South Carolina v. United States

• Decision Date: 31 October 2016
• Docket Number: Civil Action No. 1:16–cv–00391–JMC
• Citation: 221 F.Supp.3d 684
• Parties: State of SOUTH CAROLINA, Plaintiff, v. UNITED STATES; United States Department of Energy; Dr. Ernest Moniz, in his official Capacity as Secretary of Energy; National Nuclear Security Administration; and Lt. General Frank G. Klotz, in his official Capacity as Administrator of the National Nuclear Security Administration and Undersecretary for Nuclear Security, Defendants.
• Court: U.S. District Court — District of South Carolina

221 F.Supp.3d 684

State of SOUTH CAROLINA, Plaintiff,

v.UNITED STATES; United States Department of Energy; Dr. Ernest Moniz, in his official Capacity as Secretary of Energy; National Nuclear Security Administration; and Lt. General Frank G. Klotz, in his official Capacity as Administrator of the National Nuclear Security Administration and Undersecretary for Nuclear Security, Defendants.

Civil Action No. 1:16–cv–00391–JMC

United States District Court, D. South Carolina, Aiken Division.

Signed October 31, 2016

Alan Wilson, Robert Dewayne Cook, Thomas Parkin C. Hunter, SC Attorney General's Office, Benjamin Parker Mustian, John William Roberts, Randy Lowell, Willoughby and Hoefer, Kenneth Paul Woodington, William Henry Davidson, II, Davidson Morrison and Lindemann, Columbia, SC, for Plaintiff.

Barbara Murcier Bowens, US Attorneys Office, Columbia, SC, Raphael Ortega Gomez, Spencer Elijah Wittman Amdur, US Department of Justice, Washington, DC, for Defendants.

ORDER AND OPINION

J. MICHELLE CHILDS, United States District Court Judge

The State of South Carolina ("the State") filed a Complaint (ECF No. 1) alleging that Defendants United States, the United States Department of Energy ("DOE"), Dr. Ernest Moniz, the National Nuclear Security Administration ("NNSA"), and Lieutenant General Frank G. Klotz (collectively "Defendants") failed to adhere to statutory obligations within 50 U.S.C. § 2566. This matter is before the court pursuant to Defendants' Motion to Dismiss (ECF No. 17) the State's Complaint (ECF No. 1) for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and failure to state a claim for which relief may be granted under Fed R. Civ. P. 12(b)(6). For the following reasons, this court concludes that it lacks subject matter jurisdiction over one of the State's claims. However, because the court concludes that it has subject matter jurisdiction over the State's remaining claim, the court declines to rule on the substantive motion to dismiss as to the removal claim and, for the reasons that follow, DIRECTS the parties to submit further briefing.

I. FACTUAL AND PROCEDURAL BACKGROUND

Savannah River Site ("SRS") is a 310 square mile site encompassing parts of Aiken, Barnwell, and Allendale counties in South Carolina and is bordered on the west by the Savannah River and Georgia. (ECF No. 1 at 2.) SRS was constructed during the 1950s to produce basic materials, primarily plutonium, for weapons and other national defense missions. (Id. at 7.) Currently, the site's mission is dedicated to conducting research and development; converting highly enriched plutonium into materials suitable for commercial use in nuclear reactors; and storing plutonium and uranium waste from around the world. (Id. at 7–10.) SRS also serves as the construction site for the MOX Facility.¹ (Id. at 7.) The State owns the property on which SRS is located. (Id. at 2.)

Defendant DOE oversees planning, coordination, support, and management of research and development programs, including functions related to nuclear weapons and establishment of policies regarding nuclear weapons. See 42 U.S.C.A. § 7112. Defendant Dr. Ernest Moniz, as the United States Secretary of Energy, is responsible for monitoring and assuring proper management of the DOE. Id. Defendant NNSA is responsible for maintaining the safety, reliability and performance of the nuclear weapons stockpile. 50 U.S.C. § 2401. Additionally, as an agency within the DOE, NNSA's mission is to carry out and ensure all operations and activities are safe and secure. Id.

Section 2566, part of the Atomic Energy Defense Provisions, is entitled, "Disposition of Weapons-Usable Plutonium at Savannah River Site." 50 U.S.C. § 2566. Section 2566 details a federal mandate for the construction and operation of the MOX Facility, including the requirement that the Secretary of Energy must submit a plan for the construction and operation of the MOX Facility by February 1, 2003. 50 U.S.C. § 2566(a).

Section 2566(a)(3) stipulates that the Secretary of Energy must submit a report assessing "progress toward meeting the obligations of the United States under the Plutonium Management and Disposition Agreement" to Congress by February 15, 2004 and each year thereafter "whether the MOX production objective has been met."

Section 2566(h) defines the production objective of the MOX Facility as:

[P]roduction at the MOX facility of mixed-oxide fuel from defense plutonium materials at an average rate equivalent to not less than one metric ton of mixed-oxide fuel per year. The average rate shall be determined by measuring production at the MOX facility from the date the facility is declared operational to the Nuclear Regulatory Commission through the date of assessment.

50 U.S.C. § 2566(h)(2).

In the event that the MOX production objective is not met as of January 1, 2014, § 2566(c) requires that Defendants remove from the state "not less than [one] metric ton of defense plutonium or defense plutonium materials" by January 1, 2016, and, "not later than January 1, 2022, remove an amount of defense plutonium or defense plutonium materials equal to the amount transferred to SRS between April 15, 2002, and January 1, 2022, that was not processed by the MOX facility." 50 U.S.C. § 2566(c). The statute requires that the removal of the defense plutonium must be consistent with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. and other applicable laws. Id.

Further, the statute allows for financial and economic assistance payments to the State:

If the MOX production objective is not achieved as of January 1, 2016, the Secretary shall, subject to the availability of appropriations, pay to the State of South Carolina each year beginning on or after that date through 2021 for economic and impact assistance an amount equal to $1,000,000 per day, not to exceed $100,000,000 per year, until the later of—(A) the date on which the MOX production objective is achieved in such year; or

(B) the date on which the Secretary has removed from the State of South Carolina in such year at least [one] metric ton of defense plutonium or defense plutonium materials.

50 U.S.C. § 2566(d)(1).

The State filed its Complaint on February 9, 2016, alleging that Defendants failed to comply with 50 U.S.C. § 2566(a), which requires construction of the MOX Facility at the SRS in Aiken County, South Carolina.² (ECF No. 1.) The State claims that the violation of § 2566 entitles it to relief in federal district court. (Id. at 26.) Specifically, the State seeks (1) a declaration that Defendants' actions and inactions violate the Constitution and an order requiring Defendants to comply with § 2566 (id. at 31 ¶ A),³ (2) a declaration enjoining Defendants to remove immediately one metric ton of defense plutonium or defense plutonium materials pursuant to obligations in § 2566(c) and an order to prevent additional toxic material from entering the MOX Facility (id. at 31 ¶ B), and (3) a declaration and order requiring Defendants to pay the State economic and impact assistance payments in the amount of $1,000,000 per day until the earlier of the first 100 days of the calendar year 2016 or Defendants' removal of one metric ton of defense plutonium or defense plutonium materials from the State of South Carolina (id. at 32 ¶ C).

On April 25, 2016, Defendants filed a Motion to Dismiss arguing that the State (1) fails to state a claim pursuant to Rule 12(b)(6) ; (2) has no cause of action under the Administrative Procedure Act ("APA") to compel immediate removal of one ton of defense plutonium; (3) has not alleged an injury sufficient for standing to seek an injunction against future transfers of defense plutonium; (4) lacks standing to seek relief concerning potential agency action in future years; (5) the district court lacks jurisdiction over the State's claim for money relief. (ECF No. 17.) Defendants also asserted sovereign immunity with respect to the State's claims arising from the economic and impact assistance provisions of § 2566(d). (Id. at 23–27.) On May 12, 2016, the State filed a response, arguing that only the district court has jurisdiction and authority to declare that Defendants have failed to comply with § 2566(d) and to compel Defendants' compliance. (ECF No. 27.) On May 23, 2016, Defendants filed a reply, arguing that the State has an adequate remedy in the Court of Federal Claims ("CFC") and that 28 U.S.C. § 1491 (the "Tucker Act") impliedly forbids awarding monetary relief in the district court. (ECF No. 33.)

II. LEGAL STANDARDS AND APPLICABLE LAW

A motion to dismiss for lack of subject matter jurisdiction raises the fundamental question of whether a court has jurisdiction to adjudicate the matter before it. Fed. R. Civ. P. 12(b)(1). "Federal courts are courts of limited subject matter jurisdiction, and as such there is no presumption that the court has jurisdiction." Pinkley, Inc. v. City of Frederick , 191 F.3d 394, 399 (4th Cir. 1999). "In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R.R. Co. v. United States , 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams v. Bain , 697 F.2d 1213, 1219 (4th Cir. 1982) ). "The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id. In a motion to dismiss pursuant to Rule 12(b)(1), "[t]he burden of establishing subject matter jurisdiction rests with the plaintiff." Demetres v. E.W. Constr., Inc. , 776 F.3d 271, 272 (4th Cir. 2015).

Assertions of governmental immunity are properly addressed under Rule 12(b)(1). Smith v. Wash. Metro. Area Transit Auth. , 290 F.3d 201, 205 (4th Cir. 2002). "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit."...