1 Hofstra Envtl. L. Dig. 1 (1984)

handle is hein.journals/hofe1 and id is 1 raw text is: HOFSTRA UNIVERSITY
SCHOOL OF LAW
ENVIRONMENTAL LAW DIGEST
COMPILATION OF RECENT ENVIRONMENTAL
CASES - PREPARED BY THE
ENVIRONMENTAL LAW SOCIETY OF
HOFSTRA UNIVERSITY SCHOOL OF LAW.
Hempstead, New York 11550
copyright 1984                                     Volume 1, Spring 1984

ENERGY
Silkwood v. Kerr-McGee, 104 S. Ct. 615 (Jan. 11, 1984)
The estate of Karen Silkwood brought a diversity action in
Federal District Court in Oklahoma to recover for contamina-
tion injuries sustained while Silkwood was a laboratory analyst
at Kerr-McGee, a federally licensed  manufacturer of
plutonium fuel pins. In addition to awarding actual damages,
the District Court awarded $10 million in punitive damages as
authorized by Oklahoma tort law. 485 F. Supp. 566 (W.D.
Okla. 1979). The award of punitive damages was based on the
jury's finding that plutonium found in Silkwood's apartment
was caused by Kerr-McGee's grossly negligent, reckless, and
willful conduct in allowing it to escape from the plant. The
parties stipulated that urine samples brought to the plant by
Silkwood for analysis had been spiked with plutonium that is
not naturally excreted; however, both parties were unsuc-
cessful in their assertions that the other had intentionally con-
taminated the samples. There was no factual finding as to how
'Silkwood, her apartment, or her urine samples had been con-
taminated.
The United States Court of Appeals for the Tenth Circuit
reversed as to the punitive damages awqrd on the ground that
such damages were preempted by federal law. 667 F.2d 908
(10th Cir. 1981). The plaintiff appealed to the United States
Supreme Court and in a 5-4 decision written by Justice White
the Court held that the federal preemption of state regulation
of the safety aspects of nuclear energy does not extend to the
state-authorized award of punitive damages for conduct
related to radiation hazards.
Justice White noted that the issue before the Court was
whether the state-authorized award of punitive damages is
preempted either begause it falls within that prohibited areaof
regulating nuclear safety risks or because it conflicts with the
federal regulatory scheme.
The Court acknowledged that states are precluded from
regulating the safety aspects of nuclear energy, Pacific Gas &
Electric Co. v. State Energy Resources Conservation d
Development Commission, 103 S. Ct. 1713 (1983); however,
Justice White's opinion rejected Kerr-McGee's argument that
the punitive damages award falls within the prohibited field

merely because such damages may have the regulatory effect
of punishing and deterring conduct related to radiation
hazards. In determining exactly what is regulated by the
federal scheme, the Court examined the legislative history of
the 1954 Atomic Energy Act and its subsequent amendments.
The Court concluded that Congress assumed that traditional
tort remedies would be available absent express language to
the contrary. The Court cited IBEW v. Foust, 442 U.S. 42, 53
(1979) as support for placing the burden upon Kerr-McGee to
show that Congress intended to preclude an award of punitive
damages. Justice Powell's dissent places the burden on
Silkwood to show that punitive damages are allowed as an ex-
ception to the broad federal preemption of nuclear safety
regulation that was expounded in Pacific Gas & Electric.
Justice Blackmun's lengthier dissent criticized the Court's
analysis for failing to distinguish between compensatory and
punitive damages. Blackmun's dissent asserts that, in doing so,
the Court addressed the wrong issue of whether a victim of
radiation contamination may obtain any compensation under
state law.
The Court reiterated that a state law conflicts with the
federal regulatory scheme if it is impossible to comply with
both the state and federal law, Florida Lime & Avocado
Growers v. Paul, 373 U.S. 132, 142-143 (1963) or where the
state law frustrates the objectives of the federal law. Hines v.
Davidowitz,312 U.S. 52, 67(1941); [also citing Pacific Gas&
Electric]. The Court had little difficulty finding that it is not
impossible to pay both federal fines and state imposed punitive
damages. Justice Blackmun's dissent points out that the $10
million punitive damages award was imposed by the jury even
though a Nuclear Regulatory Commission investigation of the
Silkwood contamination revealed no material violations of
federal regulations that would justify a fine.
As was noted in Justice Blackmun's dissent. Pacific Gas A
Electric made it clear that the purpose of a statute is critical in
a preemption analysis. The Court conceded that the punitive
damages award may have a regulatory effect, but observed
that the primary objective of the 1954 Atomic Energy Act is to
encourage the peaceful use of atomic energy. The Court went
on to emphasize that the objective of promoting nuclear power
is not to be accomplished at all costs. Specifically, the purpose
of the federal scheme is to promote the development and use

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