COMMENTS
CHANGING THE PARAMETERS OF PREEMPTION:
Silkwood v. Kerr-
McGee
I.
INTRODUCTION
The problem of defining the limits of tort liability for injuries caused by nuclear activities has been a subject of intense
debate since the beginning of the nuclear industry.' Congress enacted the Price-Anderson Act 2 to assuage private industry's
1. The earliest law review articles concerning nuclear energy dealt with the broader
aspects of nuclear power. See, e.g., Becker & Huard, Tort Liability and the Atomic Energy Industry, 44 GEo. L.J. 58 (1955) (discussing the various liability theories for nuclear
accidents, including vicarious liability, strict liability and res ipsa loquitor); Estep, Federal Control of Health and Safety Standards in Peacetime Atomic Energy Activities, 53
MICH. L. REV. 333 (1954) (constitutional analysis of the federal government's ability to
control nuclear power); Huard, The Atomic Age and Its Impact on the Lawyer, 58 INS.
L.J. 34 (1958) (technical explanation of nuclear power and various legal problems such as
statutes of limitations and liability theories); Marks, The Atomic Energy Act: Public
Administration Without Public Debate, 15 U. CHL L. REV. 839 (1948) (discussing the
lack of public scrutiny of the Atomic Energy Commission (AEC)); Pollard, Effects of
Atomic Energy on Underwriting,17 INs. CouNs. J. 436 (1950) (discussing the difficulty in
assessing the risks of nuclear accidents).
Later articles tended to focus on narrower legal issues. See, e.g., Estep & Adelman,
State Control of Radiation Hazards: An Inter-governmental Problem, 60 MIH. L. REV.
41 (1961) (discussing the limits of federal power, congressional intent and state control);
Meek, Nuclear Power and State Radiation Protection Measures: The Impotence of Preemption, 10 ENvTL. L. 1 (1979) (suggesting recent court decisions and federal legislation
give considerable control of nuclear power to states); Wiggins, FederalismBalancing and
the Burger Court: California Nuclear Law as a Preemption Case Study, 13 U.C.D. L.
REV. 1 (1979) (exploring California law controlling nuclear power plant development and
the preemption doctrine); Note, The "ExtraordinaryNuclear Occurrence" Threshold
and Uncompensated Injury Under the Price-AndersonAct, 6 Rur.-CAM. L.J. 360 (1974)
(arguing for the elimination of the threshold ENO requirements of the Price-Anderson
Act); Comment, The Irradiated Plaintiff: Tort Recovery Outside Price-Anderson, 6
ENmrL. L. 859 (1976) (exploring recovery theories for nuclear injuries not covered by the
Price-Anderson Act).
2. 42 U.S.C. § 2210 (1982). The original law was passed as the Act of September 2,
1957, Pub. L. No. 85-256, 71 Stat. 576 (1957). The Price-Anderson Act has been
amended and renewed twice. See Act of October 13, 1966, Pub. L. No. 89-645, 80 Stat.
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[Vol. 6:123
fears of infinite liability in the event of a catastrophic accident.
However, the question of recovery for tort injuries resulting
from incidents not meeting the threshold statutory requirements3 was arguably left open. Some commentators believe that
traditional state tort law remedies in general, including punitive
damages, may apply.4 An alternative view holds that extensive
federal regulation of the nuclear industry 5 by the Nuclear Regulatory Commission s (NRC) and the compensatory scheme of the
Price-Anderson Act implicitly preempt state tort law punitive
891 (1966); Act of December 31, 1975, Pub. L. No. 94-197, 89 Stat. 1111 (1975). The Act
will remain in effect until August 1, 1987.
3. A catastrophic accident is termed an Extraordinary Nuclear Occurrence (ENO).
An ENO is defined as "any event causing a discharge or dispersal of source, special nuclear, or by-product material from its intended place of confinement in amounts offsite,
or causing radiation levels offsite, which the Commission determines to be substantial,
and which the Commission determines has resulted or will probably result in substantial
damages to persons offsite or property damage." 42 U.S.C. § 2014(j) (1982). The term
"substantial damages" is defined as follows:
(1) The Commission finds that such event has resulted in the death or
hospitalization, within 30 days of the event, of five or more people located offsite showing objective clinical evidence of physical injury from exposure to the
radioactive, toxic, explosive or other hazardous properties of source, special nuclear, or byproduct material; or
(2) The Commission finds that $2,500,000 or more of damage offsite has
been or will probably be sustained by any one person, or $5 million or more of
such damage in the aggregate has been or will probably be sustained, as the
result of such event; or
(3) The Commission finds that $5,000 or more of damage offsite has been
or will probably be sustained by each of 50 or more persons, provided that $1
million or more of such damage in the aggregate has been or will probably be
sustained, as the result of such event.
10 C.F.R. § 140.85 (1984).
4. See, e.g., Meek, supra note 1, at 54-66 (suggesting that federal preemption only
applies in very limited circumstances not present in personal injury suits). See also W.
KEETON, PROSSER AND KEETON ON TORTS § 2 (5th ed. 1984). According to Keeton, four
states (Louisiana, Massachusetts, Nebraska and Washington) completely reject punitive
damages while New Hampshire and Michigan allow punitive damages as extra compensation for injured feelings or sense of outrage. Id. Connecticut limits punitive damages to
the provable expenses of litigation. See Tedesco v. Maryland Casualty Co., 127 Conn.
533, 18 A.2d 357 (1941).
5. The underlying body of law governing the control of nuclear energy by the federal government is set forth in 42 U.S.C. §§ 2011-2296 (1982). Although the statutes are
quite extensive in their coverage, they are silent on tort recovery below the ENO threshold requirements and workers' compensation for nuclear industry workers. Both subjects
are of considerable importance in Silkwood v. Kerr-McGee, 104 S. Ct. 615 (1984).
6. The NRC was established in 1974 to take over the Atomic Energy Commission's
(AEC) role of regulating the nuclear industry. See 42 U.S.C. § 5801 (1982).
19851
PARAMETERS OF PREEMPTION
damage awards.7
Previous cases in the area of nuclear torts have not clearly
addressed the issue.' These cases involved former servicemen
subject to the Feres doctrine,9 civilian employees covered by
workers' compensation statutes,10 or property damage.II None of
these cases dealt with an individual allegedly injured by radiation who was not subject to the Feres doctrine or state workers'
compensation laws."2
7. See Note, Implied Preemption of Punitive Damages for Nuclear Accidents, 29
AM. U.L. REV. 741 (1980) (arguing for preemption of punitive damages by federal law).
See also Silkwood v. Kerr-McGee, 667 F.2d 908 (10th Cir. 1981).
8. All other cases involving nuclear torts have involved either servicemen, civilian
employees of the government or individual citizens suing the government. No previous
suit involved a private citizen suing his or her employer as in Silkwood. See infra notes
9-12 for details of these other cases.
9. An example of this type of case is Jaffee v. United States, 663 F.2d 1226 (3rd
Cir. 1981), cert denied, 456 U.S. 972 (1982). In Jaffee, the plaintiff alleged that he developed cancer as a result of being exposed to radiation while he was a serviceman ordered
to participate in a nuclear weapon test. The claim was denied on the basis of the Feres
doctrine, first advanced in Feres v. United States, 340 U.S. 135 (1950). The Feres doctrine holds that when servicemen are injured as a result of military service, their remedies, if any, lie within the statutes enacted by Congress to provide for their welfare and
no action can be brought under the Federal Tort Claims Act or common law. Id. at 146.
For recent decisions concerning the Feres doctrine, see Maw v. United States, 733 F.2d
174 (1st Cir. 1984) (serviceman denied recovery under the Federal Torts Claim Act after
arrest by civilian police due to alleged negligence of military superior); Heilman v.
United States, 731 F.2d 1104 (3rd Cir. 1984) (estate of former serviceman denied recovery for alleged radiation induced death from exposure while deceased was in the military); Adams v. United States, 728 F.2d 736 (5th Cir. 1984) (medical malpractice claim
against Public Health Service by serviceman denied).
10. See, e.g., Prescott v. United States, 523 F. Supp. 918 (D. Nev. 1981), af'd, 731
F.2d 1388 (9th Cir. 1984) (plaintiff alleged cancer caused by nuclear weapon test while he
was an employee of a government subcontractor); Mahoney v. United States, 220 F.
Supp. 823 (D. Tenn. 1963), aff'd, 339 F.2d 605 (6th Cir. 1964) (plaintiffs alleged injury
and deaths due to radiation exposure in government funded processing operation).
11. See, e.g., Bartholomae Corp. v. United States, 253 F.2d 716 (9th Cir. 1957)
(damages sought for destroyed buildings allegedly caused by nuclear weapon test); Gregg
v. United States, 186 F. Supp. 44 (E.D.S.C. 1960) (action for damages after an unarmed
nuclear bomb was dropped on plaintiff's property); Bulloch v. United States, 145 F.
Supp. 824 (D. Utah 1956), vacated, 95 F.R.D. 123 (D. Utah 1982) (damages sought for
sheep killed allegedly by nuclear weapon test).
12. Perhaps the closest case to Silkwood involved multiple plaintiffs who sued the
United States for cancers and other medical afflictions allegedly caused by nuclear weapons tests. See Allen v. United States, 588 F. Supp. 247 (D. Utah 1984). In Allen, the
court ruled that the United States can be held liable for provable damages to any or all
of 1,192 named plaintiffs from nuclear weapons tests in Nevada during the 1950's and
1960's. Id. at 447-48.
In the Silkwood trial, Kerr-McGee unsuccessfully argued that Oklahoma's workers'
compensation statute applied. Silkwood, 485 F. Supp. at 587 (1979). Section 12 of the
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In Silkwood v. Kerr-McGee, 13 the United States Supreme
Court, in a five to four decision, held that state tort law punitive
damages are not preempted by federal law governing the safety
of nuclear facilities." In an effort to confine its decision to a narOklahoma statute provides that workers' compensation is the exclusive remedy available
to an employee or upon death, to his estate, spouse, personal representative, parents,
dependents or any other person. OKLA. STAT. ANN. tit. 85, § 12 (West 1976). As a general
rule, workers' compensation is the sole remedy for work related injuries. 2A A. LARSON,
LARSON's WORKMEN'S COMPENSATION LAW § 65.00 (1983). For recent Oklahoma Supreme
Court cases interpreting that state's workers' compensation statute, see Jarvis v. City of
Stilwater, 669 P.2d 1108 (Okla. 1983); Weber v. Armco, Inc., 663 P.2d 1221 (Okla. 1983).
The court of appeals accepted Kerr-McGee's argument, reversed the district court and
held that Karen Silkwood's injury was work related. Silkwood, 667 F.2d at 920. Therefore, the court of appeals found that Oklahoma's workers' compensation law was the
exclusive remedy for Silkwood's estate. Id. In Prescott, the court held that workers' compensation was the exclusive remedy absent a complicating factor such as the plaintiff's
malady not being listed in the workers' compensation statute. Prescott, 523 F. Supp. at
923-28.
13. 104 S. Ct. 615 (1984), reh'g denied, 104 S. Ct. 1430 (1984).
14. Silkwood, 104 S. Ct. at 626. The preemption doctrine is derived from the
supremacy clause of the United States Constitution, which provides:
This Constitution, and the Laws of the United States which shall be made
in Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.
U.S. CONsT. art. VI, cl. 2.
The supremacy clause was first interpreted by the Supreme Court in Marbury v.
Madison, 5 U.S. (1 Cranch) 137 (1803). In Marbury, the Supreme Court held that it had
the authority under the supremacy clause to be the final arbiter of whether acts of Congress are made in pursuance of the Constitution. Id. at 178. A more pertinent antecedent
of the preemption issue is Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). In Gibbons,
the Court held that the Federal Coastal Act of 1793 preempted a New York State grant
giving the exclusive rights to operate steamboats in New York waters to the defendant.
Id. at 239. Writing for the Court, Chief Justice Marshall held that the New York law was
in conflict with the federal statute and must fall. Id.
Many scholars view the preemption doctrine as follows:
Federal law is generally interstitial in its nature. It rarely occupies a legal
field completely, totally excluding all participation by the legal systems of the
states. This was plainly true in the beginning when the federal legislative product (including the Constitution) was extremely small. It is significantly true
today, despite the volume of Congressional enactments, and even within areas
where Congress has been very active. Federal legislation, on the whole, has
been conceived and drafted on an ad hoc basis to accomplish limited objectives. It builds upon legal relationships established by the states, altering or
supplanting them only as far as necessary for the special purpose. Congress
acts, in short, against the background of the total corpus juris of the states in
much the way that a state legislature acts against the background of the common law, assumed to govern unless changed by legislation.
H. HART & H.WEScHLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 470-71 (2d ed.
PARAMETERS OF PREEMPTION
1985]
row holding, 15 the Court modified its most recent preemption
decision.1" Although the Supreme Court used limiting language, 7 the net effect of the decision was to establish a new and
more restrictive preemption test."8
This Comment will consider the majority and dissenting
opinions in Silkwood in light of previous preemption decisions.
It will suggest that the correct decision was arrived at through
an unnecessary modification of precedent and misplaced reliance
on the most recently established preemption test. Finally, an alternative framework for the decision based on previous preemption cases in other federal regulatory areas will be proposed.
1973).
The preemption doctrine has undergone many refinements in particular areas. Prior
to Silkwood, its most recent recapitulation appeared in Pacific Gas & Elec. Co. v. State
Energy Resources Conservation and Dev. Comm'n, 461 U.S. 190 (1983), In Pacific Gas,
the Court held that preemption applies where there is a conflict between the federal and
state law, when the state law frustrates the goal of the federal law or when "Congress'
intent to supercede state law altogether may be found from a 'scheme of federal regulation so pervasive as to make reasonable the inference that Congress left no room to supplement it.'" Id. at 204 (quoting Fidelity Fed. Say. & Loan Ass'n. v. De la Cuesta, 458
U.S. 141, 153 (1982), quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
15.
stated:
In an obvious attempt to make the decision as narrow as possible, the Court
But insofar as damages for radiation injuries are concerned, preemption should
not be judged on the basis that the federal government has so completely occupied the field of safety that state remedies are foreclosed but on whether there
is an irreconcilable conflict between the federal and state standards or whether
the imposition of a state standard in a damages action would frustrate the
objectives of the federal law.
Silkwood, 104 S. Ct. at 626.
16.
Pacific Gas, 461 U.S. 190 (1983).
17. The Court used the language "[b]ut insofar as" to limit the Silkwood holding
to radiation injuries. Silkwood, 104 S. Ct. at 626. However, subsequent lower court decisions indicate that the courts will not limit this new two prong test to radiation injury
cases. See, e.g., Puffer's Hardware, Inc. v. Donovan, 742 F.2d 12 (1st Cir. 1984) (the court
found no preemption by OSHA of a Massachusetts elevator law using the two prong
Silkwood test); Bass River Assoc. v. Mayor, Township Comm'r, 743 F.2d 159, 162 (3rd
Cir. 1984) (the court used the two prong Silkwood test to find no preemption of federal
boat licensing and federal water pollution standards). But cf. Brafford v. Susquehanna
Corp., 586 F. Supp. 14 (D. Colo. 1984) (citing Silkwood in denying summary judgment
for defendant on punitive damages issue in suit for alleged radiation exposure).
18. Before Silkwood, a litigant seeking to use the preemption doctrine could use
the three prong test of Pacific Gas. For a discussion of the Pacific Gas test, see supra
note 14 and infra text accompanying notes 59-64.
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II.
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BACKGROUND
Nuclear power is a relatively recent development in this
country's history."9 Since its theoretical origins, 0 nuclear power
has been recognized as an unrivaled source of power as well as a
potential source of danger.2" Control of nuclear power was initially the exclusive province of the federal government. To accomplish this, the government established the Atomic Energy
Commission"2 (AEC) which controlled all military and civilian
uses of nuclear power. 3
The great potential of nuclear power for peaceful purposes
led Congress to authorize the AEC2 4 to encourage the development of nuclear power facilities by private parties.25 At the same
time, Congress also authorized the AEC to regulate the safe use
of nuclear power. 2' To encourage the utilization of nuclear power
19. The first nuclear reactor, originally called an atomic pile, was built on a squash
court under the west stands of Stagg Field at the University of Chicago. Enrico Fermi
headed a team of physicists that initiated the first controlled fission reaction on December 2, 1942. See L. GnovEs, Now IT CAN BE TOLD 53 (1962).
20. Albert Einstein developed the theoretical basis for nuclear power with his now
famous equation E =mc, in 1905. It is also known as the theory of relativity. However, it
was not until the late 1930's that scientists reached a point through experimentation and
calculations that it was thought possible to sustain a nuclear reaction. See J. FEINBERG,
THE STORY OF ATOMIC THEORY AND ATOMIC ENERGY 142 (1962) (formerly titled THE
ATOM STORY); H. WHITE, INTRODUCTION TO ATOMIC AND NUCLEAR PHYSics 462 (1964).
21. The original site for the first atomic pile was to have been in the Argonne National Forest, some fifteen miles outside of Chicago. Due to the exigencies of the Second
World War and some labor difficulties, the government built the atomic pile at the University of Chicago. No one knew at the time exactly what would happen were the atomic
pile to explode. GRovEs, supra note 19, at 53.
22. The AEC was established to regulate and promote the growth of nuclear power
in the United States. See Atomic Energy Act of August 1, 1946, ch. 724, 60 Stat. 755
(1946) (repealed 1954).
23. See U.S. CODE CONG. SER. 1327-31 (1946) for a complete description of the Senate's version of what the AEC was to accomplish.
24. The Atomic Energy Act of August 30, 1954, ch. 1073, 68 Stat. 921 (1954) differed significantly from its predecessor, the Atomic Energy Act of 1946, in that it allows
nongovernmental parties to utilize nuclear materials. See U.S.C. § 2061 (1982).
25. Writing for the majority in Pacific Gas, Justice White characterized this transition as "[t]he turning of swords into plowshares." Pacific Gas, 461 U.S. at 193. See also
42 U.S.C. § 2011 (a) & (b) (1982) (congressional declaration of policy); id. at § 2012 (c),
(d), (e), (f) & (i) (congressional findings); id. at § 2013 (a), (d) & (e) (purpose of chapter).
26. See 42 U.S.C. § 2012 (d), (e), (f) & (i) (1982) (congressional findings); id. at §
2013 (a), (d) & (e) (purpose of chapter). Congress later recognized the problems of having one agency both promote and control the use of nuclear power and established the
NRC just to regulate the nuclear industry. See 42 U.S.C. § 5801 (1982). See also Pacific
Gas, 461 U.S. at 207.
1985]
PARAMETERS OF PREEMPTION
and to set aside the public utilities' fears of unlimited liability
for a major nuclear accident,2 7 Congress enacted the Price-Anderson Act.28
The intent of Congress in enacting the Price-Anderson Act
was to limit state tort law liability in the event of an Extraordinary Nuclear Occurrence2 9 (ENO).30 The Price-Anderson Act
prescribes an upper limit of 560 million dollars for damages
from a single nuclear accident meeting the threshold ENO criteria."' This figure consists of 60 million dollars in private insurance coverage 2 and a 500 million dollar government indemnification scheme.33 All claims for compensatory damages arising
out of such an incident are to be paid on a pro rata basis if the
aggregate claims exceed the maximum private insurance
coverage. 4
There have been no incidents to date meeting the ENO criteria. Many people, however, have been injured35 or have alleged
injury36 from exposure to radiation produced by nuclear activities. None of the resulting law suits led to a state tort law punitive damage award. However, it is clear that the courts will allow
state tort law compensatory
damages, including property dam37
ages, for radiation injuries.
27. A study published by the AEC entitled Theoretical Possibilities and Consequences of Major Nuclear Accidents in Large Nuclear Plants (1957) produced some
statistics about a "worst case" scenario. The estimates predict 3,400 people killed, 43,000
injured and as much as seven billion dollars in property damage. R. CURTIS & E. HOGAN,
PERILS OF THE PEACEFUL ATOM 45-48 (1969). It is interesting to note that the maximum
Price-Anderson Act liability of 560 million dollars is only eight per cent of the theoretical
seven billion dollars in property damage for the "worst case" scenario. Id.
28. 42 U.S.C. § 2210. For the history of the Price-Anderson Act, see supra note 2.
29. For the full text of the ENO criteria, see supra note 3.
30. The Supreme Court saw the Price-Anderson Act as a response by Congress to
the fears of private nuclear operators of law suits that might bankrupt the developing
nuclear industry. Silkwood, 104 S. Ct. at 623.
31. 42 U.S.C. § 2210 (e) (1982).
32. 42 U.S.C. § 2210 (c) (1982).
33. Id.
34. 42 U.S.C. § 2210 (o) (1982).
35. Among the more notable incidents were the deaths of three AEC employees
when a test reactor exploded in 1961 at Idaho Falls, Idaho, CURTIS, supra note 27, at 5;
the death of a worker at a United Nuclear Corporation plant in 1964, id. at 85; and the
death of a worker at the Los Alamos, New Mexico AEC laboratory, id. at 36.
36. For examples of cases where radioactive injuries have been alleged, see supra
notes 10-12.
37. The cases discussed at supra notes 10-12 indicate that compensatory and property damages are available to plaintiffs injured by radiation. See also Silkwood, 667 F.2d
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Since its inception, nuclear power has been exclusively regulated by the AEC and its successor, the NRC.3 8 Congress did
provide a method for states to establish their own nuclear safety
agencies, but only in limited circumstances as set forth in federal guidelines.3 9 The NRC has remained the sole agency
charged with regulating nuclear safety on a federal level.4 0
The nuclear industry operates against the backdrop of federal preemption of state law under the supremacy clause of the
United States Constitution." Modern preemption decisions have
identified three areas where federal law can preempt state law.
The first situation occurs where there is a direct conflict between
the federal and state laws. 42 A typical case for this type of preemption can be found where a plaintiff could not comply with
the federal and state laws at the same time.4 3 A second type of
preemption arises where the state law "frustrates" the congressional purpose behind the federal law." An example of this
might be where a state law discouraged the exercise of a federal
right 45 or a state law interfered with a federal agency. 46 A third
at 920-22; Silkwood, 485 F. Supp. at 572-77.
38. For the legislative provision establishing the NRC, see supra note 26.
39. See 42 U.S.C. § 2021 (1982). So far, only California has signed an agreement
with the NRC allowing it to control nuclear byproduct and source material. See CAL.
HEALTH & SAFETY CODE §§ 25875 & 25876 (West 1977). The activities in the Kerr-McGee
plant where Karen Silkwood worked could not be subject to state regulation since the
plant handled enough "special material," i.e., plutonium, to create a critical mass. gee 42
U.S.C. § 2021 (1982).
40. For the federal statute that gives the NRC exclusive authority to regulate the
nuclear industry, see 42 U.S.C. § 5801 (1982). The Supreme Court recognized this in
Pacific Gas by noting that "the federal government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the states." Pacific
Gas, 461 U.S. at 212. For a specific power ceded to the states, see the Clean Air Act
Amendments of 1977, 41 U.S.C. §§ 7401-7642 (1982), which allow the states to regulate
radioactive air pollutants from nuclear power plants.
41. For a discussion of the supremacy clause, see supra note 14.
42. Silkwood, 104 S. Ct. at 621.
43. See, e.g., Free v. Bland, 369 U.S. 663 (1962) (Texas community property law
preempted by federal Treasury regulations); McDermott v. Wisconsin, 228 U.S. 115
(1913) (Wisconsin labeling law preempted by Federal Food and Drugs Act of 1906); Bilderback v. United States, 558 F. Supp. 903 (D. Or. 1982) (federal forestry regulation
preempted Oregon's open range law).
44. Kerr-McGee argued in Silkwood that state tort law punitive damages frustrate
the congressional intent of having the NRC regulate the safety aspects of nuclear facilities. Silkwood, 104 S. Ct. at 626.
45. See, e.g., Nash v. Florida Indus. Comm'n, 389 U.S. 235 (1967) (federal law preempted Florida law disqualifying workers from unemployment insurance who filed unfair
labor practice charges).
19851
PARAMETERS OF PREEMPTION
type of preemption occurs where Congress has decided to "occupy the field" in question so that any state laws will be preempted.'7 This type of preemption may occur in an area where
the federal government has a national interest' 8 or a heavy regulatory involvement. 49 The extent of the "occupation of the field"
50
by Congress has been a troubling area for the Supreme Court.
Two important caveats limiting federal occupation of a field appear from the Court's decisions. First, in Rice v. Santa Fe Elevator Corp.,5 1 the Court flatly refused to preempt all of the Illinois law controlling grain warehouses that did not directly
conflict with federal law.52 Instead the Court held that when
Congress acts in an area traditionally controlled by the states,
the police powers of the states are not to be replaced by the
federal law unless Congress clearly intended so. 5s Second, in
Florida Lime & Avocado Growers Association v. Paul,54 the
Court held that state laws will only be preempted where it can
be found that Congress unmistakably requires such or where the
nature of the area regulated by federal law suggests that the
only conclusion to be drawn is that the federal law should
55
prevail.
The leading case on federal preemption of state regulation
of nuclear power for over ten years was Northern States Power
46. See, e.g., Edgar v. Mite Corp., 457 U.S. 624 (1982) (Illinois business takeover
laws frustrated congressional intent of the federal Williams Act); Jones v. Rath Packing
Co., 430 U.S. 519 (1970) (California flour labeling law frustrated purpose of federal Fair
Purchasing and Labeling Act); City of Burbank v. Lockheed Air Teiminal, Inc., 411 U.S.
624 (1975) (local ordinance regulating aircraft operating hours preempted by Federal
Aviation Administration regulations).
47. The second part of Kerr-McGee's preemption argument in Silkwood was that
Congress has "occupied the field" of nuclear safety. Silkwood, 104 S. Ct. at 622.
48. See, e.g., Hines v. Davidowitz, 312 U.S. 52 (1941) (Pennsylvania alien registration law preempted by federal Alien Registration Act).
49. See, e.g., Campbell v. Hussey, 368 U.S. 297 (1961) (federal tobacco grading
scheme preempted state tobacco grading scheme).
50. See, e.g., Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440 (1960). In
Huron, the Court allowed the City of Detroit to enforce a local smoke abatement ordinance against a ship that was in full compliance with the federal laws and was licensed
to operate under those federal laws. Id. at 446.
51. 331 U.S. 218 (1947).
52. Id. at 236.
53. Id. at 230.
54. 373 U.S. 132 (1963).
55. Id. at 142.
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Co. v. Minnesota.56 In Northern States, Minnesota's attempt to
impose stricter standards than the AEC's on the radioactivity of
nuclear power plant water effluent was held to be preempted."'
In fact, the court of appeals in Silkwood used Northern States
as authority for holding that federal law preempted state law
punitive damages."
The extent of federal preemption of state law concerning
nuclear power was directly addressed by the Supreme Court in
Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Commission." In Pacific Gas the Court
held that a state law governing the economic aspects of nuclear
power plant construction was not preempted by the federal laws
controlling the safety of nuclear power plant construction and
operation." The Court in Pacific Gas used a three prong preemption test that would find preemption whenever there is a direct conflict between the federal and state laws, when the state
law frustrates the intent of Congress or when there is a pervasive
scheme of federal law that leaves no doubt that Congress intended to control the entire field."1 The Court did acknowledge
that the California law62 at issue might be viewed as arising from
safety considerations," but held that as long as there was a
plausible alternate reason for the law, it would not be
preempted."
The unresolved question in this area was whether an injured
56. 447 F.2d 1143 (8th Cir. 1971), affd mem., 405 U.S. 1035 (1972).
57. Northern States, 447 F.2d at 1154.
58. Silkwood, 667 F.2d at 993. The Tenth Circuit Court of Appeals held that Congress wanted to exert "exclusive federal control over radiation hazards associated with
nuclear energy." Id.
59. 461 U.S. 190 (1983).
60. Id. at 222-23. The California law in question was CAL. Pun. REs. CODE § 25524.2
(West 1977 & Supp. 1984). This law places a moratorium on the certification of new
nuclear power plants until the United States government approves demonstrable technology for the permanent disposal of nuclear wastes. Id.
61. Pacific Gas, 461 U.S. at 203-04.
62. The Court stated that the California law was subject to a variety of interpretations. Id. at 216. The Court also found that the federal government had completely occupied the field of nuclear safety. Id. at 212. This perhaps overly broad statement led to
Kerr-McGee's contention in Silkwood that punitive damages were preempted as intruding on federal occupation of the safety field. Silkwood, 104 S. Ct. at 622.
63. The Court in Pacific Gas accepted California's express purpose of regulating
the economics of nuclear power plant construction rather than second guessing the state
legislature. Pacific Gas, 461 U.S. at 216.
64.
Id.
PARAMETERS OF PREEMPTION
1985]
plaintiff not covered by the Feres doctrine 65 or by workers' compensation laws6 6 could sue for punitive damages under the appropriate state tort law. The issue was not addressed by the Supreme Court until 1984 in Silkwood v. Kerr-McGee.
III.
A.
THE DECISION
Facts
Karen Silkwood was employed by Kerr-McGee Nuclear
Corporation, 67 a subsidiary of Kerr-McGee Corporation." She
worked as a laboratory analyst in the Cimmaron Plant on the
outskirts of Crescent City, Oklahoma. 9 On November 5, 1974,
Ms. Silkwood tested herself for radioactive contamination after
working in a glove box on plutonium samples. 0 She found some
contamination on her hands.71 The company safety staff examined her and found more contamination.7 2 Ms. Silkwood was
decontaminated and a further check at the end of her shift
showed no contamination.7
65. For a discussion of the Feres doctrine, see supra note 9.
66. For a discussion of radioactive injuries and workers' compensation, see supra
note 10.
67. Kerr-McGee Nuclear Corp. is now known as Quivira Mining Company. See
Quivira Mining Co. v. EPA, 728 F.2d 477 (10th Cir. 1984).
68. For purposes of the district court trial, Kerr-McGee Corporation was treated as
being responsible for the activities of its subsidiary, Kerr-McGee Nuclear Corporation.
Silkwood, 485 F. Supp. at 595.
69. Silkwood, 104 S. Ct. at 617. The Cimmaron Plant opened in 1970 and closed in
1975. Id. at 618 n.2.
70. Id. at 618. Kerr-McGee had radiation monitors close to every work station inside the plant. It was Kerr-McGee's policy as well as an AEC requirement that these
devices be in place and that employees use them after working with plutonium.
Silkwood, 667 F.2d at 913. A glove box is a box containing plutonium processing equipment that allows the employee to use his hands which are protected by special gloves to
manipulate the equipment or plutonium inside while standing outside the box. Silkwood,
104 S. Ct. at 618. Silkwood was cleaning and polishing plutonium samples at the times of
her contamination. Id.
71. Id.
72. Id. Radioactive contamination was found on Silkwood's left hand, right wrist,
upper arm, neck, face, hair and in both nostrils. Id.
73. Id. The decontamination Karen Silkwood underwent on November 6th and 7th
consisted of the following steps. First, her entire body was washed with a part Clorox,
part Tide solution. Next, her body was washed with a potassium permanganate solution
which oxidized the top layer of skin and caused a white flaking of that top layer. Finally,
she was brushed with a sodium bisulfite solution to remove the flaked skin. H. KOHN,
WHo KELLED KAREN SELKWOOD? 89 (1981).
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On November 6th, Ms. Silkwood returned to work.7 She
again checked herself for radioactive contamination and radiation was detected.7" She was once again decontaminated at the
76
plant.
On November 7th, Ms. Silkwood was checked when she arrived at work and was found to be highly contaminated." The
urine and fecal samples she brought to the plant that morning
were also found to be contaminated. 78 Kerr-McGee then sent a
decontamination squad with Ms. Silkwood to her apartment to
check for further contamination.7 9 The squad found considerable
contamination in the apartment and on Ms. Silkwood's apartment-mate.8 0 Many of Silkwood's personal possessions were confiscated and eventually destroyed. 1 Ms. Silkwood was then sent
to the Los Alamos Scientific Laboratory in New Mexico for evaluation as to the extent of her internal contamination. 2
Karen Silkwood returned to work on November 13th and
resumed her duties.8 She died that evening in a car accident
unrelated to the legal issues in this case. 8 '
74.
75.
76.
77.
78.
"spiked"
Silkwood, 104 S. Ct. at 618.
Id.
Id.
Id.
Id. At the district court trial, it was stipulated that the urine samples had been
by an unnamed or unknown person with insoluble plutonium, i.e., a form of
plutonium that could not be excreted by the human body. Id. n.4. Ms. Silkwood had
been given urine and fecal sample kits to use at home by Kerr-McGee when she left work
on November 5th. Id. at 618.
79. Id.
80. Id. Significant contamination was also found in the bathroom and on food in
the refrigerator. Smith, Silkwood v. Kerr-McGee Corp.: Preemption of State Law for
Nuclear Torts?, 12 ENvTL. L. 1059, 1063 (1982).
81. Silkwood, 104 S. Ct. at 618.
82. Id. A Dr. Volez examined Karen Silkwood at the Los Alamos laboratory and
found that she had received about half of the maximum permissible AEC standard of
plutonium contamination for an atomic worker. KOHN, supra note 73, at 101.
83. Silkwood, 104 S. Ct. at 618.
84. Id. However, an autopsy after the accident revealed plutonium contamination
in Ms. Silkwood's lungs and other tissues. Smith, supra note 80, at 1063 n.26. The autopsy also showed traces of alcohol and legally prescribed methaqualone, which Ms.
Silkwood was taking as a sedative. The Silkwood Mystery, TIME, Jan. 20, 1975, at 48.
The Oklahoma State Police stated that it was a car accident where Karen Silkwood fell
asleep at the wheel. Officials of Local 5-283 Oil, Chemical and Atomic Workers Union
hired an accident investigator who found a dent in the rear of Ms. Silkwood's car. The
investigator concluded that Silkwood was forced off the road. Adding to the notoriety of
her death was Ms. Silkwood's activity in the union. Ms. Silkwood was supposedly going
to meet a New York Times reporter with documentation of Kerr-McGee's unsafe or ille-
1985]
B.
PARAMETERS OF PREEMPTION
Lower Court Proceedings
Silkwood's estate brought a diversity suit against Kerr-McGee in federal district court."5 The estate alleged emotional distress caused to Karen by plutonium contamination and personal
property damages resulting from the destruction of Silkwood's
personal property by the decontamination squad.8 6 The jury
awarded property, compensatory and punitive damages to the
87
estate.
Judge Theis held that Silkwood's estate was entitled to all
the damages awarded by the jury.88 Kerr-McGee had advanced
two preemption defenses at trial. The first argument advanced
by Kerr-McGee was that Congress had occupied the field of nuclear safety and, absent a violation of federal standards, no liability could be attached.8 9 Kerr-McGee's second argument was
that strict liability could only be imposed if Kerr-McGee failed
to meet federal regulations or the requirements of their AEC license.90 The same defenses were argued on alternative post trial
gal conduct when she died. Id.
85. Silkwood v. Kerr-McGee, 485 F. Supp. 566, 570 (W.D. Okla. 1979). Silkwood's
estate also filed two claims of conspiracy pursuant to the Civil Rights Act of 1871, 42
U.S.C. § 1985 (3) (1982). These claims were severed and dismissed for failure to state a
cause of action. Silkwood v. Kerr-McGee Corp., 637 F.2d 743 (10th Cir. 1980), cert. denied, 454 U.S. 833 (1981).
86. Silkwood, 485 F. Supp. at 566.
87. Id. at 567. The $5,000 in property damages was stipulated by both parties at
trial. Id. at 602 (Jury instruction No. 18). The jury awarded $500,000 in compensatory
damages. Id. at 567. Silkwood's estate asked during the trial to amend the total claim to
$70,000,000. Id. at 601 (Jury instruction No. 17). However, the jury did award
$10,000,000 in punitive damages. Id. at 570.
88. Id.
89. Id. at 571.
90. Id. In an interesting parallel, many federal courts have held that compliance
with various federal regulatory laws, rules and regulations is not an absolute defense to a
state tort law suit under either a negligence or strict liability theory. See, e.g., Rigby v.
Beech Aircraft Co., 548 F.2d 288 (10th Cir. 1977) (applying Utah law in aircraft crash
suit despite compliance with federal safety standards); Chambers v. G.D. Searle & Co.,
441 F. Supp. 377 (D. Mo. 1975) (FDA approval of pharmaceutical brochure not conclusive as to adequacy of warning for state tort law); In re Paris Air Crash of March 3, 1974,
399 F. Supp. 732 (C.D. Cal. 1975) (applying California law despite alleged violation of
federal airworthiness standards). But cf. Brick v. Barnes-Hines Pharmaceutical Co., 428
F. Supp. 496 (D.C.D.C. 1977) (compliance with FDA requirements eliminated liability of
defendant); Gonzalez v. Virginia Carolina Chemical Co., 239 F. Supp. 567 (E.D.S.C.
1965) (defendant's failure in complying with state and federal laws amounted to negligence per se).
BRIDGEPORT LAW REVIEW
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motions for either a judgment n.o.v. or a new trial. 9' Judge Theis
found no support in the law for Kerr-McGee's theory of
preemption.9 2
Judge Theis referred to several congressional and administrative reports in reaching his decision.9 s These reports indicated
that Congress fully expected that liability for a nuclear accident,
either above or below the ENO threshold, would be determined
by the appropriate state tort law." ' Judge Theis noted that Congress specifically rejected the creation of a federal tort of absolute liability relating to nuclear incidents.95 He also rejected
Kerr-McGee's argument that Congress only intended state tort
law to apply if there were a violation of federal law. 96
Kerr-McGee appealed the federal district court decision to
the court of appeals on several grounds.97 The Tenth Circuit
held that property damages could be awarded. 8 The court further stated that state tort law compensatory damages could be
awarded under certain circumstances. 9 However, the court reversed the finding that Oklahoma's workers' compensation statute did not apply as a matter of law. 100 Instead, it held that
workers' compensation was the exclusive remedy for Silkwood's
estate.' 0 1
91. Silkwood, 485 F. Supp. at 570. Both motions were denied. Id. at 567.
92. Id. at 572.
93. Id. at 572-75.
94. See, e.g., Hearings on H.R. 8631 before the Joint Comm. on Atomic Energy,
94th Cong., Ist Sess. 69 (1975) (liability depends in each case upon state tort law and
procedures); S. REP. No. 296, 85th Cong., 1st Sess. 9 (1957), reprinted in 1957 U.S. CODE
CONG. & AD. NEws 1803, 1810 (liability to be determined by the applicable state law);
H.R. REP. No. 435, 85th Cong., 1st Sess. 9 (1957) (liability established by the applicable
state tort law); AEC Staff Study of the Price-Anderson Act: Part 1, 16 ATOmic ENERGY
L. J. 205, 224 (1974) (liability under Price-Anderson Act depends upon state law); S. REP.
No. 1605, 89th Cong., 2d Sess. 6-10 (1966), reprinted in 1966 U.S. CODE CONG. & AD.
NEWS 3206-08 (recovery below Price-Anderson's ENO threshold solely according to state
law).
95. Silkwood, 485 F. Supp. at 574.
96. Id. at 577.
97. The actual issues raised on appeal were the applicability of the Oklahoma
workers' compensation law as the exclusive remedy, federal preemption, the applicable
standard of care, applicability of strict liability, availability of certain defenses, excessiveness of the actual damages, insufficiency of the evidence, and the denial of a fair trial
due to the high level of publicity. Silkwood, 667 F.2d at 912-13.
98. Id. at 920-22.
99. Id. at 922.
100. Id. at 915-20.
101. Id. at 920.
19851
PARAMETERS OF PREEMPTION
The court agreed with Kerr-McGee that the punitive damages claim was preempted, holding that the Price-Anderson Act
10 2
contemplates only an awarding of compensatory damages.
However, Silkwood's contamination was not the result of an
ENO, a fact recognized at all levels of the Silkwood litigation. 08
The court of appeals stated that awarding punitive damages in a
non-ENO incident "is no less intrusive than direct legislative
acts of the state."'' 0 In the view of the court of appeals, punitive
damages have a "deterrent or regulatory effect"' 0 5 which "competes substantially with the AEC (NRC) in its regulation of radiation hazards
associated with plants handling nuclear
10 6
material.'
Silkwood's estate appealed to the Supreme Court on the
1
preemption of punitive damages issue. 0
C.
The Supreme Court Opinion
1. Majority
The majority opinion, written by Justice White,' 0 8 set forth
the two ways in which state law can be preempted. The first way
is where Congress has expressed its intent that the entire field in
question be controlled by federal law. 09 The second situation
where preemption applies is if the state law conflicts with the
federal law, making it impossible to comply with both laws." 0
Kerr-McGee reiterated its arguments that the awarding of punitive damages was invalid under either analysis."'
In rejecting the first theory of preemption analysis advanced
by Kerr-McGee, the Court found that Congress did not intend
102.
103.
at 573.
104.
105.
106.
107.
108.
Id. at 922.
Silkwood, 104 S. Ct. at 623; Silkwood, 667 F.2d at 921; Silkwood, 485 F. Supp.
Silkwood, 667 F.2d at 923.
Id. at 922.
Id. at 923.
The Supreme Court granted certiorari on this issue. 459 U.S. 1101 (1983).
Silkwood, 104 S. Ct. at 617.
109. Id. at 621. See also Pacific Gas, 461 U.S. 190 (1982); Fidelity Fed.. Say. &
Loan Ass'n v. De la Cuesta, 458 U.S. 141 (1982) (Federal Homeowner's Loan Act preempted California law prohibiting due-on-sale clauses); Rice, 331 U.S. 218 (1947), discussed at supra text accompanying notes 51-53.
110. Silkwood, 104 S. Ct. at 621.
111. Id.
BRIDGEPORT LAW REVIEW
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to prevent the states from allowing punitive damages.11 The
Court also found it difficult to believe that Congress would not
allow any recovery for injuries caused by improper acts in the
nuclear field."' While recognizing that punitive damages are, in
a sense, regulatory," 4 the Court observed that Congress was willing to accept this apparent inconsistency.1 5
The Court also rejected Kerr-McGee's second preemption
argument, finding that it was not impossible to pay both federal
fines and state imposed punitive damages." 6 In addition, the
Court did not find any frustration of congressional intent in al-7
lowing states to impose punitive damages on nuclear licensees."
In rejecting Kerr-McGee's argument that an allowance of state
tort law punitive damages would frustrate congressional intent,
the Court stated that the "promotion of nuclear power is not to
be accomplished 'at all costs.' "1"" The Court also rejected KerrMcGee's assertion that allowing punitive damages conflicted
with the congressional intent to prevent dual regulation of radiation hazards. 9 On the basis of this analysis, the Supreme Court
112. Id. at 623. Congress apparently assumed that state tort law remedies would be
available for persons injured by nuclear accidents. The Court stated: "Since the rights of
third parties who are injured are established by State law, there is no interference with
the State law until there is a likelihood that the damages exceed the amount of financial
responsibility required together with the amount of the indemnity." Id. (quoting S. REP.
No. 296, 85th Cong., 1st Sess. 9 (1957), reprinted in 1957 U.S. CODE CONG. & AD. NEWS
1803, 1810).
113. Silkwood, 104 S. Ct. at 623.
114. Id. at 625-26. Cf. KE'TON, supra note 4, at § 2. Keeton views the awarding of
punitive damages as a way to encourage employers, in this case Kerr-McGee, "to exercise
closer control over their servants for the prevention of outrageous torts." Id.
115. Silkwood, 104 S. Ct. at 626. The Court also stated that preemption in the
nuclear safety field does not extend as far as Kerr-McGee suggested it should. Id. at 622.
The Court did not lay out a bright line in stating to what extent the preemption doctrine
applies. However, preemption cases traditionally have been decided on a case by case
basis rather than by formal theoretical lines. See L.
TRIBE, AMERICAN CONSTrruTiONAL
§ 6-23 (1975). Cf. Hines, 312 U.S. at 78-79 (Stone, J., dissenting) (arguing that the
phrase "occupying the field" means little without statutory interpretation in light of the
Constitution and the legislative history).
116. Silkwood, 104 S. Ct. at 626. The NRC is allowed to assess civil penalties
against violators of federal nuclear laws and regulations. See 42 U.S.C. § 2282 (1982).
117. Silkwood, 104 S. Ct. at 626.
118. Id. (quoting Pacific Gas, 461 U.S. at 222). The Supreme Court did not believe
there was any inconsistency or dual regulation by allowing the NRC exclusively to regu-'
late the safety of nuclear facilities while allowing state law recoveries for injured plaintiffs. Silkwood, 104 S. Ct. at 626.
119. Id.
LAW
19851
PARAMETERS OF PREEMPTION
reversed the judgment with respect to punitive damages.2 0 This
reversal was limited to the circuit court's judgment as to punitive damages. 2 '
2.
Dissents
Justices Blackmun 22 and Powell 2 3 wrote separate dissenting opinions. Justice Blackmun's disagreement with the majority
stemmed from his view that the sole function of a state tort law
punitive damage award is to regulate safety in the nuclear industry, an area preempted by federal law. 1 24 According to Justice
Blackmun, "[t]he conduct that the jury's punitive damages
sought to regulate was the day-to-day safety procedures of nuclear licensees. 125 Justice Blackmun suggested that there is a
significant difference between punitive damages and compensatory damages with regard to preemption.2 6 In addition, Justice
Blackmun stated that punitive damages have a direct effect on
the operation of a nuclear facility while compensatory damages
have only an indirect effect. 11 Justice Blackmun stated that
since the federal government does not regulate compensatory
damages in nuclear radiation injuries, the Pacific Gas analysis
leads to the conclusion that compensatory damages are not pre120. Id. at 627. Only the judgment with respect to punitive damages was reversed.
The Supreme Court specifically stated that Kerr-McGee was free to reassert any other
claims upon remand to the court of appeals. Id. at 626-27.
121. Id.
122. Justice Marshall joined in Justice Blackmun's dissent. Id. at 627.
123. Chief Justice Burger and Justice Blackmun joined in Justice Powell's dissent.
Id. at 634.
124. Id. at 628 (Blackmun, J., dissenting). Justice Blackmun believed that Congress preempted state regulation of nuclear power via the NRC because the states lacked
the technical expertise required for safety considerations. Id. at 627 (Blackmun, J., dissenting). He found it as a significant paradox that the Court would allow a jury to make
a safety judgment without the technical expertise of the NRC. Id.
125. Id. at 628 (Blackmun, J., dissenting). Justice Blackmun found support for his
contention that punitive damages are "private fines levied by civil juries" in Gertz v.
Robert Welch, Inc., 418 U.S. 323 (1974) (estate of decedent sued magazine which published an allegedly defamatory story about the decedent). Silkwood, 104 S. Ct. at 628
(Blackmun, J., dissenting). He also pointed out that the trial court's jury instruction on
the purpose of punitive damages clearly indicated their regulatory role. Id.
126. Id. at 629 (Blackmun, J.,dissenting).
127. Id. at 629-30. Justice Blackmun stated that the prospect of compensatory
damages can affect the "safety calculus" of a nuclear licensee, but he saw the key distinction as being that punitive damages regulate safety whereas compensatory damages do
not. Id. at 629.
BRIDGEPORT LAW REVIEW
(Vol. 6:123
empted while punitive damages are. 1 28 By allowing a jury to
award punitive damages, Justice Blackmun concluded that a
state is able to enforce a stricter standard
of care than the fed29
eral standard on nuclear operators.1
Justice Blackmun stressed that the preemption issue in
Silkwood turned on the Atomic Energy Act of 1954 and not the
Price-Anderson Act. 3 0 Justice Blackmun believed that the issue
of preemption of nuclear safety concerns was already decided in
Pacific Gas.'3 ' Justice Blackmun also thought that allowing punitive damages under state tort law would force the federal government into paying those damages if an ENO were to occur.' 3 2
Finally, in Justice Blackmun's view, this case was not about recovery for Karen Silkwood's injury, but rather about whether a
punitive damage award in excess of the actual damages could be
awarded to encourage nuclear operators to spend more money
on safety.'
In a separate dissenting opinion, Justice Powell objected to
the majority approach allowing juries to make safety judgments
about a federally licensed nuclear facility.13 4 Justice Powell
found it inconsistent for a jury to award punitive damages when
the NRC had found no significant violations at the Kerr-McGee
plant and had assessed no penalties against Kerr-McGee.' 35
Justice Powell agreed with Justice Blackmun that punitive
128. Id.
129. Id. at 630. Justice Blackmun also noted that the 10 million dollar punitive
damage award was one hundred times greater than the maximum fine that the NRC
could impose for a single violation of federal standards. Id. at 629. For a description of
the fines that the NRC can impose, see 42 U.S.C. § 2282 (1982) (maximum $100,000 per
violation).
130. Silkwood, 104 S. Ct. at 628-29 (Blackmun, J., dissenting). Justice Powell
agreed that the preemption issue in this case turned directly on the Atomic Energy Act
of 1954 and not on an implied preemption from the Price-Anderson Act. Id. at 637 (Powell, J., dissenting).
131. Id. at 633 (Blackmun, J., dissenting).
132. Id. Justice Blackmun concluded that a nuclear accident of over 60 million dollars would place the federal government in the position of possibly paying punitive damages as long as the total damages did not trigger the ENO requirements of the PriceAnderson Act. Id.
133. Id. at 634.
134. Id. (Powell, J., dissenting).
135. Id. Justice Powell stated that Congress specifically authorized the NRC to be
the only body capable of determining the safety level at a federally licensed nuclear
plant. Id.
1985]
PARAMETERS OF PREEMPTION
damages are regulatory in nature. " 6 Citing the court of appeals
decision in Silkwood, 37 Justice Powell found punitive damages
just as intrusive on federal regulation as direct state legislative
action.138
Justice Powell was also concerned that the majority used a
different preemption analysis in Silkwood than did the majority
in Pacific Gas, at least in terms of which party had the burden
to show support for its position in regard to preemption. s9 According to Justice Powell, under the Pacific Gas analysis a party
seeking to assert the supremacy of the state law had to find direct support for that position in the federal law, the federal legislative history or the federal regulations promulgated under the
federal law. " 0° Justice Powell believed that the majority shifted
that burden to the party seeking preemption of the state law."'
In Justice Powell's view, the federal regulatory scheme for
controlling nuclear facilities should be protected from decisions
made by uninformed and possibly biased juries." 2 In a footnote,
Justice Powell implied that most people are incapable of making
136. Id. at 635. The only violations of NRC regulations found after an investigation
were failures by Kerr-McGee to record the voiding dates on two of Karen Silkwood's
bioassay samples. Id. at 636. See also AEC Regulatory Operations Investigatory Report
No: 74-09 (Dec. 16, 1974). But note that after Karen Silkwood's death, the AEC investigated Kerr-McGee's operating history at the Cimmaron plant and found seventeen incidents in which a total of seventy three employees were contaminated. The Silkwood
Mystery, TIME, Jan. 20, 1975, at 48.
137. 667 F.2d 908 (1981).
138. Silkwood, 104 S. Ct. at 635 (Powell, J., dissenting). Justice Powell noted that
punitive damages are unrelated to the actual injury sustained and are therefore not compensatory. Id. Justice Powell also made reference to the citation of San Diego Bldg.
Trades Council v. Garmon, 359 U.S. 236 (1959) in Pacific Gas. Silkwood, 104 S. Ct. at
635. In Garmon, a California state tort law damages award was held to be preempted by
the National Labor Relations Act. For a more detailed discussion of Garmon, see Comment, Labor Law Preemption and the Rights of Strike Replacements: Belknap, Inc. v.
Hale, 5 U. BRIDGE. L. REV. 311, 312-18, 333-36 (1984).
139. Silkwood, 104 S. Ct. at 637 (Powell, J., dissenting). Justice Powell's meaning
of a "sweeping preemption analysis" is evident from his recapitulation of the Pacific Gas
holding. Justice Powell stated, "we held that only those 'powers expressly ceded to the
states' are not preempted." Id. (emphasis in original) (citation omitted). Justice Powell
suggested that a party arguing against preemption in an area of "broad" or "sweeping"
preemption has the burden of proof, yet he cited no other authority aside from Pacific
Gas establishing such a rule in preemption cases. Id.
140. Id.
141. Id.
142. Id. at 639.
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an informed judgment as to the safety of a nuclear facility.""
According to Justice Powell, the evidence failed to show any
signs of "oppression, fraud, malice or wanton recklessness"
which are required for punitive damages under Oklahoma law.""
He viewed the allowance of a state tort law punitive damages
award as an example of how a jury can act as an unauthorized
145
regulatory entity.
Justice Powell concluded by suggesting that the majority
opinion left the preemption doctrine unsettled.1 4 He also concluded that the majority, by abandoning Pacific Gas just one
year after it was decided, opened the way for juries indirectly to
regulate nuclear power. 4
IV. ANALYSIS
Silkwood is a unique case, uncharacteristic of the incidents
in the nuclear field leading to legal actions. Virtually all radiation injuries, documented or alleged, have afflicted employees
covered by workers' compensation statutes 4 or servicemen subject to the Feres doctrine. 4 9 If the district court judge had
found that Karen Silkwood's injuries were covered by Oklahoma's workers' compensation law, Silkwood's estate could not
have sued in common law tort or asked for punitive damages. 150
143. Id. n.12. Justice Powell suggested that the general public cannot visualize or
comprehend the difference between nuclear weapons and nuclear power plants. He noted
that nuclear power has a good safety record and even well educated Americans are misinformed as to the real issues in nuclear power. Id.
144. Id. at 639. The applicable statute is OKLA. STAT. ANN. tit. 23, § 9 (West 1976 &
Supp. 1984). The statute provides that a jury may give exemplary or punitive damages
when it finds that the defendant "has been guilty of oppression, fraud or malice." Id.
145. Silkwood, 104 S. Ct. at 639 (Powell, J., dissenting). Justice Powell also questioned jury instruction No. 27 given by the district court and suggested that its effect
was to allow the jury to ignore valid federal regulations in determining negligence. Id. at
639-40.
146. Id. at 640. Justice Powell stated that nuclear power plant operators can no
longer rely on the regulation and oversight of the NRC as a benchmark for their safety
operations. Id.
147. Id. at 641.
148. For a discussion of cases concerning radiation injuries and workers' compensation, see supra notes 10 & 12.
149. For a discussion of radiation injuries and the Feres doctrine, see supra note 9.
150. In the district court Judge Theis ruled that Karen Silkwood was not covered
by workers' compensation as a matter of law. Silkwood, 485 F. Supp. at 587-89. If his
ruling had been to the contrary, then workers' compensation would have been the exclusive remedy. For a discussion of Oklahoma's workers' compensation law, see supra note
1985]
PARAMETERS OF PREEMPTION
For purposes of the issues in this case, Karen Silkwood was a
private citizen despite her employment at Kerr-McGee, thus
barring a workers' compensation defense.1 5 Additionally, the
applicable state law in Silkwood was in effect long before the
federal laws that may have preempted it were enacted.1 52 This
factor distinguishes Silkwood from most other preemption decisions1 5 s where the state law in question was enacted after a fed4
eral statutory scheme existed. 5
The three theories of preemption advanced by Kerr-McGee
are critical to understanding its position. The first was that Congress had totally occupied the field of nuclear safety via the
Atomic Energy Act of 1954.155 The second theory was that Congress expressed its view on who is to regulate the safety of nuclear power plants by establishing the AEC (NRC)."5 Allowing a
12.
151. No other case has dealt with the issue of punitive damages being awarded to a
private citizen injured by private nuclear activity under state tort law. But cf. Allen v.
United States, 588 F. Supp. 247 (1984), discussed at supra note 12, where the court ruled
that private citizens could recover compensatory damages from the United States after
they had been injured by nuclear weapons tests.
152. Most preemption decisions have concerned state laws that were passed after
the federal law was already in existence. See, e.g., Pacific Gas, 461 U.S. 190 (1983) (California law on nuclear power plant wastes not preempted by federal safety laws); Edgar v.
Mite, 457 U.S. 624 (1982) (Illinois business takeover laws preempted by the federal Williams Act); City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1975) (local
ordinance regulating aircraft operation preempted by federal aviation law); Florida
Lime, 373 U.S. 132 (1963) (California avocado regulations not preempted by federal marketing rules); Campbell v. Hussey, 368 U.S. 297 (1961) (state tobacco grading scheme
preempted by federal law); Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440
(1960) (local pollution law not preempted by federal shipping laws); Hines v. Davidowitz,
312 U.S. 52 (1941) (state immigration law preempted by federal immigration law);
Northern States, 447 F.2d 1143 (8th Cir. 1971), affd mem., 405 U.S. 1035 (1972) (state
law regulating radioactive water effluent from nuclear plants preempted by federal law).
The clear trend of these cases is to support the conclusion of H. HART & H. WEscHLER,
supra note 14, that federal law is interstitial in nature; that is, only supplementing state
law in the absence of a clear expression of supplantation of state law. See also TRIBE,
supra note 115, at § 5-7.
153. See the discussion of other preemption decisions at supra note 152.
154. A situation where the preempting federal law came into existence after the
state law is rare. A notable example is Perez v. Campbell, 402 U.S. 637 (1971), where an
Arizona law withholding the privilege of a driver's license from people who owed on car
accident judgments was preempted by the Federal Bankruptcy Act. The Court held that
the Arizona law frustrated the intent of Congress to give people a "fresh start." Id. at
648.
155. Silkwood, 104 S. Ct. at 621.
156. Id. at 626.
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state tort law punitive damages award conflicts with congressional intent to allow only the NRC to penalize nuclear licensees.' The third theory was that allowing state tort law punitive damages frustrates congressional intent to encourage the
development of peaceful uses of nuclear energy.1 58 These three
theories clearly are a recapitulation of the preemption doctrine
as espoused in Pacific Gas.
The central problem for the majority in refuting Kerr-McGee's arguments was that the Court had declared only a year
earlier in Pacific Gas that "the federal government [had] occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the states. ' 15 9 Congress has not
expressly ceded to the states the power to award punitive damages to plaintiffs in nuclear energy cases. 16° The dissenting Justices, particularly Justice Powell, noted that the language
quoted above from Pacific Gas should be dispositive of the
issue. 1 1
Rather than directly confronting this apparent disparity,
the majority chose to limit its holding to radiation injuries."6 2 In
effect, the majority abandoned the third prong of the Pacific
Gas test. 6 s The majority, however, continued to recognize frustration or conflict as valid preemption grounds.'6
The semantic problems inherent in the phrase "totally occupied the field of nuclear safety" were largely ignored by the majority. Obviously, the term "safety"' 65 is subject to a variety of
interpretations. 66 The dissenting Justices stated that punitive
157. Id. at 621.
158. Id.
159. Pacific Gas, 461 U.S. at 212.
160. Nothing in the Atomic Energy Act of 1954 or the Price-Anderson Act expressly provides for the awarding of punitive damages to injured plaintiffs. Silkwood, 104
S. Ct. at 637-38 (Powell, J., dissenting).
161. Id. at 637.
162. The intent of the Court to limit the holding is quite apparent from its choice
of wording: "But insofar as damages for radiation injuries are concerned.
... Id. at
626.
163. For a discussion of the Pacific Gas three prong preemption test, see supra
note 14.
164. Silkwood, 104 S. Ct. at 626.
165. Safety is defined as "[tihe condition of being safe; freedom from exposure to
danger." WEBSTER's THIRD NEW INTERNATIONAL DICTIONARY 1998 (unabr. 1981).
166. See, e.g., Ford Motor Co. v. Tomlinson, 229 F.2d 873, 876 (6th Cir. 1956)
(safety means freedom from danger to life, health, safety or welfare - applying Ohio
1985]
PARAMETERS OF PREEMPTION
damages regulate1
7
behavior and therefore encourage "safer"
operation of a nuclear power plant.' 1 8 Justices Blackmun and
Powell noted the role of the NRC in assessing penalties to encourage safer operation of nuclear power plants, and as such,
state tort law punitive damages would be preempted.""9 The majority, while acknowledging the regulatory effect of punitive
damages'e7 0 nevertheless held that Congress had knowingly allowed such an apparent inconsistency.' 7' The Court perceived
"no conflict or frustration in the circumstances of this case.' 72
The phrase "totally occupied the field" may seem to be beyond semantic interpretation or judicial manipulation. However,
the majority suggested that the occupation might be less than
total in several ways. First, the majority pointed out that there
is no federal remedy for property, compensatory or punitive
damages for a plaintiff like Silkwood. 73 Secondly, the Court acknowledged that Congress had expressly ceded to the states the
power to regulate radioactive air pollutants from nuclear power
plants, arguably a subject just as related to safety as punitive
law); Sykes v. Bensinger Recreation Corp., 117 F.2d 964, 967 (7th Cir. 1941) (what is safe
depends upon the facts and conditions of each case - applying Wisconsin law).
167. Silkwood, 104 S. Ct. at 628 (Blackmun, J., dissenting); id. at 635 (Powell, J.,
dissenting). Keeton suggests that the purpose of punitive damages is to punish "the defendant, of teaching the defendant not to do it again, and of deterring others from following the defendant's example." KEETON, supra note 4, at § 2. Another commentator
regarded punitive damages as "furnishing a needed deterrent to wrongdoing, in addition
to that furnished by criminal punishment." C. MCCORMICK, HANDBOOK ON THE LAW OF
DAMAGES § 77 (20th reprint 1975).
168. Silkwood, 104 S. Ct. at 630 (Blackmun, J., dissenting); id. at 634 (Powell, J.,
dissenting). In Justice Blackmun's view, the punitive damages award of the jury sought
to regulate "the day-to-day safety procedures of nuclear licensees." Id. at 628 (Blackmun, J., dissenting). Justice Powell stated that the awarding of punitive damages was
"solely [to] punish and deter conduct at the nuclear facility." Id. at 635 (Powell, J.,
dissenting).
169. Id. at 628 (Blackmun, J., dissenting); id. at 634 (Powell, J., dissenting).
170. Id. at 625-26. The Court stated that the award of state tort law punitive damages may be "regulatory in the sense that a nuclear plant will be threatened with damages liability if it does not conform to state standards." Id. at 626.
171. Id. The Court stated that the risk of NRC penalties and state tort law punitive damages "was something Congress was willing to accept." Id.
172. Id.
173. Id. at 623. The Court interpreted congressional silence on remedies for injured
plaintiffs when the Atomic Energy Act of 1954 was enacted and then amended in 1959 as
evidence of a desire not to preempt state tort law. Id. The Court also noted that Congress did not provide a federal remedy for injured plaintiffs like Silkwood. Id. See also
Tribe, Toward a Syntax of the Unsaid: Construing the Sounds of Constitutional and
Congressional Silence, 57 IND. L.J. 515 (1982).
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damages." 4 Additionally, the Court suggested in Pacific Gas
that state laws could indirectly influence the safety calculus of
nuclear operators as long as that indirect effect results from the
direct exercise of a power reserved to the states. 75 "Total occupation of the field" may therefore be much less than it appears.
A question still remains, however, as to why radiation injuries are an area of special exception. There are many areas of
federal regulation that so completely occupy a field that a strong
argument for preemption could arise. For example, the aircraft
and airline industries are extensively regulated by the federal
government.176 The pharmaceutical industry has been an area of
substantial federal regulation.
The railroad industry has been
the subject of federal regulation since the late 1800's. 7 All of
these areas have been heavily controlled by the federal government and safety regulations have been promulgated by the appropriate federal authorities. In each area, state tort law, including provisions for awards of punitive damages, has been used to
determine liability provided that certain criteria are met.1 7T
These industries do not have a federal statute exactly like
the Price-Anderson Act, the primary purpose of which is to limit
damages in certain instances. However, Congress did ratify the
Warsaw Convention of 1929 which limits damages in airplane
crashes. 80 Yet, no suggestion has been made that the Warsaw
174. Pacific Gas, 461 U.S. at 212-13 n.25. For the federal statute allowing state
control of radioactive air pollutants, see supra note 40.
175. Pacific Gas, 461 U.S. at 223. See also Silkwood, 104 S. Ct. at 629 (Blackmun,
J., dissenting).
176. The Federal Aviation Administration exercises broad control over the aviation
industry. See generally 49 U.S.C. §§ 1301-1542 (1982).
177. The Food and Drug Administration is responsible for regulating the pharmaceutical industry. See generally 21 U.S.C. §§ 351-3601 (1982).
178. The Interstate Commerce Commission has national authority over the railroad industry. See generally 49 U.S.C. §§ 1-27 (1982).
179. For examples of cases where state law has controlled despite pervasive federal
regulatory involvement, see supra note 90. See also Marshall v. Burlington N., Inc., 720
F.2d 1149 (9th Cir. 1983) (ICC regulations on train lighting preempted state tort law
standard of care); McLaughlin v. Connecticut Gen. Life Ins. Co., 565 F. Supp. 434 (N.D.
Cal. 1983) (claim for non-FDA approved treatment preempted under Federal Employees
Retirement and Income Security Act); Guarnere v. Cessna Aircraft Co., Nat'l L. J., June
25, 1984, at 3 col. 1, at 8 col. 1, 2 (D. N.J. June 8, 1984) (25 million dollar punitive
damage award against aircraft manufacturer for defective seat despite federal approval
of that seat).
180. The Warsaw Convention is officially called the Convention for Unification of
Certain Rules Relating to International Transportation by Air. See 49 U.S.C. § 1502
1985]
PARAMETERS OF PREEMPTION
Convention should preempt by implication damage awards in
aircraft crashes falling outside the requirements of the Warsaw
" '
Convention.18
If, as has been suggested, federal law is "interstitial" in nature, 182 then the compensatory damage award scheme of the
Price-Anderson Act only applies to injuries from an ENO. 8 3 It
cannot be applied to nuclear accidents of a lesser scale, such as
the Silkwood contamination, since there was pre-existing state
law that Congress did not affirmatively seek to displace. If Congress had precluded the use of state tort law, there would be no
law under which injured plaintiffs could sue. 84 As the majority
noted, it would be difficult to believe that Congress would remove, even by implication, "all means of judicial recourse for
85
those injured by illegal conduct.'
Additionally, if federal law is interstitial, then the Atomic
Energy Act of 1954 was enacted against the background of preexisting state tort laws. The majority meticulously pointed out
that Congress acted in this manner.18 6 If the Supreme Court had
used an interstitial approach to Silkwood, then the logic of Rice
and FloridaLime would have allowed the Court to find that the
federal regulation of nuclear power did not expressly supplant
the awarding of punitive damages under Oklahoma state tort
law, a traditional state function.
As discussed previously, the Court in Florida Lime held
(1982). Article 22 of the original Warsaw Convention limited damages to $8,291.87 for
death or personal injury. 1 C. KRAUSE & S. SPEISER, AVtATION TORT LAW § 11:36 (1978).
181. Preemption does not appear to be a big concern in aircraft crashes despite the
pervasive federal presence. Instead, the largest area of litigation involves choice of law
problems among the various interested jurisdictions. See, e.g., In re Paris Air Crash of
March 3, 1974, 399 F. Supp. 732 (C.D. Cal. 1975). In fact, the Supreme Court has held
that if uniformity in claims arising from aviation accidents is a goal, Congress may enact
legislation under the commerce clause. Executive Jet Aviation, Inc. v. Cleveland, 409
U.S. 249, 274 (1972).
182. For a discussion of the interstitial nature of federal law, see supra note 14.
183. For a discussion of the ENO criteria, see supra note 3.
184. The majority in Silkwood took the position that federal preemption would
eliminate recourse to any state remedy. Silkwood, 104 S.Ct. at 623. Conversely, the dissenting Justices believed that only punitive damages are preempted as interfering with
the field of safety while compensatory and property damages are not in the safety field.
Id. at 629 (Blackmun, J., dissenting); id. at 635 (Powell, J., dissenting).
185. Id. at 623.
186. Id. For a discussion of the various congressional and administrative reports
that the Court referred to in determining congressional intent, see supra note 94.
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that there would be no preemption unless the nature of the regulatory area allows only the conclusion that federal law should
control or that Congress has unmistakably stated that federal
law should prevail.1 87 Clearly, Congress has not stated that punitive damages are to be eliminated in nuclear facility injuries, nor
does the subject, nuclear power, permit only one conclusion as to
who can regulate it.
Similarly, the Court in Rice held that areas of the law traditionally governed by the states' police powers will not be preempted absent a clear expression of that purpose to preempt by
Congress.' 88 Congress acknowledged that the states have traditionally occupied the field of establishing damage standards for
plaintiffs injured by nuclear activities by specifically enacting
the Price-Anderson Act to limit those damages in certain instances.1 89 In other words, Congress acted positively to displace
the existing state tort law for damages from nuclear radiation
only in the event of an ENO. Against the background of case law
and the relevant statutes, perhaps a better decision could have
been reached in Silkwood by defining what "total occupation of
the field" meant in Pacific Gas. Alternatively, the Court could
have acknowledged that the "total occupation of the field" of
nuclear safety standard adopted in Pacific Gas was an overly
broad statement not truly reflective of the relationship between
the federal and state governments concerning plaintiffs injured
by nuclear radiation.9 0
It is abundantly clear from the legislative histories of the
Atomic Energy Act of 1954 and the Price-Anderson Act that
Congress was aware of state tort law and its relationship to the
developing nuclear industry.1 9 ' Congress could have provided a
187. Florida Lime, 373 U.S. at 142.
188. Rice, 331 U.S. at 230.
189. Silkwood, 104 S. Ct. at 623. The Supreme Court viewed the enactment of the
Price-Anderson Act as a response to utilities' concerns about "potentially bankrupting
state law suits arising out of a nuclear incident." Id.
190. It is worth noting that the "total occupation of the field of nuclear safety"
holding in Pacific Gas is arguably dicta since the Court decided the California law in
question was only concerned with the economic aspects of nuclear power plant construction. Therefore, the extent of the federal occupation of the field of nuclear safety was not
at issue in Pacific Gas.
191. For a summary of congressional reports on the Atomic Energy Act of 1954 and
the Price-Anderson Act, see supra note 94.
1985]
PARAMETERS OF PREEMPTION
"saving clause"19 2 for state tort law to make it clear how federal
regulation of nuclear power was to interact with state tort law. 9
In fact, Congress did provide a "saving clause" for patents in the
Atomic Energy Act of 1954.11" It is just as plausible, and indeed
more likely, that Congress was fully aware of the possibility of
state tort law punitive damages and chose to accept state law as
determinative. 95 Congress did not create a new federal remedy
even though it had the opportunity to do so. l 9 s The import of
the congressional reports cited in all of the Silkwood opinions is
that Congress was willing to let state tort law, including punitive
damages, control personal and property damage actions unless
the criteria for an ENO were met.
Both dissenting Justices would allow compensatory and
property damages to be determined under the appropriate state
tort law.1 7 Yet, both would conclude that punitive damages are
preempted as a usurpation of the NRC's role in assessing penalties.198 In the view of Justices Blackmun and Powell, punitive
damages have a direct effect'99 on the daily operations of a nu192. A saving clause is defined as "an exception of a special thing out of the general things mentioned in the statute. Ordinarily, a restriction in a repealing act which is
intended to save rights, pending proceedings, penalties, etc."
BLACK'S LAW DICTIONARY
1205 (5th ed. 1979).
193. For a discussion of the argument for preemption based on the failure of Congress to provide a saving clause for state tort law punitive damages, see Note, Implied
Preemption of Punitive Damages for Nuclear Accidents, 29 AM. U.L. REv. 741, 765-69
(1980).
194. See 42 U.S.C. § 2190 (1982).
195. Silkwood, 104 S. Ct. at 623.
196. Id.
197. Id. at 631 (Blackmun, J., dissenting); id. at 638 (Powell, J., dissenting).
198. Id. at 629 (Blackmun, J., dissenting); id. at 634 (Powell, J., dissenting). In the
view of Justices Blackmun and Powell, the awarding of punitive damages allows the jury
in a state action to determine the safety level of plant operations by setting a standard of
care that may be significantly different from what the NRC determines is safe operation.
Id. Justice Powell, in particular, highlighted the apparent inconsistency of the jury
awarding $10 million in punitive damages while the AEC found no significant safety
violations at the Kerr-McGee plant. Id. at 634 (Powell, J., dissenting).
199. Id. at 629 (Blackmun, J., dissenting); id. at 635 (Powell, J., dissenting). Note
that Justices Blackmun's and Powell's uses of the words "direct" and "indirect" are
highly reminiscent of earlier commerce clause cases. See, e.g., Houston, East and West
Tex. Ry. v. United States. 234 U.S. 342 (1914) (ICC had the right to control all commerce having a close and immediate effect on interstate commerce); Schecter Poultry
Corp. v. United States, 295 U.S. 495 (1935) (Congress cannot regulate intrastate commerce having only an indirect effect on interstate commerce); Carter v. Carter Coal Co.,
298 U.S. 238 (1936) (Congress cannot regulate business practices having only an indirect
effect on interstate commerce). The "direct versus indirect" test has largely been aban-
BRIDGEPORT LAW REVIEW
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clear facility while compensatory and property damages have an
indirect effect.2 0 The federal government established the NRC
to control and penalize nuclear plant operators; therefore, any
state law interfering or competing with the NRC regulations is
preempted. Since the federal government does not regulate compensatory damages or property damages, Justices Blackmun and
Powell saw no interference or competition with federal law in
awarding such damages under state law.20 1
The dissent did not account for the method by which compensatory and property damages are awarded under state tort
law. Even under a strict liability theory,20 2 to award compensation, the factfinder must determine that a defendant allowed an
ultrahazardous activity208 to injure the plaintiff. The factfinder
must first ascertain what is an ultrahazardous activity. To arrive
at that point, the factfinder must necessarily conclude that the
item is dangerous or unsafe. Alternatively, under a negligence
theory, the factfinder must determine that the defendant
breached his or her duty to maintain safe conditions.20 4 In any
event, the factfinder acting under state law must assess the
safety of a defendant's activity. Clearly, a state judge or jury deciding a case like Silkwood would have to make a safety judgdoned in commerce clause analysis. See NLRB v. Jones & Laughlin Steel Co., 301 U.S. 1
(1937) (introduction of the affectation doctrine in commerce clause cases). However, the
appearance of the direct and indirect language in the Silkwood dissents illustrates the
close relation between commerce clause and supremacy clause analytical roots. In fact,
much of the text of congressional findings relating to the Atomic Energy Acts of 1946
and 1954 spells out the commerce clause basis of congressional control of the nuclear
industry. See 42 U.S.C. §§ 2012 (a), (c), (d), (e), (g) & (i), 2014 (aa) (1982) (congressional
findings of commerce clause jurisdiction in the field of nuclear power).
200. Silkwood, 104 S. Ct. at 629 (Blackmun, J., dissenting); id. at 635 (Powell, J.,
dissenting).
201. Id. at 629-30 (Blackmun, J., dissenting); id. at 638 (Powell, J., dissenting).
202. Silkwood's estate pursued alternative theories of strict liability and negligence
at the district court level. Silkwood, 485 F. Supp. at 571. Judge Theis ruled that strict
liability applied. Id.
203. Dean Prosser explained that an ultrahazardous activity is one "that is not a
matter of common usage, involves a risk of serious harm to persons, land or chattels
which cannot be eliminated by the exercise of the utmost care." W. PROSSER, THE LAW OF
TORTS § 78 (4th ed. 1971).
204. "Unsafe" here is used in the sense that a jury would use it for determining
negligence. Nuclear material users and owners are not universally held to either a strict
liability theory or a negligence theory, so it is possible that a nuclear operator may have
to defend on either or both strict liability and negligence grounds. See KEETON, supra
note 4, at § 78.
19851
PARAMETERS OF PREEMPTION
ment on the defendant's activity to find for compensatory or
property damages. The entire premise of Justices Blackmun's
and Powell's dissents was that the federal government, through
the NRC, should be the sole actor in determining what is safe in
nuclear operations. The logical outcome of their reasoning is
that no one acting under the color of state law could judge the
safety of a defendant's nuclear activities. Therefore, no compensatory or property damage award, let alone a punitive damage
award, could be made under state law.
Additionally, the dissenting Justices argued that only punitive damages have a deterrent effect and, hence, regulatory effect. 20 6 This does not mean, however, that other types of damage
awards do not have a regulatory effect. One purpose of compensatory damages is to restore the injured party to his former position. However, some legal theorists see punishment as an element of all damage awards and as a way to encourage more
socially acceptable behavior."' The only true measure of deterrence is a cost analysis by the affected party as to what is
cheaper: complying with the standard of care or paying the damages. 0 1 The label placed on the damages means little to the tortfeasor except, perhaps, in relation to his or her insurance
coverage.208
V.
CONCLUSION
The Supreme Court chose to analyze the Silkwood case primarily in light of its 1983 decision in Pacific Gas rather than the
long line of previous preemption decisions, including Rice and
Florida Lime. By doing so, the Court improvidently declined to
relate its decision to the prior analytical framework of the preemption doctrine in areas that are traditionally state law. The
Court also should have further defined the exact meaning of
what aspects of nuclear safety the federal government has occupied from the perspective of federal law being interstitial in na205. Id. at 628 (Blackmun, J., dissenting); id. at 635 (Powell, J., dissenting).
206. See, e.g., MCCORMICK, supra note 167, at § 77 n.1. Professor McCormick states
that some jurists, including Holmes, Salmond and Morris, see punishment as an element
of all damages. Id.
207. See, e.g., R. PosNER, EcONoMIc
ANALYSIS OF THE LAW
142-44 (2d ed. 1977);
Coase, The Problem of Social Cost, 3 J. L. & EcON. 1 (1960).
208. Many tort insurance policies specifically exclude payments for punitive damages. See KEETON, supra note 4, at § 2.
152
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ture. An interstitial view of the federal nuclear regulatory
scheme would indicate that the federal laws were created to regulate the safety of a new industry and not to change the way in
which an injured party would recover from the activities of that
industry.
Instead, the Court limited its decision to radiation injuries
while leaving in substantial doubt the fate of the preemption
analysis developed in Pacific Gas. By failing to integrate
Silkwood into the long line of previous preemption decisions, the
Court has only obscured what once were clearer waters.
Michael A. Hergenhan