U.S. Not Liable for Cancer Tied to Fallout, Court Says

A federal appeals court struck down a judge’s 1984 ruling that government negligence in above-ground nuclear tests caused cancer among people downwind, and attorneys for the plaintiffs vowed Tuesday to appeal to the U.S. Supreme Court.

The U.S. 10th Circuit Court of Appeals in Denver late Monday unanimously overturned U.S. District Judge Bruce Jenkins’ finding in 1984 that the government negligently failed to warn or educate downwind residents of radiation hazards from tests conducted by the then-Atomic Energy Commission at the Nevada Test Site from 1951 to 1962.

“While we have great sympathy for the individual cancer victims who have borne alone the costs of the AEC’s choices, their plight is a matter for Congress,” Chief Judge Monroe McKay wrote in an opinion that was part of the 3-0 ruling.

Cites Discretionary Powers

After 15 months of review, the court decided the government could not be held liable for the claims because of the discretionary powers given to the AEC in the Atomic Energy Act of 1946.

“Only Congress has the constitutional power to decide whether all costs of government activity will be borne by all the beneficiaries or will continue to be unfairly apportioned, as in this case,” McKay wrote.

The decision drew a swift, bitter response from many involved in the case.

“We can take care of the whole world--give millions to the contras --but not one penny for the kids down here who died,” said Helen Nisson, 62, of St. George, Utah, who testified that she believed fallout caused her 13-year-old son’s death. She was one of those awarded damages by Jenkins, but she said Tuesday: “I haven’t got one penny and probably never will.”

“We have no choice but to move in the direction of an appeal,” said plaintiffs’ attorney Stewart L. Udall of Phoenix, the former U.S. secretary of the Interior.

“It’s an absolute certainty that we’ll pursue congressional relief,” said Rep. Wayne Owens (D-Utah), an attorney for the plaintiffs for nine years.

However, plaintiffs’ attorney Dale Haralson of Tucson said he held out little hope that Congress would act. He noted that it failed to pass legislation introduced in the early 1980s that would have provided compensation for people with fallout-related illnesses.

“I have no reason to believe that in view of the tremendous lobbying of the nuclear defense and nuclear industries that there will ever be any legislation that will compensate these people,” Haralson said.

Owens pointed out that Congress gave inhabitants of the Marshall Islands $180 million in compensation for nuclear testing in the Pacific, yet the appeals court, like Congress, denied the same relief to U.S. citizens.