A federal claims judge was wrong to dismiss South Carolina's $200 million lawsuit against the federal government, and the state is due its money for storing metric tons of defense plutonium years on end, the state's legal team argued this week.
On Monday, the Palmetto State, led by state Attorney General Alan Wilson, filed its opening brief with the U.S. Court of Appeals for the Federal Circuit, jolting yet another nuclear lawsuit back to life and elevating it in terms of judicial tier.
In the 70-page document, the state's legal team argued Federal Claims Judge Margaret M. Sweeney erred when she ruled the courts were not the right place for South Carolina to pursue plutonium fines, and further stated the claims court "mischaracterized" the state's position and failed to properly analyze the situation at hand.
Sweeney killed the case in August. Wilson's office had said it would appeal the decision.
The $200 million South Carolina is seeking represents two years of fines levied against the U.S. Department of Energy for not removing plutonium stored at the Savannah River Site, a 310-square-mile nuclear reserve south of Aiken .
Federal law mandated beginning in 2016 the Energy Department pay South Carolina $1 million for each day – up to 100 days per year – the department failed to process plutonium at the never-completed Mixed Oxide Fuel Fabrication Facility at SRS or get 1 metric ton of the material out of the state.
The MOX project was terminated by the National Nuclear Security Administration, part of the Energy Department, in October 2018. A total 1 metric ton of weapons-grade plutonium was moved out of the Savannah River Site, and South Carolina, more broadly, earlier this year.
Half of that metric ton was shipped to Nevada, a clandestine campaign that has flared tempers. Metric tons of the nuclear material are still stored at SRS in a place known as K-Area.
In its brief, South Carolina described the plutonium fines as both "rent" to the state – payment for services rendered, essentially – and a "necessary expense" for the Energy Department.
"Simply put, when the federal government makes a commitment to South Carolina, it must keep its word," the filing reads. "A promise is a promise."
The federal government has said it can't disburse the money without proper appropriation. South Carolina has taken issue with that claim, and dedicated many pages in its Oct. 28 brief to explain why.
The lawsuit was at one point paused as the state and federal government worked through a potential settlement. Those talks, however, collapsed.
A lowball offer from the federal government was to blame, among other things, the state said in court documents.