The Justice Department last week asked the U.S. Supreme Court to review a 2020 ruling by the Ninth U.S. Circuit Court of Appeals upholding a state law making it easier for workers at the Department of Energy’s Hanford Site to win compensation for work-related health problems.
The move has prompted swift rebukes from the Washington attorney general and a citizens group.
“The Trump administration attempted to gut Washington’s protections for Hanford workers that get sick on the job — and my legal team beat them twice,” Washington Attorney General Bob Ferguson said in a Tuesday press release. “Now the [Joe] Biden administration is continuing Donald Trump’s cruel effort to eliminate these critical protections for the hardworking men and women at Hanford … just days after Labor Day, no less,” he added.
Ferguson said Thursday he expects to know by the end of the year whether the high court will hear the case.
“To say this is a surprise and a disappointment is an understatement,” Ferguson said during a Thursday press conference on the issue, which was shared via conference call. The Washington attorney general also questioned if Biden himself was actually consulted about this Justice Department action.
Ferguson and Nick Bumpaous, a union representative who directs the political action committee at UA 598 Plumbers and Steamfitters, called upon the Biden administration to withdraw the legal challenge. “Those who served this nation at the most contaminated site in the Western Hemisphere should have access to healthcare,” Bumpaous said.
Likewise, Tom Carpenter, executive director of Hanford Challenge, said in a press release the advocacy group is “appalled” the Biden Justice Department is seeking “to dismantle” a 2018 state law “passed to improve the standards that Hanford nuclear site workers must meet in order to receive worker compensation benefits.”
During the Thursday press conference, Ferguson and one of law’s cosponsors, now-retired Rep. Larry Haler (R-Richland) plus some Hanford workers and spouses said the pre-2018 system featured an exhaustive process where ill employees were vetted by multiple independent medical examiners.
“In some cases, workers died before they could conclude that process,” Ferguson said. Ill employees from Hanford’s tank farms would need to link their sickness to a specific chemical used at Hanford, which is difficult, the attorney general said.
The Justice Department filed a petition for a writ of certiorari with the high court on Sept. 8. The writ is a document basically contending a lower court erred in applying the law and urging the Supreme Court to hear the case.
The central question in the 128 page document filed by Justice is if a state compensation law that applies “exclusively to federal contract workers who perform services at a specified federal facility is barred by principles of intergovernmental immunity,” or is instead allowed by another standard that would treat the property as if it “were under the exclusive jurisdiction of the State.”
“Even if the Hanford site is considered in isolation, the decision is likely to cost the United States tens of millions of dollars annually for the remainder of the 21st century,” according to the Justice Department brief. The brief also said the law covers some workers at Hanford but not others, such as employees of US Ecology, who also do nuclear work at the site.
After being passed by the Washington legislature and signed into law by Gov. Jay Inslee (D) in March 2018, House Bill 1723 took effect in June 2018.
In 2019, the law survived a challenge in the U.S. District Court for the Eastern District of Washington. It was later upheld in August 2020 by the Ninth Circuit.
The state law lowered the burden for workers to establish their work at the former plutonium production complex, now a cleanup site, is linked to illnesses such as respiratory diseases, neurological problems and chronic beryllium disease.
Petitions to the Supreme Court tend to face long odds. In a typical year the high court agrees to hear no more than 150 of the more than 7,000 cases that it is asked to review annually, according to a federal court website.
