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Justices wary of bid to broaden workers’ comp in Washington

Washington state tried to make it easier for nuclear waste workers to gain access to benefits, but the Biden administration considers such determinations part of federal domain. 

WASHINGTON (CN) — The U.S. Supreme Court forecast a win for the government Monday in its effort to stamp out a law that makes it easier for nuclear workers in Washington state with job-related injuries to seek federal benefits. 

Washington came up with the law in 2018, about 30 years into an arduous cleanup of a decommissioned nuclear facility near Hanford that was created through the Manhattan Project to produce weapons-grade plutonium during World War II and the Cold War.

HB 1723 amended state workers' compensation law so that certain illnesses would now be recognized as occupational diseases, meaning that, instead of workers having to prove their job was the reason for their illness, the government would have to prove the illness had a different cause. 

The federal government pushed back, but has been unsuccessful so far in its attempt to paint the law as unconstitutional and at odds with the U.S. Constitution's Supremacy Clause. It predicts the law will cost the U.S. tens of millions of dollars annually for the remainder of the 21st century and would set a precedent for allowing discriminatory state legislation targeting other federal facilities.

“HB 1723 discriminates against the federal government and those with whom it deals on its face,” Deputy U.S. Solicitor General Malcolm Stewart told the Supreme Court this morning in oral arguments. “It is limited to a specific federal facility, and even within that facility, it applies only to workers engaged in the performance of federal contractors, not to state or purely private workers.” 

The case before the court asks the justices if intergovernmental immunity can bar a state law that applies only to federal contract workers who are employed at a specified federal facility. But even as the case lurches toward Supreme Court resolution, there is some disagreement about its place on the docket. Washington’s governor just last month signed Senate Bill 5890, which gets rid of the portion of the law the federal government is challenging. While the old law applied only to federal contractors at the Hanford site, the new law applies to any worker at any facility storing or disposing of high-level radioactive waste. 

“Ultimately, this court need not decide this issue because this case is moot,” said Tera Heintz, who is a deputy solicitor general for Washington. “The federal government is asking you to issue a constitutional ruling invalidating a state law that no longer exists and that has no ongoing effect. This court should decline and should instead vacate the decisions below and remand for further proceedings.” 

Stewart, representing the Biden administration, says the state must first proved that the benefits from the new law will actually happen before it can proclaim mootness. 

“We acknowledge that Washington's recent enactment of SB 5890 makes it uncertain whether a decision invalidating HB 1723 will ultimately produce any financial benefit to the United States,” Stewart said. “Under this court's precedents, however, the case is not moot so long as there is a reasonable possibility that such a benefit will ensue. Respondents have not carried their heavy burden of negating that possibility.” 

The justices didn’t seem to buy the state's argument. 

“Why do you care,” Justice Samuel Alito asked Washington’s lawyer. “If this old law is a void, dead, has no effect, why are you fighting so hard to prevent us from considering its status?” 

Heintz said that the new legislation is intended to be retroactive, and the courts would have an obligation to apply it that way, but Chief Justice John Roberts warned against predicting anything the courts would do. 

“There are a number of cases where the issue would still be alive and, however confident you are about your prediction of your state Supreme Court — you know, sometimes predictions don't pan out,” the Bush appointee said. “Courts do unusual things.” 

Outside of the mootness argument, the justices seemed skeptical of the state using the 1936 law to wave federal immunity and allow Washington to pass HB 1723. 

“What sensible Congress would have written the statute the way you say it ought to be read,” Justice Elena Kagan said. 

Following oral arguments, Washington’s attorney general continuing the challenge would be cruel. 

“I’m proud of my legal team for their efforts today,” Washington Attorney General Bob Ferguson said in a statement. “To be blunt, if the Hanford Nuclear Reservation was located outside Washington, D.C., the federal government would not be continuing this cruel legal challenge. As long as I am Attorney General, my office will defend Hanford workers’ ability to access the benefits they earned.”

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