After the federal holiday on Monday, South Carolina will find out whether the Supreme Court will hear its case that an appellate court illegally allowed the U.S. Department of Energy to cancel construction down the Mixed Oxide Fuel Fabrication Facility (MFFF) last year.
On Friday, the Supreme Court was scheduled to hold a conference, in which clerks and some justices would weigh whether to hear arguments about the canceled plutonium disposal facility. South Carolina’s lawsuit is only one of more than 200 cases scheduled for conference Friday, and only a small fraction of all the cases that make it to conference wind up in front of the nine justices.
Four of nine justices would have to agree to hear the case for South Carolina to get its day in the court of final appeal.
In 2018, South Carolina sued DOE and its semiautonomous National Nuclear Security Administration (NNSA) over the government’s 2016 decision to terminate construction of the MFFF. The federal government said the plant was too expensive and that they had an alternative plutonium disposal method. South Carolina said the decision would effectively turn the state into a permanent plutonium repository, and that DOE and the NNSA had not properly considered the effects of creating such a repository, as required by federal environmental law.
The district judge agreed and temporarily barred DOE and the NNSA from killing the project. However, the U.S. Fourth Circuit Court of Appeals overturned the injunction, saying that South Carolina had no standing to sue the government. The harm the state claimed it would suffer, the appeals judges said, was purely speculative and could occur only at the conclusion of a highly specific sequence of events that might or might not come to pass.
Days after the appeals court made its decision, DOE canceled MOX Services’ prime contract to build the MFFF. The McDermott-controlled company has since shed nearly all of its workforce, which numbered about 1,500 in summer 2018.
South Carolina now wants the Supreme Court to overturn the appeals court’s decision, arguing DOE skirted federal law in certifying to Congress last year that its dilute-and-dispose alternative to MFFF is cheaper and better than the plant, and that the state’s ownership of roads and land nearby Savannah River Site does indeed give it standing to sue the agency.
