Nevada should not be allowed to seek removal of one-half a metric ton of weapon-usable plutonium from its borders by amending a lawsuit it filed against the Department of Energy last year, according to the federal government.
“With no success in convincing this Court that DOE’s transportation of plutonium into the state is so dangerous that it must be enjoined, Nevada now takes the opposite position – that not moving the plutonium is so dangerous that the Court must order that it be transported out of the state,” federal attorneys wrote late last week in a response to Nevada’s September motion in U.S. District Court to file an amended complaint in the 10-month-old lawsuit.
Under a court order in a separate lawsuit brought by South Carolina in 2016, DOE’s semiautonomous National Nuclear Security Administration (NNSA) shipped the plutonium from that state to the agency-owned Nevada National Security Site (NNSS) prior to Nov. 30, 2018. On that date, Nevada sued to stop the shipment, arguing among other things that the transfer and planned storage of plutonium at the former Nevada Test Site violated federal environmental law.
The state tried to convince the District Court in Reno and the U.S. Ninth Circuit Court of Appeals in San Francisco that the old lawsuit, which sought to block the already-completed shipment, could be leveraged to force the plutonium out of Nevada.
Both courts disagreed — the District Court because Nevada had not demonstrated it would suffer lasting harm from the plutonium, the appeals court because the shipment had been completed when the state sued — and sent the lawsuit back to the District Court.
There, Nevada in early September sought permission to modify its initial complaint, in effect to ask Judge Miranda Du to force the NNSA to remove the plutonium delivered to the NNSS Device Assembly Building last year.
Justice Department attorneys David Negri and Jean Williams said the state’s proposed amendments, which Du had not approved or disapproved at deadline for Nuclear Security & Deterrence Monitor, undermine the state’s initial argument: that it was unsafe and potentially illegal to ship the material in the first place.
“[W]ith the plutonium now safely transported into the state, Nevada scrambles to salvage its case,” the federal attorneys wrote in the Sept. 20 filing with the District Court in Reno. “All of Nevada’s previous concerns regarding the dangers of plutonium transportation have apparently dissolved, such that an affirmative injunction must now issue mandating such transportation.”
Nevada, in a draft amended complaint filed with the District Court earlier this month, said the plutonium now at NNSS constitutes a nuisance under federal law, and that its shipment to the former atmospheric- and underground-testing site legally constituted a nuclear incident.
The federal attorneys also rejected those arguments, telling the court the NNSA moved the plutonium to the NNSS to comply with a court order handed down in 2017 as part of South Carolina’s lawsuit. That order was based on a provision in the 2001 National Defense Authorization Act that, the judge in the South Carolina case said, the agency had essentially ignored by not moving the plutonium out of the Palmetto State by Jan. 1, 2016, as the law required.
The South Carolina court order directed removal only of 1 metric ton of plutonium from South Carolina by Jan. 1, 2020: something the NNSA said it did over the summer. The half-ton not sent to the NNSS was to go to the NNSA’s Pantex Plant in Amarillo, Texas, the agency has said.
However, the NNSA has not confirmed that this material actually went to Pantex, where the agency assembles and disassembles nuclear weapons as part of an ongoing series of maintenance and modernization programs.
The plutonium sent to Nevada will be transferred starting early in the next decade to the Los Alamos National Laboratory in New Mexico, where it will be made into pits suitable for use in future W87-1 intercontinental ballistic missile warheads. All of the half-metric-ton shipped to the site in 2018 will be delivered to Los Alamos by 2026, Perry has said
