Legal Battle Over Plutonium Pit Production & NEPA Compliance
The Tri Valley CAREs lawsuit against the United States Department of Energy (“DOE”) and the National Nuclear Security Administration (“NNSA”) challenging plutonium pit production at the Savannah River Site (“SRS”) and Los Alamos National Laboratory (“LANL”) is now fully briefed in federal district court in South Carolina. Together with our colleague organizations, Nuclear Watch New Mexico and Savannah River Site Watch, this case was initially filed in 2021. After prevailing through several procedural challenges over the last three years, the judge will now proceed to reach a decision on merits of the case.
At the heart of this complex legal battle lies the proposed 50-year project to produce all new plutonium pits, which are core component in nuclear weapons. The United States stopped plutonium pit production in 1992 after the FBI shut down the Rocky Flats Plant outside of Denver, Colorado for environmental crimes. The agencies claim that new plutonium pits are essential to proceed with the newly designed W87-1 nuclear warhead that will sit atop the Sentinel inter-continental ballistic missile (“ICBM”). These new plutonium pit production sites will have the capacity to produce 80 pits per year all together. The Sentinel program, as currently projected, will require at least 800 new plutonium pits, thereby taking up 10+ years of plutonium pit production capacity.
While the main production will take place at SRS and LANL, support work for the pit production spans multiple sites across multiple states including Lawrence Livermore National Laboratory (CA), Sandia National Laboratory (CA and NM), and the Waste Isolation Pilot Plant (NM) – sites for which the environmental impacts were largely left out of the public review process as required by the National Environmental Policy Act (“NEPA”). Plaintiff groups are demanding that the agencies conduct a programmatic environmental impact statement (“PEIS”) under NEPA that includes analysis of the impact at all of the sites involved, along with a more in-depth review of transportation of materials around the United States.
Some of the key legal arguments in the briefing are as follows:
- Public Participation & Transparency
Critics argue that the public has been inadequately involved in the decision-making process surrounding the dual-site pit production plan. Specifically, the Savannah River Site (SRS), a facility with limited experience in this type of production, has been included without sufficient public consultation, undermining NEPA’s requirement for transparency and public engagement.
- Legal Standards & Compliance with NEPA
The crux of the legal arguments center on NEPA’s procedural requirements. Plaintiffs contend that the defendants failed to conduct a comprehensive Environmental Impact Statement (EIS) that adequately evaluates alternatives, considers cumulative impacts, and responds to new information and changed circumstances. This alleged failure, according to legal precedents, could render the agency’s actions arbitrary and in violation of NEPA.
- Alternatives Analysis
NEPA mandates that agencies must thoroughly evaluate all reasonable alternatives to a proposed action. Court precedents, such as Defenders of Wildlife v. North Carolina Dept. of Transp., emphasizes the importance of considering a broad range of alternatives to ensure informed decision-making. In this case, the plaintiffs contend that the EIS prepared by the defendants did not sufficiently evaluate alternatives that might mitigate environmental risks. For example, the inclusion of the Savannah River Site (SRS) in the pit production plan, despite its limited experience in this type of production, raises questions about whether more suitable alternatives were overlooked. By not exploring and presenting a broad range of alternatives, the defendants potentially missed opportunities to identify less harmful and more sustainable options. This oversight not only risks environmental degradation and public health but also undermines the integrity of the NEPA process.
- Cumulative Impacts
Agencies are required under NEPA to assess the cumulative environmental impacts when multiple projects affect the same resources. Failure to do so, as seen in cases like Nat’l Audubon Soc’y v. Dep’t of Navy, can result in incomplete environmental reviews. In this case, the cumulative impacts arise from the combined waste generation and disposal demands of the plutonium pit production at multiple sites, including Los Alamos National Laboratory (LANL) and SRS, and the ongoing operations at the WIPP. Jill Hruby, an administrator for the NNSA, argues in support of the Defendants that WIPP’s capacity will not be exceeded by waste from pit production over the next 50 years, but the plaintiffs argue that the cumulative impacts of additional TRU waste from multiple sites have not been thoroughly assessed.
- Changed Circumstances
Various changed circumstances across the proposed project point towards the need for reevaluation under NEPA. Firstly, the MOX (Mixed Oxide) facility, which was initially planned for diluting surplus plutonium at the Savannah River Site (SRS), has been canceled. Additionally, Plaintiffs allege that Defendants have failed to consider a 2020 DNFSB report detailing a lack of sufficient strategies in place to mitigate radiation exposure from TRU waste at the LANL facility. Such changes and new information necessitate a reevaluation under NEPA so as to ensure that environmental impacts are comprehensively assessed and mitigated.
- Failure to Analyze Increased Impacts of Nuclear Waste
Plaintiffs have raised alarm over the environmental impacts of the project, particularly concerning the Waste Isolation Pilot Plant (WIPP), a key disposal site for transuranic (TRU) waste. The potential overload of TRU waste due to the project’s operations has not been adequately addressed by the defendants, raising concerns about long-term environmental contamination and health risks for workers and nearby communities. Additionally, the MOX facility cancellation has significantly altered the landscape regarding TRU waste disposal capacity at WIPP. WIPP’s capacity for disposing of TRU has greatly decreased since the completion of the 2008 CT SPEIS considering that the site has already accepted 67,552 cubic meters of TRU waste as of 2019. This means that more than ⅓ of WIPP’s disposal capacity is already being utilized, thus limiting potential for waste disposal of TRU under the pit production project. The proposed project will only increase TRU waste disposal, meaning that this capacity to take on waste will begin to dwindle even faster.
As the legal battle unfolds, plaintiffs seek several desired outcomes and remedies.
- Declaration of NEPA Violation: Plaintiffs request the court to declare that the defendants violated NEPA by failing to conduct adequate environmental reviews.
- Injunction: An injunction is sought to halt further progress on the plutonium pit production plans until NEPA compliance is achieved.
- Programmatic Environmental Impact Statement (PEIS): Plaintiffs advocate for a full programmatic or supplemental environmental impact statement that: addresses environmental impacts at all of the sites involved in plutonium pit production; includes robust alternatives analysis; adequately analyzes cumulative impacts; takes into account changed circumstances; and engages the public effectively in accordance with the rule of NEPA.
Conclusion
As the court reviews the arguments and evidence presented, the outcome will have significant implications for government plans to develop a sentinel ICBM. A decision favoring the plaintiffs could result in a major delay of W87-1 warhead development, and even a rethinking of the two-site plutonium pit production plant. Alternatives exist that would reduce the scope and need for plutonium pits, including reusing the existing Minuteman III plutonium pits, or doing away with the ground based strategic current ICBM plague of the triad entirely.
In conclusion, this legal battle serves as a crucial reminder of the importance of thorough environmental reviews and regulatory compliance. It highlights the need for federal agencies to address environmental and health risks comprehensively and transparently, ensuring that projects of national significance do not compromise the safety and well-being of communities and the environment. The resolution of this case will not only impact the future of plutonium pit production but also set a precedent for how environmental reviews are conducted for large-scale federal projects. Public participation is integral to this process and if plaintiffs prevail and a PEIS is mandated by the court, there will be nationwide public hearings.
Stay tuned for updates!
Defendants’ Brief Seeking Judgment and Responding to Plaintiffs’ Opening Brief
