Southcarolina v. United States
| Decision Date | 14 March 2017 |
| Docket Number | Civil Action No. 1:16-cv-00391-JMC |
| Court | U.S. District Court — District of South Carolina |
| Parties | State of South Carolina, Plaintiff, v. United States; United States Department of Energy; Rick Perry, 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. |
The State of South Carolina ("the State") filed a complaint alleging that Defendants United States, the United States Department of Energy ("DOE"), the Secretary of Energy, the National Nuclear Security Administration ("NNSA"), and the Administrator of NNSA (collectively "Defendants") failed to adhere to statutory obligations within 50 U.S.C. § 2566. (ECF No. 1.) This matter is before the court again2 pursuant to Defendants' motion to dismiss the State's complaint.(ECF No. 17). For the reasons that follow, the court GRANTS the motion IN PART and DENIES it IN PART.
At the end of the Cold War, the United States and Russia engaged in efforts to consolidate and reduce their surplus weapons-usable plutonium ("defense plutonium," see 50 U.S.C. § 2566(h)(3)) and jointly developed plans to prevent the proliferation of nuclear weapons. (ECF No. 1 at 8.) In September 2000, the United States and Russia entered into the Plutonium Management and Disposition Agreement ("PMDA"), under which each country is committed to disposing of at least 34 metric tons of defense plutonium withdrawn from their respective nuclear weapons program.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 disposing of the United States' surplus defense plutonium. (ECF No. 1 at 9.) Ultimately, DOE designated as its "preferred alternative" a dual-path strategy: DOE would immobilize a portion of the defense plutonium within glass or ceramic materials and would convert the other portion into mixed-oxide ("MOX") fuel, which would be used as fuel for commercial nuclear reactors. (Id. at 9-11.)
Producing MOX fuel from defense plutonium required the construction of a facility to fabricate the fuel, and, in early 2000, DOE chose to construct a MOX fabrication facility ("MOX Facility") at the Savannah River Site ("SRS"). (Id. at 10-11); see 50 U.S.C. § 2566(h)(2). SRSencompasses 310 square miles in western South Carolina, adjacent to the Savannah River, which forms much of the border between South Carolina and Georgia. (ECF No. 1 at 2.) When constructed in the 1950s, SRS produced materials, primarily plutonium, for weapons and other national defense missions. (Id. at 7.) Currently, aside from serving as the location for the MOX Facility, SRS also is dedicated to conducting research and development and storing plutonium and uranium waste from around the world. (Id. at 7-10.)
In late 2002, Congress enacted, and the President signed into law, the Bob Stump National Defense Authorization Act for Fiscal Year 2003, Pub. L. No. 107-314, 116 Stat. 2458 (2002), relevant parts of which are now codified at 50 U.S.C. § 2566. As later amended, § 2566, entitled, "Disposition of Weapons-Usable Plutonium at Savannah River Site," provides a detailed plan for the MOX Facility, including the requirement that the Secretary of Energy submit to Congress, by a certain date, a plan for the construction and operation of the MOX Facility. 50 U.S.C. § 2566(a). Starting in 2004, the Secretary also must submit to Congress an annual report assessing the United States' progress toward meeting its obligations under the PMDA and "whether the MOX production objective has been met." Id. The MOX production objective is defined as the average rate at which the MOX Facility converts defense plutonium into MOX fuel over a given period of time, but may not be less than the equivalent of producing one metric ton of MOX fuel per year. 50 U.S.C. § 2566(h)(2).
In the event that the MOX production objective is not achieved as of January 1, 2014, subsection (c)(1) states that "the Secretary shall . . . remove" from South Carolina "not less than [one] metric ton of defense plutonium" by January 1, 2016. Furthermore, if the MOX production objective is not achieved by January 1, 2014, subsection (c)(2) states that "the Secretary shall . . . not later than January 1, 2022, remove an amount of defense plutonium . . . equal to the amounttransferred 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 states that the removal of the defense plutonium is to be consistent with the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and other applicable laws. Id.
Subsection (d)(1) provides for financial and economic assistance payments to the State in the years 2016 through 2021 in the event that the MOX production objective is not achieved by January 1, 2016:
50 U.S.C. § 2566(d)(1).
Subsection (d)(2) provides for economic and impact assistance payments in the years following 2021:
50 U.S.C. § 2566(d)(2)(A).
The State filed its complaint on February 9, 2016, alleging that Defendants had not yet completed construction of the MOX Facility at SRS, and had not met the MOX production objective by January 1, 2014, or January 1, 2016. (ECF No. 1 at 24, 27.) The State also alleges that Defendants failed to remove plutonium from South Carolina pursuant to § 2566(c)(1) and failed to make economic and impact assistance payments pursuant to § 2566(d)(1). (Id. at 25, 27-28.)
The State's complaint included three causes of action. In the first cause of action, the State alleges that "Defendants have failed to meet the mandatory statutory obligations under [§] 2566 and in doing so have affirmatively undermined the [project to construct the MOX Facility and achieve the MOX production objective] and therefore failed to faithfully execute the laws enacted by Congress and by which the President and these executive Defendants are bound." (Id. at 26.) Based on this allegation, the State asserts that it is "entitled to a declaration and order that Defendants' action and inactions violate the Constitution and requiring [Defendants] to comply with the requirements of [§] 2566." (Id.) In the second cause of action, the State alleges that Defendants have unlawfully withheld a non-discretionary, mandatory duty and obligation to the State, and it seeks an order enjoining and requiring Defendants to remove from South Carolina one metric ton of defense plutonium pursuant to § 2566(c) and preventing Defendants from transferring additional defense plutonium to SRS. (Id. at 27-28, 31-32.) In the third cause of action, which has since been dismissed, the State alleged that Defendants unlawfully withheld a non-discretionary, mandatory duty and obligation to the State, and it sought an order enjoining and requiring Defendants to pay the State the economic and impact assistance amount and to removean additional one metric ton of defense plutonium from South Carolina, pursuant to § 2566(d). (Id. at 31-32.)
On April 25, 2016, Defendants filed the instant motion to dismiss the complaint, raising a number of arguments. (ECF No. 17.) Defendants asserted that the court lacked subject-matter jurisdiction over the third cause of action because they had not waived sovereign immunity with respect to that cause of action except for a suit brought in the CFC, pursuant to the Administrative Procedures Act ("APA"), 5 U.S.C. § 701, et seq., and the Tucker Act, 28 U.S.C. §§ 1346, 1491. (See id. at 30-34.) Defendants also asserted that the State could not meet the constitutional standing requirements with respect to several forms of relief sought as remedies for the injury alleged in the second cause of action. (Id. at 34-38.) Aside from jurisdictional reasons, Defendants also seek dismissal of the State's first and second causes of action, pursuant to Rule 12(b)(6), on the ground that they fail to state a claim for which relief may be granted. (See id. at 20-30.) Regarding the first cause of action, Defendants contend that it does not allege sufficient factual matter to survive a Rule 12(b)(6) motion because it fails to specify which of Defendants' actions and inactions constituted violations of § 2566 and which provisions of § 2566 were violated. (See id. at 20-21 (citing Ashcroft v. Iqbal, 556...
To continue reading
Request your trial