A federal appeals court on Tuesday ruled against Nevada in a battle with the U.S. government over its secret shipment of weapons-grade plutonium to a site near Las Vegas but the state’s attorney general says the fight isn’t over yet.
A three-judge panel of the 9th U.S. Circuit Court of Appeals denied the state’s appeal after a judge refused to block any future shipments to Nevada. The court in San Francisco said the matter is moot because the Energy Department already sent the radioactive material and has promised that no more will be hauled there.
“The remedy Nevada sought — stopping the government from shipping plutonium from South Carolina to Nevada under the proposed action — is no longer available,” the court wrote.
Nevada also wanted the court to order the government to remove the plutonium it shipped last year but didn’t reveal had arrived there until January.
The 9th Circuit said that issue also is moot because the state failed to include that request in its original motion seeking to block future shipments.
“Because the government completed the shipment, any harm caused by the shipment cannot be ‘undone’ by granting the motion Nevada actually filed,” the ruling said.
Nevada Attorney General Aaron Ford said late Tuesday he’ll continue to press the state’s case in court but didn’t provide any immediate details of its next legal move.
“The Department of Energy’s deceitful behavior in handling these shipments demonstrates my office’s need to continue aggressively litigating to hold the Department of Energy to its promises,” Ford said in a statement.
“The health and safety of all Nevadans is of paramount importance to my office, and our dedicated team will continue to pursue all options for ensuring that no further unlawful plutonium shipments reach this state,” he said.
Among other options, Nevada could now request a hearing before the full 9th Circuit or seek a new court order to remove the plutonium that’s already been shipped.
The Energy Department didn’t respond to repeated requests for comment on Tuesday.
Nevada sued in federal court in Reno last November, accusing the agency of illegally deciding it could transport the material without completing a full environmental review of potential health and safety dangers.
Although Nevada wasn’t aware at the time, the government had already shipped a half metric ton of plutonium from South Carolina to the Nevada National Security Site, about 90 miles (145 kilometers) northwest of Las Vegas. That site is separate from but close to the Yucca Mountain site in the Mojave Desert where the Trump administration wants to build a high-level radioactive waste repository.
Nevada says the Trump administration abused “top secret” classifications to meet a court order to remove a ton of weapons-grade plutonium from the Savannah River site in South Carolina by Jan. 1, 2020.
While Nevada’s appeal was pending, Energy Secretary Rick Perry sent a letter to Sen. Catherine Cortez Masto, a Nevada Democrat, pledging to expedite removal of the plutonium already sent to Nevada — beginning in 2021 — and promising no more will be sent there.
He’s visited the site twice in recent months and provided a classified briefing to Gov. Steve Sisolak to try to allay the state’s concerns.
The radioactive material isn’t intended to be unpacked in Nevada, only temporarily stored before it is moved again, most likely to New Mexico or Texas for reprocessing for use in building nuclear weapons.
The Energy Department has said it expects to move the plutonium from Nevada to the Waste Isolation Pilot Plant in New Mexico “or another facility” by the “2026-2027 timeframe.”
Nevada’s lawyers argued that Energy Department couldn’t be trusted because of past misrepresentations about the covert shipment. The state said U.S. officials selectively declassified information as it suited their needs.
The Energy Department insists the plutonium was properly classified for security.
It disclosed the material was in Nevada on Jan. 30, the same day Judge Miranda Du in Reno denied a state request to temporarily halt all shipments. She also ruled that the matter was moot.
Nevada argued in its appeal to the 9th Circuit that the case wasn’t moot partly because the government had “voluntarily” ceased the shipments and could resume them at any time.
But the court ruled that “the alleged injury was no longer redressable.”