The U.S. government on Nov. 15 urged a federal judge to dismiss a revised lawsuit from the state of Nevada requesting the removal of half-a-metric tons of weapon-usable plutonium from the Department of Energy’s Nevada National Security Site (NNSS).
The U.S. District Court for Nevada “lacks subject matter jurisdiction to decide this matter because Plaintiff lacks [U.S. Constitution] Article III standing, because Nevada’s request to enjoin shipment of plutonium is moot, and because the United States has not waived sovereign immunity for a federal common law nuisance claim,” federal attorneys wrote in their motion. “In addition, Nevada’s amended complaint fails to state claims for which relief can be granted.”
A federal judge, in a separate lawsuit filed by South Carolina, in 2017 ordered 1 metric ton of plutonium to be removed from DOE’s Savannah River Site in that state. Last November, Nevada sued to prevent half that material from being shipped to NNSS. In January, the department’s semiautonomous National Nuclear Security Administration (NNSA) acknowledged in a court filing it had already placed the plutonium into storage at NNSS.
District Judge Miranda Du and a federal appeals court earlier this year dismissed as moot Nevada’s request in the lawsuit to prevent the plutonium shipment. But Du last month allowed the state to amend its lawsuit to request the removal of the plutonium as a nuisance under federal common law.
Energy Secretary Rick Perry, who is resigning effective Dec. 1, has committed that DOE will remove the plutonium from Nevada between 2021 and 2026. In a hearing last week on his nomination to succeed Perry, Deputy Energy Secretary Dan Brouillette pledged to stick to that schedule. The plutonium would be sent to the Los Alamos National Laboratory in New Mexico for use in production of fissile cores for nuclear weapons.
Meanwhile, the state and federal governments have continued their court battle.
In a set of arguments in the motion to dismiss the Nevada lawsuit, attorneys said the federal government had not waived its sovereign immunity against common law claim. “A court lacks subject matter jurisdiction over a claim against the United States if the United States has not consented to be sued on that claim,” according to the Department of Justice lawyers.
Under Article III of the Constitution, the motion says, federal courts have jurisdiction only in “cases” or “controversies.” Nevada has not proved either in its lawsuit, and its petition to stop the shipment of plutonium remains moot, the attorneys wrote.
Nevada has further failed to meet the qualifications for standing to sue, the motion says: showing “injury-in-fact” to a “concrete and particularized” legally protected interest; proving a clear link between the act addressed by the complaint and injury to its residents; and making the case that a decision in its favor would “likely” address the injury.
“The Ninth Circuit has previously held, in a suit brought by Nevada relating to the selection of Yucca Mountain as a repository for nuclear waste, that Nevada lacks standing as parens patriae to bring an action against the United States on behalf of Nevada residents,” according to the motion.
The state of Nevada had not filed a response to the federal motion at deadline Friday for Nuclear Security & Deterrence Monitor. The Nevada Attorney General’s Office did not respond to a query on the latest filing.
