attorneys for the united states of america - 2019... · 2019. 3. 20. · united states’ response...

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JEAN E. WILLIAMS Deputy Assistant Attorney General U.S. Department of Justice DAVID L. NEGRI, Trial Attorney Environment and Natural Resources Div. c/o U.S. Attorney’s Office 800 Park Blvd., # 600 Boise, Idaho 83712 (208) 334-1936 [email protected] SARA E. COSTELLO, Trial Attorney Environment and Natural Resources Div. Natural Resources Section P.O. Box 7611 Washington, DC 20044-7611 (202) 305-0484 [email protected] Attorneys for the United States of America and all Defendants

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA

STATE OF NEVADA, Plaintiff, vs. UNITED STATES; UNITED STATES DEPARTMENT OF ENERGY; RICK PERRY, in his official capacity as Secretary of Energy; NATIONAL NUCLEAR SECURITY ADMINISTRATION; and LISA GORDON HAGERTY, in her official capacity as Administrator of the National Nuclear Security Administration and Undersecretary for Nuclear Security,

Defendants. _____________________________________

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 3:18-cv-569-MMD-CBC UNITED STATES’ RESPONSE TO PLAINTIFF’S MOTION FOR INJUNCTION PENDING APPEAL

Case 3:18-cv-00569-MMD-CBC Document 74 Filed 02/14/19 of 26

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TABLE OF CONTENTS

I. INTRODUCTION ........................................................................................................ 1

II. FACTUAL BACKGROUND ....................................................................................... 2

A. NNSA and the Removal of P lutonium from South Carolina ................................ 2

B. Nevada’s Suit and the Court’s Denial of Nevada’s Preliminary Injunction Motion .............................................................................................................. 4

III. STATUTORY BACKGROUND .................................................................................. 6

A. National Environmental Policy Act .................................................................... 6

B. The Atomic Energy Act and Department of Energy Organization Act ................. 9

IV. STANDARD FOR AN INJUNCTION PENDING APPEAL ....................................... 10

V. ARGUMENT ............................................................................................................. 11

A. Nevada Has No Likelihood of Success on the Merits of its Appeal.................... 11

1. Nevada has not shown that any additional NEPA work is needed........... 11

2. The Court correctly rejected Nevada’s claim that procedural injuries constitute irreparable injury. ................................................................. 11

3. Nevada fails to show any likelihood of actual harm. .............................. 13

4. The Court correctly concluded that the balance of equities favored the United States. ................................................................................. 16

B. Nevada Will Not Be Irreparably Harmed in the Absence of an Injunction Pending Appeal. .............................................................................................. 16

C. The Balance of Harms and Public Interest Weigh Heavily Against an Injunction Pending Appeal............................................................................... 18

VI. CONCLUSION .......................................................................................................... 20


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TABLE OF AUTHORITIES Cases

Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011)............................................................................................. 19

Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531 (1987) ......................................................................................................12, 19

Andrus v. Sierra Club, 442 U.S. 347 (1979) ............................................................................................................. 6

Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934 (9th Cir. 2005) .............................................................................................. 12

Bernhardt v. L.A. Cnty., 339 F.3d 920 (9th Cir. 2003) .............................................................................................. 18

Blue Ridge Envtl. Def. League v. Nuclear Reg. Comm’n, 716 F.3d 183 (D.C. Cir. 2013) .............................................................................................. 8

Bokf, NA v. Estes, 2018 U.S. Dist. LEXIS 42440 (D. Nev. Mar. 14, 2018) ...................................................... 10

California v. Health & Human Servs., 281 F. Supp. 3d 806 (N.D. Cal. 2017) ................................................................................. 12

Cantrell v. City of Long Beach, 241 F.3d 674 (9th Cir. 2001) .............................................................................................. 12

Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668 (9th Cir. 1988) .............................................................................................. 17

Earth Island Inst. v. Carlton, 626 F.3d 462 (9th Cir. 2010) .............................................................................................. 11

Goldie’s Bookstore, Inc. v. Superior Court of Cal., 739 F.2d 466 (9th Cir. 1984) .............................................................................................. 17

Hirt v. Richardson, 127 F. Supp. 2d 833 (W.D. Mich. 1999) ............................................................................. 12

Hodges v. Abraham, 300 F.3d 432 (4th Cir. 2002) ................................................................................................ 9

Human Soc. of U.S. v. Gutierrez, 558 F.3d 896 (9th Cir. 2009) .............................................................................................. 10

Hydro Res., Inc., 50 N.R.C. 3 (1999)............................................................................................................... 8


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Kleppe v. Sierra Club, 427 U.S. 390 (1976) ............................................................................................................. 6

Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) ...........................................................................................6, 10

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ........................................................................................................... 12

Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (1989) ......................................................................................................... 7, 8

Mazurek v. Armstrong, 520 U.S. 968 (1997) ........................................................................................................... 11

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) ........................................................................................................... 10

Munaf v. Geren, 553 U.S. 674 (2008) ........................................................................................................... 11

Nevada v. Burford, 918 F.2d 854 (9th Cir. 1990) .............................................................................................. 13

Nevada v. Dep’t of Energy, 457 F.3d 78 (D.C. Cir. 2006) ................................................................................................ 8

Nken v. Holder, 556 U.S. 418 (2009) ........................................................................................................... 18

Protect Our Water v. Flowers, 377 F. Supp. 2d 882 (E.D. Cal. 2004) ................................................................................. 10

Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) ............................................................................................................. 6

Save Strawberry Canyon v. Dep’t of Energy, 613 F. Supp. 2d 1177 (N.D. Cal. 2009) .............................................................................. 12

Sierra Forest Legacy v. Rey, 691 F. Supp. 2d 1204 (E.D. Cal. 2010) ............................................................................... 10

South Carolina v. United States, 2017 WL 7691885 (D.S.C. Dec. 20, 2017) ........................................................................ 3, 5

Southeast Alaska Conservation Council v. U.S. Army Corps of Eng’rs, 472 F.3d 1097 (9th Cir. 2006)............................................................................................. 10

Wilderness Soc’y v. Rey, 622 F.3d 1251 (9th Cir. 2010)............................................................................................. 12

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)...........................................................................................6, 10, 11, 17, 18


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Statutes

42 U.S.C. § 2014(f).................................................................................................................. 9

42 U.S.C. § 2075 ..................................................................................................................... 9

42 U.S.C. § 2201 ..................................................................................................................... 9

42 U.S.C. § 4332(2)(C) ............................................................................................................ 6

42 U.S.C. § 7112(10) ............................................................................................................... 9

42 U.S.C. §§ 4321-4370........................................................................................................... 6

50 U.S.C. § 2566 ................................................................................................................... 16

Rules

Fed. R. Civ. P. 62(c) .............................................................................................................. 10

Regulations

10 C.F.R. Part 1021 ................................................................................................................. 7

10 C.F.R. § 1021.101 ............................................................................................................... 9

10 C.F.R. § 1021.314(a) ....................................................................................................... 7, 8

10 C.F.R. § 1021.314(c) ........................................................................................................... 8

10 C.F.R. § 1021.314(c)(1) ...................................................................................................... 8

10 C.F.R. § 1021.314(c)(2) ...................................................................................................... 9

10 C.F.R. §§ 1021.100-.103 ..................................................................................................... 7

40 C.F.R. § 1501.3................................................................................................................... 7

40 C.F.R. § 1502.9(c)............................................................................................................... 8

40 C.F.R. § 1502.9(c)(1) .......................................................................................................... 8

40 C.F.R. § 1502.9(c)(1)(i)....................................................................................................... 7

40 C.F.R. § 1505.2................................................................................................................... 7

40 C.F.R. § 1507.3................................................................................................................... 7

40 C.F.R. §§ 1500-1508 ........................................................................................................... 6

Other Authorities Department of Energy, DOE Standard – Stabilization, Packaging, and Storage of Plutonium-Bearing Materials (March 2012) https://www.standards.doe.gov/standards-documents/3000/3013-astd-2012....................15


UNITED STATES’ RESPONSE TO PLAINTIFF’S MOTION FOR INJUNCTION PENDING APPEAL – Page 1

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I. INTRODUCTION

The State of Nevada sought a preliminary injunction to enjoin the Department of

Energy’s (DOE)’s National Nuclear Security Administration (NNSA) from transporting

plutonium from the Savannah River Site in South Carolina to Nevada, where it will be stored for

eventual use in New Mexico. ECF No. 2. But the Court denied Nevada’s request and declined

to enjoin the shipment of the plutonium. ECF No. 62 (Order). Nevada now asks the Court to

issue an injunction pending its appeal of the Court’s Order.

Nevada argues that it is likely to succeed on its appeal of the Order because the State is

harmed by National Environmental Policy Act (NEPA) procedural violations and it has

demonstrated a likelihood of actual harm. See ECF No. 69 (Motion) at 4-13. But the Court

extensively considered whether Nevada established irreparable harm warranting a preliminary

injunction, see Order at 6-15, and concluded “that Nevada falls short” of meeting this

requirement. That has not changed. Standing alone, procedural NEPA violations do not

establish irreparable harm and Nevada’s claims of actual harm remain, as the Court described

them “merely a theoretical possibility.” Id. at 14. Similarly, Nevada fails to refute the Court’s

conclusion that the balance of equities favors the United States.

Nevada’s current motion is also strongly tied to its belief that NNSA may be permitted to

ship more plutonium to Nevada under the proposed action and NEPA document (the Supplement

Analysis) at issue in this case. See Motion at 11-14. This is contrary to the information

previously provided by the United States. See ECF No. 56-1; ECF No. 58. Now, the United

States again confirms that no more plutonium will be shipped to NNSA or Nevada from any

location as part of the Supplement Analysis’s proposed action. See Diamond Declaration, ¶¶ 1-



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2. So, Nevada fails to meet its high burden of showing that irreparable harm is likely if an

injunction is not granted pending appeal.

Here, the equities and the public interest also favor DOE. Because any harm posed to

Nevada is speculative, this counsels against entering the requested injunction. And if DOE is

broadly enjoined from shipping any plutonium (a regular occurrence—unconnected to the

Supplement Analysis) to Nevada while the State’s appeal is pending, the harm will be immense.

Like Nevada’s earlier motion, the State’s request for an injunction pending appeal—an

extraordinary form of relief—should be rejected.

II. FACTUAL BACKGROUND

A. NNSA and the Removal of Plutonium from South Carolina

NNSA is responsible for enhancing national security through the military application of

nuclear science.1 To this end, NNSA maintains and enhances the safety, security, and

effectiveness of the United States’ nuclear weapons stockpile. This responsibility necessarily

entails transporting nuclear materials among several DOE facilities located throughout the

United States. As part of its responsibilities, DOE has a long track record of analyzing potential

environmental effects related to the storage and transportation of nuclear materials.

This track record is important when DOE has to quickly respond to court orders, as well

as Congressional mandates, regarding the use and location of nuclear materials. In that regard,

on December 20, 2017, the United States District Court for the District of South Carolina

ordered DOE/NNSA to remove, no later than January 1, 2020, one metric ton of plutonium from

1 More detailed factual information can be found in the United States’ Response to Plaintiff’s Motion for Preliminary Injunction, ECF No. 27 at 7-16, along with relevant portions of the environmental documents relied upon by DOE, id. at Exhibits 1-8.



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its Savannah River Site in South Carolina. No. 1:16-cv-00391-JMC, 2017 WL 7691885 (D.S.C.

Dec. 20, 2017).

To comply with that order, DOE proposed transporting one metric ton of plutonium out

of South Carolina to the Nevada National Security Site (NNSS) or the Pantex Plant, in Carson

County, Texas (Pantex) for staging (or storage) prior to shipment to Los Alamos National

Laboratory in New Mexico (LANL). See ECF No. 27, Exhibit 1 (Supplement Analysis) at 1.

For over 20 years, NNSA has examined the environmental effects of the storage,

transport, and use of plutonium and other special nuclear materials. So, to evaluate the proposed

action, DOE did not have to start from scratch, but instead relied upon extensive environmental

analysis it had previously completed pursuant to the requirements of NEPA. Its analysis drew

from two Environmental Impact Statements (EISs) relating to disposal of surplus plutonium, an

EIS relating to NNSA’s Nuclear Complex Transformation Program, and separate EISs

evaluating environmental impacts at NNSS, Pantex, and LANL. See ECF No. 27 at 10-13

(detailing NNSA’s prior examination of the effects of transporting and storing plutonium).

After considering, referencing, and relying upon this previous analysis, see Supplement

Analysis at 6-8, NNSA decided, in the Supplement Analysis, that no additional NEPA

documentation was needed. See id. at 45. The Supplement Analysis recognized that all the

activity challenged by Nevada was previously evaluated: The packaging and transportation of

plutonium from South Carolina to NNSS, the staging and container evaluation, repair, and

possible replacement at NNSS, shipments between NNSS and Pantex, and shipments to LANL

from NNSS. Id. at 8-9; see id. at 13-15 (describing the activity that will occur at NNSS).

The Supplement Analysis identified the “resource areas” that would not be impacted by

the proposed action – land use and viewshed, geology and soils, water resources, radiological air



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quality, socioeconomics, environmental remediation, cultural resources, ecological resources,

and chemical impacts to public and worker health. Id. at 17, 18 (Table 3-1). It also considered

those resource areas that could be impacted – infrastructure, noise, non-radiological air

emissions, radiological impacts to public and worker health, waste management, facility

accidents and intentional destructive acts, greenhouse gases, and environmental justice – and

noted that all of these resources were analyzed in previous NEPA documents. Id. at 17, 19

(Table 3-2).

Prior to issuing the Supplement Analysis, from April through August 2018, NNSA

consulted with the state of Nevada about the process of planning to move the plutonium from

South Carolina, the possibility of NNSS being used for the staging of plutonium, and the

agency’s determinations that the proposed action would have no significant impact in light of the

existing NEPA analysis. ECF No. 27 at 26-27 (citing the declaration of NNSA Director of

Intergovernmental Affairs Harris Walker). As the United States previously explained, during

this entire process, Nevada never stated any grave or pressing safety concerns or possibility of

the plan causing harm. Id. at 26. Further, the State admitted that it had no concerns about the

safety and security of the transport of nuclear materials within the State when done so by DOE’s

Office of Secure Transportation, as is the case with the transportation at issue here. Id.

B. Nevada’s Suit and the Court’s Denial of Nevada’s Preliminary Injunction Motion

On November 30, 2018, Nevada filed this suit, accompanied by a motion for preliminary

injunction. ECF Nos. 1, 2. After the completion of briefing of Nevada’s motion, certain

information related to the suit was declassified. ECF No. 56-1. This permitted DOE to

publically state that it completed all shipment of plutonium (approximately a half metric ton) to

Nevada pursuant to its efforts to comply with the order from the South Carolina court before



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November 2018. ECF No. 56-1. The United States then reported that no more plutonium will be

shipped to NNSS as part of the Supplement Analysis’s proposed action. ECF No. 58. It

explained that all other shipments of plutonium under the proposed action are going elsewhere.

Id.

On January 30, 2019, the Court denied Nevada’s motion for preliminary injunction. The

Court considered the parties’ briefs, as well as the arguments and evidence presented at a hearing

on Nevada’s motion. Order at 1, n.2. The Order concluded that Nevada failed to establish

irreparable harm in the absence of preliminary injunctive relief, finding that “Nevada’s claim of

irreparable harm to Nevada’s lands, environment, and by extension Nevada’s citizens, is merely

a theoretical possibility.” Id. at 14. The Order also concluded that the balance of equities

favored the United States. Id. at 15.

After appealing the Court’s Order, ECF No. 65, Nevada filed a motion for an injunction

pending appeal. Nevada requests “a preliminary injunction that would apply to all future

shipments of plutonium contemplated in the SA [Supplement Analysis]” or an interim injunction

while it renews its request for an injunction pending appeal in the Ninth Circuit. Motion at 3, 11.

And Nevada may be seeking broader injunctive relief. See id. at 3 (asking the Court to enjoin

“DOE from shipping any plutonium to Nevada while the State’s preliminary injunction appeal is

pending”).2 Because a broad injunction barring DOE from shipping any plutonium to Nevada

will be extremely harmful to the United States, this possibility is addressed below.

2 But Nevada’s Complaint is limited to challenging the action analyzed in the Supplement Analysis. See, e.g., ECF No. 1 at ¶¶ 1, 2, 24-40. Nevada’s initial request for a preliminary injunction also was aimed at enjoining this action. See Order at 3. As the Court stated, DOE regularly ships plutonium throughout the country and plutonium has been previously shipped to NNSS. Id. at 13.



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III. STATUTORY BACKGROUND

A. National Environmental Policy Act

Congress enacted NEPA to establish a consistent process for federal agencies to consider

the consequences of their actions upon the environment. See 42 U.S.C. §§ 4321-4370. To

ensure informed decision-making, NEPA requires agencies to analyze and to disclose significant

environmental effects, but it does not require agencies to make any particular decision.

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). As further explained

by the Supreme Court, “[i]f the adverse environmental effects of the proposed action are

adequately identified and evaluated, the agency is not constrained by NEPA from deciding that

other values outweigh the environmental costs.” Id. Thus, NEPA exists to ensure a process, not

any particular result. Id.; Lands Council v. McNair, 537 F.3d 981, 1000 (9th Cir. 2008) (NEPA

“does not impose any substantive requirements on federal agencies–it exists to ensure a

process.”) (citation and quotations omitted), overruled on other grounds by Winter v. Nat. Res.

Def. Council, Inc., 555 U.S. 7 (2008).

An agency’s obligation under NEPA is to take a “hard look” at environmental

consequences before approving a major federal action. Kleppe v. Sierra Club, 427 U.S. 390, 410

n.21 (1976). NEPA requires that, for “major Federal actions significantly affecting the quality of

the human environment,” a federal agency must prepare an EIS, which is a detailed statement on

the environmental impact of the proposed action, including an analysis of alternatives to the

proposed action. 42 U.S.C. § 4332(2)(C). In preparing EISs, an agency is guided by regulations,

promulgated by the Council on Environmental Quality (CEQ) at 40 C.F.R. §§ 1500-1508,3

3 The CEQ regulations are entitled to substantial deference. See Robertson, 490 U.S. at 355-56; accord Andrus v. Sierra Club, 442 U.S. 347, 358 (1979).



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which are applicable to all federal agencies, as well as agency-specific implementing regulations,

such as DOE’s regulations in 10 C.F.R. Part 1021.4

Once an agency completes an EIS on a proposal for major federal action,5 the CEQ

regulations require the agency to issue a “record of decision,” or ROD, stating its decision,

identifying the alternatives considered, identifying other factors including “any essential

considerations of national policy which were balanced by the agency in making its decision,”

and stating whether all practicable means to avoid or minimize environmental harm from the

selected alternative have been adopted or, if not, why not. 40 C.F.R. § 1505.2.

A further provision of the CEQ regulations deserves mention in light of the issues raised

by Nevada. The CEQ regulations address when agencies must supplement a draft or final EIS to

take account of changed circumstances, including changes to a project, and new information.

Section 1502.9(c) requires supplementation where “[t]he agency makes substantial changes in

the proposed action that are relevant to environmental concerns” or “[t]here are significant new

circumstances or information relevant to environmental concerns and bearing on the proposed

action or its impacts.” 40 C.F.R. § 1502.9(c)(1)(i), (ii); see also Marsh v. Or. Nat. Res. Council,

490 U.S. 360, 370-78 (1989) (discussing the supplementation requirement under NEPA and the

CEQ regulations). DOE’s own NEPA regulations track and incorporate these requirements. See

10 C.F.R. § 1021.314(a) (“DOE shall prepare a supplemental EIS if there are substantial changes

to the proposal or significant new circumstances or information relevant to environmental

4 The CEQ regulations require each federal agency to adopt implementing procedures to supplement the CEQ regulations. 40 C.F.R. § 1507.3. DOE’s regulations at 10 C.F.R. Part 1021 adopt and supplement the CEQ regulations. See 10 C.F.R. §§ 1021.100-.103. 5 The CEQ regulations allow an agency to first prepare an environmental assessment to aid in its decision-making and to determine whether a full EIS must be prepared on the proposed action. 40 C.F.R. § 1501.3.



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concerns, as discussed in 40 C.F.R. § 1502.9(c)(1)”); Nevada v. Dep’t of Energy, 457 F.3d 78, 87

(D.C. Cir. 2006).

In Marsh, the Supreme Court held that the decision whether to prepare a supplemental

EIS is similar to the decision whether to prepare an EIS in the first place: “[i]f there remains

‘major Federal action’ to occur, and if the new information is sufficient to show that the

remaining action will ‘affect the quality of the human environment’ in a significant manner or to

a significant extent not already considered, a supplemental EIS must be prepared.” Marsh, 490

U.S. at 374 (internal brackets and citation omitted). It follows that not every change in

circumstance or piece of new information requires the preparation of a supplemental EIS; only

“substantial changes to the proposal or significant new circumstances or information relevant to

environmental concerns.” 10 C.F.R. § 1021.314(a) (emphasis added); accord 40 C.F.R. §

1502.9(c)(1). As the D.C. Circuit recently summarized this standard, a supplemental EIS is only

required where “‘[n]ew and significant’ information presents ‘a seriously different picture of the

environmental impact of the proposed project from what was previously envisioned.’” Blue

Ridge Envtl. Def. League v. Nuclear Reg. Comm’n, 716 F.3d 183, 196 (D.C. Cir. 2013) (quoting

Hydro Res., Inc., 50 N.R.C. 3, 14 (1999), and citing Marsh, 490 U.S. at 374).

The CEQ regulations do not prescribe the form in which agencies determine whether a

change in the proposed action, changed circumstances, or new information rises to the level of

significance. DOE’s NEPA regulations, however, require preparation of a Supplement Analysis

“[w]hen it is unclear whether or not an EIS supplement is required.” 10 C.F.R. § 1021.314(c).

Under this regulation, a Supplement Analysis “shall discuss the circumstances that are pertinent

to deciding whether to prepare a supplemental EIS, pursuant to 40 C.F.R. § 1502.9(c),” 10

C.F.R. § 1021.314(c)(1), and “shall contain sufficient information” for DOE to determine



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whether an existing EIS should be supplemented, a new EIS should be prepared, or no further

NEPA documentation is required, 10 C.F.R. § 1021.314(c)(2). See Hodges v. Abraham, 300

F.3d 432, 439, 446 (4th Cir. 2002) (summarizing DOE’s regulations regarding supplementation

of an EIS and upholding the use of a Supplement Analysis).

B. The Atomic Energy Act and Department of Energy Organization Act

The Atomic Energy Act of 1954, as amended authorizes the Atomic Energy Commission,

the predecessor agency to DOE, to possess and acquire, by purchase or other means, “any special

nuclear material or any interest therein,” dispose of such material as provided in the Act, and, in

respect to such material, promote the common defense and security, protect public health, and

minimize danger to life and property. 42 U.S.C. §§ 2075, 2201.6

The Department of Energy Organization Act of 1977 (“DOE Act”) established the DOE

and vested it with the functions of various predecessor agencies. The declaration of purpose for

the DOE Act states that Congress intended the agency to “establish and implement . . . in

coordination with the Secretaries of State, Treasury, and Defense, policies regarding

international energy issues that have a direct impact on research, development, utilization,

supply, and conservation of energy in the United States and to undertake activities involving the

integration of domestic and foreign policy relating to energy . . . .” 42 U.S.C. § 7112(10).

Congress also expressed that a purpose of the DOE was to “assure incorporation of national

environmental protection goals in the formulation and implementation of energy programs, and

to advance the goals of restoring, protecting, and enhancing environmental quality, and assuring

public health and safety.” Id. § 7112(13). DOE meets these environmental goals, in part,

through compliance with NEPA. See 10 C.F.R. § 1021.101.

6 References to “Commission” in the Atomic Energy Act are to the Atomic Energy Commission, the predecessor agency to DOE. See 42 U.S.C. § 2014(f).



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IV. STANDARD FOR AN INJUNCTION PENDING APPEAL

Federal Rule of Civil Procedure 62(c) allows a district court to in its discretion grant an

injunction during the pendency of an appeal. Like a preliminary injunction, an injunction

pending appeal is an extraordinary remedy that should be granted sparingly. Winter, 555 U.S. at

24; Sierra Forest Legacy v. Rey, 691 F. Supp. 2d 1204, 1207 (E.D. Cal. 2010). The preliminary

injunction standard governs analysis of a motion for an injunction pending appeal. Southeast

Alaska Conservation Council v. U.S. Army Corps of Eng’rs, 472 F.3d 1097, 1100 (9th Cir. 2006).

To qualify for an injunction pending appeal, the moving party must show: (1) that it is

likely to succeed on the merits; (2) that it is likely to suffer irreparable harm in the absence of

preliminary relief; (3) that the balance of equities tips in its favor; and (4) that an injunction is in

the public interest. Winter, 555 U.S. at 20 (2008); Order at 3-4 (applying the Winter test). All

four factors of this test must be met, and the test is not altered simply because a plaintiff alleges

an environmental injury or a violation of NEPA. Monsanto Co. v. Geertson Seed Farms,

561 U.S. 139, 157 (2010); Lands Council, 537 F.3d at 1005 (“Our law does not . . . allow us to

abandon a balance of harms analysis just because a potential environmental injury is at issue.”).

Nevada argues that under Rule 62, the “success on the merits factor cannot be rigidly

applied.” Motion at 4 (quoting Protect Our Water v. Flowers, 377 F. Supp. 2d 882, 884 (E.D.

Cal. 2004)). But a party must meet its burden of demonstrating a likelihood of success on the

merits of the appeal to be entitled to relief under Rule 62(c). Human Soc. of U.S. v. Gutierrez,

558 F.3d 896, 896-97 (9th Cir. 2009); Bokf, NA v. Estes, 2018 U.S. Dist. LEXIS 42440 *4 (D.

Nev. Mar. 14, 2018) (rejecting plaintiff’s argument that because the case involved an issue of

first impression, an injunction pending appeal could be based on irreparable harm alone).



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Because it “is an extraordinary and drastic remedy,” Munaf v. Geren, 553 U.S. 674, 689

(2008) (citation omitted), an injunction “should not be granted unless the movant, by a clear

showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)

(citation omitted). See also Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010) (an

injunction “may only be awarded upon a clear showing that the plaintiff is entitled to such relief”

(quoting Winter, 555 U.S. at 22)).

V. ARGUMENT

A. Nevada Has No Likelihood of Success on the Merits of its Appeal

Nevada is unlikely to succeed on its appeal of the Order because its NEPA claims lack

merit, procedural NEPA injuries do not show irreparable harm, the State presents no evidence of

actual harm, and the Court correctly concluded that the balance of equities favored the United

States.

1. Nevada has not shown that any additional NEPA work is needed.

In issuing the Order, the Court found it unnecessary to address the merits of Nevada’s

NEPA claims, finding that Nevada failed to show irreparable harm or that the equities were in

the State’s favor. See Order at 5. Nevada’s Motion makes no attempt to argue that it meets the

first prong of the preliminary injunction standard. And it does not. Nevada is unlikely to

succeed on its NEPA claims because DOE reasonably determined that the plutonium

transportation at issue did not constitute a substantial change from actions previously analyzed

under NEPA and that no new or supplemental EIS was required. See ECF No. 27 at 18-24.

2. The Court correctly rejected Nevada’s claim that procedural injuries constitute irreparable injury.

The United States explained in its response to Nevada’s initial motion that alleged

violations of NEPA, by themselves, cannot form the basis for irreparable harm. ECF No. 27 at



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25. And the Court agreed, stating that “such harm, standing alone, is not imminent threatened

harm to satisfy the likelihood of irreparable harm prong.” Order at 7 (discussing Amoco Prod.

Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987)).

The Ninth Circuit has made clear—that a bare procedural injury will not support

standing, much less the requirement of demonstrating an imminent and irreparable harm

sufficient to support emergency relief. Wilderness Soc’y v. Rey, 622 F.3d 1251, 1260 (9th Cir.

2010) (procedural injuries will not support standing); Ashley Creek Phosphate Co. v. Norton, 420

F.3d 934, 938 (9th Cir. 2005) (“NEPA is a procedural statute . . . But a plaintiff asserting a

procedural injury does not have standing absent a showing that the ‘procedures in question are

designed to protect some threatened concrete interest of his that his that is the ultimate basis of

his standing.’” (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 573 n.8 (1992))); Cantrell v.

City of Long Beach, 241 F.3d 674, 679 (9th Cir. 2001) (same).

Nevada fails to challenge this authority from the Ninth Circuit. The State’s cite to Save

Strawberry Canyon v. Dep’t of Energy “is not binding on this Court7 and [the opinion’s] quoted

conclusion was unsupported by cited authority.” Order at 9 (citing 613 F. Supp. 2d 1177, 1187

(N.D. Cal. 2009)). And in Hirt, the court stated that NEPA violations do not create a

presumption of irreparable injury and ultimately declined to enter a preliminary injunction due to

foreign policy concerns. 127 F. Supp. 2d at 845, 849. Here, Nevada’s claim that there will be

general harm to the NEPA decision-making process is undercut by the Supplement Analysis and

the many previous NEPA documents relied upon by DOE which show “this is not a case where

7 Nor are the other two cases cited by Nevada (California v. Health & Human Servs., 281 F. Supp. 3d 806, 829-30 (N.D. Cal. 2017); Hirt v. Richardson, 127 F. Supp. 2d 833, 845 (W.D. Mich. 1999)).



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there is little or no information about prospective environmental harms.” Order at 7. Thus, the

State is unlikely to prevail on its claim that a preliminary injunction is warranted due to

procedural injuries.

3. Nevada fails to show any likelihood of actual harm.

The Order recognized the extensive NEPA work DOE completed prior to the issuance of

the Supplement Analysis, see Order at 10, and noted that the United States “has safely shipped

larger quantities of plutonium throughout the country and that DOE and NNSA necessarily had

to have analyzed and did analyze in the relied upon prior EISs the safety of transporting and

staging—for relevant time durations, whatever type of plutonium is proposed to be transported to

and stored at NNSS.” Id. at 13-14. The Court concluded that Nevada’s claim of irreparable

harm was “merely a theoretical possibility at this juncture” and that it was not possible to “infer a

likelihood of any concrete or impending harm.” Id. at 14.

The Court should continue to reject Nevada’s claims. Relying primarily on testimony,

which the Court previously considered (see Order at 12-13), Nevada presents no actual evidence

that it will be harmed. Indeed, Nevada does not even assert that its interests will be harmed. It

speculates that Nevada residents may be harmed. But the Ninth Circuit has rejected Nevada’s

attempt to assert parens patriae harms in suits against the United States. See Nevada v. Burford,

918 F.2d 854, 858 (9th Cir. 1990). Nevada thus cannot rely on harms to Nevada residents in

asserting standing or in attempting to satisfy the higher burden necessary for an injunction.

In any event, each of the issues cited by Nevada, see Motion at 7-10, has been thoroughly

analyzed. And the Supplement Analysis, in conjunction with the prior NEPA studies,

demonstrates that no significant environmental effects are presented by the transportation or

storage at NNSS of this amount of plutonium.



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For example, Nevada contends that the proposed action will result in increased radiation

doses to Nevada citizens and site personnel, and in some circumstances, lead to contamination of

lands and groundwater. See Motion at 8. This is not correct. The potential of increased

radiation doses to contaminate groundwater was analyzed in the site-wide NEPA document for

NNSS, referred to as the 2013 NNSS EIS.8 Even under the expanded operation alternative

(which considered environmental effects when materials, such as 4 metric tons of special nuclear

material, were transported to and staged at NNSS), DOE concluded that such activities would not

present a risk to groundwater. US Exhibit 1 (NNSS EIS at 5-238). And, as the Court noted, the

Supplement Analysis considered radiological impacts to public and worker health and concluded

that they represented only a minimal increase from those considered in the NNSS EIS. Order at

12 (citing Supplement Analysis at 35).

The Lawrence Declaration also explains that plutonium at issue is currently staged at

NNSS “in a safe and secure manner within the Device Assembly Facility (DAF) at the NNSS.”

Lawrence Declaration, ¶ 4.9 “The facility includes robust safety systems and design features that

ensure adequate protection of workers, the public, and the environment.” Id. (discussing the

8 The 2013 NNSS EIS (or 2013 Final Site-wide Environmental Impact Statement for the Continued Operation of the Department of Energy/National Nuclear Security Administration Nevada National Security Site and the Off-Site Locations in the state of Nevada) and the expanded operation alternative are discussed in more detail in the United States’ initial response. See ECF No. 27 at 12-13. 9 Indeed, storing the plutonium at issue within the DAF does not create additional radiation risk because such materials are already stored and used there. And the NNSS EIS concludes that: there is little risk of the production or manifestation of cancer due to radionuclide and chemical releases during site operations; doses from site radionuclide releases tend to be far lower than those from natural background radiation; and chemical exposures are well within established guidelines. US Exhibit 2 (NNSS EIS at 4-175); See also id. (NNSS EIS at 4-179-80, Appx. G-47-48).



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building’s confinement capabilities). It further explains that all plutonium currently staged in the

DAF is within the authorized radioactive material inventory limits. Id.

Nevada also fails to make a convincing case that there is a likelihood of injury in the

staging or storage process. See Motion at 8-10. Nevada argues that the Department of

Transportation-certified, 3013 double-sealed shipping containers may experience corrosion and

will require surveillance. The packaging requirements for the transport of plutonium are

described in the United States’ previous response, see ECF No. 27 at 6-7, 15. And as the Court

noted, it is undisputed that “the customary container is a double sealed Type-B container that

complies with all relevant regulations.” Order at 10-11.

Nevada takes issue with the use of shipping containers for storage. Motion at 10. But the

Lawrence Declaration shows that these concerns are unfounded. It discusses in detail the

operating procedures that will be used to ensure safe confinement of the plutonium and the

surveillance that will be completed in Nevada at NNSS. Lawrence Declaration, ¶ 5 (discussing

canister inspections for “signs of corrosion, leakage, bulging, warping, damage, or discoloration”

and the “complex-wide surveillance and monitoring program” that NNSS participates in).10

The extensive environmental analysis completed by DOE, the agency’s conclusion that

there will be no significant environmental effects of storing this plutonium at NNSS, and its

commitment to safety and monitoring during the storage process show that Nevada’s claims of

10 Additional information on how DOE safely stores plutonium is included in DOE-STD-3013-2012, Section 6.4, Storage – Surveillance of Stored Containers for Safety (explaining that the surveillance program includes initial baseline inspections within 30 days of 3013 container closure and periodic surveillance examining internal pressure build-up in the inner container, container weight, and indications of leakage or degradation). See https://www.standards.doe.gov/standards-documents/3000/3013-astd-2012.



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actual harm remain speculative. Nothing Nevada offers shows that the Court’s previous

conclusion is incorrect or that the State is likely succeed on its appeal of the Order.

4. The Court correctly concluded that the balance of equities favored the United States.

The Court’s conclusion that the equities weighed against entering the preliminary

injunction was also well-founded. The Court considered the speculative nature of any harm

posed to Nevada and weighed that against DOE’s compliance with the order from the South

Carolina federal district court and Congress’s statutory requirement whereby the removal of

plutonium from the Savannah River Site is an extension of certain production objectives set forth

in 50 U.S.C. § 2566. See Order at 15-16. And on appeal, Nevada is unlikely to show that this

was in error. The State suggests that DOE could have complied with the South Carolina order by

shipping to other locations besides Nevada. Motion at 12-13. The Court, however, has already

rejected this argument, and noted the difficulties that such destinations would present. Order at

15.

In any event, Nevada’s motion primarily focuses on its present concerns that the

Supplement Analysis authorizes additional shipments of plutonium to Nevada unrelated to the

South Carolina litigation. See Motion at 11-12. This is incorrect, see ECF No. 56-1; ECF No.

58; Diamond Declaration, ¶¶ 1-2, and does not provide a basis for Nevada to challenge the

Order.

B. Nevada Will Not Be Irreparably Harmed in the Absence of an Injunction Pending Appeal.

Nevada now argues that an injunction pending appeal is necessary because DOE is likely

to continue to ship plutonium under the proposed action involved in the case. But there will be

no more plutonium shipments to Nevada under the Supplement Analysis. ECF No. 56-1; ECF



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No. 58; Diamond Declaration, ¶¶ 1-2. Thus, Nevada fails to show that irreparable harm is likely

if an injunction is not granted pending appeal.

To obtain the requested injunction, Nevada must demonstrate that irreparable harm is

likely, not just a “possibility.” Winter, 555 U.S. at 22. It must provide actual evidence, not

simply conclusory statements or unsupported allegations. Order at 5 (citing Caribbean Marine

Servs. Co. v. Baldrige, 844 F.2d 668, 674-75 (9th Cir. 1988)); see also Goldie’s Bookstore, Inc.

v. Superior Court of Cal., 739 F.2d 466, 472 (9th Cir. 1984) (purely speculative injury “does not

constitute irreparable injury”).

Nevada’s present irreparable harm argument is based on a flawed premise: it believes

that there is “a very real possibility under the [Supplement Analysis]” that “another one-half

metric ton” of plutonium could be shipped to Nevada. See Motion at 13; see also id. at 11 (the

Supplement Analysis “plainly proposes shipments other than those required by the South

Carolina Order” and it “contemplates that the DOE ship plutonium from Pantex to NNSS”); id.

at 12 (“the Declaration does NOT say that DOE will not make shipments between Pantex and

NNSS during the staging process”); id. at 14 (harm will occur if DOE is permitted to commence

additional shipments).

The United States has already informed the State that no more plutonium will be shipped

to NNSS as part of the Supplement Analysis’s proposed action and explained that all other

shipments of plutonium under the proposed action are going elsewhere. ECF No. 56-1; ECF

No. 58. The attached Diamond Declaration emphasizes that “[n]o plutonium will be shipped to

[NNSS], or elsewhere in Nevada, from the Pantex Plant, in Carson [County], Texas as part of the

activity analyzed in the [Supplement Analysis], the proposed action at issue in this case.”

Diamond Declaration, ¶ 2. And it reiterates that “NNSA has completed all [p]lutonium



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shipments to [NNSS] and the State of Nevada under the proposed action at issue in this case.”

Id. at ¶ 1. Nevada’s belief that the Supplement Analysis might allow more plutonium shipments

to NNSS or other parts of the State does not rise above speculation. Nevada can demonstrate no

immediate threatened injury that would warrant an injunction being issued, and its motion should

be denied. And as the Court previously explained, Nevada’s repeated claim that violations of

NEPA establish “irreparable procedural harm” is wrong. See Order at 7.

Because there will be no more plutonium shipments to Nevada under the Supplement

Analysis and procedural NEPA injuries do not establish irreparable harm, Nevada’s motion

should be denied.

C. The Balance of Harms and Public Interest Weigh Heavily Against an Injunction Pending Appeal.

Nevada’s request for an injunction pending appeal should also be denied because the

equities and the public interest favor DOE. The State has presented no evidence of actual harm

and its allegations regarding procedural harm are not sufficient to show that an injunction is

warranted. Like the Order concluded, any harm posed to Nevada is speculative and this “tips the

balance firmly in the Government’s favor.” Order at 15. And if DOE is enjoined from shipping

any plutonium to Nevada while Nevada’s appeal is pending, the harm would be immense.

The third and fourth prongs of the preliminary injunction standard—the balance of

equities and the public interest—“merge when the Government is the opposing party.” Nken v.

Holder, 556 U.S. 418, 435 (2009). The “balance of equities” refers to the relative burdens or

hardships to parties, see Winter, 555 U.S. at 26, while the public interest inquiry primarily

addresses “impact on non-parties rather than parties.” Bernhardt v. L.A. Cnty., 339 F.3d 920,

931 (9th Cir. 2003) (internal quotation marks and citation omitted). And there is no presumption

that harms from violations of federal environmental statutes should outweigh other harms to the



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public interest. Amoco, 480 U.S. at 545; Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127,

1138 (9th Cir. 2011) (“We will not grant a preliminary injunction, however, unless those public

interests [in consideration of environmental impacts] outweigh other public interests that cut in

favor of not issuing the injunction.”).

While Nevada’s allegations of harm are speculative, enjoining DOE from shipping any

plutonium to Nevada while the State’s preliminary injunction appeal is pending, see Motion at 3,

would cause great harm and “numerous mission critical and broad national security activities

would cease or be severely impacted.” Lawrence Declaration, ¶ 8. As explained in the

Lawrence Declaration, an injunction of this nature would require DOE to cease subcritical

experiments performed by the Stockpile Stewardship Program (which helps to ensure the

Nation’s nuclear weapons stockpile remains safe), eliminate experiments aimed at simulating the

extreme material states in nuclear weapons, idle the majority of NNSS facilities and associated

workforce, and cancel procurements and planned capital investments. Id. at ¶¶ 9-13. And the

effects would be experienced beyond NNSS. “[LANL], Lawrence Livermore National Lab, and

Sandia National Lab, all of which conduct critical national security work at the NNSS, would be

required to cease current work and eliminate future work at the NNSS vital to the nation’s

security.” Id. at ¶ 14. And if NNSS’s work is disrupted, it would “result in an increased risk to

national security” because it would make it difficult to recruit and retain the technically advanced

workforce needed at NNSS. Id. at ¶ 15.

Keeping DOE/NNSA from performing critical national security work is contrary to the

public interest. The public has a strong interest in DOE managing the country’s nuclear weapon

stockpile in a safe and responsible manner. Given the harm that would ensue if an injunction of



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this nature was granted, see Lawrence Declaration ¶¶ 8-15, and the speculative nature of the

harm alleged by Nevada, the equities and the public interest favor denial of Nevada’s motion.

VI. CONCLUSION

As the Court noted in the Order, many of Nevada’s arguments are “circular in various

ways.” Order at 6. And they have been thoroughly addressed by the parties and analyzed by the

Court. Nevada does not address how it could succeed on the merits of its NEPA claims, because

the agency complied fully with NEPA. Nevada also does not show that it is likely to succeed in

its appeal of the Order because procedural injuries alone do not show irreparable harm and the

State cannot show a likelihood of actual harm to its own interests (or even to the residents of

Nevada whose interests it lacks standing to assert). The United States has also made clear—no

more plutonium will be shipped to Nevada as part of the Supplement Analysis’s proposed action.

See ECF No. 56-1; ECF No. 58; Diamond Declaration, ¶¶ 1-2. In light of this, Nevada cannot

show that it will be irreparably harmed absent an injunction pending appeal. Finally, the balance

of harms and public interest are in the United States’ favor. If a broad injunction enjoins DOE

from shipping any plutonium to Nevada while its appeal is pending, critical national security

work will be harmed. Hence, Nevada’s motion should be denied.

Respectfully submitted on this 14th day of February, 2019.

JEAN E. WILLIAMS U.S. Department of Justice Deputy Assistant Attorney General

/s/ Sara E. Costello SARA E. COSTELLO Trial Attorney Environment & Natural Resources Div. Email: [email protected] Attorneys for the United States of America


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CERTIFICATE OF SERVICE

I hereby certify that on February 14, 2019, a copy of the foregoing was filed through the

Court’s CM/ECF management system and electronically served on counsel of record.

/s/ Sara E. Costello Sara E. Costello Trial Attorney


attorneys for the united states of america - 2019... · 2019. 3. 20. · united states’ response...

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