LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 48
then there is no discretion in the conduct for the discretionary function exception
to protect . . . The exception, properly construed, therefore protects only
governmental actions and decisions based on considerations of public policy . . .
In sum, the discretionary function exception insulates the Government from
liability if the action challenged in the case involves the permissible exercise of
policy judgment. 190
Thus, in order for the government contractor defense to apply, the government must have made a
decision relating to the conduct at issue, i.e. the government must have exercised a discretionary
function.
Courts have consistently held in environmental contamination cases where a defendant is
asserting a government contractor defense that the United States never manifested the requisite
approval of the manner and type of waste disposal activities that were responsible for the
contamination of natural resources.
In Lamb v. Martin Marietta Energy Systems, Inc., property owners brought a suit against
a gaseous diffusion plant to recover for environmental damages caused by discharges of
pollutants into the atmosphere, soil, bodies of water and ditches at the plant. 191
The defendant
moved for summary judgment based on its relationship with the United States as a government
contractor. 192
The defendants argued that the Department of Energy (“DOE”) exercised
substantial control over operations at the facilities, and therefore, all activities fell within the
discretionary function exception. 193
In denying the defendant’s motion for summary judgment,
the court held that “[t]he defendants have failed to present specific evidence regarding the
190 486 U.S. 531, 536-537 (1988).
191 835 F. Supp. 959 (W.D. Ky. 1993).
192 Id. at 962.
193 Id. at 966.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM