State Tort Liability For Nuclear Incidents? Supreme Court Calls For Solicitor General Review On Preemption Issue

Key Takeaways

• New Circuit Split on Tort Liability for Nuclear Incidents: Before last year, federal appellate courts consistently looked to federal safety regulations to define the standard of care in tort suits related to nuclear contamination or personal injury. The U.S. Court of Appeals for the Eighth Circuit's recent decision in Mazzocchio v. Cotter Corp., 120 F. 4th 565 (8th Cir. 2024), however, allowed parties to invoke state tort law standards of care even where nuclear safety regulations have been followed. Citing this circuit split, a cert petition is seeking the U.S. Supreme Court's intervention, and the Justices have now asked for the Solicitor General's views on whether the Court should hear this case, docketed as Cotter Corp. v. Mazzocchio, No. 24-1001.
• Preemption of State Tort Law: At the heart of the case is whether federal nuclear safety regulations preempt state tort standards. Contrary to five other federal appellate courts, the Eighth Circuit held that they do not, citing congressional intent to allow state tort remedies. Beyond nuclear power regulation, federal preemption of state statutes and tort law is a critical litigation issue in federal and state courts, and every Supreme Court decision on preemption influences the doctrine across the law.
• Increased Liability Risks if State Standards Apply: If the Eighth Circuit's approach stands, nuclear energy providers, contractors, transportation companies, and waste handlers may face heightened tort liability under strict liability or negligence theories even when they fully comply with Nuclear Regulatory Commission (NRC) regulations. Tort claims could thus turn on juries' judgments as to what safety measures are "reasonable."
• Potential Implications for Renaissance of Nuclear Power: The case takes on greater significance due to the recent market-driven need for base load, which has stimulated a rebirth of the nuclear industry and the Trump administration's emphasis on expanded nuclear energy development and the adoption of new technologies. An increased threat of liability could hamper new projects.

Background

Mazzocchio arises from two sisters' allegations that they developed cancer from exposure to radioactive contamination linked to a former nuclear waste storage site in Missouri. The sisters sued several entities that handled the waste over the years, bringing negligence and strict liability claims, alleging that the defendants failed to manage and dispose of the radioactive materials safely.

Defendants removed the tort action to federal court, arguing that the plaintiffs should have brought the claims as public liability actions pursuant to the Price-Anderson Act. The Price-Anderson Act establishes a federal indemnification and liability regime to encourage private nuclear development. The statute establishes a federal cause of action for nuclear incidents called a "public liability action" that supplants state tort remedies. Following removal, the plaintiffs amended their complaint to assert a public liability action.

In public liability actions, "the substantive rules for decision...shall be derived from the law of the State in which the nuclear incident occurs, unless such law is inconsistent with" the applicable provision of the Price-Anderson Act. 42 U.S.C. § 2014(ii). The Third, Sixth, Seventh, Ninth, and Eleventh Circuits have all found that applicable NRC regulations supply the duty of care and displace state tort law claims as inconsistent with the statute. In Mazzocchio, the Eighth Circuit parted ways with its sister circuits, concluding that Congress intended to allow state tort law standards to apply. The decision cited the Supreme Court's decision in Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984) as reading the Price-Anderson Act to preserve state tort remedies. Defendants petitioned for rehearing en banc, which was denied, 2024 WL 5051074 (8th Cir. Dec. 18, 2024), and then sought Supreme Court review.

Analysis

Left unresolved, the circuit split subjects nuclear energy providers, waste handlers, transportation companies, and contractors to a patchwork of nuclear liability standards. A company operating a nuclear facility or handling radioactive materials in Missouri or Minnesota (within the Eighth Circuit) cannot depend on compliance with federal regulations to shield them from liability. By contrast, this shield would remain available to firms operating in places like Illinois, Pennsylvania, or California.

Given the split in authority and the strong federal interest in the nuclear liability scheme, the Court's decision to ask the Solicitor General to submit a brief is not unexpected. The Solicitor General's practice is to respond to such requests within four months. After the Solicitor General files its brief, the parties will have the opportunity to file responses, but no other briefing is expected unless the Court grants certiorari. Even if the Court does not do so, the Solicitor General's analysis is likely to be significant in future tort litigation involving nuclear materials.

If the Supreme Court grants review, its decision could ensure a uniform national standard by reversing the Eighth Circuit's outlier decision. A decision affirming the Eighth Circuit, by contrast, could invite the application of a variety of different state standards of care to the nuclear industry.

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