Argued: September 27, 2018
from the United States District Court for the District of
South Carolina, at Aiken. J. Michelle Childs, District Judge.
Alperin Rohrbach, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellants.
Randolph R. Lowell, WILLOUGHBY & HOEFER, PA, Columbia,
South Carolina, for Appellee.
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.
NIEMEYER, KING, and WYNN, Circuit Judges.
State of South Carolina brought this action to enjoin the
United States of America and other Defendants (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.
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.
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.
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.
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
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.
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.
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
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.
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