South Carolina v. United States

• Citation: 907 F.3d 742
• Decision Date: 26 October 2018
• Docket Number: No. 18-1148,18-1148
• Parties: State of SOUTH CAROLINA, Plaintiff – Appellee, v. UNITED STATES of America; Rick Perry, in his official capacity as Secretary of the United States Department of Energy; National Nuclear Security Administration; Lisa E. Gordon-Hagerty, in her official capacity as Under Secretary for Nuclear Security and NNSA Administrator; United States Department of Energy, Defendants – Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

907 F.3d 742

State of SOUTH CAROLINA, Plaintiff – Appellee,

v.UNITED STATES of America; Rick Perry, in his official capacity as Secretary of the United States Department of Energy; National Nuclear Security Administration; Lisa E. Gordon-Hagerty, in her official capacity as Under Secretary for Nuclear Security and NNSA Administrator; United States Department of Energy, Defendants – Appellants.

No. 18-1148

United States Court of Appeals, Fourth Circuit.

Argued: September 27, 2018

Decided: October 26, 2018

ARGUED: Daniel Tenny, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Kenneth Paul Woodington, DAVIDSON, WREN & PLYLER, PA, Columbia, South Carolina, for Appellee. ON BRIEF: Chad A. Readler, Acting Assistant Attorney General, Mark B. Stern, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Beth Drake, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellants. Alan Wilson, Robert D. Cook, T. Parkin Hunter, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina; Randolph R. Lowell, Benjamin P. Mustian, John W. Roberts, WILLOUGHBY & HOEFER, P.A., Columbia, South Carolina, for Appellee.

Before NIEMEYER, KING, and WYNN, Circuit Judges.

KING, Circuit Judge:

The United States of America, the Department of Energy, the National Nuclear Security Administration, and two federal officials in their official capacities (collectively, the "DOE"), appeal from adverse rulings concerning the DOE’s failure to comply with federal statutory obligations to remove not less than one metric ton of defense plutonium from South Carolina by January 1, 2016.¹ After South Carolina sued in that regard, the district court for the District of South Carolina invoked an enforcement provision of the Administrative Procedure Act (the "APA") and awarded summary judgment to the State. See South Carolina v. United States , No. 1:16-cv-00391, slip op. (D.S.C. Mar. 20, 2017), ECF No. 86 (the "Opinion").² The court then entered an injunction that required DOE to remove not less than one metric ton of defense plutonium from the State within two years. See id ., ECF No. 109 (the "Injunction"). On appeal, the DOE maintains that the court erroneously failed to exercise its equitable discretion before deciding to award the Injunction, and that the court also abused its discretion with regard to certain provisions thereof. As explained below, we are satisfied that the court properly enforced the statutory responsibilities imposed on the DOE by Congress and that it also appropriately crafted and entered the Injunction. We therefore affirm.

I.

A.

In the year 2000, the United States and Russia entered into the Plutonium Management and Disposition Agreement, requiring each country to dispose of at least thirty-four metric tons of weapons-grade plutonium. See Agreement Between the Government of the United States of America and the Government of the Russian Federation Concerning the Management and Disposition of Plutonium No Longer Required for Defense Purposes and Related Cooperation , Russ.-U.S., Aug. 29 & Sept. 1, 2000 (entered into force July 13, 2011); see also J.A. 219.³ To fulfill those obligations on the part of our country, DOE devised a plan to convert thirty-four metric tons of defense plutonium into mixed-oxide fuel ("MOX fuel") suitable for use in commercial nuclear power reactors.⁴ See Bob Stump National Defense Authorization Act for Fiscal Year 2003, Pub. L. No. 107-314, div. C, § 3181, 116 Stat. 2458, 2747 (2002) ("NDAA FY 2003") (codified in part at 50 U.S.C. § 2566 ). In 2002, Congress first appropriated funds and enacted directives for the construction of a MOX fuel fabrication facility (the "MOX facility") to implement DOE’s proposal. See id . Pursuant to DOE’s plan, the MOX facility was to be constructed near Aiken, South Carolina (the "Savannah River Site," or "SRS"). Id .

DOE’s decision to dispose of defense plutonium through the MOX facility in South Carolina was prompted in part by DOE’s abandonment of an alternate technique for plutonium disposition called the "immobilization" process. See J.A. 106, 268. Additionally, DOE had committed to closing a nuclear facility in Colorado by 2006 and needed to locate a new site at which to store or dispose of the Colorado plutonium. DOE indicated in 2002 that transferring six metric tons of plutonium from Colorado to the SRS would also result in significant cost savings.

Although construction of the MOX facility at the SRS might help solve several of DOE’s problems, then-Governor of South Carolina Jim Hodges expressed reservations about the project. He was concerned by DOE’s increased reliance on the SRS and the potential adverse impact of transferring additional nuclear material into the State. In 2001 — before appropriating funds to build the MOX facility — Congress had directed the Secretary of Energy to consult with the Governor of South Carolina "regarding any decisions or plans" related to the disposition of defense plutonium at the SRS. See National Defense Authorization Act for Fiscal Year 2002, Pub. L. No. 107-107, § 3155, 115 Stat. 1012, 1378 (2001) ("NDAA FY 2002"). In 2001 and 2002, DOE communicated with Governor Hodges and other South Carolina officials regarding DOE’s planned activities at the SRS. At various times, the Governor conveyed his fear that DOE’s insufficient financial and organizational commitment to defense plutonium disposition risked making South Carolina a "permanent repository" for weapons-grade plutonium. See, e.g. , J.A. 502.

In April 2002, Governor Hodges wrote to the Secretary of Energy, acknowledging the progress they had made in reaching agreement on the construction and operation of the MOX facility at the SRS. The Governor emphasized, however: "I must insist upon an ironclad agreement that is fully enforceable in a court of law. The stakes are too high to accept mere political assurances." See J.A. 515. Governor Hodges reminded the Secretary that DOE had promised to "set forth in a legally enforceable document" specific schedules for the MOX program and DOE’s obligation to "retake possession of the plutonium if the Federal Government failed to live up to its commitment." Id .

In response to Governor Hodges, the Secretary of Energy proposed a written agreement delineating DOE’s commitments to South Carolina with respect to the MOX facility. That proposal was intended to ensure that South Carolina would not be left holding and storing unprocessed plutonium should difficulties arise with the MOX facility. See J.A. 522-23, 525-30. Pursuant to the Secretary’s proposal, if DOE failed to meet certain production objectives or other milestones concerning the MOX facility, DOE would begin removing defense plutonium from South Carolina. Among other provisions, the Secretary’s proposal provided that, if DOE processed "less than one metric ton of plutonium through the MOX facility" in an eighteen-month period, DOE would remove at least one metric ton of defense plutonium from the SRS "within two years," and "all [plutonium] material" within "no more than eight years." Id . at 528. The proposed agreement committed both parties to support federal legislation codifying those terms.⁵

Shortly thereafter, in December 2002, Congress passed the National Defense Authorization Act (the "NDAA") for Fiscal Year 2003 that first funded the MOX facility at the SRS. The NDAA contained, nearly verbatim, language from the Secretary’s proposed agreement that required DOE to remove not less than one metric ton of defense plutonium within two years of a missed MOX production deadline. Compare NDAA FY 2003, § 3182(c), with J.A. 528. Specifically, the NDAA for fiscal year 2003 provided that:

If the MOX production objective [to produce an average rate of 1 metric ton of MOX fuel per year] is not achieved as of January 1, 2009, the Secretary shall, consistent with the National Environmental Policy Act of 1969 and other applicable laws, remove from the State of South Carolina, for storage or disposal elsewhere —

(1) not later than January 1, 2011, not less than 1 metric ton of defense plutonium or defense plutonium materials; and

(2) not later than January 1, 2017, an amount of defense plutonium or defense plutonium materials equal to the amount [transferred to the SRS after April 15, 2002, that remains unprocessed].

See NDAA FY 2003, § 3182(c), (g).

In enacting the fiscal year 2003 NDAA, Congress made several findings that are pertinent here. It acknowledged the shared interest of South Carolina and the United States in "the safe, proper, and efficient operation of the plutonium disposition facilities" at the SRS. Congress also recognized South Carolina’s desire "to ensure that all plutonium transferred to the State" be stored safely, and that all weapons-grade plutonium transferred to the SRS "either be processed or be removed expeditiously." See NDAA FY 2003, § 3181.

The portion of the fiscal year 2003 NDAA mandating removal of defense plutonium from South Carolina was subsequently codified at 50 U.S.C. § 2566(c). Those provisions have been amended on several occasions to extend the initial deadlines. In its current and relevant form, § 2566(c) provides:

If the MOX production objective [to produce an average rate of 1 metric ton of MOX fuel per year] is not achieved as of January 1, 2014, the Secretary shall, consistent with the National Environmental Policy Act of 1969 and other applicable laws, remove from the State of South Carolina, for storage or disposal elsewhere —

(1) not later than January 1, 2016, not less than 1 metric ton of defense plutonium or defense plutonium materials; and

(2) not later than January 1, 2022, an amount of defense plutonium or defense plutonium materials equal to the amount [transferred to the SRS after April 15, 2002, that remains unprocessed].

See 50 U.S.C. § 2566(c) ; see also id. § 2566(h)(1) (defining MOX fuel production objective). As an additional remedy, § 2566(d)...