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South Carolina v. United States

ELR Citation: 48 ELR 20092
Nos. 1:18-cv-01431, (D.S.C., 06/07/2018) (Childs, J.)

A district court granted South Carolina's motion to preliminarily enjoin DOE from terminating a mixed-oxide fuel fabrication facility project currently under construction until the case can be decided on its merits. The project is designed to turn weapons-grade plutonium into commercial reactor fuel. DOE sought to terminate the project, advocating instead for a "dilute and dispose" alternative under which DOE would prepare surplus non-pit plutonium at the South Carolina site for disposal at the Waste Isolation Pilot Plant near Carlsbad, New Mexico. On May 10, 2018, the DOE Secretary notified Congress of his decision to terminate and cease construction at the site, and DOE began issuing and preparing stop work orders for the site. The state filed the motion, and the court ruled in the state's favor. Although the state is not likely to succeed on the merits of its claim that the DOE Secretary failed to consult with the state's governor prior to reaching his decisions, the state is likely to succeed on its claims that the decisions violate NEPA, the National Defense Authorization Act, and the Consolidated Appropriations Act. In addition, the state will suffer irreparable harm without a preliminary injunction, and the balance of equities related to the project weighs heavily for the state. The public interest would also be served by ensuring that the project is not terminated before the legality of the DOE Secretary's commitments and certifications can be fully vetted by the court. Accordingly, the court vacated DOE's stop work orders and DOE may not issue any new ones during the pendency of this lawsuit. The court also temporarily enjoined DOE from pursuing its dilute and dispose approach to plutonium disposition.