From Silkwood to Lanham
President Obama spoke at Lanham, Maryland, yesterday. He inaugurated what he hoped would be a new era of nuclear power, designed to wean America from foreign oil, with $8 billion of loan guarantees to nuclear power stations for new and existing plant.
It is thirty five years and six months since Karen Silkwood died. Her death illustrated the complex links between tort law and American business, and also the impotence of sidelined legislators doomed to follow the manipulated executive flow, in a period of stagflation, disillusion and citizen activism of the sort that may be coming around again.
Silkwood was a young scientist in Oklahoma at a nuclear power facility. She discovered serious threats to her health and that of others arising from radiation which emerged from the operation of the plant. The plant produced plutonium fuel for power stations. Through the trades union movement, she attempted to draw the attention of co-workers and the relevant authorities, and ultimately the country at large to these problems. This failed, mostly.
As a covert agent for the Atomic Energy Agency, she had documented nuclear dangers within the plant. This achieved nothing. In an appalling accident arising from health and safety procedures, Silkwood was exposed to a potentially fatal dose of plutonium poisoning, which resulted in the massive contamination of her person and apartment by radiation. Silkwood subsequently died in a car crash whilst on her way to a meeting with a reporter.
Rather than turning to the political process or to economic bodies like Unions, or to the media, as perhaps might have happened in Europe, Silkwood’s family decided to use the tort process to sue her employers, the Kerr-McGee company.
In the Silkwood family’s tort action for physical and mental damage, to themselves and to Karen, punitive damages for the bad behaviour of her company, and for the loss of her personal property destroyed upon contamination, her family claimed and won over ten million dollars, which even in the inflation-wracked America of the 1970s was a lot of money. Tort law succeeded where nothing else worked.
The Silkwood case set a standard that illustrated how lawyers could advance arguments in the United States outside of politics that had deeply and insidiously political effects. It held corporations to a high standard if they wished to avoid negligence actions. After Silkwood, the nuclear power industry found itself damaged in public opinion, subject to costly safety procedures imposed by its own lawyers, and politically unattractive.
In subsequent years--Silkwood’s case ran through the 1970s from 1974 to 1979--the area of tort, of civil injury compensated by damage as a form of politics ‘took off’ in the United States. State attorneys-general, for instance, would explore extensively the possibilities of tort to regulate hospitals, doctors, tobacco manufacturers and gun producers in ways impossible in Washington or State legislatures.
Class-action lawsuits became features of everyday life, and codes of conduct and procedure would be constructed and imposed by employers and insurers on most American employees in the public and private sector. Tort was the mechanism by which the law--adherence to and the process of which represent a distinctively American public culture--was translated into the everyday sphere. Politicians rose and fell by tort actions; Willie Brown and John Edwards made a good deal of money and local fame from them. Brown, one of the most sinuous politicians I have ever come across, compounded his achievement by then associating himself with no-fault claims laws and liability restriction as well.
But tort meshed too with a distinctive form of citizen empowerment which was of the left, but not the traditional one. 1968 was the pivot year in which lines that cut across the traditional left, like race, class and gender, were associated with apparently radical campaigns.
I write 'apparently radical' because the agenda fitted exactly with the development of a new sort of narcissitic consumerism and a pathology of drama and crisis of the sort that Christopher Lasch railed against. In fact, it fitted with William Stanley Jevon's old economic philosophy that an identity was an immutable relationship tying an individual to a property that was a bit like the property categories that existed behind your eyes. Jevons didn't define people by the identity, and his practical formula was that all identities called human were more or less the same and more or less united only by their desire to compete and to maximise their own satisfaction.
I don't care how 'left' or 'right' you think you are. When you see people as an adjectival practice or as some sort of extension of a category, you pose no threat towards, and give a great deal of comfort to, soulless materialism. The only identity by which we can actually stand up to the beasts we create that matters is that of a human child of God. The rest--the love and reason that is ours if we want it, the natural law that can help us escape nature, all of it--follows from that.
Nuclear power simultaneously became a creature of 'industrial science', an environmental bogey, and a policy problem that required choices probably too tough for a society to make. The cold war was on; could America leave its arab and Persian allies to themselves, escape dependence, downsize a bloated lifestyle and look itself in the face? Jimmy Carter asked. People said no.
Nuclear power started to slip out of fashion by the time Silkwood died. It wasn't that it was a casualty of Watergate. In between the population/ice age panic and global warming, nuclear power and acid rain became the useful points at which the reformed left could mesh with the conservationism and environmentalism that had usually been associated with what you might call the 'muscular populism' of TR and the fascists of northern Europe.
It was also expensive, and the west by the mid-80s had begun to craft financial instruments and bask in cheap oil in such a fashion that being against nuclear was a no-brainer for anyone less contarian than the French. It's also important to remember that although nominal incomes rose, as did access to credit, western purchasing power as measured by inflation adjusted asset values didn't really recover from the 74-8 inflation until the 1990s.
Practical people were boosted by terrible tales of the political and social disaster that nearly overtook Dick Thornburgh at Three Mile Island in 1979, or the many problems of sizewell B. Indeed they were trained, in political science schools of the sort that the praetorian operators in the American body politic attend, to note how much trouble nuclear power could cause. Governor Thornburgh's evasions in 1979, recommednding but not ordering evacuation by the expedient of getting the pregnant women worried, were presented as some sort of Machiavellian virtu that would never have had to be deployed but for those pesky nuclear plants.
America slept on. Now, oil is up again, and cheap oil is running out; a series of oil wars beckon, and the treasury is bare. It's also noticeable how much more restrained the tort lobby is by state law and by the lack of corporate money around. The left of 1968 is ageing, and momentum is with the internet-savvy right in America.
And so to Lanham Obama went. I happen to think that the national ignition facility and the polywell experiments are the real way forward for the US, but the best is often the enemy of the good.
Obama seems much more practical than I, and he is, anyway, in a position to make a difference. He's following the Chinese and not the Carter-Gorbachev route for once; changing the economic facts before he tries to change the narrative. He may also be aware that he has to buy time, before fusion. He may actually be an example of a politician who can see through the renewable power silliness and who wants to do the right thing.
Regardless, what he did yesterday, and what he said, made me think that America may be moving on from climate change, beneath the cover of some sensible energy choices. I wonder though--has the Silkwood era really gone away? Given how bad the Democrats are at articulating their generally unpopular goals, are the Republicans now going to make hay with nuclear waste?