DocketNumber: Civil Action No.: 1:18-cv-01431-JMC
Citation Numbers: 329 F. Supp. 3d 214
Judges: Childs
Filed Date: 6/7/2018
Status: Precedential
Modified Date: 7/25/2022
This matter is before the court pursuant to Plaintiff State of South Carolina's ("the *218State") Motion for Preliminary Injunction to prevent the Department of Energy ("DOE") and the National Nuclear Security Administration ("NNSA") and their officials (collectively, "the Federal Defendants") from terminating the mixed oxide fuel fabrication facility project ("MOX Facility" or "Project") currently under construction at the Savannah River Site ("SRS") in Aiken County, South Carolina until this case can be decided on its merits. (ECF No. 5.) On June 4, 2018, the Federal Defendants filed a response in opposition (ECF No. 19). For the reasons set forth below, the court GRANTS the State's Motion for Preliminary Injunction (ECF No. 5).
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Following the end of the Cold War and the collapse of the Soviet Union, significant quantities of nuclear weapons, including large amounts of weapons grade plutonium, became surplus to the defense needs of the United States and Russia. Control of these surplus materials became an urgent U.S. foreign policy goal, with a particular focus on nuclear weapons. In an effort to consolidate and reduce surplus weapons-grade plutonium, the United States and Russia jointly developed a plan for the nonproliferation of weapons of mass destruction worldwide.
After extensive study, including an environmental impact statement ("EIS") conducted pursuant to National Environmental Policy Act,
In November 1999, after further evaluating the alternatives for surplus plutonium disposition, DOE issued the Surplus Plutonium Disposition Final EIS ("SPD EIS").
In 1999, DOE signed a contract with a consortium, now CB&I AREVA MOX Services, LLC ("MOX Services"), to design, build, and operate the MOX Facility.
• Consult with the Governor of South Carolina regarding "any decisions or plans of the Secretary related to the disposition of surplus defense plutonium and defense plutonium materials located at [SRS];"
• Submit a report to the congressional defense committees providing notice for each shipment of defense plutonium and defense plutonium materials to SRS;
• If DOE decides not to proceed with construction of the immobilization facilities or the MOX Facility, prepare a plan that identifies a disposition path for all defense plutonium and defense plutonium materials; and
• Include with the budget justification materials submitted to Congress in support of DOE's budget for each fiscal year "a report setting forth the extent to which amounts requested for the [DOE] for such fiscal year for fissile materials disposition activities will enable the [DOE] to meet commitments for the disposition of surplus defense plutonium and defense plutonium materials located at [SRS]...."8
In 2002, DOE decided not to proceed with the immobilization portion of the hybrid strategy, leaving the construction and operation of the MOX Facility as the only strategy to dispose of surplus plutonium in the United States. In 2003, Congress enacted statutory requirements for DOE's construction and operation of the MOX Facility.
In 2005, DOE began transferring plutonium to SRS for conversion into MOX fuel.
In 2014, the Federal Defendants sought to abandon the Project by trying to place the MOX Facility into "cold standby." The State filed a lawsuit before the court, and the Federal Defendants then agreed to continue construction of the Project in compliance with law. The case was resolved through a stipulation of dismissal and dismissed without prejudice.
On December 20, 2017, the court issued an Injunction Order instructing the Federal Defendants that within two years from the entry of the Order, they "must remove from the State of South Carolina, for storage or disposal elsewhere, not less than one metric ton of defense plutonium or defense plutonium materials, as defined by
Despite the Federal Defendants' new preferred alternative, Congress has continued to require DOE to pursue construction of the MOX Facility. Congress specified that the Secretary can avoid this mandate only if the Secretary submits to the Congressional defense committees:
(A) the commitment of the Secretary to remove plutonium intended to be disposed of in the MOX facility from South Carolina and ensure a sustainable future for the Savannah River Site;
(B) a certification that-
(i) an alternative option for carrying out the plutonium disposition program for the same amount of plutonium as the amount of plutonium intended to be disposed of in the MOX facility exists, meeting the requirements of the Business Operating Procedure of the National Nuclear Security Administration entitled 'Analysis of Alternatives' and dated March 14, 2016 (BOP-03.07); and
(ii) the remaining lifecycle cost, determined in a manner comparable to the cost estimating and assessment best practices of the Government Accountability Office, as found in the document of the Government Accountability Office entitled 'Government Accountability *221Office ("GAO") Cost Estimating and Assessment Guide' (GAO-09-3SP), for the alternative option would be less than approximately half of the estimated remaining lifecycle cost of the mixed oxide fuel program; and
(C) the details of any statutory or regulatory changes necessary to complete the alternative option.14
In making the certification under Section 3121(b)(1)(B), the Secretary also must ensure that the estimates used "are of comparable accuracy." National Defense Authorization Act ("NDAA") FY18, § 3121(b)(2).
On or about May 10, 2018, DOE notified Congress of the Federal Defendants' decision to terminate and cease construction of the MOX Facility and its intent to pursue the "Dilute and Dispose approach to plutonium disposition."
The State's present Motion requests that the court, by way of a preliminary injunction, bar the Federal Defendants and those under their supervision from terminating or stopping work on the Project. (See ECF No. 5). On June 4, 2018, the Federal Defendants filed a response in opposition (ECF No. 19), and on June 6, *2222018, the State filed a reply (ECF No. 21). A hearing on this matter occurred on June 5, 2018 (ECF No. 20).
II. JURISDICTION
A. Standing
Standing is established where (1) there is an injury in fact; (2) the injury is "fairly traceable to the challenged action," and (3) it is likely that the alleged injury "will be redressed by a favorable decision." Lujan v. Defenders of Wildlife ,
1. Injury in Fact
The State has alleged three separate injuries. (ECF No. 21 at 3.) The State alleges an economic injury, a procedural injury, and an environmental injury. (Id. ) The Federal Defendants challenge the sufficiency of each of these injuries to fulfil the injury in fact requirement to support standing.
The State asserts two forms of economic injury. First, the State argues that it will suffer an economic injury as a result of the decreased tax revenue stemming from the termination of the MOX Project. (ECF No. 5 at 26.) In short, the State's argument is that the employees at the MOX Project pay taxes to the State, and the termination of the MOX Project would lead to their unemployment, which would decrease the State's tax revenues. However, a state cannot bring a parens patriae action on behalf of its citizens to protect them from actions by the federal government. Massachusetts v. Mellon ,
Further, the State's assertion that it is injured because individuals who are no longer employed on the construction of the MOX Facility will not pay the same amount of income taxes to the State fails to constitute an injury in fact. If a state is allowed to sue the federal government any time any federal action causes a generalized economic harm, such suits would dramatically expand the circumstances under which state governments are able to sue the United States. The courts that have considered such theories have accordingly rejected the notion that a state government can sue the United States based on such harm. See Pennsylvania v. Kleppe ,
Secondly, the State posits that the termination of the Project would result in an economic injury because it was supposed to be an economic benefit to the State. (ECF No. 21 at 3.) The State quotes the Bob Stump National Defense Authorization Act for Fiscal Year 2003, which states that the MOX Project "will also be economically beneficial to the State of South Carolina, and that economic benefit will not be fully realized unless the MOX facility is built." Pub. L. No. 107-314,
The State also argues that it suffered two procedural harms as a result of the May 10, 2018 decisions. First, the State alleges that the Federal Defendants failed to adequately consult the Governor of South Carolina, as required by
Additionally, the State argues that it has suffered an injury in fact because of the Federal Defendants' failure to conform with the requirements of NEPA. (ECF No. 21 at 2.) "[I]ndividuals living next to [a federal project requiring NEPA analysis] possess standing to challenge a failure to comply with NEPA." Hodges v. Abraham ,
Lastly, the State argues that it has suffered an environmental injury as a result of the May 10, 2018 decisions. "[W]hen a decision to which NEPA obligations attach is made without the informed environmental considerations that NEPA requires, the harm that NEPA intends to prevent has been suffered." W. N.C. All. v. N.C. Dep't of Transp. ,
Accordingly, the State has suffered procedural and environmental harms such that it has satisfied the injury in fact requirement.
2. Causation and Redressability
The procedural and environmental injuries discussed above are directly traceable to the Federal Defendants' decision to terminate the MOX Facility. The court is able to redress the procedural and environmental injuries. Accordingly, the State has satisfied the standing requirements to sue for violations of NEPA and NDAA FY 18.
B. Administrative Procedure Act ("APA") Jurisdiction
The APA,
arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of *224the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. ,
The Federal Defendants contend that the May 10 decision did not constitute the final agency action to terminate the MOX Facility, but instead was only "information reporting" to Congress, and thus, the State's claims are not justiciable or subject to judicial review under the APA. (ECF No. 19 at 20-22.) This assertion is directly refuted by the Federal Defendants' own affidavits. In support of their Response, the Federal Defendants submitted the declaration of Robert Raines, the DOE official responsible for MOX construction (and MOX termination), who testified:
The Secretary exercised the authorities given to him by the Congress on May 10, 2018 and on May 14, 2018 a partial stop work order was issued to minimize cos[t] to the government during the 30 day period leading up to an eventual full stop work order and the termination letter expected to be issued on June 11, 2018.
(ECF No. 19-1 ¶ 10) (emphasis added). Mr. Raines further testified regarding the "issuance of the NNSA Contract Termination Notice [for June 11, 2018,]" (id. ¶ 18), the "termination notice date," (id. ¶ 19), and the "termination of the MOX Project," (id. ¶ 20). In addition, the Federal Defendants submitted the declaration of William Harris Walker, NNSA Director of Intergovernmental Affairs, who testified about "the execution of the MOX termination waiver. " (ECF No. 19-9 ¶ 7) (emphasis added). Accordingly, the Federal Defendants' contention that there has not been a final agency action to terminate the MOX Facility is directly refuted by the evidence submitted by the Federal Defendants and the practical reality that the full stop work order that is planned for June 11, 2018 will shut down the MOX Facility.
Moreover, because the Federal Defendants' purported commitments and certifications set forth in the May 10 termination letter have legal consequences-namely leaving plutonium at SRS indefinitely and without the required environmental analysis under NEPA to determine the environmental consequences on the State and the potential alternatives-they consequently are reviewable by the court under the APA. "For an action to be "final" under the APA, it should (1) mark the conclusion of the agency's decision-making process; and (2) be an action by which rights or obligations have been determined or from which legal consequences flow." Bennett v. Spear ,
In Chamblee v. Espy ,
In the context of the Federal Defendants' actions, Section 3121 of the NDAA FY 2018 sets forth the general rule that the Secretary "shall carry out construction relating to the MOX facility" and can avoid this mandate only if he makes certain commitments and certifications. If the DOE action is allowed to stand, the contract with the MOX construction contractor will be terminated and the substantial labor force currently constructing the MOX Facility will be disbanded. At that point, the court's decision becomes irrelevant as there would be no feasible way to revive the MOX Project, there is no remedy for the NEPA violation, and no feasible alternative to plutonium removal.
In making the contention that the State's claims are not justiciable, the Federal Defendants primarily rely upon the holding in Nat'l Res. Def.Council, Inc. v. Hodel ,
Despite the Federal Defendants attempt to characterize their obligations as mere "notifications," "responses," and "reports," the commitments and certifications required by NDAA FY18 are much more than a "purely informational" report that is "primarily a tool for [Congress'] own use without cognizable legal consequences." Guerrero v. Clinton ,
*226Instead, the purported commitments and certifications in DOE's May 10 letter represent the completion of its decision-making process to terminate the MOX Project. In contrast to the issues presented in Hodel , Guerrero , and Greenpeace , the Federal Defendants' termination of the MOX Facility and their deficient commitment and certification have direct legal consequences on the State and its statutory right to the removal of plutonium. Because the MOX Project is the only legally authorized disposition method for MOXable plutonium at SRS, the Federal Defendants' commitments and certifications not only terminate the MOX Project, but also leave no legally approved or funded pathway for disposition. The practical effect of these wrongful actions is that the plutonium will remain at SRS indefinitely.
Therefore, because the May 10 letter, and the purported commitments and certifications set forth therein, represent the final agency action to terminate the MOX Facility, and this action has significant legal consequences, the State's claims under the APA are justiciable.
III. LEGAL STANDARD
In order to obtain a preliminary injunction, a party must demonstrate: "(1) that [it] is likely to succeed on the merits, (2) that [it] is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in [its] favor, and (4) that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc. ,
IV. ANALYSIS
A. Success on the Merits
1. Violation of
The State is not likely to succeed on the merits of its claim that
*227("in consultation with" language requires meaningful consultation prior to reaching a final agency decision).
A federal agency should apply the ordinary meaning of the word consult when Congress has directed it to consult with outside parties:
[a]n ordinary meaning of the word consult is to 'seek information or advice from (someone with expertise in a particular area)' or to 'have discussions or confer with (someone), typically before undertaking a course of action.' We conclude that this is the definition that Congress intended when it directed DOE to prepare the [study] 'in consultation with the affected States.' Thus, DOE was to confer with the affected States before it completed the study.
Cal. Wilderness Coal. ,
Here, Section 2567(a), titled "Consultation required," provides that the Secretary of Energy shall consult with the Governor of the State of South Carolina regarding any decisions or plans of the Secretary related to the disposition of defense plutonium and defense plutonium materials at SRS.
The State's claim fails because the facts of this case show that the Governor was consulted prior to the Secretary's issuance of the May 10, 2018 decisions. Governor McMaster notes that there were "several communications" in which he provided his "concerns" to the DOE about its "direction of the MOX Project and proposed Dilute and Dispose approach." (ECF No. 5-2 ¶ 6.) In August 2017, the DOE staff hosted a tour of the MOX Facility for the Governor and his senior policy advisor and provided briefings and discussions about the MOX Project. (ECF No. 19-9 ¶ 4.) On January 31, 2018, Governor McMaster, Attorney General Wilson, and other high-ranking state officials visited DOE headquarters in Washington, DC and participated in a substantive meeting with high-ranking agency officials, in which they voiced their concerns about the possibility of the DOE using the Dilute and Dispose alternative option to remove plutonium from South Carolina instead of continuing with construction of the MOX Facility. (Id. at ¶ 5.) In February and March of 2018, the Federal Defendants made efforts to schedule more meetings with the Governor to discuss the MOX Facility, but those meetings were not ultimately scheduled. (Id. at ¶ 6.)
California Wilderness Coalition is distinguishable from the instant case. In California Wilderness Coalition , the agency had provided an opportunity for consultations for the states that was no different from opportunities available to the public-state representatives could attend a conference hosted by the DOE, or provide comments in response to the DOE's public invitations for comments.
2. Violation of NEPA-Failure to Prepare a Supplemental EIS for 50+ Years of Storage of Plutonium at SRS.
i. NEPA
NEPA directs all federal agencies to assess the environmental impact of proposed actions that significantly affect the quality of the environment.
NEPA requires federal agencies to prepare an EIS when a major federal action is proposed that may significantly affect the quality of the environment.
Importantly, the governing regulations state that during the NEPA process "[a]gencies shall not commit resources prejudicing selection of alternatives before making a final decision."
ii. NEPA and the MOX Project
DOE and NNSA must comply with NEPA when rendering decisions and taking action related to the disposition of *229defense plutonium at SRS. See
iii. Plutonium at SRS
The Federal Defendants previously informed the court that decisions involving "a substance with the potential to have as much impact on the environment as plutonium" should be subject to "a very thorough, deliberate process." South Carolina v. United States , 1:16-cv-00391-JMC (ECF No. 100 at 16). As the Federal Defendants advised the Fourth Circuit in their appeal of the court's Order to remove plutonium in accordance with the statute:
"Unfortunately, the same nuclear properties of plutonium that make it attractive to science also make this element hazardous to human beings." Many forms of plutonium can spontaneously ignite when exposed to air. In addition, plutonium's radioactivity requires "a comprehensive safety program[ ]" involving "planning, personnel practices and engineered controls," as well as "mass limitations, training, procedures, postings, personnel and area radiation monitoring, and emergency response."
Br. of United States at 2, No. 18-1148 (4th Cir. March 19, 2018) (internal citations omitted).
In its decision approving the MOX Facility construction, the NRC stated:
The primary benefit of operation of the proposed MOX facility would be the resulting reduction in the supply of weapons-grade plutonium available for unauthorized use once the plutonium component of MOX fuel has been irradiated in commercial nuclear reactors. Converting surplus plutonium in this manner is viewed as being a safer use/disposition strategy than the continued storage of surplus plutonium at DOE sites , as would occur under the no-action alternative, since it would reduce the number of locations where the various forms of plutonium are stored ( DOE 1997 ).20
This pronouncement is true, in part, because radiation exposure to the public is greater in a "no action" alternative than with the MOX Project. As NRC has found, "continued storage would result in higher annual impacts" of public radiation exposure than implementation of the MOX Project.
iv. No analysis of 50+ year storage
The EIS initially designating SRS as the location for the MOX Facility and the transfer and storage of 34 metric tons of defense plutonium at SRS was issued in December 1996 ("the PEIS"). The PEIS analyzed and evaluated the storage of weapons-grade plutonium at SRS for a period of up to 50 years. See Hodges v. Abraham ,
v. No other disposal or removal alternative
The plutonium at SRS can be divided into two general categories-the plutonium intended for disposition through the MOX Facility and the plutonium not intended for MOX disposition. The ongoing Dilute and Dispose approach is limited in resources and legal authority and is not applicable to the plutonium intended for disposition through the MOX Facility.
In fact, the Federal Defendants asked the National Academies of Science to "evaluate the general viability of the DOE's plans for disposing of surplus plutonium in WIPP to support U.S. commitments under the Plutonium Management and Disposition Agreement, identify gaps, and recommend actions that could be taken by DOE and others to address those gaps."
When the U.S. Environmental Protection Agency ("EPA") was asked its opinion on utilizing Dilute and Dispose for the plutonium intended for MOX disposition, it pointed out the NEPA and environmental analysis that still had to be done. Specifically, the EPA stated:
There would be many steps and some time before the EPA formally becomes involved in exercising its regulatory responsibilities associated with the possible disposal of the 34 MT of plutonium at the WIPP. This includes the NEPA activities that the DOE would be required to do.
Compl. Ex. 28, Ltr. of EPA dated April 2, 2018. Importantly, the 2002 Report to Congress acknowledges that storage without a disposition "would likely require additional NEPA review and public meetings." (ECF No. 1-7 at 4-26.) The Report further states that storage without disposition would be a "significant departure from DOE's current decisions and commitments." (Id. at 4-27.)
*231In essence, the crux of the Federal Defendants' argument in regard to a NEPA violation is that the State should trust that by terminating the MOX Project, the Federal Defendants won't exceed the 50-year storage mark. However, the court declines to base its decision on the word of the Federal Government as its repeated actions in regard to the MOX Project have called into question the viability of such an outcome. Further, the court finds that pursuing the Dilute and Dispose approach would have a significant impact on the environment (as evidenced by the prior environmental impact statements issued by the Federal Defendants and by the NRC). Therefore, it is necessary that the Federal Defendants produce a supplemental EIS that addresses the conceivability, both practically and legally, of such a strategy. As such, the State will likely succeed on the merits of its claim that the May 10, 2018 decisions violated NEPA.
3. Violation of NDAA FY18 and CAA FY18-Failure to Meet Waiver Certification Requirements
The State is likely to succeed on its claim pursuant to the APA that the Secretary's May 10 commitment and certification that the requirements of Section 3121 of NDAA FY 18 and Section 309 of the CAA FY18 had been met is arbitrary and capricious because they have no basis in law or fact. Pursuant to NDAA FY18 § 3121(b)(1), in order to waive the expenditure restrictions, the Secretary must provide both a commitment to remove the plutonium from South Carolina and a certification of a less expensive alternative option. § 3121(b)(1).
i. Commitment to Remove the Plutonium from South Carolina
The Federal Defendants argue that "Congress did not set forth any specific level of proof that the Secretary must meet in order to satisfy any particular commitment requirement." (ECF No. 19 23-24.) The court declines to accept an argument that allows the Secretary to make commitments and certifications not supported by facts.
In the May 10, 2018 decision, the Secretary of Energy provides, "I confirm that the Department is committed to removing plutonium from South Carolina intended to be disposed of in the MOX facility[,]" in an apparent attempt to satisfy Section 3121(b)(1)(A) of the NDAA FY18. The stated primary basis for this commitment is that "[the Federal Defendants] are currently processing plutonium in South Carolina for shipment to the WIPP and intend to continue to do so." However, none of the defense plutonium that the Federal Defendants claim is currently being processed in South Carolina for shipment to WIPP was intended to be disposed of by the MOX Facility. Accordingly, this fact is irrelevant to and provides no support for the Secretary's commitment to remove plutonium from South Carolina that is intended to be disposed of in the MOX Facility, and thus, the Federal Defendants have relied on factors which Congress has not intended it to consider.
Further, the Secretary avers that the Federal Defendants' commitment to removal is supported by the fact that they are "planning to install additional equipment for processing plutonium [pursuant to the Dilute and Dispose Approach] for removal from South Carolina and to increase the rate at which this removal can be carried out." The Secretary also states that the Federal Defendants "are exploring whether any of the plutonium currently in South Carolina can be moved elsewhere for programmatic uses." Neither of *232these statements presents evidence or support of a legitimate commitment to the removal of the plutonium intended to be disposed of in the MOX Facility. There has been no NEPA analysis of the Dilute and Dispose approach or the storage of an additional 34 metric tons of weapons-grade plutonium at WIPP, and the EPA has stated that the requisite NEPA analyses and other studies for the storage of the plutonium at WIPP will take "many years."
The Federal Defendants are attempting to have it both ways. The basis for their "commitment" to remove plutonium and their basis for terminating the MOX Project is that they purportedly have an alternative for disposition and removal of the MOXable plutonium from South Carolina: "Dilute and Dispose." But they also claim they did not have to conduct any NEPA analysis for the "Dilute and Dispose" approach yet because they have not made any final decision or commitment to the "Dilute and Dispose" approach (notwithstanding the May 10 decision letter). These two arguments are mutually exclusive. If, in fact, there has been no commitment to the "Dilute and Dispose" approach because it is still in the conceptual phase, then there is no basis for the Secretary's purported commitment to the removal of the plutonium from South Carolina. If, however, the Federal Defendants have made a decision to move forward with the "Dilute and Dispose" approach, then it is subject to challenge as a final agency action and would fail on the merits because no NEPA analysis has been conducted. Either way, the Secretary's commitment is invalid.
ii. Certification of a Less Expensive Alternative Option
The Federal Defendants' estimates used for the lifecycle costs of the MOX Project and the Dilute and Dispose approach are not of comparable accuracy pursuant to the certification requirement under Section 3121(b)(2) of the NDAA FY18. Section 3121(b)(1)(B)(ii) requires the lifecycle cost for the alternative to be conducted according to GAO best practices, and Section (b)(2) requires that the MOX estimate be of comparable accuracy. The estimated lifecycle cost completed in September 2016 for the MOX Project to which the Federal Defendants compared to the Dilute and Dispose lifecycle cost estimate was not determined in a manner comparable to GAO best practices, as GAO determined a few months ago and the Federal Defendants admit.
In our February 2014 report, we recommended that NNSA revise and update the Plutonium Disposition Program's life-cycle cost estimate using the MOX approach following our cost estimating best practices, such as conducting an independent cost estimate. NNSA generally agreed with our recommendation, *233but has not yet implemented it ... Based on the findings of our review of NNSA's revised life-cycle cost estimate, we continue to believe that our recommendation remains valid.26
The Federal Defendants argue that they adjusted the 2016 MOX Project lifecycle cost estimate to make it of comparable accuracy to the Dilute and Dispose approach, which was conducted according to GAO best practices. (ECF No. 19-20 at ¶ 6-7.) However, the court finds this estimate is unlikely to fulfil the comparable accuracy requirement of Section (b)(2). In short, the State is likely to demonstrate that a certification that the lifecycle cost estimates for the Dilute and Dispose approach and the MOX Project are of comparable accuracy cannot be made until a new estimate of the MOX approach following GAO best practices and using similar or comparable underlying assumptions to those used in the Dilute and Dispose approach is prepared. Therefore, the Secretary's certification that the lifecycle estimates are of comparable accuracy is unsupported by the "relevant data" and does not meet the requirements of Section 3121(b)(2) of the NDAA FY18. Motor Vehicle Mfrs.,
iii. Statutory or Regulatory Changes
Section 3121(b)(1)(C) of the NDAA FY18 requires the Secretary to report to Congress "the details of any statutory or regulatory changes necessary to complete the alternative option." The Secretary's letter did not provide any details of the statutory or regulatory changes that are necessary to complete the proposed Dilute and Dispose approach, and thus, the requirement has not been meet. First, although recognizing the "capacity issues related to the receipt of the full 34 metric tons at WIPP," the Secretary states that all that is needed to proceed with the Dilute and Dispose approach is a proposed permit modification. However, DOE and NNSA have no basis in law or fact to simply assume that any permit modification will be granted. In fact, just this past Friday-June 1, 2018-the New Mexico Environment Department rejected the Federal Defendants' attempt to fast-track their permit modification request and is now requiring a more extensive review of the request because of the "significant public concern and complex nature of the proposed change." (ECF No. 21-2.) The Federal Defendants cannot use this assumption to avoid the necessary reporting to Congress. In 2014, DOE issued a report finding that "[d]isposal of the entire 34 MT of material in WIPP would require amendment of the WIPP Land Withdrawal Act. As with any location considered for this disposal mission, significant engagement with federal, state, and local representatives would be required. Implementing such an option would require Congressional action." (ECF No. 21-1.)
The second statute that would need to be modified for the Federal Defendants to proceed with the Dilute and Dispose approach and that the Federal Defendants did not disclose to Congress is Section 2566. This statute would need to be amended because it requires removal by January 1, 2022 of all the defense plutonium moved to South Carolina as of April 15, 2002. Under the Federal Defendants' Dilute and Dispose approach, they would not, according to their own estimates, be able to remove even one metric ton of plutonium from South Carolina until at least 2025, and they would also plan to import over 26 metric tons of plutonium into the State. The Federal Defendants therefore cannot legally implement the Dilute and Dispose approach unless Section 2566 is modified.
*234Because the Secretary's purported commitments and certifications have no basis in law or fact, the State is likely to succeed on its claim that the Federal Defendants' decision to terminate the MOX Facility is arbitrary and capricious in violation of NDAA FY18 and CAA FY18.
C. Irreparable Harm
Without a preliminary injunction, the State will suffer irreparable harm. The Federal Defendants have already issued a Partial Stop Work Order to the construction contractor that halted any new contracts or new hires at SRS for the MOX Project.
The Federal Defendants seem to couch the State's main argument of irreparable harm to be the injuries of the individual SRS employees and the economic loss to the State. However, the harm the State seems to claim is that the Full Stop Work Order would be the "event horizon" for the termination of the MOX Project. Once the labor force is lost, the MOX Project is likely discontinued without an alternate approved or authorized disposition strategy or any removal strategy for the weapons-grade plutonium stored at SRS that was intended to be processed at the MOX Facility.
Moreover, the implementation of the Federal Defendants' May 10 decisions without the creation of a supplemental EIC in and of itself creates irreparable harm. When a federal agency undertakes actions that would significantly affect the environment, NEPA requires the agency to take a hard look at the impact of those actions. Nat'l Audubon Soc'y v. Dep't of Navy ,
If the Full Stop Work Order is issued, the State also will be robbed of the opportunity to obtain a meaningful judgment on the merits of its claims that the Federal Defendants' decision to terminate the MOX Facility and leave South Carolina as the permanent repository for plutonium is unlawful. Int'l Refugee Assistance Project v. Trump ,
D. Balance of Equities
The court agrees that the financial impact resulting from a preliminary injunction weighs in favor of the Federal Defendants.
Importantly, Congress has not approved or authorized the Dilute and Dispose approach as a replacement for the MOX Project. Therefore, if the Federal Defendants' agency action is not enjoined, the Federal Defendants will leave the United States with no disposition pathway for 34 metric tons of weapons-grade plutonium, reversing and rendering pointless over 20 years of studies, decisions, efforts, and substantial monetary investments to develop the MOX Facility to complete the United States' disposition mission.
In addition, the United States' foreign interests are not furthered by terminating the MOX Facility. One of the purposes of pursuing the MOX Project was to meet the United States' obligations pursuant to the Plutonium Management and Disposition Agreement ("PMDA") with Russia, whereby each country agreed to dispose of no less than 34 metric tons of weapons-grade plutonium.
(1) In September 2000, the United States and the Russian Federation signed PMDA by which each agreed to dispose of 34 metric tons of weapons-grade plutonium.
*236(2) The agreement with Russia is a significant step toward safeguarding nuclear materials and preventing their diversion to rogue states and terrorists.
(3) The Department of Energy plans to dispose of 34 metric tons of weapons-grade plutonium in the United States before the end of 2019 by converting the plutonium to a mixed-oxide fuel to be used in commercial nuclear power reactors.
(4) The Department has formulated a plan for implementing the agreement with Russia through construction of a mixed-oxide fuel fabrication facility, the so-called MOX facility, and a pit disassembly and conversion facility at the Savannah River Site, Aiken, South Carolina.
NDAA FY03, Pub. L. No. 107-314,
DOE used the PMDA, and the need to pursue the MOX Project, as one of the primary reasons for DOE's need to ship defense plutonium into the State in the first place. In response to the State's challenge to the shipment of plutonium into the State in 2002, Linton F. Brooks, then-Deputy Administrator for Defense Nuclear Nonproliferation for DOE/NNSA, testified that any delay or uncertainty in the MOX Project could "kill" the PMDA.
[the long-term storage option without disposition] does not achieve the U.S. plutonium disposition mission and it renounces the U.S.-Russian PMDA.... This option would represent a reversal of the U.S. position on disposition of surplus plutonium, be derided internationally, and be opposed by the states and the public.33
In other words, the Federal Defendants have previously recognized that the very path they now desire to take violates an international nonproliferation agreement with Russia.
The past history between South Carolina and the Federal Defendants with respect to the MOX Facility and weapons-grade plutonium located in the State also demonstrates that equity favors the State. Beginning in the late 1990s, DOE and its officials made countless commitments to the State, which the State relied on in agreeing to accept the defense plutonium that DOE insisted it urgently needed to ship to South Carolina. In particular, DOE committed to ensuring that the State not become the "dumping ground" for plutonium and, thus, committed to building the MOX Facility and expeditiously removing plutonium from the State if the MOX Facility was not timely built for any reason.
Now, DOE is reneging on its promises made over the course of the last two decades. The MOX Facility has not been timely built, no defense plutonium intended for MOX disposition has been removed from the State, and no monetary payments have been made. Further, the Federal Defendants have contested their statutory obligations to remove the plutonium and make the monetary payments. Accordingly, the balance of equities or hardships related to the MOX Facility weighs heavily for the State.
E. Public Interest
Requiring the government to act in accordance with the law is a public interest of the highest order. See Seattle Audubon Soc'y v. Evans ,
NEPA required the Federal Defendants to take a "hard look" at the environmental consequences of its decision to terminate the MOX Facility and render South Carolina the permanent repository for weapons-grade plutonium. The Federal Defendants did not do so, and thus, "the public interest expressed by Congress [has been] frustrated by the [F]ederal [D]efendants not complying with NEPA." Fund for Animals v. Clark ,
Through Section 3121 of NDAA FY 18 and Section 309 of the CAA FY18, Congress mandated that the Federal Defendants use federal funds to continue construction of the MOX Facility during the current fiscal year. The only way the Federal Defendants could avoid this mandate was by meeting the commitment and certification requirements of those respective statutes. Implicit in those statutory requirements, however, is that the Secretary's commitments and certifications are made in good faith and are supported by fact and law. By this decision, decades of the United States' plutonium disposition policy is overturned and, as discussed above, the Federal Defendants will violate one of the country's international nonproliferation *238agreements. Accordingly, the public interest is served by ensuring that the MOX Facility is not terminated before the legality of the Secretary's commitments and certifications can be fully vetted by the court.
V. CONCLUSION
Based on the foregoing, the court GRANTS the State's Motion for Preliminary Injunction (ECF No. 5). During the pendency of this lawsuit, the court enjoins the Federal Defendants' May 10 decisions to terminate and cease construction of the MOX Facility and its intent to pursue the Dilute and Dispose approach to plutonium disposition. The Partial Stop Work Order issued on May 14, 2018 is vacated and the Federal Defendants are prevented from issuing a full stop work order on or before June 11, 2018, or thereafter, unless otherwise determined by this court. Consequently, the Federal Defendants are to maintain the status quo by continuing the MOX Project. The State is ordered to pay a bond in the amount of $100.00 to the Clerk of Court for the United States District Court for the District of South Carolina by Friday, June 8, 2018 at 4 p.m.
IT IS SO ORDERED.
See Compl. Ex. 6, Excerpt from D.J. Spellman et al., History of the U.S. Weapons-Usable Plutonium Disposition Program Leading to DOE's Record of Decision 2 (1997) (detailing important events and studies concerning surplus weapons-usable plutonium disposition).
See Compl. Ex. 7, NNSA, Report to Congress: Disposition of Surplus Defense Plutonium at Savannah River Site 2-1 (Feb. 15, 2002) (hereinafter Report to Congress ); Compl. Ex. 9, DOE, Record of Decision (ROD) for Storage and Disposition of Weapons-Usable Fissile Materials Final Programmatic Environmental Impact Statement (PEIS) (Jan. 21, 1997),
Compl. Ex. 11, DOE, Excerpt from SPD EIS, Vol. I-Part A, at 1-3 (Nov. 1999).
See Compl. Ex. 12, DOE, Excerpt from SPD EIS , Summary, at S-1 (Nov. 1999); Compl. Ex. 13, DOE, ROD for SPD EIS (Jan. 11, 2000),
See Compl. Ex. 16, NRC, Excerpt from Environmental Impact Statement on the Construction and Operation of a Proposed Mixed Oxide Fuel Fabrication Facility at Savannah River Site, South Carolina 1-3 (Jan. 2005) (NRC EIS).
National Defense Authorization Act for Fiscal Year 2002 (NDAA FY02), Pub. L. No. 107-107,
NDAA FY03, Subtitle E, § 3182, subsequently codified by NDAA FY04 as
See Compl. Ex. 21, DOE, Storage of Surplus Plutonium Materials at the Savannah River Site Supplemental Analysis (Sept. 5, 2007).
Compl. Ex. 16, Excerpt from NRC EIS at 4-96.
South Carolina v. U.S. Dep't of Energy , 1:14-cv-00975-JMC (ECF No. 19).
NDAA FY18, § 3121(b)(1).
The NDAA FY 2018 is an act that was signed into law by the President on December 12, 2017, which authorizes fiscal year 2018 appropriations and sets forth policies for Department of Defense ("DOD") programs and activities, including military personnel strengths. Pub. L. No. 115-91. Section 3121 of the NDAA FY 2018 provides that the Secretary of Energy shall use the funds appropriated for the construction of the MOX Facility for the aforementioned uses, unless he waives the requirement pursuant to subsection (b). Subsection (b) requires that the Secretary submits to Congress "the commitment of the Secretary to remove Plutonium" from South Carolina and a certification that "an alternative option for carrying out the plutonium disposition program for the same amount of plutonium ... exists," the remaining lifecycle cost ... for the alternative option would be less than approximately half of the estimated remaining lifecycle cost of the [MOX] program," and the details of any statutory or regulatory changes necessary to complete the alternative. § 3121(b)(1).
Compl. Ex. 1, May 10, 2018 Secretary Perry Letter; Compl. Ex. 29, NNSA, Surplus Plutonium Disposition Dilute and Dispose Option Independent Cost Estimate (ICE) Report.
The Consolidated Appropriations Act, 2018 ("CAA FY18") is an act that was signed into law by the President on March 23, 2018, which requires the Secretary of Energy to use all funds allocated this year and previously for construction of the MOX Project for such use unless the Secretary waives the requirement in accordance with NDAA FY18 § 3121. Pub. L. 115-141 § 309. If the Secretary makes a waiver under the NDAA, CAA FY18 also requires that he "submit to the Committees on Appropriations of both Houses of Congress the lifecycle cost estimate used to make the certification under Section 3121(b)" and he "may not use funds provided for the Project to eliminate such Project until" 30 days later. § 309(c).
Compl. Ex. 30, May 14, 2018 NNSA Letter to CB&I AREVA MOX Services, LLC RE: Contract DE-AC02-99CH10888 (Mixed Oxide Fuel Fabrication Facility).
Comp. ¶¶ 116-17; Compl. Ex. 1, May 10, 2018 Secretary Perry Letter.
Compl. Ex. 16, NRC EIS at 2-36 (emphasis added).
NAS, Disposal of Surplus Plutonium in the Waste Isolation Pilot Plant, DELS-NRSB-17-03, Project Scope (emphasis added).
Compl. Ex. 27, DOE, ROD for Surplus Plutonium Disposition (April 5, 2016); Compl. Ex. 26, Final SPD Supplemental EIS , Foreword ("Under all alternatives, DOE would also dispos[e] as MOX fuel 34 metric tons (37.5 tons) of surplus plutonium in accordance with previous decisions. The 34 metric tons (37.5 tons) of plutonium would be fabricated into MOX fuel at [the MOX Facility] for use at domestic commercial nuclear power reactors.").
Compl. Ex. 28, Ltr. of EPA dated April 2, 2018.
Compl. Ex. 32, GAO Plutonium Disposition Report ("DOE's National Nuclear Security Administration (NNSA) has not yet applied best practices when revising its life-cycle cost estimate of $56 billion for the Plutonium Disposition Program using the MOX approach, as GAO previously recommended."); Compl. Ex. 29, ICE Report at 48 ("The GAO notes, however, in their report 'Plutonium Disposition: Proposed Dilute and Dispose Approach Highlights Need for More Work at the Waste Isolation Pilot Plant' (GAO-17-390) that the 2016 MOX fuel program lifecycle estimate does not exhibit the characteristics of an estimate developed in alignment with GAO best practices (and was never intended as such). " (emphasis added) ).
Compl. ¶ 111; Compl. Ex. 30, May 14, 2018 NNSA Letter to CB&I AREVA MOX Services, LLC RE: Contract DE-AC02-99CH10888 (Mixed Oxide Fuel Fabrication Facility).
This statement is also pertinent to the public interest discussion below.
The State claims this amount is not based on any actual calculation provided by the Federal Defendants and is based on invoices rather than payments. (See ECF No. 21 at 19.)
Compl. Ex. 14, PMDA (Sept. 1, 2000); see Compl. Ex. 15, Congressional Research Serv., Mem., U.S.-Russia Plutonium Management Disposition Agreement , dated Oct. 20, 2015 (describing history of PMDA) (hereinafter CRS PMDA Report )
Compl. Ex. 18, Brooks Aff, Hodges v. Abraham , C/A No. 1:02-cv-01426-CMC.
Compl. Ex. 7, Report to Congress.
See Compl. Ex. 7, Report to Congress 5-2 ("Storage in place undercuts existing commitments to the states, particularly South Carolina, which is counting on disposition as a means to avoid becoming a permanent 'dumping ground' for surplus weapons-grade plutonium by providing a pathway out of the site for plutonium brought there for disposition.").
Federal Rule of Civil Procedure 65(c) requires a court issuing a preliminary injunction order to do so "only if the movant gives security in an amount that the court considers proper" to provide redress to the enjoined party if the injunction is later found to be improper. Fed. R. Civ. P. 65(c). The language of Rule 65 requires the court to set a bond when issuing a preliminary injunction.