Promise, Peril, and Procedure: The Price-Anderson Nuclear Liability Act

Abstract

Under the Price-Anderson Nuclear Liability Act, damages from an “extraordinary” nuclear disaster in the United States would be capped at just $12.6B (and individual operator liability at $375M). By comparison, calculations regarding the costs of the Fukushima nuclear accident range from $100-$500B, while British Petroleum settled suits relating to the Deepwater Horizons oil spill in the Gulf of Mexico for over $20B. As concern about carbon emissions and global warming leads to calls for an expansion of U.S. (and worldwide) nuclear power generation, a good understanding of nuclear power regulation in the United States requires knowledge about the details of this 60-year-old statute. This article familiarizes the reader with its content, but is, at its heart, not about the policy choices embedded in the Act. Rather, the piece focuses on the unusual procedural choices made by Congress in deciding how liability limits would be implemented in the event of a nuclear accident. The procedural innovations in the Act draw from many of the most unusual federal jurisdiction and administrative law doctrines, deeming certain agency actions wholly unreviewable, and designating non-diverse state law cases as subject to federal subject matter jurisdiction because they “arise under” the Act. These procedural innovations combine to make the Act the exact opposite of a “trans-substantive” procedural statute, and raise serious questions about whether courts (not to mention legislatures) should skeptically view these kinds of unique procedures. The Article ends with a further discussion of what I call “legislative trans-substantivity” – the principle that courts should – and do – take a skeptical perspective regarding legislative enactments that vary too substantially from “baseline” trans-substantive procedural law.

Keywords: procedure; mass torts; administrative law; federal procedure; liability limitations; nuclear disaster; nuclear; energy law; nuclear power