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South Carolina ex rel. Campbell v. O'Leary

Citation: 25 ELR 20388
No. No. 3-94-2419-0, 865 F. Supp. 300/40 ERC 1281/(D.S.C., 09/13/1994) injunction granted

The court preliminarily enjoins the U.S. Department of Energy (DOE) from importing 409 spent nuclear fuel assemblies for storage at the Savannah River site in South Carolina until the court resolves on the merits South Carolina's claim under the National Environmental Policy Act (NEPA) that an environmental impact statement (EIS) is required for the shipment. The court first notes that if the spent fuel assemblies at issue are permitted to arrive at the Savannah River site, they will remain there until such time, if ever, as the federal government resolves the issue of what to do with spent nuclear fuel and high-level nuclear waste. Denying the preliminary injunction as to the assemblies already in transit will have the practical effect of rendering the case moot as to those assemblies and consigning the material to South Carolina for many years. Thus, issuing a preliminary injunction is the only way to preserve the issue for a ruling on the merits. The court holds that the issue of irreparable harm to South Carolina is essentially identical to the issue of whether the state is likely to succeed on the merits. Because the potential harm of a NEPA violation is that the project will go forward without the necessary environmental review, if the state can show a likelihood of proving that a NEPA violation has occurred, it has shown that irreparable harm will occur. The court next holds that the DOE and intervenors have not shown that granting the preliminary injunction will irreparably harm them. The history of this matter indicates the contrary. Furthermore, the intervenors assert that if a preliminary injunction is issued, the DOE and other federal agencies will request that the Council on Environmental Quality deem this matter an emergency under 40 C.F.R. § 1506.11, and this would dispense with the need for an EIS. In addition, statements included in the record from a draft environmental assessment (EA) prepared by the DOE indicating that the spent fuel can be safely stored in place and documents and actions accompanying the EA, strongly belie the DOE's assertion of an "urgent need" to move the material to South Carolina. Moreover, Congress does not believe that the specific spent fuel assemblies at issue pose an immediate proliferation risk. Thus, the court holds that the balance of equities in this case reveals that the potential harm to the state is much greater than that which might befall the DOE and intervenors. The court rejects the DOE's contention that the state waited too long to file this action, causing two ships carrying spent fuel assemblies to set sail from Europe. If the fact that the ships are now underway presents any special problems, those problems were completely within the power of the DOE, the intervenors, or both, to control, and the deliberate actions of these parties should not affect the outcome of this case.

The court next holds that the state is reasonably likely to succeed on the merits of its claim that an EIS is required for the importation of the 409 spent fuel assemblies. This project is, as a practical matter, inseparable from the larger project that admittedly requires an EIS. Both the DOE and Congress have not disputed that the proposed importation of 10,000 to 15,000 spent fuel assemblies constitutes major federal action significantly affecting the environment, and an EIS is being prepared for that project. Moreover, courts have recognized no national defense exemption from NEPA. The court holds that the shipment of the initial 409 assemblies has been improperly segmented from the larger project. The shipment of the first 409 of as many as 15,000 spent fuel assemblies is a part of the cumulative whole that will need storage space. In addition to the cumulative nature of the shipments, there is simply no functional difference in the nature of the initial shipment of 409 assemblies and later shipments of thousands more proposed after an EIS has been completed for them. Finally, the court holds that granting the preliminary injunction serves the public interest because the harm to the state from the material entering the state is irreparable, but there is no comparable harm to the DOE or intervenors from retaining the status quo for the short time necessary to resolve this matter on the merits.

Counsel for Plaintiffs
Mark R. Elam
Office of Governor
State House, Columbia SC 29211
(803) 734-9818

Counsel for Defendants
Charles Findlay, Gregory D. Page
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000