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State v. United States

United States Court of Appeals, Fourth Circuit

January 8, 2019

STATE OF SOUTH CAROLINA, Plaintiff - Appellee,
v.
UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF ENERGY; RICK PERRY, in his official capacity as Secretary of Energy; NATIONAL NUCLEAR SECURITY ADMINISTRATION; LISA E. GORDON-HAGERTY, in her official capacity as Administrator of the National Nuclear Security Administration and Undersecretary for Nuclear Security, Defendants - Appellants.

          Argued: September 27, 2018

          Appeal from the United States District Court for the District of South Carolina, at Aiken. J. Michelle Childs, District Judge. (1:18-cv-01431-JMC)

         ARGUED:

          Andrew Alperin Rohrbach, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants.

          Randolph R. Lowell, WILLOUGHBY & HOEFER, PA, Columbia, South Carolina, for Appellee.

         ON BRIEF:

          Chad A. Readler, Acting Assistant Attorney General, Mark B. Stern, Daniel Tenny, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Sherri A. Lydon, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellants.

          Before NIEMEYER, KING, and WYNN, Circuit Judges.

          WYNN, CIRCUIT JUDGE.

         The State of South Carolina brought this action to enjoin the United States of America and other Defendants[1] (collectively, "the United States") from terminating the construction of a mixed-oxide fuel nuclear processing facility located at the Savannah River Site in South Carolina. South Carolina alleges that the United States Department of Energy unlawfully failed to (1) prepare a supplemental Environmental Impact Statement analyzing the long-term storage of plutonium in the state; and (2) follow statutory waiver provisions for terminating construction of the facility. We conclude that South Carolina has not established standing to pursue either of these claims. Accordingly, we vacate the preliminary injunction imposed by the district court.

         I.

         Following the collapse of the Soviet Union and the end of the Cold War, the United States of America and the Russian Federation began a worldwide nuclear nonproliferation effort that included developing plans for the safe disposition of nuclear weapons material. As part of this nonproliferation pact, the Department of Energy began studying the effects of various nuclear waste storage and disposal strategies. In its initial 1996 study, the Department of Energy prepared an Environmental Impact Statement in accordance with Section 4332 of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., analyzing the potential environmental consequences associated with the long-term storage of weapons-grade plutonium and highly enriched uranium prior to disposition. The Environmental Impact Statement addressed storage of these materials for a period of up to fifty years.

         Ultimately, the Department of Energy determined that the best approach to nuclear waste disposal was a dual strategy involving (1) immobilization of a portion of the surplus plutonium in glass or ceramic; and (2) irradiation of the remaining plutonium in mixed oxide fuel (the "MOX process"). Both strategies would convert the surplus nuclear material into forms that would meet the National Academy of Science's Spent Fuel Standard, meaning that the material would be "inaccessible and unattractive for weapons" use. J.A. 78.

         In 1997, the Department of Energy announced its intention to build a new mixed oxide fuel fabrication facility (the "MOX facility") to dispose of some of the nuclear material using the MOX process. Following completion of a supplemental Environmental Impact Statement and a Record of Decision in January of 2000, the Department of Energy announced that the MOX facility would be located at the Savannah River Site along South Carolina's border with Georgia. The facility's original production goals included disposition of up to thirty-three metric tons of nuclear material using the MOX process and immobilization of up to seventeen metric tons of additional nuclear material. As part of its supplemental Environmental Impact Statement, the Department of Energy continued to look at the environmental impacts of long-term plutonium storage.

         In 2002, the Department of Energy decided to drop the immobilization portion of the disposition strategy, leaving the MOX process as the sole plutonium disposal method. That same year, Congress directed the Secretary of Energy to submit a plan for the construction and operation of the MOX facility at the Savannah River site. Pub. L. No. 107-314, § 3182 (2002), subsequently codified as 50 U.S.C. § 2566. Congress further authorized the Secretary to take corrective actions if the construction timetable and operation schedule for the MOX facility were not being met. Additionally, Congress also required that in the event the MOX facility failed to achieve its production goals, the Department of Energy remove plutonium shipped to South Carolina for processing. See 50 U.S.C. § 2566(c), § 2566(e). Finally, as part of its findings, Congress mentioned the economic benefit that the MOX facility would bring to the State of South Carolina, noting that the economic benefit would not be fully realized unless the facility was built. See Pub. L. No. 107-314 at § 3181.

         Three years later, in 2005, the Department of Energy began transferring plutonium to the Savannah River Site for conversion, and in 2007, construction began on the MOX facility. The original cost estimate for construction of the facility was $4.8 billion, with completion anticipated in 2016. And the original production goal estimate for the facility was to have thirty-four metric tons of defense plutonium processed no later than January 1, 2019. 50 U.S.C. § 2566(a)(2)(B).

         These original estimates proved grossly inaccurate due to delays and cost overruns in the construction of the MOX facility. The Department of Energy now estimates cost for construction of the facility to be $17.17 billion, with completion now anticipated to be in 2048, over thirty years beyond the original estimated schedule.

         Since 2014, the Department of Energy has sought to terminate the MOX program and pursue an alternative method of plutonium disposal known as "Dilute and Dispose," which it contends is less costly, faster, and safer. Under the Dilute and Dispose method, nuclear material would be "downblended" with inhibitor materials to reduce the plutonium content to less than ten percent by weight. Upon completion of the downblending process, the material would then be shipped from the Savannah River Site to the Waste Isolation Pilot Plant near Carlsbad, New Mexico, for permanent disposal.

         Thus far, Congress has continued to fund construction of the MOX facility and has, to date, restricted the Department of Energy from utilizing MOX-related appropriations to begin termination of the program. To that end, in 2017, Congress enacted a statute providing that the Secretary of Energy "shall carry out construction and project support activities relating to the MOX facility." Pub. L. 115-91, § 3121(a), 131 Stat. 1283, 1892.

         However, Section 3121(b) of that statute allows the Secretary of Energy to discontinue construction of the MOX facility if certain conditions have been met. Specifically, the Secretary of ...


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