreme Court giving wide latitude to the states
to regulate nuclear power within their borders and the signi-
cance of Silkwood, the Cook decision establishes new parameters
governing preemption in the energy eld.197 For example, the
Tenth Circuit erred when it downplayed its preemption analysis
just because the defendants failed to invoke implied preemption
doctrine and appeared to disclaim reliance on it.198 The Tenth
Circuit also relied on the fact that because both companies
deected on conict preemption principles by not addressing
them, and the possibility of using preemption as an afrmative
defense, that the defendants forfeited any application of pre-
emption.199 Regardless, just because the defendants appeared to
relinquish the argument of preemption as an afrmative defense,
should not mean that preemption did not exist in this case.200
Unlike in Silkwood, state standards interfere with the purpose of
the PAA in Cook.201 Therefore, the Tenth Circuit’s omission of a
federal preemption argument is strongest when it hinges on the
fact that the plaintiffs failed to meet the PAA criteria of being a
nuclear incident.202 However, the Tenth Circuit did not rely on
this as their justication.203
Even in circumstances outside of the nuclear incident arena,
if any state regulation or law conicts with a nationalized policy
it may be preempted. In American Insurance Association v.
Garamendi,204 the Supreme Court considered the constitution-
ality of a California law designed to help California Holocaust
survivors collect on unpaid insurance claims from German
insurance companies.205 Despite the absence of any clear state-
ment preempting state laws such as California’s, the Court found
that the state law conicted with national policy and “st[ood] in
the way of federal, diplomatic objectives.”206
Additionally, the Tenth Circuit leveraged plain meaning to
omit preemption considerations in Cook. The narrowly tailored
denition of a “nuclear incident” contributed to Judge Gorsuch’s
misinterpretation of preemption. As discussed above, the scope
of compensable claims under the PAA is circumscribed by the
Act’s denition of “nuclear incident” – i.e., “any occurrence .
. . causing . . . bodily injury, sickness, death, or loss of or dam-
age to property arising out of or resulting from the radioactive,
toxic, or other hazardous properties of nuclear material.”207
As a matter of law and until the Cook case, the denition of
“nuclear incident” established the threshold for asserting a com-
pensable injury from a release of radiation.208 A plaintiff who
cannot demonstrate bodily injury or property damage as dened
by the PAA cannot meet the prerequisites for a liability action,
and thus cannot maintain any action for a radiation-related
claim.209 Therefore, when the claim in Cook satised what the
Tenth Circuit deemed as a “lesser nuclear occurrence,” the court
argued that plaintiffs failed to meet the PAA criteria, and thus,
eliminated a preemption argument.210 The ambiguity in the
denition of the term “lesser nuclear occurrence” is a critical
problem emerging from the Cook decision. Given the evolving
nature of the nuclear industry, the denition permitting coverage
under the PAA is too narrow and has contributed to the removal
of the PAA authority and the unprecedented damage award.211
Moving forward, courts should consider the denition of a
nuclear incident more broadly when looking to apply PAA funds
for liability coverage.
The Tenth Circuit should have never been able to justify
reliance on state law for this matter. Radiation exposure and
improper handling of nuclear waste has the same consequence in
Colorado as in Florida or New York. The Tenth Circuit’s actions
illustrate one of the reasons for federal preemption: the issue
is too complex to place in the hands of applying varied state
law causes of action.212 Whether or not courts could use state
law causes of action and their own standard of care to regulate
nuclear safety through huge monetary awards was the underly-
ing policy issue addressed by the Supreme Court in Silkwood.
That was the “tension” the majority opinion found Congress
allowed when it did not create a federal cause of action in
the statute. The Cook verdict is exactly the evil feared by the
Silkwood dissenters.213 While the Supreme Court’s analysis of
preemption questions in Silkwood demonstrates a willingness to
allow greater state regulation of the nuclear energy industry than
that which had previously been permissible under the Northern
States decision, there is a shift at the Circuit level to take back
the federal rule when a nuclear incident is involved. As a result,
Cook obscured both the basis for its own particular outcome, as
well as the factors weighed by the Court in deciding preemption
cases in the nuclear eld in general.
224813_AU_SDLP_Spg-Sum18.indd 11 10/18/18 1:53 PM
12 Sustainable Development Law & Policy
C. DestruCtive ConsequenCes for the nuClear
inDustry anD JuDiCial effiCienCy
For the past several decades, a hiatus on building new
nuclear-power plants stymied the nuclear industry.214 The rea-
sons for the halt in construction have included public outrage
over the Three Mile Island meltdown, increasing regulation,
and plant operators’ need to insure against a multitude of
risks.215 Nuclear energy companies invested in this industry in
reliance of the PAA’s thorough liability regime.216 The Tenth
Circuit’s opinion enables communities and people to circum-
vent the PAA, with its punitive cap, and bring a claim under
state tort law, which could be fatal to the industry. Companies
already heavily invested in the nuclear market can do little
to mitigate this new risk. And companies not yet invested in
the United States nuclear market will be discouraged to par-
ticipate, invest, or further expand—a result precisely contrary
to congressional and executive branch policy and intent.217
Additionally, the Tenth Circuit’s decision threatens to destabi-
lize the global market for nuclear energy, which is an important
component of the United States’ energy mix, particularly in
light of climate change concerns. Not only does the decision
put pressure on further investment in American nuclear facili-
ties, it also runs counter to internationally accepted nuclear
liability standards.218 Companies are unwilling to participate
in the nuclear market in countries where operator liability and
minimum claim requirements do not exist.219 For example,
India has not followed the international nuclear liability regu-
lations because its nuclear liability law provides, among other
things, that operators may have a right of recourse against sup-
pliers for nuclear damages.220
The lack of liability regulation conicts with the inter-
national norm of channeling all nuclear responsibility to the
operator. And not surprisingly, the potential for nuclear sup-
plier liability in India has had the effect of discouraging many
nuclear suppliers from engaging in the Indian nuclear market,
inhibiting that market’s growth.221 Consequently, the Tenth
Circuit’s decision to permit certain state tort claims for “lesser
nuclear occurrences” could well introduce a similar market-
dampening effect into the United States that India experi-
enced.222 It unleashes potentially signicant and uncertain
liability from the constraints of the federal statute designed
to curb it, discouraging domestic and foreign actors from
participating in the market. In the process, the United States
“could lose considerable inuence over standards governing
safety and waste management” and even a seat at the nuclear
nonproliferation discussion table.223 The world may be unwill-
ing to move toward potentially safer designs. In addition to
steering the private sector away from nuclear investment, the
Cook decision widens the judicial door for more litigation.224
Because of this newly created framework, the size of the ver-
dict, and future interpretations of the PAA’s preemptive effect
(or lack thereof), legal analysis moving forward should distin-
guish Cook, and look to redene the criteria of the PAA in line
with international compensation conventions.
D. silver lining: JuDiCial Catastrophe stimulates
paa amenDment
The Cook decision represents a signicant departure from
existing case law, which holds that allegations even potentially
falling under the PAA preempted all state law claims based on
harm allegedly caused by exposure to or contamination from
radioactive materials.225 One positive aspect is that while the
Tenth Circuit decision in Cook is preempted by federal law and
generates grave consequences for the nuclear energy industry, it
may ultimately stimulate an additional amendment to the PAA,
as a means to regulate coverage of an industry that is rapidly
modernizing. An amendment to the technical denitions and
criteria within the PAA could ensure that a decision like Cook
does not occur in the future. In amending the PAA,226 Congress
was well aware that the PAA compensation system must operate
as a consistent part of a larger federal framework governing the
safe use of nuclear energy.227 Congress knew that “[n]umerous
federal questions would necessarily arise in the course of litiga-
tion under this Act, and questions must be resolved consistently
with the pervasive federal scheme.”228
The denition of a “nuclear incident,” as originally pro-
mulgated in the AEA, needs to be updated to conform to the
related denition of “nuclear damage” in the Convention on
Supplementary Compensation (CSC).229 That way, when there
is a nuclear incident at a plant, a community may receive federal
funds for the harm because the federal liability will cover even
a nuclear occurrence, which is less than an incident. Further,
Congress should adopt the report language clarifying that a
“nuclear incident” under the framework of the PAA covers any
release of radioactivity in excess of regulatory limits. Adopting
a federal incident standard as the liability action standard of
care harmonizes federal preemption with precedent. Ultimately,
Congress should amend the PAA to completely preempt state
law causes of action, but also to clarify that public liability under
the PAA should apply to lesser “nuclear occurrences.” Such an
amendment would close the loophole illustrated in Cook and
help the PAA better achieve its goals.230 Adhering to the tech-
nical criteria of the CSC will strengthen United States nuclear
safety credibility domestically and internationally.
The defendant’s duty is to comply with the federal incident
denition standards through which the complete federal preemp-
tion of nuclear safety is effectuated.231 If the dening language
and compensable criteria modies in parallel fashion with the
industry’s innovation, Congress’s scheme to provide coverage to
the nuclear community will remain intact.
Given the denial of certiorari, the Tenth Circuit decision
expands the scope of liability for nuclear power defendants in
PAA cases, where the criteria for PAA coverage is not met, and
allows plaintiffs to prevail under state tort law. However, the
Tenth Circuit should have found plaintiff’s claims preempted by
federal law for occupying the eld of safety compensation and
frustrating the federal purpose. And while the decision fosters an
array of negative impacts to the nuclear industry, it precipitates
224813_AU_SDLP_Spg-Sum18.indd 12 10/18/18 1:53 PM
Spring/Summer 2018
1 See generally David Brown, Nuclear Power is Safest Way to Make
Electricity, According to Study, Wash. Post (Apr. 2, 2011), https://www.
abb40f207826 (explaining that nuclear power is safer and more reliable than
other forms of energy production and the danger of catastrophe is overstated).
Nuclear in the Energy Mix, nuclEar EnErgy Inst., https://www.nei.org/
fundamentals/nuclear-in-the-energy-mix (last visited Apr. 6, 2018).
See also U.S. Nuclear Power Policy, World nuclEar assn (Feb. 2018),
z/usa-nuclear-power-policy.aspx (outlining how the United States government
has supported nuclear energy since the late 1990s).
See John Aguilar, Payouts to Property Owners in Long-Running Rocky
Flats Suit Should Start in 2017, dEnvEr Post (Aug. 8, 2016, 6:00 PM), http://
www.denverpost.com/2016/08/08/rocky-ats-payout-property-owners/ (noting
the site occupies 6,500 acres of land).
Dow Chemical-Rockwell’s Plutonium Nuisance &
Price-Anderson Flats, MInIng aWarEnEss (June 24, 2015),
Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1131 (10th Cir. 2010).
See John McGahren, Implications of Cook v. Rockwell: Tenth Circuit Finds
Price-Anderson Act Does Not Preempt Nuisance Claim, KEy dEvEloPMEnts
In EnvIronMEntal laW 81, 81-82 (Stanley D. Berger ed., 2015), available at
chapter/chapter-6-key-developments-environmental-law-2015.ashx (explaining
that evidence of pollution came out during litigation).
Cook, 618 F.3d at 1133.
Cook v. Rockwell Int’l Corp., 151 F.R.D. 378, 380 (D. Colo. 1993).
10 See id. at 382 (evidencing that the plaintiffs specied plutonium and vola-
tile organic compounds in their lawsuit).
11 u.s. dEPt of EnErgy, rEPort to congrEss on thE PrIcE-andErson act 1
(1999), https://energy.gov/sites/prod/les/gcprod/documents/paa-rep.pdf [here-
inafter u.s. dEPt of EnErgy rEPort].
See generally Duke Power Co. v. Carolina Envtl. Study Grp., 438 U.S. 59,
64-69 (1978) (nding that the Act survived a constitutional challenge in the
Supreme Court).
Cook v. Rockwell Int’l Corp., 790 F.3d 1088, 1090-91 (10th Cir. 2015).
Id. at 1096.
16 See McGahren, supra note 7 at 82-83 (explaining the judicial process that
led to this decision).
See infra Part III.A.3 (analyzing the potential impact of the Tenth Circuit’s
decision in Cook).
See infra notes 217–227 and accompanying text (explaining the nega-
tive effect lesser claims have on nuclear energy investment, innovation and
See Petition for Writ of Certiorari at 2-3, Dow Chem. Co. v. Cook, 790
F.3d 1088 (10th Cir. 2015) (No. 15-791).
See infra notes 215-216 and accompanying text (highlighting why nuclear
plant defendants will be incentivized to submit to PAA judgements).
See infra Part III.A.1 (discussing the Tenth Circuit’s departure from the
reasoning of other circuits).
Mark Zepezauer, “Take the Rich Off Welfare,” AZ: Odonian Press, (1996),
p. 86 (looking at how the damage at Chernobyl cost the Former Soviet Union
$358 billion in liability). u.s. nuclEar rEg. coMMn, BacKgroundEr on
nuclEar InsurancE and dIsastEr rElIEf (Jan. 2018), https://www.nrc.gov/docs/
ML0327/ML032730606.pdf [hereinafter nuclEar InsurancE and dIsastEr
See Petition for Writ of Certiorari at 5, Dow Chem. Co., 790 F.3d at 1088
(No. 15-791).
Liability for Nuclear Damage, World nuclEar assn, http://www.world-
for-nuclear-damage.aspx (last visited Apr. 6, 2018).
See Mark King, Federal Preemption of the State Regulation of Nuclear
Power: State Law Strikes Back – Silkwood v. Kerr-McGee Corporation, 60
chI.-KEnt l. rEv. 989, 995 (1984).
790 F.3d 1088, 1090 (10th Cir. 2015).
See discussion infra Part III.A.2 (analyzing how the Tenth Circuit’s holding
departed from Congressional intent).
29 See infra Part II (providing background on the PAA); see also 42 U.S.C.
§ 2210(n) (2012) (mandating the normally available defenses be waived); §
2210(s) (describing the limits of punitive damages in an action arising out of
an extraordinary nuclear occurrence (ENO) mandate); Cook, 790 F.3d at 1095
(holding that the defendants waived preemption as an afrmative defense and
that this sufced as justication to disregard preemption).
See infra Part III.A (analyzing the Tenth Circuit’s decision in Cook).
31 See infra Part III.D (acknowledging the potential for a future PAA
amendment); see also International Atomic Energy Agency, Convention on
Supplementary Compensation for Nuclear Damage, July 22, 1998, I.A.E.A.
INFCIRC/567 (containing internationally accepted denitions to technical
nuclear terms in the Annex and establishing that the Annex to the Convention
reects key principles that nuclear liability laws should contain).
Part III also asserts that Congress should adopt the report language clarify-
ing that a nuclear incident, under the PAA, covers any release of radioactivity in
excess of regulatory limits, and those are the only ones compensable since the
Nuclear Regulatory Commission remains in the drafting phase of a new report
to Congress on the proposed extension to the PAA. See infra Part III.D.
See generally Bill Dedman, Nuclear Neighbors: Population Rises Near US
Reactors, nBc nEWs (Apr. 14, 2011, 7:00 PM ET), http://www.nbcnews.com/
tors/#.WYnqcNPytTY (providing an interactive map of where active nuclear
plants sit in relation to where a person lives); Joseph Stromberg, Do You Live
Within 50 Miles of a Nuclear Power Plant?, sMIthsonIan.coM (Mar. 13, 2014),
nuclear-power-plant-180950072/ (providing an interactive map of where active
nuclear plants sit in relation to where a person lives).
See Stromberg, supra note 32.
See generally Arnold W. Reitze, Jr. & Deborah J. Rowe, The Price-Ander-
son Act—Limited Liability for the Nuclear Industry, 17 E.l.r. 10,185, 10,186
(1987) (explaining that the legislative intent of PAA to address issues of safety
for citizens living near nuclear power plants); 42 U.S.C. § 2210-14 (2012).
u.s. dEPt of EnErgy, thE hIstory of nuclEar EnErgy, https://energy.
gov/sites/prod/les/The%20History%20of%20Nuclear%20Energy_0.pdf (last
visited Mar. 28, 2018) (discussing nuclear energy as both an affordable and a
non-fossil fuel source).
See id. (predicting that the nuclear industry would not continue to grow any
bigger due to public sentiment and economics).
Compare What Are Nuclear Wastes and How Are They Managed?, World
nuclEar assn, http://www.world-nuclear.org/nuclear-basics/what-are-nuclear-
wastes.aspx (last visited Mar. 19, 2018) (providing information about the
impact of nuclear wastes) with Natural Radiation in Wastes From Coal-Fired
Power Plants, u.s. EPa, https://www3.epa.gov/radtown/coal-red-power-
plants.html (last visited Mar. 19, 2018) (providing information about the impact
of coal wastes).
See nuclEar InsurancE and dIsastEr rElIEf, supra note 22.
40 See generally 42 U.S.C. § 2210 (2012) (outlining the indemnication and
limitation of liability).
41 See S. Rep. No. 100-70, at 122 (1988) (striking a balance of providing
compensation to injured citizens while also maintaining funds sufcient to
sustain and develop the industry).
the need to address the technical denitions and criteria of the
Price-Anderson Act. Upon amending the denition of a “nuclear
incident,” pursuant to the language in the Convention of
Supplementing Compensation, the PAA will resume the all-
encompassing role that Congress intended and prevent future
judicial reliance on Cook.
continued on page 38
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