As Congress moves to fund Department of Energy conversion of the Mixed Oxide Fuel Fabrication Facility (MFFF) into a new nuclear-weapon parts plant, a federal attorney is urging the Supreme Court to bury a South Carolina lawsuit that sought to block the government from shuttering the facility.
Redeploying the same legal argument that helped seal the building’s fate last year, the attorney representing DOE and its semiautonomous National Nuclear Security Administration (NNSA) said the high court should decline to hear South Carolina’s case because the state was not legally entitled to sue over harm that it might or might not suffer in the distant future.
In a lawsuit filed in 2018, South Carolina said converting the MFFF into a plant to make plutonium pits for future nuclear arsenal refurbishments would leave the Energy Department without a means of disposing of tons of weapon-usable plutonium at the Savannah River Site, sticking the state permanently with the material.
A U.S. District Court judge agreed, but a federal appeals court rejected that argument and lifted the lower court’s ban on shuttering the MFFF, which was designed to convert 34 metric tons of plutonium into fuel for commercial nuclear reactors. The NNSA then canceled the MFFF prime contract in October 2018.
It will take the approval of four of the nine Supreme Court justices to admit South Carolina’s argument into the highest court in the land. At deadline for Weapons Complex Morning Briefing, the justices had not decided whether to hear the case during the next court term, which begins Oct. 7.
Last week, Senate appropriators joined the House colleagues in agreeing to fully fund DOE’s planned replacement for the MFFF, the Surplus Plutonium Disposition program.
The full Senate must still vote on the DOE spending bill that includes the $79 million worth of 2020 funds for the “dilute-and-dispose” approach, and the $220 million to design the pit plant to be built from the partially completed MFFF. The upper chamber on Wednesday tried to set up a vote on the measure for next week, but partisan gridlock over funding for President Donald Trump’s proposed southern-border wall dragged down the vote, leaving the bill in limbo at deadline.
