A panel of appeals judges will hear oral argument from Nevada by early October about why the Department of Energy should remove a half metric ton of weapon-usable plutonium from the Nevada National Security Site’s Device Assembly Facility.
That is according to a Monday order in which the Ninth Circuit Court of Appeals told the parties to consider a range of dates, from August to October, for the arguments in San Francisco.
The Energy Department’s semiautonomous National Nuclear Security Administration (NNSA) sent the plutonium to Nevada some time before November 2018, when the state sued the agency to block the shipment. After the NNSA revealed in January the material was already at the site, U.S. District Judge Miranda Du denied the state’s request for an injunction to stop the shipment, saying it caused Nevada no irreparable harm.
Nevada quickly appealed to the Ninth Circuit, arguing Du’s conclusion was incorrect, and taking shots at the agency’s legal argument that the injunction the state sought covers only prevention of a shipment, not removal of plutonium already present.
“T]he Court cannot fault Nevada for not expressly requesting removal, and focusing on looming shipments, because DOE hid the shipment’s status from Nevada and the District Court until it arrived,” attorneys for Nevada wrote in a Monday reply brief in the Ninth Circuit. “Nevada would have explicitly requested removal had DOE been forthright and candid.”
The NNSA must ship 1 metric ton of plutonium out of the Savannah River Site in Aiken, S.C., to comply with a 2017 order from the U.S. District Court in South Carolina. South Carolina sued DOE and the NNSA after the agency missed a legal deadline to either process weapon-usable plutonium into commercial reactor fuel or remove the material from Savannah River. The NNSA plans to ship the other half ton to the Pantex Plant in Amarillo, Texas.
Meanwhile, as the agency trades briefs with Nevada in the appeals court, it has also asked the District Court for Nevada to dismiss Carson City’s lawsuit.
In an effort to keep the suit alive, Nevada this month asked Du to stay the motion to dismiss. Du is set to rule on that request some time after Monday, by which time Nevada and the NNSA will have presented their respective cases for staying or proceeding with the motion to dismiss, a court this week filing shows.
The agency asked Du to dismiss the case after Nevada declared it wanted to depose a total of three DOE and NNSA officials and force the agency to turn over more information about the internal deliberations that led to last year’s shipment.
The plutonium now staged at NNSS is in solid-metal form, the NNSA disclosed in court filings. Around 2026, the agency plans to take the material to the Los Alamos National Laboratory in northern New Mexico, where it will be reshaped it into nuclear-weapon cores called pits. The pits will be suitable for use in future intercontinental ballistic-missile warheads.
