LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 51
As demonstrated by the reasoning of the courts in the aforementioned cases, a defendant
must provide specific evidence demonstrating that any discharges or improper waste disposal
occurred with the express approval and direction of the federal government in order to satisfy the
first prong of the requirements of the government contractor defense. Given the overall lack of
success defendants have historically had with such a defense in environmental contamination
cases, it is unlikely that it will succeed in future NRD cases.
A key consideration in this type of defense is absolute joint and several liability-it is
ultimately irrelevant if a portion of NRD occurred during war. Furthermore, if a defendant raises
this type of defense, he ultimately bears the burden of proof as to the degree of his contribution
to the contamination.
7. Statutory Immunity
Along the same lines as the government contractor defense, defendants may also assert
defenses based on immunity provisions found in certain federal statutes regarding government
contracts. The Defense Production Act, the National Defense Act, the Navy Purchase Act, and
the First and Second War Powers Acts contain immunity provisions for defendant contractors
performing contracts entered into pursuant to those statutes.
The Defense Production Act
(“DPA”), for example, states in relevant part: “No person shall be held liable for damages or
penalties for any act or failure to act resulting directly or indirectly from compliance with a rule,
regulation, or order issued pursuant to this Act . . .” 203
For purposes of this analysis, the
application of DPA immunity will be examined in the context of the numerous “Agent Orange”
suits.
In Ryan v. Dow Chemical Company, civilians in Vietnam filed a suit against “Agent
203 50 U.S.C. App. § 2157.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM