Aiken County v. Bodman
| Decision Date | 22 June 2007 |
| Docket Number | Civil Action No. 1:05-cv-2737-RBH. |
| Citation | 509 F.Supp.2d 548 |
| Court | U.S. District Court — District of South Carolina |
| Parties | AIKEN COUNTY, Plaintiff, v. Samuel W. BODMAN, Secretary of the Department of Energy in his official capacity, United States Department of Energy, Defendants. |
Alexander G. Shissias, John Adams Hodge, Thomas R. Gottshall, Haynsworth Sinkler Boyd, Columbia, SC, for Plaintiff.
Robert F Daley, Jr., Us Attorneys Office, Columbia, SC, for Defendants.
Pending before the court is Defendants' [Docket Entry # 19] motion to dismiss. Defendants' motion was extensively briefed by the parties. On May 24, 2007, a hearing was held on the matter before the undersigned.
In September 2000, the United States signed the Plutonium Management and Disposition Agreement with the Russian Federation in which the United States and the Russian Federation agreed to dispose of 34 metric tons each of excess weapons grade or defense plutonium. Both countries intended to achieve this goal through either immobilization and/or conversion of the defense plutonium to a mixed oxide (MOX) fuel for use in commercial nuclear reactors. In the United States, the conversion of defense plutonium and defense plutonium materials into MOX will take place at the Savannah River Site ("SRS") in Aiken County, South Carolina upon completion of a MOX fabrication facility.1
The Bob Stump National Defense Authorization Act for Fiscal Year 2003, PL No. 107-314 ("2003 Appropriations Act"), which was amended by the Energy and Water Development Appropriations Act, 2006, PL No. 109-103 ("2006 Appropriations Act"), and is now codified at 50 U.S.C. § 2566, governs the construction and operation of the MOX facility at the SRS and outlines the methods through which the United States can meet its obligations under the Plutonium Management and Disposition Agreement. Section 2566 requires a plan for construction and operation of the MOX facility as well as a plan for corrective actions if construction or operation of the MOX facility is behind schedule. The provisions of 50 U.S.C. § 2566 also set forth certain reporting requirements and/or certifications and limitations on shipments of weapons grade plutonium to the SRS. Additionally, the statute provides for "economic and impact assistance" to the State of South Carolina beginning in 2014 if the MOX facility does not stay on schedule. The statute implies that the State of South Carolina may sue the Department of Energy, which counsel for the DOE conceded at the hearing on this matter;2 however, any injunction obtained by the State of South Carolina would toll deadlines that would trigger payment of the economic and impact assistance.
Aiken County brought this action against the United States Department of Energy and Samuel Bodman in his official capacity as Secretary of the Department of Energy (collectively referred to as "DOE") alleging the DOE violated provisions of 50 U.S.C. § 2566. This case arises from the fact that the DOE, through various reports to Congress, has indicated the construction of the MOX facility was years behind schedule and the MOX production objective would not be met by the statutory deadline of 2012.3 Aiken County contends that because the Secretary has determined the MOX production objective will not be met by the new statutory deadline of 2012, § 2566(b)(4) requires the Secretary to issue an order or directive suspending shipments of plutonium to the SRS until the Secretary certifies that the MOX production objective can be met by the new 2012 statutory deadline. Counsel for the parties stated at the hearing that currently no defense plutonium or defense plutonium materials are being shipped to the SRS and there are no immediate plans to ship defense plutonium and defense plutonium materials to the SRS.
Aiken County's amended complaint seeks the following relief:
1) A declaration that:
a) having determined in 2005 that it was "impossible" to achieve the MOX production objective by the statutory deadlines under the original 2003 Act, the Secretary violated original Section 3182 by failing to submit a corrective action plan to Congress by August 15, 2005. The DOE Secretary further violated section 3182 of the original 2003 Act by failing to specify the corrective measures DOE would take to put the MOX program back on schedule and by failing to establish benchmarks to ensure that the MOX production objective would be met;
b) the Secretary's 2006 certification to Congress that the new statutory deadlines cannot be met, coupled with the Secretary's statement that the MOX production objective cannot be achieved by 2015, triggered the agency's statutory obligation to first certify to Congress that the statutory deadlines can be met before shipments of defense plutonium and defense plutonium materials to the SRS may continue;
c) Congress, in its amendments to the 2003 Act, did not relieve the Secretary or the DOE of the obligation to first certify to Congress that the statutory deadlines for the MOX production objective can be met before shipments of defense plutonium and defense plutonium materials to the SRS can continue; and
d) having made no certification to Congress that the MOX production objective can be met by the new statutory deadlines, the Secretary and the DOE lack the authority to continue shipments of defense plutonium and defense plutonium materials to the SRS until such time as the Secretary certifies to Congress that the MOX production objective can be met by the new statutory deadlines.
2) Mandamus order and injunction compelling the DOE Secretary to comply with his statutory obligations to issue an order or official directive immediately suspending all shipments of defense plutonium and defense plutonium materials to the SRS until the DOE secretary certifies that the MOX production objective can be met under the new statutory deadlines; and
3) That this court retain jurisdiction over this case until the DOE Secretary certifies to Congress that the MOX production objectives can be met under the new statutory deadlines.
DOE moved to dismiss the amended complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted because: (1) Aiken County does not have standing, as parens patriae, to bring this lawsuit; (2) the statute Aiken County seeks to enforce does not create a private cause of action for non-monetary damages that Aiken County can enforce; (3) there is no "final agency action" to review under the Administrative Procedures Act;, (4) this lawsuit is not ripe for adjudication; and (5) the mandamus statute does not apply.
Aiken County argues that it is not asserting a private cause of action under 50 U.S.C. § 2566. Rather, Aiken County, as a neighboring landowner to the SRS, is seeking review of the DOE's refusal to issue an official order or directive suspending shipments of defense plutonium and defense plutonium materials to the SRS under the Administrative Procedures Act, 5 U.S.C. § 501, et seq. ("APA"). Aiken County's claim must fail, however, because there has been no "final agency action" for this court to review under the APA. Additionally, Aiken County's amended complaint is due to be dismissed because the current matter is not ripe for review. The concept of ripeness and the need for "final agency action" as a prerequisite for judicial review of an agency action under the APA are closely related. However, the court will address each issue separately.
The Administrative Procedure Act ("APA") provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C.A. § 702.
In Lujan v. Defenders of Wildlife, the Supreme Court set forth the minimum standing requirements under Article III of the Constitution. 504 U.S. 555, 112 S.Ct. 2130, 119 L.E d.2d 351 (1992). For a plaintiff to establish Article III standing, the plaintiff must show: 1) an injury in fact that is concrete and particularized and actual or imminent, not conjectural or hypo thetical; 2) a causal connection between the injury and the complained of conduct; and 3) the injury is redressable by a favorable decision. Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130. A prerequisite for the exercise of a right to review under the APA is that the plaintiff must satisfy the minimum standing requirements of Article III. Motor Coach Industries, Inc. v. Dole, 725 F.2d 958, 963 (4th Cir.1984). "The APA has broadened the `categories of injury that may be alleged in support of article III standing,' but it has not displaced the analytical framework under which the constitutional determination is made." Motor Coach, 725 F.2d at 963. "Neither the Administrative Procedures Act, nor any other congressional enactment, can lower the threshold requirements of standing under Art. III." Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 487 n. 24, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).
The Fourth Circuit has recognized that in the APA context, which is the provision with which we are concerned in this case, the Supreme Court considers the Article III standing requirements satisfied when three elements are present: 1) the actual injury must be within the zone of interests protected by the statute; 2) the injury must be fairly traceable to the specific agency action challenged; and 3) the alleged injury must be redressable by a favorable decision. Motor Coach, 725 F.2d at 963 (citing Simon v. Eastern, Kentucky Welfare Rights Org., 426 U.S. 26, 38-39, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)).
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Southcarolina v. United States
...metric tons of defense plutonium withdrawn from their respective nuclear weapons program. (ECF No. 1 at 11); see Aiken Cnty. v. Bodman, 509 F. Supp. 2d 548, 550 (D.S.C. 2007). While non-proliferation discussions were underway, DOE, over a number of years, evaluated dozens of options for dis......