The U.S. Supreme Court this week declined to hear South Carolina’s argument that an appeals court illegally denied the state its right to contest the Department of Energy’s decision to close an over-budget, behind-schedule plutonium-disposal plant at the Savannah River Site.
The decision from the high court, for which there is no appeal, spells the end of South Carolina’s year-old legal effort to stop DOE — if only temporarily — from turning the Mixed Oxide Fuel Fabrication Facility (MFFF) into a plant to annually produce at least 30 plutonium nuclear-weapon cores by 2030.
A federal appeals court, almost exactly one year ago, reversed a U.S. District Court order protecting the MOX plant. The state has two other lawsuits pending against DOE over the 34 metric tons of plutonium that was to be turned into commercial reactor fuel by the MFFF, but neither of those cases seek to enjoin its actual cancellation. The Energy Department officially terminated the project after the appeals court ruling.
In its June petition to the Supreme Court, South Carolina argued that appeals judges relied on a legally flawed certification by DOE that it could replace the MFFF with a cheaper plutonium-disposal facility. The new facility, the feds argued, would prevent the state from becoming a de facto repository for weapon-usable plutonium.
South Carolina also wanted the Supreme Court to recognize, unlike the appeals court judges, that the state had standing to sue the Energy Department. The state said its standing was based on sovereign interest in roads and land near the federally owned Savannah River Site in Aiken, S.C., where MFFF was partially built from 2007 through last year.
The Supreme Court addressed none of those issues in its no-comment denial. “The vast majority” of Supreme Court petitions end in a no-comment denial, the court says on its website. Court clerks and justices consider petitions for oral arguments en bloc in meetings called conferences. Nominally, four of the nine justices have to approve a petition to clear the way for an argument.
Alan Wilson, the attorney general of South Carolina, said in a statement this week that he was “disappointed” with the Supreme Court’s decision, but that he would “continue to do everything necessary to protect the citizens of our state and hold the federal government accountable under the law.”
