South Carolina v. United States

243 F.Supp.3d 673

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.

Civil Action No. 1:16–cv–00391–JMC

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

Signed March 20, 2017

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, Martin Mason Tomlinson, Wyche PA, Greenville, 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 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.) In earlier orders, the court dismissed the complaint's first cause of action (asserting a constitutional claim) and third cause of action (asserting a claim under § 2566(d) ), leaving the second cause of action (asserting a claim under § 2566(c) ) as the only remaining matter.¹ The case is now before the court pursuant to the State's motion for summary judgment. (ECF No. 10). For the reasons that follow, the court GRANTS the motion IN PART and DENIES it IN PART.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

Much of the relevant facts and procedural background of this case are set forth in the court's March 14, 2017 order disposing of Defendants' motion to dismiss:

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") and jointly developed plans to prevent the proliferation of nuclear weapons. 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. 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. 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.

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"). SRS encompasses 310 square miles in western South Carolina, adjacent to the Savannah River, which forms much of the border between South Carolina and Georgia. When constructed in the 1950s, SRS produced materials, primarily plutonium, for weapons and other national defense missions. 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.

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. 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." [ 50 U.S.C. § 2566(a).] 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.

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. [ 50 U.S.C. § 2566(c)(1).] ... 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.

(ECF No. 84 at 2–4 (internal citations, brackets, and ellipses omitted).)

On February 9, 2016, the State filed a complaint containing three causes of action.

(ECF No. 1.) In previous orders, the court dismissed the first and third causes of action, leaving only the second cause of action remaining. (See ECF Nos. 56, 75, 76, 84.) In the second cause of action, the State alleges that subsection (c)(1) imposes a mandatory, non-discretionary duty on the Secretary to remove from South Carolina one metric ton of defense plutonium by January 1, 2016, in the event the MOX production objective is not achieved by January 1, 2014; that the MOX production objective was not achieved by January 1, 2014, or thereafter; and that the Secretary did not remove from South Carolina one metric ton of defense plutonium by January 1, 2016, or thereafter. (See ECF No. 1 at 27–28.) In relevant part, the complaint requests "a declaration and order ... enjoining and requiring Defendants to immediately remove one metric ton of defense plutonium or defense plutonium materials from [South Carolina] pursuant to [§] 2566(c)," a "declaration and order" "enjoining Defendants from ... transferring ... defense plutonium ... to [SRS] ... until th[e] [c]ourt enters an order finding that Defendants are in full compliance with [§] 2566 and [are] achieving the MOX production objective," and "[a] declaration and order retaining jurisdiction over this matter regarding ... Defendants' compliance with [§] 2566 and this Court's order, including the prohibition on the transfer of defense plutonium or defense plutonium materials [and] compliance with [§] 2566(c)." (Id. at 27–28, 31–32.)

In its motion for summary judgment, the State asserts that it is undisputed that the MOX production objective was not achieved as of January 1, 2014, and that the Secretary did not remove from South Carolina one metric ton of defense plutonium by January 1, 2016. (See ECF No. 10–1 at 27.) The State contends that subsection (c)(1) imposes a mandatory, non-discretionary duty on the Secretary to remove from South Carolina one metric ton of defense plutonium by January 1, 2016, if the MOX production objective is not achieved by January 1, 2016. (See id. ) Because the MOX production objective was not met by January 1, 2014, and because the Secretary failed to remove the one metric ton of defense plutonium by January 1, 2016, the State argues that the court must compel the Secretary to remove the one metric ton of defense plutonium by an order in the nature of mandamus, pursuant to 28 U.S.C. § 1361, or an order to compel agency action unlawfully withheld, pursuant to § 10(e) of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(1). (See ECF No. 10 at 2; ECF No. 10–1 at 25, 30–31.) In relevant part, the State requests a "declar [ation] that ... Defendants have failed to comply with their mandatory, non-discretionary duties pursuant to 50 U.S.C. § 2566," a "declar[ation] and order[ that] ... Defendants ... immediately remove from [South Carolina] one metric ton of defense plutonium ... pursuant to their obligations under ... [§] 2566(c)," a "declar[ation] and order[ that] ... Defendants not ... move or transfer any plutonium to South Carolina ... until th[e] [c]ourt enters an order finding the Secretary and DOE are in full compliance with [§] 2566," and "an order ... retaining continuing jurisdiction over this matter regarding ... Defendants' ongoing and continuous compliance with [§] 2566." (ECF No. 10 at 2–3; see ECF No. 10–1 at 37.)

In response, Defendants concede that there is no dispute that the MOX production objective was not achieved by January 1, 2014, or thereafter or that the Secretary did not remove from South Carolina one metric ton of defense plutonium by January 1, 2016, or thereafter. (See ECF No. 38 at 10; ECF No. 51 at 38.)² However, Defendants argue that the State's motion nonetheless should be denied for several reasons. First, they argue that subsection (c)(1) does not impose a mandatory, non-discretionary duty on the Secretary to remove one metric ton of plutonium. (See ECF No. 38 at 19–21.) Next, they argue that their current efforts to plan and accomplish removal from South Carolina of several metric tons of defense plutonium (as evidenced by the extensive exhibits they have submitted) demonstrate that Defendants are satisfying any removal obligation under subsection (c) and, thus, should preclude the issuance of mandamus. (See id. at 21–26.) Defendants also argue that the court has discretion to deny issuing mandamus based upon equitable considerations, which, they claim, favor denial due to the inherent practical and legal exigencies of transferring...