A federal appeals court on Tuesday declined to overturn a lower court’s refusal to stop the National Nuclear Security Administration (NNSA) from carrying out an already-completed shipment of plutonium to Nevada.
After deciding the appeal on briefs, without an oral argument from either Nevada or attorneys representing the NNSA, the U.S. Ninth Circuit Court of Appeals in San Francisco ruled the state’s case was moot “[b]ecause the government has completed the shipments.”
The appeals court also rejected Nevada’s argument that its request for an injunction, filed Nov. 30 along with the state’s original lawsuit, could conceivably be used to force the NNSA to remove the plutonium from the Nevada National Security Site.
Nevada filed its appeal in the Ninth Circuit in February, a month after the NNSA disclosed it shipped plutonium to the state before the state sued to stop the shipment.
Nevada could now appeal its swift defeat to the Supreme Court, or return to U.S. District Court in Reno to resume its argument that the NNSA violated federal law by shipping plutonium to Nevada from the Savannah River Site in Aiken, S.C., without first performing a detailed environmental review. The NNSA maintains it performed all necessary the environmental reviews in order to last year send the roughly 500 kilograms of plutonium metal to the Device Assembly Facility at the former Nevada Test Site.
The agency removed the plutonium from Savannah River after a federal judge, in a separate lawsuit brought by South Carolina, ordered the agency to do so by Jan. 1, 2020. The order, handed down in 2017 in the District Court for South Carolina in Aiken, covered 1 metric ton of plutonium. The NNSA said in early August that it has removed the other half of this ton, which the agency previously said would go to the Pantex Plant in Amarillo, Texas.
The plutonium was once part of a 34 metric-ton tranche declared surplus to defense needs and slated to be de-weaponized forever as part of a now-defunct materials-reduction pact with Russia.
After the NNSA missed a legal deadline to convert the plutonium into commercial nuclear reactor fuel in Savannah River’s now-canceled Mixed Oxide Fuel Fabrication Facility — or ship it out of state by Jan. 1, 2016 — South Carolina sued the agency, eventually securing a judicial order for the material’s removal.
The NNSA reclassified the 1 metric ton removed from Savannah River as for defense production use. The agency plans to send this material to the Los Alamos National Laboratory in New Mexico for conversion into fissile nuclear weapon cores, or pits. The pits would be for future W87-1 warheads that will tip the next-generation intercontinental ballistic missiles known as the Ground-Based Strategic Deterrent.
The plutonium sent to Nevada will remain there until 2026. Los Alamos plans to start cranking out war-usable pits for W87-1 warheads in 2024.
