Biden administration continues Trump-era challenge to Washington’s law
SEATTLE — Attorney General Bob Ferguson offers the following statement on the Biden administration’s continuation of a Trump administration challenge to Washington’s law strengthening workers compensation access for sick Hanford workers:
“The Trump administration attempted to gut Washington’s protections for Hanford workers that get sick on the job — and my legal team beat them twice. We defeated the Trump administration in a federal court in Yakima, and again at the Ninth Circuit Court of Appeals.
“Now the Biden administration is continuing Donald Trump’s cruel effort to eliminate these critical protections for the hardworking men and women at Hanford. President Biden’s Department of Justice recently filed an appeal to the United States Supreme Court — just days after Labor Day, no less.
“I have to believe that President Biden was never consulted on this key decision. As a long-time champion of American workers, President Biden must agree with that Hanford workers should be able to access the benefits they earned, including workers’ compensation.
“This lawsuit angered me when the Trump administration filed it — and it continues to anger me now that the Biden administration is continuing it. I will continue to fight for the workers at Hanford — and all Washington workers — as I would fight for members of my own family.
“The Biden administration should withdraw their appeal immediately.”
Hanford worker protections passed with overwhelming bipartisan support
In 2018, the Washington state Legislature passed House Bill 1723, a bill making it easier for Hanford workers to access workers’ compensation benefits when they develop certain illnesses associated with their work. The law created a presumption that Hanford workers became ill because of an exposure to chemicals at work. Firefighters and first responders have similar presumptions established in state law. Former Representative Larry Haley (R-Tri-Cities) prime sponsored the bill. It passed with overwhelming bipartisan votes of 74-21 in the State House of Representatives and 35-14 in the Senate.
Prior to the change in the law, Hanford workers suffering from an illness related to their job had to prove that whatever they had was not caused by something else in their lives. The process could turn into a drawn-out bureaucratic fight. Some workers passed away before they received the benefits the state now recognizes they are entitled to.
Now, when a worker who has worked at least one shift at Hanford has one of a wide range of illnesses that we know could be linked to tank vapors, such as chronic beryllium or respiratory or neurological diseases, there is an assumption that he or she became ill because of an exposure at work.
Trump administration challenged the protections in federal court – and lost twice
In December 2018, the Trump administration filed a lawsuit in 2018 challenging the law. The federal government argued that the law violates “intergovernmental immunity,” a legal doctrine that prevents states from regulating federal operations or property. However, in 1937 — more than eight decades ago — Congress gave states broad authority to apply their workers’ compensation laws to federal projects.
In June 2019, Judge Stanley A. Bastian for the U.S. District Court for the Eastern District of Washington granted Washington’s motion for summary judgment. In that order, Judge Bastian ruled that Congress authorized Washington to pass laws providing special protections for Hanford workers and therefore did not violate intergovernmental immunity.
The Trump administration appealed, and in August 2020, a panel of the Ninth Circuit Court of Appeals unanimously upheld the law. A panel of three judges, Richard Clifton, James Donato and Milan Smith, unanimously struck down the Trump administration’s claims that a 2018 Washington state law protecting Hanford workers is unlawful. The panel ruled that Congress has given authority to the states to provide workers’ compensation benefits to injured contractors on federal lands. Judge Milan Smith, appointed by George W. Bush, wrote the opinion for the panel.
The opinion from the Ninth Circuit affirmed the District Court’s ruling, agreeing that Washington had the authority to apply its workers’ compensation laws to Hanford workers.
Solicitor General Noah Purcell argued the case for Washington at the Ninth Circuit. Senior Counsel Anastasia Sandstrom argued the case in federal district court.
The Biden administration announced last week it would appeal the case to the United States Supreme Court.
Hanford worker safety
For more than 40 years, the Hanford Nuclear Reservation played a critical role in the nation's military weapons program, producing plutonium for nuclear weapons. This process generated massive quantities of waste, much of which was buried on-site or, in the case of liquids, discharged directly to the ground, risking contamination of the groundwater that flows into the Columbia River. Hanford holds more high-level radioactive waste than all other U.S. sites combined.
Some 1,500 different volatile chemical gases — many of which are highly toxic and known carcinogens — have been found in the Hanford tanks. Exposure to these chemicals is known to cause numerous harmful health impacts including lung disease, central nervous system suppression, nerve damage, and cancers of the liver, lung, blood and other organs.
Ferguson filed a separate lawsuit in 2015 against the federal government alleging that hazardous tank vapors at Hanford pose a serious risk to workers at the site. This worker safety case led to a victory in 2018, when the federal government signed a legally-binding agreement to conduct testing and, if successful, begin implementing a new system to treat or capture these hazardous tank vapors at the Hanford Nuclear Reservation within the next three years.
To learn more about the Attorney General’s long-running efforts to hold the federal government accountable for cleanup at Hanford, visit https://www.atg.wa.gov/hanford.
Washington’s Attorney General serves the people and the state of Washington. As the state’s largest law firm, the Attorney General’s Office provides legal representation to every state agency, board, and commission in Washington. Additionally, the Office serves the people directly by enforcing consumer protection, civil rights, and environmental protection laws. The Office also prosecutes elder abuse, Medicaid fraud, and handles sexually violent predator cases in 38 of Washington’s 39 counties. Visit www.atg.wa.gov to learn more.
Brionna Aho, Communications Director, (360) 753-2727; Brionna.firstname.lastname@example.org
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