The U.S. Supreme Court will next week mull whether to hear arguments that an appeals court illegally blocked South Carolina from trying to stop the Department of Energy from canceling the Mixed Oxide Fuel Fabrication Facility (MFFF) at the Savannah River Site.
The Supreme Court has scheduled the case for conference on Oct. 11, a Friday. During conferences, Supreme Court clerks — and sometimes, certain justices — examine the many legal cases that plaintiffs want elevated to the highest court in the land. The MFFF case is one of more than 200 scheduled to go to conference that day. The court would announce the fate of the cases discussed on Oct. 11 the following Monday, Oct. 14.
Only a tiny fraction of the thousands of cases seeking admission to the Supreme Court each year get it, according to the court itself. It takes concurrence from four of the nine justices to schedule oral arguments in a case.
The Supreme Court meets in terms that run from October though June or early July.
South Carolina sued DOE in the U.S. District Court in South Carolina in 2018, seeking to stop the agency from terminating the MFFF. The facility was designed to turn 34 metric tons of weapon-usable plutonium into fuel for commercial nuclear power plants under a reciprocal materials-reduction pact signed with Russia after the end of the Cold War.
After spending more than $5 billion on the project, and starting construction under contractor MOX Services, DOE decided in 2015 the facility was too expensive to continue. It ultimately canceled the plant in favor of a dilute-and-dispose approach that would chemically weaken the plutonium, blend it with concrete-like grout called stardust, and bury it deep underground at the agency’s Waste Isolation Pilot Plant in New Mexico. In 2020 authorization and appropriations bills, the House and Senate have each united behind DOE’s plan to shutter the MFFF and replace it with the Surplus Plutonium Disposition approach.
South Carolina said closing the MFFF could, despite DOE’s plan to dispose of the plutonium another way, strand weapon-usable material permanently in the state. The state’s lawyers argued DOE needed to conduct a lengthy environmental review of that possibility.
The District Court judge agreed, and in June 2018 granted the state’s request for an injunction against shuttering the MFFF. However, the U.S. Fourth Circuit Court of Appeals in October overturned the injunction, and the Energy Department canceled the project days later.
South Carolina and Sen. Lindsey Graham (R-S.C.), who has filed a supporting brief in the case, say the appeals court wrongly overturned the injunction protecting the MFFF on the grounds that closure caused South Carolina only hypothetical harm. The decision, the state and its powerful Senate backer say, effectively denied the South Carolina its constitutional right to a day in court.
