A federal judge on Monday approved Nevada's request to amend its lawsuit against the federal government, allowing the state to legally pursue removal of a half-metric ton of weapons-grade plutonium that was quietly shipped into the state from South Carolina.
U.S. District Judge Miranda M. Du in a nine-page ruling said it would be "simply disingenuous" for the government – the general defendant, representing the U.S. Department of Energy, Energy Secretary Rick Perry, the National Nuclear Security Administration and its chief, Lisa Gordon-Hagerty – to contend that Nevada's actions in doing so would be in bad faith.
A half-metric ton of defense plutonium was moved from the Savannah River Site, south of Aiken, to the Nevada National Security Site, northwest of Las Vegas, before November 2018 to partially satisfy a separate federal court order.
Metric tons of plutonium still remain at SRS.
The plutonium-relocation campaign – done in clandestine fashion, away from the public eye – was completed before Nevada sued the federal government to prevent the shipments from happening in the first place.
The shipments were revealed in a later court declaration. Nevada officials claim they were blindsided.
"On appeal, the Ninth Circuit denied Nevada's request for preliminary injunction as moot because Nevada's injunction sought only to halt shipments that were already completed – not also to have such plutonium removed from NNSS," Du noted in her order.
Nevada's legal team has repeatedly argued the Energy Department and its weapons-and-nonproliferation agency, the NNSA, violated environmental laws. The legal team has also argued the plutonium now staged in Nevada is the source of continuing radiological harm.
Du, the federal judge, on Monday described the alleged harm as "abstract" and the allegations as "nebulous."
In an April letter, Perry promised U.S. Sen. Catherine Cortez Masto, a Nevada Democrat, the half-metric ton of defense material would be removed from Nevada by the end of 2026. Efforts would begin in 2021, Perry said.
"Nevadans didn't create this waste, and we shouldn't be on the hook for storing it in our state against our will," Cortez Masto has said.
Perry, who will be leaving the president's cabinet before the end of the year, in the same letter explicitly described the plutonium as "not nuclear waste."
The NNSA last summer announced its formal plan to reposition some Savannah River Site plutonium.
Details were made public in an environmental study, which explained broadly that a total 1 metric ton of weapons-grade plutonium would be sent from South Carolina to Texas or Nevada and then on to New Mexico for use in nuclear weapons work.