RICHMOND, Va. (CN) – A multibillion-dollar energy project in South Carolina is now all but dead thanks to a ruling by the Fourth Circuit, which found that the state does not have standing to fight the plant's closure by the Energy Department.
The mixed-oxide, or MOX, fuel plant has already cost the federal government billions and was years behind schedule, according to Tuesday’s ruling.
The proposed facility, located along the South Carolina border with Georgia, known as the Savannah River site, was first conceived in 1997, but construction has dragged on ever since. It was designed to convert weapons-grade plutonium into nuclear fuel for U.S. power plants, but the process, once hailed as a solution to addressing excess weapons and the growing demand for nuclear power, is also considered dirty, dangerous and expensive by critics.
Billions in federal funds were spent and thousands of jobs were created in the process. So when Rick Perry’s Department of Energy found a way to end the project in May of last year, South Carolina officials pushed back.
The state argued ending the project would leave the roughly 10 tons of plutonium currently stored at the facility indefinitely, leaving the local population open to terrorist or environmental disaster.
But a three-judge panel of the Fourth Circuit rejected the state’s argument.
“The only theory of injury advanced by South Carolina... rests upon a ‘highly attenuated chain of possibilities,’ and ‘contingent future events that may not occur as anticipated, or indeed may not occur at all,’” wrote U.S. Circuit Judge James Wynn Jr., appointed by President Barack Obama.
Wynn said the state’s doomsday scenario relied too heavily on the premise that the DOE’s alternative plan for disposing of the nuclear material, known as dilute and dispose, would have to fail entirely - an unlikely series of events considering the scientific evidence backing up the dispose and dilute method.
South Carolina had also argued the indefinite storage of the material, without being processed through the proposed MOX facility, violated the National Environmental Protection Act as the government failed to develop an environmental certification for such long-term storage.
While this argument helped sway a federal judge into staying the DOE’s cancellation of the project, the Fourth Circuit didn’t even address the argument after finding the state lacked standing.
Among those who hailed Tuesday’s decision was Edwin Lyman, senior scientist and acting director of the Nuclear Safety Project at the Union of Concerned Scientists.
Lyman said the MOX plant, conceived at a time when bias existed against the idea of simply disposing of plutonium, was always the lesser of two options and that institutional bias helped create the plagued Savannah River site.
Now, after spending billions and anticipating many billions more, Congress made caveats in the early 2018 budget for the DOE to back out of the project in favor of the much cheaper and safer dilute and dispose methods.
Lyman said that while the South Carolina argued about the dangers of keeping plutonium on-site indefinitely, the MOX process was equally dangerous, with many steps in the conversion process leaving room for dangerous material to be stolen or lost and possibly ending up in the wrong hands.
The MOX plant “would have maximized the potential for harm to the public,” he said in a phone interview. “There are safer, more secure options that are also much cheaper.”
Still, there were supporters of the project even after Congress gave the DOE an out.
Among them was U.S. Senator Lindsey Graham of South Carolina, who long advocated for the project. When the DOE moved last year to end the project, he told the Aiken Standard the agency was making a “colossal mistake.”
"Stopping a program that is 70 percent complete and replacing it with a new half-baked program that won’t work is yet another example of what is wrong with Washington,” Graham said. He also pointed to massive layoffs that came with the closure.
Graham also showered praise on the federal judge that had stayed the DOE’s attempts to shutter the project last summer.
The Republican senator said at the time that the “decision will allow the congressional delegation, working with President Trump, to stop this madness and ensure South Carolina is not left holding the bag.”
Graham’s office referred questions on the Fourth Circuit ruling to the South Carolina attorney general’s office, which did return a request for comment.
Lyman, the scientist who has advocated against the MOX plant since the late '90s when it was first approved, said there was no good reason to keep the expensive and dangerous operation running. If South Carolina had prevailed, he said, it would have caused headaches for other federal agencies as well.
“For them to have accepted South Carolina’s novel legal theory would have caused a lot of problems with how the National Environmental Protection Act is implemented and would have set a precedent that many federal agencies wouldn’t have been happy with,” he said, adding that Tuesday’s ruling “was expected and makes a lot of sense.”
The Department of Energy did not return requests for comment Wednesday.
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