REPLY BRIEF FOR APPELLANTS, filed with Fourth Circuit Court of Appeals – linked here
SUMMARY OF ARGUMENT (from the filing)
South Carolina’s theory of the case relies on the incorrect assumption that the Department of Energy (DOE) has decided to leave plutonium in South Carolina permanently. DOE has done no such thing. Instead, it has decided to stop working on the mixed-oxide fuel fabrication (MOX) facility while DOE evaluates its options for the defense plutonium’s ultimate disposition. Far from abandoning the disposition of plutonium currently stored within South Carolina, the Department has committed to pursuing more efficient means of removing plutonium. Congress expressly permitted the Secretary of Energy to take that step so long as he gives Congress his commitment to remove the defense plutonium from South Carolina and identifies a cheaper alternative way to do so. The Secretary’s exercise of that authority does not amount to a decision to leave plutonium in South Carolina indefinitely.
Because the Department has never suggested that it will leave the plutonium in South Carolina, the State can identify no injury that would provide standing to challenge the actual decision at issue—the determination to halt work on the MOX Facility. On the current schedule, DOE would not complete construction of the MOX Facility until 2048 at the earliest, and only at that point would the project begin processing plutonium. An order that requires the government to spend additional taxpayer money on the MOX project, instead of pursuing more efficient alternatives, does not redress any imminent injury to South Carolina. On the contrary, by pursuing alternatives, DOE may be able to remove the plutonium well before it would be possible to do so using the MOX Facility.
Even assuming that the State could demonstrate standing, it is quite wrong to insist that DOE was required to complete review of its alternative options under the National Environmental Policy Act (NEPA) before halting construction. The State similarly errs in urging that the Secretary of Energy’s commitments to Congress failed to satisfy the requirements of the 2018 National Defense Authorization Act. See National Defense Authorization Act for Fiscal Year 2018 (NDAA), Pub. L. No. 115-91, § 3121, 131 Stat. 1283, 1892–93 (2017). The contents of that submission are not subject to judicial review. And in any event, the submission carefully tracked each element required by the NDAA.
Finally, the balance of the equities should have precluded issuance of an injunction. The injunction costs the taxpayer $1.2 million a day, spent on a project that is already more than $10 billion overbudget and would not be completed for at least thirty years. South Carolina’s asserted interests—like harm to the State from becoming a permanent repository of plutonium—rest on the mistaken assumption that DOE will store plutonium in South Carolina permanently. Far from suffering irreparable harm, South Carolina has not even established the prerequisites for standing.
