RADIOPROTECTION
ET DROIT NUCLEAIRE
Entre les contraintes économiques et écologiques,
politiques et éthiques

ABOUT SOME TERATOGENETIC EFFECTS OF NUCLEAR RADIATIONS ON US JURISPRUDENCE AND SCIENCE
Robert M. Hager, J.D., Harvard Law School;
Editor, Harvard Law Review; practising public interest attorney;
Consultant on international legal issues.
II. The Mechanics of Nuclear Injustice


     This section will describe the practical mechanics of the false economic advantage accorded to nuclear energy described in the previous section. The mechanics of this market failure may be analyzed in its several components, which consist of a variety of legal obstacles to the success of otherwise valid liability claims for radiation injury. In the arena of litigation and law-making these obstacles may be viewed as tactics to maintain the economic value of impunity. These legal tactics exploit special features of injuries caused by radiation as distinguished from, say, an automobile accident.

While most injuries caused by automobile accidents give rise to liability, most injuries from radiation do not. The automobile is perceived as sufficiently useful to society that it survives as a useful means of transportation for many applications, notwithstanding that its users pay compensation for a large portion of the personal and property injuries which it causes. It is doubtful to many whether the nuclear industry is sufficiently useful to society that it could survive the imposition of full responsibility for the injuries it causes. For this reason impunity is and has been an essential feature of the nuclear enterprise.

After a brief survey of the legal tactics by which the nuclear industry has avoided responsibility, more detailed attention will be given in the next section to exploring one of these tactics in action, the official manipulation of science.

1. Justice delayed

It is the nature of low level radiation that its effects take many years before they become medically manifest. 

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In the case of most types of cancer, the latency period is about 20 years on average but can be far longer. 

This fact gives opportunity for employing legal tactics based on Statutes of Limitation (the time required after an injury occurs or is discovered within which a case must be brought) and Statutes of Repose (the time after a wrong is committed within which a case must be brought, irrespective of whether the injury has occurred yet, or is known to the injured person). These tactics allow for the denial of compensation for no other reason than the entirely foreseeable fact that the effects of radiation are delayed, and the proofs of the cause of those effects may be delayed even longer for no reason under the control of the injured person. A case may thus be denied because it was brought too late, even though it could not have been brought any earlier.

For example, in a case discussed in more detail below, a Kentucky Court upheld the denial of a radiation injury claim based on an interpretation of a statute of limitations that would have required a widow to bring her survivor's claim for the death of her husband and his burial costs years before her husband's fatal cancer was even diagnosed. (7 )The Kentucky Court interpreted a state statute of limitations as precluding a widow from obtaining compensation for her husband's death from cancer unless the death occurred within three years after he first suspected that his health had been adversely affected in any way by radiation. This denied the widow any remedy at all for her grievous loss.  


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Mr. Harding had suspected that certain skin, lung and other conditions (but not his fatal cancer which was diagnosed only eight years later) were related to his occupational exposures to radiation at the government's Paducah, Ky. uranium enrichment facility. But any injuries that occurred, including death, more than three years after his original suspicion are denied any remedy.

The Kentucky court's decision was even more manifestly unjust since Joe Harding had no evidence to prove his suspicion of radiation injury until after he died, a bioassay was taken of his bones, and an epidemiological study was completed by the government. His widow's case was based on evidence that was and could only have been obtained from a bone sample obtained after Mr. Harding's death. There was insufficient evidence to support a claim for any of his injuries before his death, but the law precluded recovery on any claim unless it was filed long before his death.(8 )

Epidemiological studies are required to prove radiation injuries.(9 )But such studies are not only expensive and time consuming, they are of little value unless they are performed after the latency period for most of the diseases caused by exposure of a population is completed. For most radiogenic cancers this is understood to take from 20 up to 40 years. The Kentucky statute of repose, for example is 20 years. This could preclude the introduction of any meaningful epidemiological study of the exposures that caused an early injury. In the Joe Harding case a study of workers exposed to radiation by his employer under conditions very similar to his was admitted into evidence only by reopening the evidentiary phase of the case. If the case had not dragged on in litigation nearly 10 years by that point this crucial evidence would not have been available. Yet he could not have waited until it was available before filing without violating the statute of repose. 

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The long time it takes for radiation induced cancers to cause injury and death, the diversity of other diseases caused by radiation, and the limited means to gather evidence of exposure, all subject radiation claims to tactics such as this, for no particularly good reason. The purpose of statutes of limitation and repose is to protect defendants from claims asserted long after the defendant might anticipate such a claim. Anyone who handles nuclear materials is fully aware that its misuse will inflict injuries, many of which will be realized only in the distant future. However, Courts looking for reasons to avoid adjudication of complex cases rather than to do justice readily seize upon these tactics, misinterpret and expand them to entirely foreclose victims from obtaining any effective remedy for radiation injury. (10)
 

2. Sovereign impunity

Much of the damage done by radiation has been inflicted directly by the government, such as through its bomb testing. The recent disclosures of injuries to the generation who were young in the 1950's will inevitably raise the issue of compensation for the vast damage done. In Allen v. United States, 588 F.Supp. 247 (D.Utah 1984), rev'd, 816 F.2d 1417 (10th Cir.1987), cert. denied, 484 U.S. 1004 (1988) a district court found the government liable for injuring "downwind" victims of nuclear testing. The judge rendered a lengthy, meticulous analysis of the scientific evidence which constituted a virtual textbook on the proof of radiation injury. However the appeals court held that the government was immune from suit by the downwind victims, because bomb testing, including the failure to warn the public adequately of its effects, was a "discretionary function" of the sovereign and therefore immune from liability. A government proven guilty of killing its own citizens was accordingly held legally excused from paying for the damage it caused.

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This is not the only type of immunity that protects government officials. After the accident at Three Mile Island the Nuclear Regulatory Commissioners intentionally denied residents a legally required administrative hearing before they permitted the additional release of radioactive material trapped in the damaged containment building directly into the atmosphere. A majority of the Nuclear Regulatory Commissioners had done so in order to promote the interests of the nuclear industry in conducting a cheap, and therefore dirty, cleanup of the ruined reactor before public opposition could mount and the personnel of its Commission change with a new presidential appointee. The residents were therefore exposed yet again to about the same amount of radiation as the accident itself released, without the opportunity to have a hearing on the perfectly adequate, though more expensive, alternatives.

On the basis of a judicial decision holding that they had been intentionally denied this valuable right,(11)the residents sued the commissioners for nominal damages plus punitive damages, to be assessed by a jury which would be selected from among the residents around nearby Three Mile Island. The punitive damages would be measured in part by evidence of the global risk to the community from the release, especially young people, at least one of whom and as many as 300 of whom, evidence showed, would eventually die from a second deliberate exposure. By holding the Nuclear Regulatory Commissioners themselves personally liable for the compensation of these anonymous deaths and injuries it was hoped that they would be encouraged to actually regulate, as their name suggested they should, rather than promote the business interests of the industry.

While this case was pending the Supreme Court extended the immunities of federal government officials to cover deliberate violations of clearly established statutory and regulatory rights of citizens, if those rights had not also been previously established to be constitutionally required. On this ground the suit was dismissed.(12)
 

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Such immunities make it very difficult to hold the government responsible when it undertakes the business of conducting or promoting a hazardous activity itself, even when their actions suggest deliberate and knowing conduct.

The government has also shared a partial immunity with the nuclear industry by enacting the "Price Anderson" Act. (13)This law caps the liability of the nuclear industry for damages arising from nuclear disasters. Since the remainder of the damage is covered by a government sponsored insurance facility this scheme removes much of the risk of liability to investors in nuclear energy.

3. Nuclear Energy on the Dole

The government not only assists the nuclear industry by extending it sovereign-type immunities, it also extends more direct assistance to its contractors who are sued for causing radiation injury, in a kind of legal aid for the nuclear industry. The government maintains a legal unit which coordinates litigation tactics, and in certain cases, like the Joe Harding case, actually defends the suit on behalf of its contractor. A television documentary made about the Joe Harding case forced the government to admit that it had paid for litigation costs substantially more than what Joe Harding's widow could have received had she won her suit.(14)Nevertheless no offer of settlement was made by the government even after all the evidence was submitted, because the government's purpose was to make it uneconomic for an injured plaintiff to pursue a radiation injury case against a government contractor.

The government also subsidizes the manufacture, or suppression, as the case may be, of scientific evidence for the purpose of distorting the knowledge available about radiation hazards. The government then lends its experts in accomplishing this task to the industry to testify in defense of the industry against persons injured by radiation. This form of litigation support is discussed in greater detail in the next section.

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4. Worker's compensation, or employer's dispensation

Alongside the victims of the government's own handling of nuclear materials, the most numerous group of radiation victims may be the hundreds of thousands of workers in various nuclear facilities who receive and are officially allowed to receive larger radiation doses than other people. Virtually all of these workers in the United States are covered by state worker's compensation statutes. These laws provide a type of insurance. Right to payment is obtained by workers through a trial type process which, with several exceptions, imitates the procedures of formal trial. Since the laws also establish an "exclusivity doctrine" denying workers their ordinary right to choose a formal trial for their claims instead of the state's insurance scheme, these exceptions, which severely prejudice workers who claim radiation injury, are very important.

The first exception is that no jury is available to decide the facts in a worker's compensation proceeding, as would be the case in an ordinary civil suit. Instead government officials who staff the worker's compensation boards decide disputed facts. Unlike juries of ordinary citizens, these officials tend to credit the testimony of the government's official witnesses. The second important difference is that a jury does not assess the amount of damages necessary to compensate the injured person. The damages are instead assessed in accordance with formulas set by state legislatures, which are typically only a fraction of what juries would ordinarily award. Where causation is clear, as in most industrial accidents, this system works well enough in providing speedy compensation to workers at low transaction costs to prevent widespread protest. But where causation is contested, as it always is in a low level radiation claim there is little difference between the speed and cost of the worker's compensation process and a formal trial, where the right to jury trial, and full damages would be protected. 

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Since the costs of such a contested proceeding can easily exceed the expected benefits few such cases are ever brought. Therefore the nuclear enterprise follows the tactic of making such a claim as expensive as possible for the plaintiff.

The case of Silkwood v. Kerr-McGee Corp., infra, the first and virtually only major award of damages to a nuclear worker by formal jury trial, well demonstrates the importance of these factors. The unique facts of the Silkwood case avoided the workers compensation "exclusivity" doctrine. Karen Silkwood had been contaminated not at the work place but at her home under circumstances which caused the case to be pursued also as a civil rights violation.(15)

The Silkwood jury credited the testimony of Dr John Gofman, and other plaintiff's experts who are viewed by the industry as so remote from mainstream science as to be biased advocates of a cause. But it was the defendant's official witnesses that the jury easily saw to be the paid-for advocates of their employer's cause. The jury found a compensable injury from the mere fact of exposure of Karen Silkwood to nuclear material owned by her employer, the likelihood that she would in the future contract cancer, and her fear of that possibility. The jury clearly believed Dr Gofman's testimony that due to the plutonium found in Silkwood's lung, she "was married to cancer", and discredited the official witnesses' testimony that plutonium in low doses had never been proven to injure anyone before. The jury went on to award actual damages and punitive damages that could not have been awarded at all by the workers compensation system of insurance for disabilities. 
 

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5. Federal preemption

If a state or local government attempts to create favorable rules to protect radiation victims, these rules might be invalidated by federal courts claiming federal preemption of these local rules. The federal government is a strong promoter of nuclear energy, while state government, and especially local governments, have been less reliable in their support.

In Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984) the Supreme Court in a 5-4 vote reversed an appellate court decision which held that a $10 million punitive damages award for radiation injury was preempted by federal law. This almost unique success by a radiation victim in court was likely not unrelated to the fact that Karen Silkwood had been the subject of a motion picture. Her case was well publicized by the time it reached the publicity conscious U.S. Supreme Court.

Since the time of the Silkwood decision, the Supreme Court has developed a new doctrine permitting federal court review of state punitive damages awards for fairness without going to the full extent of preempting it. It is therefore not clear that another case like Silkwood would receive the same treatment today. Even in Silkwood the Court did not uphold the full amount of the award, but instead remanded to the appellate court which ordered a new trial. Rather than go through the delay of another trial, the plaintiff in the suit, Karen Silkwood's aging father, settled for less than $2 million.

In another preemption case a small township which was the involuntary host of a plutonium plant sought to set its own radiation emissions standards to protect its citizens against a planned radioactive waste incinerator. The Township's standards were far more stringent than the comparable federal standards. Such standards are premised upon the concept of acceptable doses of radiation, and, as discussed in greater detail below, can affect the outcome of liability claims. 

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Standards such as those enacted by Parks Township could have eased the burden on radiation injury plaintiffs in proving liability. The nuclear plant owner challenged the local standards as preempted under federal law.

After several years of litigation the plaintiff corporation withdrew its suit to avoid a potential loss, and adverse precedent. Meanwhile, the Supreme Court had created a rule that a local government might itself be liable to pay the attorney fees of a corporation who proves that its law is preempted by federal law, which might apply to a second suit Since these fees are potentially enormous compared to local legal budgets, this rule has made it too risky for state and local governments to defend most laws that take a more favorable approach for radiation victims than does federal law.

On the other hand, in the Parks case the corporation which withdrew its suit when it appeared that it would lose was not forced to pay the fees incurred by the Township in defending its suit.(16)This tactic made local opposition to the nuclear industry expensive, win or lose.

6. Collusive class actions

The class action device is a means to aggregate similar claims that can be more efficiently pursued together than separately. When applied to injury claims, class suits lend themselves to collusive settlements. Lawyers appointed by the court, not the plaintiffs, get together with the defendant and in exchange for assuring payment of the plaintiffs' attorneys fees, the case is settled, even over the objection of the plaintiff class itself, for far less than the plaintiffs would obtain had they individually tried their suits. The settlement money is then often not distributed, because it is embarrassingly small, but instead retained as a fund controlled by the judge who approves the settlement, or by the lawyers, to the disadvantage of the plaintiffs.(17)

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This tactic was invented in the Three Mile Island case(18)but fully perfected only through the misapplied genius of perhaps the most creative U.S. judge, Judge Jack B. Weinstein, when presiding over the Agent Orange litigation(19).Even after the tactic was recently weakened in an attempt by asbestos plaintiffs lawyers and defendants to settle all the future claims of exposed persons in a single collusive class action settlement,(20)the tactic remains viable for future use when federal judges consider it appropriate.

The represented class in In re Three Mile Island did not stand by as "their" lawyers misused the settlement money intended to compensate their injury. Under the rules these lawyers could be replaced if their performance was inadequate. The lawyers had agreed to a settlement whereby the judge and the nuclear industry defendant had veto power over expenditures made from the settlement money that was notionally the plaintiffs. One result was a scientific study with strict parameters fixed by the court. In this study the desired political "assumptions" outweighed the evidence to yield a predictable conclusion that the accident-generated radioactive emissions did not increase cancer risks in the TMI area. A subsequent reanalysis of the same data by an independent researcher reached the opposite conclusion, and pointed out the distortions introduced by the judge's preconditions on the study.(21) In this way the money obtained in settlement of the victims potential claims for radiation injury was used contrary to the victims own interests, to disprove their serious injury.

A settlement that permitted this violation of the plaintiffs own interests, and other similar uses of the money opposed by the class plaintiffs, in addition to the appointed lawyers' refusal to support uses of the settlement money that the plaintiffs did request, all provided grounds to remove these lawyers. In no sense did these lawyers represent, or even know, the class plaintiffs. The class was defined geographically, and was represented by lawyers from outside that area who were appointed by Judge Rambo.  


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In order to remove these lawyers, the plaintiffs obtained the support of their actual elected representatives covering the same geographical area that defined the class. These elected political officials, as a group, requested the court to either force the court's chosen representatives to follow the wishes of the plaintiffs, or to replace them as permitted by the rules.

The court denied this request without explanation, despite the obvious lopsided disparity of credentials for representing the plaintiff class. Because a collusive suit is easier for a judge to control than would be an actual adversarial proceeding in a large complex suit the colluding lawyers were favored by Judge Rambo. (22)

Experience shows that judges of a more bureaucratic than judicial temperament faced with cases such as this tend to like collusive class action settlements and the lawyers who make them. Of course collusion also serves the interests of the large corporations who pay the piper. Unless clearly prohibited, there will be more collusive settlements in the event of litigation for large scale radiation injuries.

7. Cross border liability

Many of the victims of the nuclear enterprise are beyond the borders of the country where the activity originated. President John Kennedy acknowledged this in a speech announcing the limited nuclear test ban treaty, in a passage which is also testimony to early knowledge about health effects at high levels of radiation:

"[O]ver the years the number and the yield of weapons tested have rapidly increased and so have the radioactive hazards from such testing.

... [T]he number of children and grandchildren with cancer in their bones, with leukemia in their blood, or with poison in their lungs might seem statistically small to some, in comparison with natural health hazards. 

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But this is not a natural health hazard - and it is not a statistical issue. The loss of even one human life, or the malformation of even one baby - who may be born long after we are gone - should be of concern to us all. Our children and grandchildren are not merely statistics toward which we can be indifferent.Nor does this affect the nuclear powers alone. These tests befoul the air of all men and all nations, the committed and the uncommitted alike, without their knowledge and without their consent. " (23

Nevertheless there is little if any experience of radiation victims from abroad recovering for such injuries in a domestic court (24).

Future attempts to do so would confront the recently developed forum non conveniens doctrine, which caused the exclusion from U.S. courts of the victims of Union Carbide's toxic disaster in Bhopal, India(25)

The prospect for using international remedies is even less sanguine.(26) Therefore many more of the victims of nuclear energy are left without any remedy for their radiation injuries, because of the predictable circumstance that the radiation that injured them crossed a border to reach them.
 

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Notes:

(7) Joe Harding v. Union Carbide, 1996, settled while pending appeal to Supreme Court of Kentucky, No. 97-SC-000549.
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(8) In fact Mr Harding had filed a case within the statute of limitations period for various conditions (not his fatal cancer) which he suspected were related to his employment. Since he could not acquire evidence by the time of trial to support his belief, this earlier claim was dismissed without prejudice. The initial discretionary reopening of this claim in his widow's subsequent case was reversed on appeal after trial, on the grounds that there was no basis for altering the decision to dismiss that case. Such harsh judicial rulings to avoid reaching the merits of radiation claims are not uncommon.
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(9) This statement is made as a practical matter, since there are few ways of proving radiation injury. See Section 3 below. But it has recently become a legal requirement, as a condition for allowing into evidence the testimony of an expert witness, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 1993.
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(10) For example, in the Kentucky case, the court misinterpreted the purpose and expanded the scope of a provision that governed a claim for death from injuries that occurred before expiration of the three year statutory period for filing a claim for those injuries, and says nothing about deaths that occur many years after the first indication of injury, as may commonly happen with radiation exposure.
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(11) Sholly v. NRC, 651 F.2d 780 (D.C. Cir. 1982) vac'd as moot and remanded, 459 U.S. 1194 (1983), and 463 U.S. 1224.
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(12) See People of Three Mile Island v. Nuclear Regulatory Commissioners, 747 F.2d 139 (3d Cir. 1984) at note 10.
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(13) Atomic Energy Damages Act of 1957, 42 U.S.C. 2011 et seq., as amended.
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(14) Frazer, "The Floodgate Case" (CNN-Special Reports documentary: 1994).
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(15) Silkwood v. Kerr-McGee Corp., 637 F.2d 743 (10th Cir. 1980), cert denied, 454 U.S. 833 (1981). Tang v. Southern California Edison, Cir. No. 93-1308 GT (S.D. Cal. 1994) was settled before judgment.
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(16) Babcock & Wilcox v. Parks Township (W.D. Pa.) aff'd 866 F.2d 1408 (3d Cir.1988), cert. denied 493 U.S. 873 (1989).
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(17) See generally, "The Collusive Class Action Settlement," in Making a Case for Justice. A Battle Plan for Toxic Tort Litigants and their Attorneys (forthcoming, EHN, Chesapeake, Va.: 1999).
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(18) In re Three Mile Island Litigation, No. 79-0763 (M.D. Pa. 1986).
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(19) Ivy v. Diamond Shamrock Chemical Co. et al., 781 F.Supp. 902 (E.D.N.Y. 1992), aff'd, 996 F.2d 1425 (2d Cir. 1993), cert. denied, 510 U.S. 1140 (1994) (challenge to collusive settlement spurned by Court over opposition of 50 state attorneys general); cf. Hercules v. United States, 116 S. Ct. 981 (1996) (failed effort by manufacturers to obtain government reimbursement of collusive payments).
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(20) Amchem Products Inc. v. Winsor, 117 S. Ct. 2231 (1997).
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(21) Wing, et al., "A Reevaluation of Cancer Incidence Near the Three Mile Island Nuclear Plant : A Collision of Evidence and Assumptions", note 3 supra.
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(22) The motion and denial by Judge Rambo in an unreported decision are in the author's files.
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(23) John F. Kennedy, "Radio and Television Address to the American People on the Nuclear Test Ban Treaty," July 26, 1963, Public Papers of the Presidents, No. 316, at 601, 603-04 (emphasis added).
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(24) Cf. the rare diplomatic Settlement of Japanese Claims for Personal and Property Damage Resulting from the Nuclear Tests in the Marshall Islands (1955), 6 UST 1 ($2 million).
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(25) See Bhopal Disaster Case, 634 F.Supp 842 (S.D.N.Y.1986), aff'd, 809 F.2d 195 (2d Cir.1986), cert. denied, 484 U.S. 871 (1987) (briefs on forum non conveniens issue of the National Council of Churches, et. al.). While not all foreign claimants are excluded from U.S. courts this doctrine gives judges the power to pick and choose who may be admitted. See generally "Bhopal: Courting Disaster," Cov. Action Q., 53:38 (1995); "Bhopal: Taking Carbide to Court," Business India, March 25, 1985.
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(26) See the excellent discussion of this subject in P. Birnie & A. Boyle, International Law and the Environment, Oxford, 1994, Ch. 9, concluding: "At present neither the law of state responsibility , nor the complementary system of conventions harmonizing principles of civil liability, provides a satisfactory basis for allocating the costs of transboundary nuclear damage." I. 385-86.
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