9th Circuit denies Nevada appeal in plutonium lawsuit

Nevada News

In a short order Tuesday, three federal appellate judges sided with the Department of Energy by denying Nevada’s appeal in ongoing litigation over the agency’s shipment of plutonium last fall. 

After information came to light last fall that the federal government could ship a half-metric ton of plutonium from South Carolina to the Nevada National Security Site, the state filed a lawsuit in November. The complaint sought a preliminary injunction — a halt on the massive shipment.

What state officials did not know is that the National Nuclear Security Administration had already shipped the plutonium sometime before November, a surprising disclosure that was revealed as the case made its way through federal District Court. On the same day as that disclosure, the District Court denied the state’s injunction, a decision that Nevada appealed to the 9th Circuit. 

On Tuesday, the appellate court said the matter was moot. Because the shipment had already been made, the court said an injunction was no longer available as a legal remedy.

Even though the shipment had been made, Nevada argued the appeal — and injunction — was not moot because a judge could require the federal government to remove the plutonium. The appellate court disagreed with that argument, saying such action was not on the table because Nevada had not originally asked for plutonium removal in its preliminary injunction request.

“Here, the shipment of plutonium from South Carolina to Nevada was the ‘target’ of the preliminary injunction, and that shipment took place before this lawsuit was even filed,” according to the order. “The remedy Nevada sought—stopping the government from shipping plutonium from South Carolina to Nevada under the proposed action—is no longer available.”

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