NNSA Loses Environmental Regulation Lawsuit

November 2024
By Xiaodon Liang

A U.S. District Court judge ruled on Sept. 30 that the National Nuclear Security Administration (NNSA) violated the National Environmental Policy Act by failing to conduct a proper analysis of alternatives that takes into consideration environmental impacts after significantly modifying plans for plutonium pit production in 2018.

The civil suit against the NNSA was brought in South Carolina by nuclear safety advocates in cooperation with a group representing the Gullah-Geechee slave-descendant community of the coasts of the Carolinas, Georgia, and Florida. Following the decision, the court has instructed the two sides to consult and jointly recommend an appropriate remedy.

U.S. District Judge Mary Geiger Lewis dismissed four of the plaintiffs’ claims for lack of standing. But, in assessing the remaining claim, Lewis agreed with the plaintiffs that the NNSA “failed to conduct a proper study on the combined effects of their two-site strategy,” according to her written opinion.

In May 2018, the NNSA announced that it would adopt a plan to produce 30 plutonium pits per year at Los Alamos National Laboratory and 50 pits per year at a new facility at Savannah River, South Carolina, now known as the Savannah River Plutonium Processing Facility.

The plaintiffs criticized the NNSA’s decision to continue relying on a 2008 comprehensive study of environmental impacts at the Los Alamos site, prepared at a time when the NNSA was considering alternatives for consolidating pit production at one location.

The defendants, named in the suit as the NNSA, Administrator Jill Hruby, and Energy Secretary Jennifer Granholm, argued that two separate supplemental environmental impact studies for pit production at Savannah River and Los Alamos finalized in 2020 brought the agency in compliance with the environmental act.

But Lewis found this approach insufficient for studying combined environmental effects. As the plaintiffs pointed out in their initial claim, the 2020 studies only examined alternative production options at each site without comparing siting alternatives.

In a statement to Arms Control Today, an NNSA spokesperson said that the agency has “reviewed the Court’s ruling and [is] supporting the Department of Justice as it prepares to meet and confer with the plaintiffs, as ordered. At this point in the judicial process, work on the program continues.”

Jay Coghlan, the executive director of Nuclear Watch New Mexico, a plaintiff in the suit, said in an email to Arms Control Today that nuclear safety organizations first wrote to the NNSA expressing concerns about compliance with the environmental act in October 2018.

The NNSA “never deigned to respond to us. They have had more than ample time since then to comply with the law,” Coghlan added.

The other plaintiffs in the suit are Savannah River Site Watch, Tri-Valley Communities Against a Radioactive Environment, the Gullah/Geechee Sea Island Coalition, and Tom Clements.

The four claims dismissed for lack of standing noted some of the particular environmental concerns that the plaintiffs believe remain unaddressed in the absence of a comprehensive environmental study of the two-site plan. These concerns are the ability of the Waste Isolation Pilot Plant in New Mexico to accommodate radioactive pit-production by-products and the health risks posed by storage of radioactive waste at pit production sites raised in a 2020 Defense Nuclear Facilities Safety Board report.

According to the NNSA fiscal 2025 budget request, the total cost of construction at the Savannah River facility may now be $18-25 billion. In the September 2024 edition of the NNSA Stockpile Stewardship and Management Plan, the agency said the facility is likely to begin operations at some point between fiscal years 2033 and 2035.

The September report also indicated that the NNSA foresees spending around $735 billion on nuclear weapons activities over the next 25 years, counted in future-year dollars. This is an increase from a projection of roughly $655 billion last year.

Some of the increase is attributable to the inclusion in the 25-year projection of a notional future weapons program, the Submarine Launched Warhead, which the agency believes will cost between $52.4 billion and $65 billion and enter production in the 2040s. This warhead would succeed the W76-1 and W76-2 warheads, which currently are deployed on U.S. submarine-launched ballistic missiles (SLBMs).

The other deployed SLBM warhead, the W88, already has a successor, known as the Future Strategic Sea-Based Warhead, which is projected for entry into service in the 2040s. These two notional warheads would supplement the W93 warhead, which is now in the requirements-setting and design phase, for deployment on ballistic missile submarines.

In an Oct. 1 statement, the NNSA announced that Los Alamos has produced the first plutonium pit for the W87-1 intercontinental ballistic missile (ICBM) warhead program. It will replace the W78 ICBM warhead and be deployed on the Air Force’s costly new Sentinel ICBM, initially alongside the older W87-0. (See ACT, September 2024.)

The statement said that the pit was the first to be “diamond-stamped,” indicating compliance with production standards, but the laboratory also produced nine “developmental” pits in fiscal 2023, according to the September stewardship report, and six the year prior.

The W87-1 warhead modification program is expected to cost $15.9 billion