MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
Plaintiff the State of Nevada ("Nevada") challenges the federal government's
This case stems from an injunction order the United States District Court for the District of South Carolina issued in December 2017 ("Order"). South Carolina v. United States, No.: 1:16-cv-00391-JMC, 2017 WL 7691885 (D. S.C. Dec. 20, 2017); see also South Carolina v. United States, 907 F.3d 742, 766 (4th Cir. 2018) (upholding the Order). The Order required the Government to remove "not less than one metric ton" of weapons-grade defense plutonium or defense plutonium materials from South Carolina "for storage or disposal elsewhere" by January 1, 2020. United States, 2017 WL 7691885, at *5.
The Device Assembly Facility ("DAF") at NNSS, located approximately 65-90 miles northwest of Las Vegas, is the only direct location that, at present, the Government has proposed to receive the plutonium directly from SRS. (ECF No. 1 at 2; ECF No. 27-3 at 12, 16, 21-22; ECF No. 32 at 3.) After the plutonium is transferred to NNSS, it will ultimately be removed and relocated to its final destination at Los Alamos National Laboratory ("LANL") in Los Alamos, New Mexico. (ECF No. 27-3 (DOE/NNSA's Supplement Analysis) at 9, 23.) The shipments of plutonium from SRS to NNSS for staging (or storage) and thereafter to be received at LANL constitutes the Government's proposed action ("Proposed Action") as presented in the DOE's Supplemental Analysis ("SA").
Nevada filed suit against the Government contending that the Government's plan to transport and stage the defense plutonium at NNSS will result in increased radiation doses to Nevada citizens and would, in some circumstances, lead to contamination of the lands and the groundwater of the state with radioactive materials. (ECF No. 1 at 6.) Nevada asserts that in choosing to relocate the plutonium to NNSS the Government has failed to adequately comply with the National Environmental Protection Act of 1969 ("NEPA"), 42 U.S.C. 432 et seq., and persists in violation of implementing regulations of the Council of Environmental Quality, 40 CFR § 1502.9(c)(1), and DOE's own NEPA regulations, 10 CFR § 1021.314(a), by failing to prepare a draft and final supplemental environmental impact statement ("EIS") for the Proposed Action. (Id. at 4.) Nevada contends that with this failure the Government deprived it of the opportunity to formally comment upon safety and environment
Nevada's PI Motion asks this Court to enjoin the plan to ship the plutonium to NNSS—i.e., preserve the status quo—until this action reaches a final disposition. (ECF No. 2; ECF No. 34 at 5; ECF No. 27-3 at 18 (Proposed Action).) Nevada specifically seeks to enjoin the shipment of the plutonium to NNSS until the Government satisfies the alleged NEPA violations, among other remedies. (ECF No. 1 at 19.)
"`An injunction is a matter of equitable discretion' and is `an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.'" Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010) (quoting Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22, 32, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). To qualify for a preliminary injunction, a plaintiff must satisfy four requirements: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm; (3) that the balance of equities favors the plaintiff; and (4) that the injunction is in the public interest. Winter, 555 U.S. at 20, 129 S.Ct. 365.
NEPA does not provide a private right of action. Gros Ventre Tribe v. United States, 469 F.3d 801, 814 (9th Cir. 2006). Thus, "[t]he judicial review provision of the [Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et. seq.] is the vehicle" for challenging an agency's decision under NEPA. Turtle Island Restoration Network v. U.S. Dep't of Commerce, 438 F.3d 937, 942 (9th Cir. 2006); Gros Ventre Tribe, 469 F.3d at 814; see Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882-83, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) Uudicial review of agency action proceeds under the APA where the statute at issue, NEPA, does not provide cause of action).
Under the APA's standard of review, deference is due to the Government's challenged action, unless Nevada shows that DOE's decision not to prepare a supplemental EIS is "arbitrary and capricious." See, e.g., DOT v. Pub. Citizen, 541 U.S. 752, 763, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (quoting 5 U.S.C. § 706(2)(A)) (agency's decision not to prepare EIS can
The Court finds, as the Government argues, that Nevada fails to establish the second and third Winter factors—a likelihood of irreparable harm in the absence of preliminary relief (see ECF No. 27 at 32-35) and the balance of equities favors the Government (id. at 35-37). The Court thus declines to address Nevada's arguments as to the other Winter factors.
As a matter of course, the Court cannot presume irreparable harm; there must be a satisfactory showing. Monsanto Co., 561 U.S. at 156-58, 130 S.Ct. 2743 (concluding that a presumption that an injunction is the proper remedy for a NEPA violation except in unusual circumstances is unwarranted—"No such thumb on the scales is warranted"); Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531, 545, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) (overruling the Ninth Circuit's presumption of irreparable harm and concluding that the Ninth Circuit erred "in directing the issuance of a preliminary injunction"). Allegations of irreparable harm must be supported with actual evidence, and not merely conclusory statements or unsupported allegations. See, e.g., Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674-75 (9th Cir. 1988) (noting the lack of such evidence and therefore concluding that "liability is too remote and speculative to constitute an irreparable harm meriting preliminary injunctive relief"). Moreover, a plaintiff seeking preliminary injunctive relief must "do more than merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened injury." Id. at 674.
Here, Nevada argues that it would be irreparably harmed without a preliminary injunction to preserve the status quo for the following reasons: (1) absent a preliminary injunction, the NEPA decision-making process would be irreparably harmed because once the plutonium is transported out of South Carolina to NNSS, Nevada will forever lose the ability to formally comment upon the safety and environment concerns as required under NEPA; (2) the shipments of plutonium could be completed before a decision is reached in this matter, mooting the issues Nevada raises, and allowing the Government, via DOE, to evade compliance with NEPA; and (3) the shipments
The Court is unpersuaded by Nevada's contention that the Government will likely cause irreparable harm to the general NEPA decision-making process by evading NEPA compliance as relating to NNSS.
"NEPA itself does not mandate particular results." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109, S.Ct. 1835, 104 L.Ed.2d 351 (1989). As to compliance, "NEPA imposes only procedural requirements to `ensur[e] that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.'" Winter, 555 U.S. at 23, 129 S.Ct. 365. In Winter, the Supreme Court recognized that "[p]art of the harm NEPA attempts to prevent in requiring an EIS is that without one, there may be little if any information about prospective environmental harms and potential mitigating measures." Id.
However, the SA evidences that this is not a case where there is little or no information about prospective environmental harms. Here as in Winter, the Government "is not conducting a new type of activity with completely unknown effects on the environment." Id. The government is seeking to transport and stage plutonium as it has done for decades. Given these considerations, it is unlikely that a failure to conduct a supplemental EIS as to the shipment to and staging at NNSS will cause irreparable harm to the general NEPA decision-making process absent this Court issuing an injunction here.
Nevada insists that losing the opportunity to comment due to the Government's alleged circumvention of the NEPA decision-making process constitutes irreparable harm, (ECF No. 2 at 9-10; ECF No. 34 at 17.) The Government counters that opportunity to comment is merely procedural harm and therefore cannot support a finding of irreparable harm. (ECF No. 27 at 33.) The Court agrees with the Government.
Even accepting Nevada's claim of "procedural harm" to Nevada,
The decisions Nevada cites to support its contention that procedural harm is sufficient to demonstrate irreparable harm are either unpersuasive or not directly on point. Nevada relies on Sierra Club v. Marsh, 872 F.2d 497, 500-01 (1st Cir. 1989); Ctr. For Food Safety v. Vilsack, 753 F.Supp.2d 1051, 1056-57 (N.D. cal. 2010) (applying Marsh), and Strawberry Canyon v. Dep't of Energy, 613 F.Supp.2d 1177, 1189-90 (N.D. Cal. 2009). (ECF No. 2 at 9-10; ECF No. 34 at 17.) The Court discusses Marsh and Strawberry Canyon in turn.
Nevada's reliance on Marsh, a case from the First Circuit, for the direct conclusion that the procedural harm in not being afforded the opportunity to comment amounts to irreparable harm is misguided. In Marsh, the First Circuit concluded that the harm posed was more than merely procedural, but rather is "the added risk to the environment that takes place when the governmental decision makers make up their minds having before them an analysis (with prior public comment) of the likely effects of their decision upon the environment." Marsh, 872 F.2d at 500. The Marsh court, however, did not find irreparable harm. The court simply remanded to the district court to decide on the potential irreparable nature of the harm to the environment, including the harm from the NEPA decision making process violation. Id. at 504-506.
Even Marsh's conclusion of procedural harm may not extend to this matter, as Marsh is factually distinguishable. The First Circuit has particularly noted that in Marsh the plaintiffs moved for injunction in the earliest stages of the development of the project at issue, "when NEPA injunctions could implement the statutory purpose in the sense that `bureaucratic decision makers ... are less likely to tear down a nearly completed project than a barely started project.'" Conservation Law Found., Inc. v. Busey, 79 F.3d 1250, 1272 (1st Cir. 1996) (explaining and distinguishing Marsh). In contrast here, it is undisputed that the Government has been transporting and staging plutonium for decades across the country and Nevada, with prior EISs addressing the matter. Notably, Nevada provides no authority that would support a conclusion that it must be provided an opportunity to comment absent the Government drafting a supplemental EIS. But, even if this Court was to find procedural harm based on Marsh, it is clear that Nevada must nonetheless establish a real threat of environmental harm—that is material harm to the environment that is likely to result from not having the opportunity to comment.
Nevada's reliance on Strawberry Canyon begets no different conclusion. While the Strawberry Canyon court concluded that "procedural injury is ... irreparable"
Accordingly, the Court concludes procedural harm, standing alone, cannot support the necessary finding of a likelihood of irreparable harm. The Court will next examine whether other alleged harms to Nevada are more than speculative, i.e., are probable, material, real threats of harm, to satisfy the likelihood of irreparable harm factor.
Nevada appears to argue that the harm of not being afforded an opportunity to comment is likely to lead to probable irreparable injury to Nevada's environment, among other harms. But this claim of other harms must be examined in the context of the Proposed Action and the status quo.
The SA relied on numerous prior EISs,
The SA provides that the plutonium would be "transported from SRS to the [DAF] in DOT-certified shipping containers, or equivalent[,]"
Furthermore, the SA notes that the "proposed action does not involve new construction or ground disturbing activities" and the proposed activities "would occur in existing facilities where the potential impacts have been analyzed and bounded in various NEPA documents." (ECF No. 27-3 at 19 (referencing the various EISs which are available at pages 14 through 15)); see also id. at 28 ("[I]mpacts from transportation on all resource areas are also evaluated. Intentionally destructive acts were analyzed in the following NEPA documents: Final Environmental Statement on the Transportation of Radioactive Material by Air and Other Modes
Nevada nonetheless argues the prior EISs are inadequate for evaluating the risks to Nevada. (ECF No. 34 at 12-13.) At the Hearing it became apparent that this argument largely rests on Nevada's contention that the prior EISs do not take certain factors into account—particularly the form of plutonium to be shipped to NNSS, the quantity to be shipped in the proposed timeframe—by January 1, 2020, increased population density, construction irregularities, and the duration of storage at NNSS. (See, e.g., TR at 16-17, 66-67, 84, 119-21, 166-67.)
Through expert testimony presented at the Hearing Nevada attempted to bolster its claim that the Government needed to perform a supplemental EIS to better assess the current risks to Nevada based on arguments going to these factors. Nevada's experts testified that the plutonium proposed to be transported to NNSS appears to be of an atypical form
Nevada's claims of other harms, including environmental injury, are too speculative to rise to the level of the required likelihood of irreparable harm. Nevada seeks to maintain the status quo—meaning keep things as they are in relation to NNSS. However, in general the status quo at NNSS, as elucidated by testimony at the Hearing, historically includes the use of plutonium in testing operations and nuclear materials transferred to NNSS.
Further, the Government repeatedly noted at the Hearing that the form of plutonium and the route of shipment are classified information.
Nevada's claim of irreparable harm to Nevada's lands, environment, and by extension Nevada's citizens, is merely a theoretical possibility at this juncture as Nevada provides no evidence from which this Court may infer a likelihood of any concrete or impending harm. Accordingly, the Court finds that Nevada has failed to establish the requisite likelihood of irreparable harm to merit the exceptional relief of a preliminary injunction to enjoin the shipment of plutonium to NNSS.
While the Court need not consider the additional Winter factors having found that Nevada fails to establish the necessary requirement of likely irreparable harm, the Court notes that the balancing of the equities favors the Government.
"To determine which way the balance of the hardships tips, a court must identify the possible harm caused by the preliminary injunction against the possibility of the harm caused by not issuing it." Univ. of Haw. Prof'l Assembly v. Cayetano, 183 F.3d 1096, 1108 (9th Cir. 1999). The Court must then weigh "the hardships of each party against one another." Id.
Nevada argues that the balance of equities favor granting an injunction for multiple reasons: (1) the Order specified no particular location, (2) DOE has sufficient time to consider intermediate destinations and comply with the January 1, 2020 removal deadline, and (3) the Order is also conditioned on DOE complying with NEPA. (ECF No. 2 at 10-11.) These reasons do not tip the equities regarding injunction in Nevada's favor however.
While the Order specified no particular location, the Government has chosen to remove the plutonium to NNSS for an interim period and many of the arguments Nevada raises—e.g., related to population density, form of plutonium, the quantity of plutonium in the limited time-period— could conceivably be raised by intermediate destinations. Further, it is debatable that DOE has sufficient time to consider intermediate locations, without protestation from representatives from those locations, and still comply with the January 1, 2020 removal deadline. Moreover, the balance of equities analysis specifically focuses on the possible harm that would result from not issuing an injunction, thus the Court's finding that any harm posed to Nevada is speculative tips the balance firmly in the Government's favor.
The Government would be harmed by further delay in complying with the Order as is. Any failure to comply with the Order would result in the Government violating both the Order and Congress's statutory
The Court therefore concludes that the hardships posed to the Government in not complying with the Order outweighs the hardships to Nevada based on likely speculative harms. The Court therefore denies Nevada's request for injunction.
The Court notes that the parties made several arguments and cited to several cases not discussed above. The Court has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the motion before the Court.
Nevada cannot demonstrate the likelihood of irreparable harm in the absence of preliminary injunctive relief or that the balance of hardships tips in its favor. It is therefore ordered that Nevada's motion for preliminary injunction (ECF No. 2) is denied.