ORDER REGARDING BRIEFING at ECF. DOCS. 2344, 2345, & 2350
JOHN L. KANE, District Judge.
After holding a Status Conference to determine the contours of remand, I directed the parties to brief the following two issues: "1) May a plaintiff who brings a Price-Anderson Act claim simultaneously pursue a freestanding state-law claim based on the same facts?"; and "2) Does the existing jury verdict in this case support entry of this Court's judgment on Plaintiffs' nuisance claim under Colorado law and diversity jurisdiction?"
The answer to the first question is "no" and consequently I do not reach the second question. I arrive at my conclusion with reluctance and sympathy for Plaintiffs. I remain convinced that the Colorado jurors in this case correctly found Plaintiffs to have suffered a nuisance under Colorado state-law based on the nuclear contamination for which Defendants are responsible, but I have come to terms with the fact that the law, which I am bound to uphold, does not permit independent Colorado state-law claims based on alleged radiation injury.
Simply put, the Price-Anderson Act ("PAA" or "Act") preempts state-law tort claims arising from atomic energy production and establishes an exclusive federal remedial scheme for such claims. Accordingly, a plaintiff who brings a PAA claim may not pursue a freestanding state-law claim based on the same facts. The Tenth Circuit's conclusion that Plaintiffs' proof was insufficient to satisfy the PAA's injury requirement does not mean that Plaintiffs are now free to pursue, outside the PAA, the same claims based on the same alleged radioactive releases. A failed PAA claim based on an alleged nuclear incident is simply a failed claim, not a state-law claim in waiting.
B. Statutory Background
From its inception, nuclear power has been subject to a comprehensive federal regulatory framework. The first piece of the framework was laid when Congress passed the Atomic Energy Act of 1946, Act of Aug. 1, 1946, ch. 724, 60 Stat. 755, which established a federal monopoly over the development of nuclear power. See Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 63 (1978) ("When Congress passed the Atomic Energy Act of 1946, it contemplated that the development of nuclear power would be a government monopoly."). About a decade later Congress permitted private sector involvement with passage of the Atomic Energy Act of 1954, Act of Aug. 30, 1954, ch. 1073, 68 Stat. 919 (the "1954 Act").
The 1954 Act provided for "licensing of private construction, ownership, and operation of commercial nuclear power reactors for energy production, " id., and "grew out of Congress' determination that the national interest would be best served if the Government encouraged the private sector to become involved in the development of atomic energy for peaceful purposes under a program of federal regulation and licensing." Pacific Gas and Electric Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 207 (1983) (citing H.R.Rep. No. 2181, 83d Cong., 2d Sess., 1-11 (1954)). Despite the 1954 Act authorizing private nuclear energy participation, private utilities were reluctant to enter the field, primarily because of "the risk of potentially vast liability in the event of a nuclear accident." See Duke Power, 438 U.S. at 64 (discussing that enormous potential liability is associated with nuclear accidents.) To address that concern, Congress enacted the Price-Anderson Act of 1957("PAA" or "Act") "to protect the public and to encourage the development of the atomic energy industry." Pub. L. No. 85-256, § 1, 71 Stat. 576 (1957).
The Act restricted the civil liability of nuclear plant operators and provided federal subvention to help pay damages caused by nuclear accidents. Id. The PAA has been amended three times, most notably in 1988. The 1988 Amendments created federal jurisdiction for public liability actions arising from nuclear incidents. 42 U.S.C. § 2014(hh). A "public liability action" is defined as "any suit asserting public liability" based upon alleged exposure to "source, special nuclear, or byproduct material." 42 U.S.C. § 2014(hh), (q). "Public liability" is defined, in part, as "any legal liability arising out of or resulting from a nuclear incident or precautionary evacuation..." 42 U.S.C. § 2014(w).
A "nuclear incident" is "any occurrence, ... within the United States causing, within or without the United States, bodily injury, sickness, disease, or death, or loss of or damage to property, ... arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or byproduct material...." 42 U.S.C. § 2014(q). Section 2014(hh) provides that "the substantive rules for decision of [a public liability] action shall be derived from the law of the State in which the nuclear incident involved occurs, unless such law is inconsistent with the provisions of section ." 42 U.S.C. § 2014(hh).
C. A "Public Liability Action" Under The PAA Is The Exclusive Cause Of Action For Harm Allegedly Caused By Radioactive Releases From Rocky Flats.
Defendants argue that Plaintiffs may not pursue a freestanding Colorado state-law claim based on harm allegedly caused by radioactive releases from Rocky Flats because the PAA completely preempts any such state-law claim. Plaintiffs make two primary objections to this position, asserting first that Defendants have waived the argument and second that finding the PAA to preempt state-law tort claims would violate due process. I reject both arguments.
The PAA itself does not explicitly address the issue of claim preemption. But every federal circuit, including the Tenth Circuit, to consider whether the PAA preempts state causes of action for public liability arising out of or resulting from nuclear incidents has concluded that it has. For example, in Nieman v. NLO, 108 F.3d 1546, 1547 (6th Cir.1997), the plaintiff asserted various state-law claims based on allegations that a discharge of uranium from a nuclear processing facility in Fernald, Ohio had damaged his property. The Sixth Circuit affirmed the district court's dismissal of plaintiff's state-law trespass action, noting that the PAA had not merely created a new federal cause of action, i.e. a public liability action, but that "a new federal cause of action supplants the prior state cause of action." Id. at 1549 (quoting O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1100 (7th Cir.), cert. denied, 512 U.S. 1222 (1994)). "[t]he state law claims cannot stand as separate causes of action. Nieman can sue under the Price-Anderson Act, as amended, or not at all." Id. at 1553 (emphasis added). The Tenth Circuit similarly used bold language in Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1504 (10th Cir.1997) to describe the preemptive effects of the PAA, calling the Act's provisions "sweeping" and stating that the 1988 Amendments "appear broad enough to create a federal forum for any tort claim even remotely involving atomic energy production."
The Ninth, Eleventh, Seventh, and Third Circuits agree. See In re Berg Litig., 293 F.3d 1127, 1132 (9th Cir.2002) (public liability action is plaintiff's "exclusive means" for pursuing claims arising from a nuclear incident); Roberts v. Florida Power & Light Co., 146 F.3d 1305, 1306 (11th Cir.1998) ("Congress passed the Price-Anderson Amendments Act of 1988... creating an exclusive federal cause of action for radiation injury."); O'Conner, 13 F.3d at 1100, 1105 ("a new federal cause of action supplants the prior state cause of action.... [S]tate regulation of nuclear safety, through either legislation or negligence actions, is preempted by federal law."); In re TMI Litig. Cases Consol. II, 940 F.2d 832, 854 (3d Cir.1991) (TMI II) ("After the Amendments Act, no state cause of ...