Nevada v. United States

• Decision Date: 30 January 2019
• Docket Number: Case No. 3:18-cv-569-MMD-CBC
• Citation: 364 F.Supp.3d 1146
• Parties: State of NEVADA, Plaintiff, v. UNITED STATES; et al., Defendants.
• Court: U.S. District Court — District of Nevada

364 F.Supp.3d 1146

State of NEVADA, Plaintiff,

v.UNITED STATES; et al., Defendants.

Case No. 3:18-cv-569-MMD-CBC

United States District Court, D. Nevada.

Signed January 30, 2019

Charles J. Fitzpatrick, John W. Lawrence, Pro Hac Vice, Egan Fitzpatrick Malsch & Lawrence PLLC, Austin, TX, Daniel P. Nubel, C. Wayne Howle, Nevada Office of the Attorney General, Marta A. Adams, Adams Natural Resources Consulting Services, LLC, Carson City, NV, Martin G. Malsch, Pro Hac Vice, Egan Fitzpatrick Malsch & Lawrence, Washington, DC, for Plaintiff.

David L. Negri, USDOJ C/O Attorneys Office, Boise, ID, Gregory W. Addington, U.S. Attorney's Office, Reno, NV, Sara E. Costello, Department of Justice, Washington, DC, for Defendants.

ORDER

MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

I. SUMMARY

Plaintiff the State of Nevada ("Nevada") challenges the federal government's¹ plan to ship one metric ton of defense plutonium from the Savannah River Site ("SRS") in South Carolina to the Nevada National Security Site ("NNSS"). This plan is part of the Government's larger proposed action articulated in a supplemental analysis. The merits of Nevada's claims are yet to be decided; this order only addresses Nevada's motion for preliminary injunction ("PI Motion") seeking to enjoin any shipment of plutonium from SRS to NNSS until Nevada's claims are decided on the merits.² (ECF No. 2.) The Court concludes that Nevada has failed to make the requisite showing of a likelihood of irreparable harm in the absence of the requested preliminary injunctive relief and that the balance of equities favors Nevada. The Court thus denies Nevada's PI Motion and declines to enjoin the shipment of plutonium pending a final disposition on the merits.

II. RELEVANT BACKGROUND

This case stems from an injunction order the United States District Court for the District of South Carolina issued in December 2017 ("Order"). South Carolina v. United States , No.: 1:16-cv-00391-JMC, 2017 WL 7691885 (D. S.C. Dec. 20, 2017) ; see also South Carolina v. United States , 907 F.3d 742, 766 (4th Cir. 2018) (upholding the Order). The Order required the Government to remove "not less than one metric ton" of weapons-grade defense plutonium or defense plutonium materials from South Carolina "for storage or disposal elsewhere" by January 1, 2020. United States , 2017 WL 7691885, at *5.

The Device Assembly Facility ("DAF") at NNSS, located approximately 65-90 miles northwest of Las Vegas, is the only direct location that, at present, the Government has proposed to receive the plutonium directly from SRS. (ECF No. 1 at 2; ECF No. 27-3 at 12, 16, 21–22; ECF No. 32 at 3.) After the plutonium is transferred to NNSS, it will ultimately be removed and relocated to its final destination at Los Alamos National Laboratory ("LANL") in Los Alamos, New Mexico. (ECF No. 27-3 (DOE/NNSA's Supplement Analysis) at 9, 23.) The shipments of plutonium from SRS to NNSS for staging (or storage) and thereafter to be received at LANL constitutes the Government's proposed action ("Proposed Action") as presented in the DOE's Supplemental Analysis ("SA").³ (Id. at 9, 18; ECF No. 32 at 3.)

Nevada filed suit against the Government contending that the Government's plan to transport and stage the defense plutonium at NNSS will result in increased radiation doses to Nevada citizens and would, in some circumstances, lead to contamination of the lands and the groundwater of the state with radioactive materials. (ECF No. 1 at 6.) Nevada asserts that in choosing to relocate the plutonium to NNSS the Government has failed to adequately comply with the National Environmental Protection Act of 1969 ("NEPA"), 42 U.S.C. 432 et seq. , and persists in violation of implementing regulations of the Council of Environmental Quality, 40 CFR § 1502.9(c)(1), and DOE's own NEPA regulations, 10 CFR § 1021.314(a), by failing to prepare a draft and final supplemental environmental impact statement ("EIS") for the Proposed Action. (Id. at 4.) Nevada contends that with this failure the Government deprived it of the opportunity to formally comment upon safety and environment concerns related to the Proposed Action. (ECF No. 1 at 5.)

Nevada's PI Motion asks this Court to enjoin the plan to ship the plutonium to NNSS—i.e., preserve the status quo—until this action reaches a final disposition. (ECF No. 2; ECF No. 34 at 5; ECF No. 27-3 at 18 (Proposed Action).) Nevada specifically seeks to enjoin the shipment of the plutonium to NNSS until the Government satisfies the alleged NEPA violations, among other remedies. (ECF No. 1 at 19.)⁴

III. LEGAL STANDARD

A. PI Motion Standard

" ‘An injunction is a matter of equitable discretion’ and is ‘an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.’ " Earth Island Inst. v. Carlton , 626 F.3d 462, 469 (9th Cir. 2010) (quoting Winter v. Nat. Res. Def. Council , 555 U.S. 7, 22, 32, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ). To qualify for a preliminary injunction, a plaintiff must satisfy four requirements: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm; (3) that the balance of equities favors the plaintiff; and (4) that the injunction is in the public interest. Winter , 555 U.S. at 20, 129 S.Ct. 365.⁵

B. Judicial Review of NEPA Claims

NEPA does not provide a private right of action. Gros Ventre Tribe v. United States , 469 F.3d 801, 814 (9th Cir. 2006). Thus, "[t]he judicial review provision of the [Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et. seq ] is the vehicle" for challenging an agency's decision under NEPA. Turtle Island Restoration Network v. U.S. Dep't of Commerce , 438 F.3d 937, 942 (9th Cir. 2006) ; Gros Ventre Tribe , 469 F.3d at 814 ; see Lujan v. Nat'l Wildlife Fed'n , 497 U.S. 871, 882–83, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) Uudicial review of agency action proceeds under the APA where the statute at issue, NEPA, does not provide cause of action).

Under the APA's standard of review, deference is due to the Government's challenged action, unless Nevada shows that DOE's decision not to prepare a supplemental EIS is "arbitrary and capricious." See, e.g., DOT v. Pub. Citizen , 541 U.S. 752, 763, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (quoting 5 U.S.C. § 706(2)(A) ) (agency's decision not to prepare EIS can be set aside only upon a showing that it was "arbitrary, capricious, abuse of discretion, or otherwise not in accordance with law"); Kleppe v. Sierra Club , 427 U.S. 390, 412, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976) (requiring plaintiffs to carry the burden); George v. Bay Area Rapid Transit , 577 F.3d 1005, 1011 (9th Cir. 2009) (same). This means DOE's decision "need be only a reasonable, not the best or most reasonable, decision" to be given deference. Nat'l Wildlife Fed'n v. Burford , 871 F.2d 849, 855 (9th Cir. 1989) (citation omitted).

IV. DISCUSSION

The Court finds, as the Government argues, that Nevada fails to establish the second and third Winter factors—a likelihood of irreparable harm in the absence of preliminary relief (see ECF No. 27 at 32–35) and the balance of equities favors the Government (id. at 35–37). The Court thus declines to address Nevada's arguments as to the other Winter factors.

A. Irreparable Harm

As a matter of course, the Court cannot presume irreparable harm; there must be a satisfactory showing. Monsanto Co. , 561 U.S. at 156–58, 130 S.Ct. 2743 (concluding that a presumption that an injunction is the proper remedy for a NEPA violation except in unusual circumstances is unwarranted—"No such thumb on the scales is warranted"); Amoco Prod. Co. v. Vill. of Gambell, AK , 480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) (overruling the Ninth Circuit's presumption of irreparable harm and concluding that the Ninth Circuit erred "in directing the issuance of a preliminary injunction"). Allegations of irreparable harm must be supported with actual evidence, and not merely conclusory statements or unsupported allegations. See, e.g., Caribbean Marine Servs. Co. v. Baldrige , 844 F.2d 668, 674–75 (9th Cir. 1988) (noting the lack of such evidence and therefore concluding that "liability is too remote and speculative to constitute an irreparable harm meriting preliminary injunctive relief"). Moreover, a plaintiff seeking preliminary injunctive relief must "do more than merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened injury." Id. at 674.

Here, Nevada argues that it would be irreparably harmed without a preliminary injunction to preserve the status quo for the following reasons: (1) absent a preliminary injunction, the NEPA decision-making process would be irreparably harmed because once the plutonium is transported out of South Carolina to NNSS, Nevada will forever lose the ability to formally comment upon the safety and environment concerns as required under NEPA; (2) the shipments of plutonium could be completed before a decision is reached in this matter, mooting the issues Nevada raises, and allowing the Government, via DOE, to evade compliance with NEPA; and (3) the shipments⁶ could create grave harm to Nevada—its lands, environment, and citizens.⁷ (ECF No. 2 at 9–10, 12; ECF No. 34 at 17.) The first two arguments appear to overlap and create an umbrella claim of injury stemming from the decision-making process whereby (1) Nevada's concrete and particularized claim of injury is that shipments to NNSS will deprive it of the opportunity to comment and (2) there is a general claim of injury based on the claim that the Government would evade NEPA compliance absent injunction. The Court finds that Nevada falls short of establishing irreparable harm warranting an injunction.

1. Injury Relating to the NEPA Decision-Making Process

a. General Harm to the NEPA Decision-Making Process

The Court is unpersuaded by Nevada's contention that the Government will likely cause irreparable harm to the general NEPA decision-making...