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 Friday 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. The state said the shipment created a nuisance and a nuclear incident, under federal law.
Justice Department attorneys David Negri and Jean Williams said the state’s proposed amendments, which Du had not approved or disapproved at deadline for Weapons Complex Morning Briefing, undermine the state’s initial argument: that it was unsafe and potentially illegal to ship the material in the first place.
