Appeals court rejects Nevada lawsuit to stop plutonium shipments

CARSON CITY — The 9th U.S. Circuit Court of Appeals on Tuesday denied a request by Nevada officials to block future transfers of nuclear material from South Carolina to a federal site north of Las Vegas.

Nevada filed the lawsuit in November 2018 to stop the U.S. Department of Energy from shipping a half-metric ton of weapons grade plutonium from the Savannah River Site in South Carolina to the Nevada National Security Site. But attorneys for the department admitted in court that a half metric ton of plutonium had already been shipped to Nevada.

The three-judge appeals panel agreed with a lower court’s prior decision that because those shipments had been made before the original lawsuit had been filed, Nevada’s action was moot.

“The remedy Nevada sought — stopping the government from shipping plutonium from South Carolina to Nevada under the proposed action — is no longer available, the judges’ ruling said.

The Energy Department was under a federal court order in South Carolina to remove a metric ton of the material from the Savannah River Site by Jan. 1, 2020 after the department failed to finish work on a long-delayed, multibillion-dollar facility designed to transform the plutonium into commercial reactor fuel.

In an email sent on Aug. 29, 2018, the National Nuclear Security Administration, the federal agency in charge of maintaining the nation’s nuclear stockpile, informed Nevada officials that a plan had been developed to move a metric ton of the material to federal sites in Nevada, Texas and New Mexico.

Then-Gov. Brian Sandoval sent a letter in late September to Energy Secretary Rick Perry blasting the proposal. But it wasn’t until Nov. 30 that the state filed a lawsuit challenging the DOE’s plan.

Then in January of this year, the DOE revealed that it had already shipped the material into Nevada sometime before November — and before the state’s lawsuit was filed.

Last week, the DOE announced that the other half metric ton of nuclear material subject to the South Carolina court order had been sent to federal sites in Texas and New Mexico, but did not identify exactly where it went.

Nevada Attorney General Aaron Ford said in a statement that his office “will continue to pursue all options for ensuring that no further unlawful plutonium shipments reach this State.”

“The Department of Energy’s deceitful behavior in handling these shipments demonstrates my office’s need to continue aggressively litigating to hold the Department of Energy to its promises,” Ford said.

Contact Capital Bureau Chief Colton Lochhead at clochhead@reviewjournal.com or 775-461-3820. Follow @ColtonLochhead on Twitter.