Judge denies Nevada request for a ban on plutonium shipments, says claims of harm are 'speculative'
A federal judge has denied Nevada’s preliminary request to ban the federal government from sending plutonium to the state, saying Nevada didn’t prove it would face irreparable harm if the radioactive material was brought in and that there’s precedent for having plutonium at the site north of Las Vegas.
Judge Miranda Du issued a ruling on the state’s request for a preliminary injunction on Wednesday, the same day that the federal government disclosed it had secretly already made the delivery sometime before last November. The ruling does not address the state’s new request for a 14-day temporary restraining order, which was announced Wednesday during a press conference in which Nevada’s governor and attorney general expressed their outrage over the clandestine shipment.
“Nevada’s claims of other harms, including environmental injury, are too speculative to rise to the level of the required likelihood of irreparable harm,” Du wrote in a 16-page order. “Nevada seeks to maintain the status quo … However, in general the status quo at [the Nevada National Security Site] … historically includes the use of plutonium in testing operations and nuclear materials transferred to NNSS.”
The ruling is a setback to state leaders, who were not informed of the delivery or its transport route. They accused the federal government of lying to them by making the delivery while the state believed it was still negotiating in good faith to prevent such a shipment.
“We continue to explore all our legal options, and remain committed to aggressively litigating to keep this dangerous nuclear material out of our state,” Gov. Steve Sisolak said in a statement. “This is just the beginning of the process, not the end, and I look forward to continuing to work with my cabinet and our federal delegation to address this issue.”
Members of the congressional delegation also expect to continue the fight.
Sen. Catherine Cortez Masto said Thursday evening, after meeting with Department of Energy's National Nuclear Security Administration General Counsel Bruce Diamond and NNSA Administrator Lisa Gordon-Hagerty, that she will schedule a classified briefing for the delegation to find out exactly when the plutonium was shipped and what route was used, information she was denied at the meeting because she was told it was classified.
"I still want to know when was it shipped, how long is it going to be there, what's your intention in the future," she said.
She said she was assured that the plutonium would ultimately be moved from Nevada to Los Alamos in New Mexico, but the DOE officials would not say when that would take place.
Cortez Masto, who said she was outraged and raised her voice in the meeting, told the officials that they cannot use the fact that the information is classified to impose its will on the state.
"Under any heading of anything that happens with the DOE, if you just say 'it's classified and we can't talk about it' then nobody can know what's going on," she said. "Where's the checks and balances? How is the governor and how are we supposed to protect the safety and health of the people in our very state when plutonium is being shipped?"
She also plans to write a letter to DOE and schedule a visit for the delegation, possibly other members of Congress, to the NNSS. Learning the route and what other states were affected and possibly put at risk may win support from lawmakers outside of Nevada.
Rep. Steven Horsford, whose district includes the NNSS, was also in the meeting.
Rep. Dina Titus said in a statement to The Nevada Independent that the she intends to "continue to stand with Governor Sisolak and exercise all other possible legal and legislative remedies.”
Rep. Mark Amodei, a Republican, will meet on the matter with DOE officials and state officials from the Nevada Department of Conservation and Natural Resources, according to his office.
The plan to store plutonium in Nevada is the result of the DOE and the NNSA’s failure to meet a deadline to complete construction on a South Carolina facility that is meant to repurpose excess plutonium into fuel for nuclear reactors. A federal judge in May ordered that one metric ton of plutonium be removed from the site.
The DOE said that it had informed Nevada of the delivery to the extent it could, although Nevada leaders have said they believed they were still in the negotiation phase and were blindsided to learn the shipment had taken place even before they filed a suit to stop it.
"It is inaccurate to state that the Members of the Nevada delegation were not informed of this movement,” the DOE said in a statement. “The Department of Energy was as transparent as operational security would permit. Efforts were made to ensure that Members of Congress representing the states involved were notified of the planned movement ahead of time, as early as August 2018 when NNSA publicly released the plan in a Supplement Analysis. Since then, NNSA confirmed that it was ‘actively engaged’ in removing one metric ton of plutonium from South Carolina to Nevada, Texas, and New Mexico.”
Cortez Masto took issue with that characterization. She said the delegation knew in August that it was a possibility, but not that it was a foregone conclusion. The disclosure prompted then-Gov. Brian Sandoval to call Energy Secretary Rick Perry to try to keep the plutonium from coming to Nevada.
“Still playing games,” Cortez Masto said of the DOE comment. “So what everybody knew, and if you look at the report that was issued, was that they were going to be shipping it,” Cortez Masto. “That’s why the governor got on the phone with Secretary Perry and asked the questions 'when are you going to be shipping it, we're opposed to it, we want a timeframe.'"
She said the trust is gone between the state and DOE and hopes to one day rebuild the relationship. "I do not trust Sec. Perry," she said, adding that she intends to use all legislative and procedural tools she has as a senator to keep more plutonium from being shipped and to ensure that the current load is shipped out.
The matter led to a lawsuit in which, Cortez Masto said, DOE lied to the court.
"They knew not that they weren't being candid with the state with the timeline of the plutonium that was being shipped, but they even knew when they went into court and did not disclose that to a federal judge," she said.
"We have federal judges that are used to dealing with these [classified] issues," Cortez Masto continued, asking why would DOE not tell the court.
Among other things, Nevada has argued in court that the federal government needs to do an updated environmental analysis of the shipment’s potential side effects. The state argues that a growing population, changing road patterns and the potential length of time the plutonium will be kept in Nevada warrant a more comprehensive study than what the government has thus far released.
But Du sided with the federal government, which argued that it has previously transported even larger quantities of plutonium safely. She also said the hardships the federal government faces in complying with another federal judge’s order to remove the plutonium from the South Carolina site outweigh that hardships to Nevada.
Asked what remedies the state could seek, Cortez Masto, a former attorney general of Nevada, said that the governor and the current attorney general are working on it, but did not discuss legal strategy.
"I know they are going to take every action they possibly can in court to hold [DOE] accountable," she said.
Sisolak and Attorney General Aaron Ford criticized the move as potentially hazardous to Nevada residents. But officials in Nye County — where the NNSS is located and where some residents support developing nuclear waste storage facilities for their potential economic benefits — downplayed any possible risk.
Darrell Lacy, director of Nye County’s Nuclear Waste Repository Project Office, said that while the county would have preferred more study on the plutonium action, the county, state and federal governments have people and equipment nearby to handle any emergency.
“The transportation, handling, and storage of Special Nuclear Materials is a national security issue, all activity is classified and the state, county, and general public will never be consulted or informed of the details,” Lacy said. “We assume that the shipments of these type of materials are a routine matter in Nevada. We do not think this movement of 1,000 pounds of Plutonium placed our residents or the environment in a high-risk situation.”
Updated 6:18 p.m. to include comments from Sen. Catherine Cortez Masto.
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