This must watch video documents the worst of the worst, when a combination of greed, stupidity, and smart people combine to create one of the worst environmental catastrophes in American history. Recently, the Supreme Court refused to hear the appeal by the plaintiffs (residents who have been poisoned) in a 20 year litigation.
After 20 years of litigation, it’s back to the drawing board for Colorado residents who claim that contamination from the defunct Rocky Flats nuclear weapons plant damaged property values. On September 3 a panel of the U.S. Court of Appeals for the Tenth Circuit vacated a nearly $1 billion judgment against successive operators of the plant, The Dow Chemical Company and Rockwell International Corporation.
Kirkland & Ellis’s Christopher Landau argued the successful appeal for Dow and Rockwell; Berger & Montague’s Peter Nordberg and Merrill Davidoff led for local residents at trial and on the appeal.
The suit stems from allegations that the Rocky Flats plant, located near Denver, contaminated the surrounding area and deflated property values. From 1952 until 1975, the plant was operated by Dow. It was then taken over in 1975 by Rockwell. Rockwell ran the facility until 1989, and the government ultimately shut the plant down in 1992. (Rockwell was acquired by The Boeing Company in 1996.)
In 1992, Rockwell pleaded guilty to environmental crimes and agreed to pay the federal government an $18.5 million fine. In 1990 a class action was filed in federal district court in Denver on behalf of residents living near the site against both Dow and Rockwell.
After years of intensive motion practice and prolonged discovery, the matter finally went to trial in 2005, with a jury returning its verdict in favor of plaintiffs in 2006. In 2008, Denver federal district court judge John Kane awarded plaintiffs $926 million.
Then came Kirkland’s appeal; American Nuclear Insurers and the Nuclear Energy Institute also submitted briefs in support of Dow and Rockwell. The three-judge panel vacated the class on the grounds that the lower court incorrectly ruled plaintiffs didn’t have to show any actual damages. At press time the case was headed back to the district court to determine whether plaintiffs can adequately prove damages to justify class certification. http://www.kirkland.com/sitecontent.cfm?contentID=230&itemId=9542
Amid the outcry about the Supreme Court’s decision on the Affordable Care Act, it was easy to miss another decision that might have even graver consequences for the health of American citizens. I’m referring to the Supreme Court’s decision not to review Cook v. Rockwell. Most Americans haven’t even heard of this case, yet the ramifications of the class-action lawsuit against Rocky Flats, America’s most notorious nuclear bomb factory, will have a very long half-life.
I grew up next to that bomb factory, but we knew little about what went on there. The rumor in the neighborhood was that they were making household cleaning supplies. For nearly 40 years, Dow and then Rockwell secretly produced more than 70,000 plutonium triggers for nuclear bombs, each one deadly enough to kill every person on earth. Plutonium and other contaminants traveled into my neighborhood and the Denver metro area. Plutonium has a half-life of 24,000 years.
Following a shocking 1989 FBI raid on the plant for environmental crimes, more than 12,000 property owners with health and property concerns filed suit. The plaintiffs argued that “a landowner whose property is devalued because of plutonium contamination has suffered both an invasion of his property and genuine, immediate economic harm.” Never mind cancer and other health effects, which are higher than average in areas around Rocky Flats. It took nearly 20 years for Cook v. Rockwell to wind its way through the courts. In 2006, after deliberating for 17 days, a jury awarded the plaintiffs a total of $554 million. Rockwell appealed. Three judges with the 10th U.S. Circuit Court of Appeals overturned the decision.
And now the Supreme Court has weighed in. They declined to review the case.