The South Carolina Supreme Court ruled the lawyers who successfully sued the Department of Energy over the Savannah River Site’s mismanaged Mixed Oxide (MOX) plutonium facility are entitled to $75 million of the $600 million settlement the state received.
The ruling was issued last Wednesday Nov. 12. South Carolina has litigation against DOE dating to 2016 over the aborted MOX Fuel Fabrication Facility at SRS.
Last week’s decision is part of a lawsuit filed in September 2020 by a government watchdog group, which came weeks after the August 2020 settlement was announced in earlier litigation.
Wednesday’s ruling states that Willoughby & Hoefer, and Davidson & Wren, can access the $75 million in legal fees allotted to them in the settlement. South Carolina Attorney General Alan Wilson, who filed an earlier 2016 lawsuit against DOE, formerly worked for Willoughby & Hoefer, which no longer exists.
Wilson, who is the son of U.S. Rep. Joe Wilson (R-S.C.), and the two private firms were sued by the South Carolina Public Interest Foundation in 2020. The watchdog group argued the entire $600 million should be used to benefit the public. Wilson’s team contended that South Carolina was within its rights to seek outside legal expertise in its 2016 MOX dispute, and was therefore obligated to pay those attorneys just like any other case. More than five years later, the state Supreme Court sided with Wilson and the two firms.
“We affirm the circuit court’s ruling that the Attorney General has the authority to enter into contingent fee agreements with private law firms. Indeed, Appellants do not dispute that ruling,” the high court wrote. “We reject Appellants’ request for a remand to determine the reasonableness of the fee. We hold the $75 million fee is payable to the law firms.”
In a statement sent to Exchange Monitor, Attorney General spokesperson Robert Kittle said, “Attorney General Wilson is thankful the South Carolina Supreme Court has upheld our office’s ability to hire outside law firms to represent the state in some matters. In some cases, our office does not have the expertise or resources needed for a case, so the state is better served by hiring an outside law firm that does have that expertise and those resources. They often work on a contingency fee basis, which means state taxpayers cannot lose any money, and the outside law firm gets paid a percentage only if they win.”
The secondary legal battle stems from Wilson’s 2016 lawsuit against the federal government. In it, he stated that the Mixed Oxide Fuel Fabrication Facility (MFFF), located at the Savannah River Site (SRS) near Aiken, S.C., was supposed to be processing plutonium by Jan. 1, 2016. If not, the federal government was supposed to have started removing plutonium from the state, plus costly payments as a penalty for the delays.
The MOX facility was intended to convert weapons-grade plutonium into commercial fuel, but cost overruns and construction delays ultimately led to its demise. Ironically, the federal government is now converting the unfinished SRS facility into one that can produce plutonium pits for weapons.
In 2020, after a four-year battle, South Carolina was awarded a $600 million settlement; a promise that the plutonium would be removed from South Carolina by 2037; and the promise of an additional $1.5 billion payment if DOE fails to meet the removal deadline.