Nevada v. United States, 364 F. Supp. 3d 1146

Background

Nevada sued DOE/NNSA seeking a preliminary injunction to stop shipment of one metric ton of defense plutonium from Savannah River Site (SRS) to the Nevada National Security Site (NNSS), arguing DOE violated NEPA by not preparing a supplemental EIS and thereby denying Nevada an opportunity to comment.
The shipments form part of a DOE Supplemental Analysis (SA) implementing a prior South Carolina court Order requiring removal of at least one metric ton of defense plutonium from SRS by Jan 1, 2020. NNSS (Device Assembly Facility) was the Government’s chosen interim recipient; final destination is Los Alamos National Laboratory (LANL).
DOE’s SA relied on several prior EISs and concluded transport would use certified Type-B (double-sealed) containers and DOE’s Office of Secure Transportation; activities involve no new ground disturbance and would occur in existing facilities analyzed in prior NEPA documents.
Nevada asserted procedural and substantive NEPA injury: loss of opportunity to comment, risk of environmental contamination to Nevada land/groundwater/citizens, and potential evasion of NEPA if shipments occur before litigation resolves. Nevada presented expert testimony claiming the plutonium form, shipment quantity/timing, route population growth, and container lifespan raise new risks.
The Government emphasized: (1) long history of transporting/staging plutonium, (2) SA relied on prior EIS analyses bounding impacts, (3) many details (form, route) are classified, and (4) noncompliance with the South Carolina Order and statutory removal obligations would harm the Government.
The district court held an evidentiary hearing and denied Nevada’s preliminary injunction motion, finding Nevada failed to show a likelihood of irreparable harm and that the balance of equities favored the Government.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether preliminary injunction should issue to preserve Nevada's right to participate in NEPA process	Nevada: shipments to NNSS would deprive Nevada of required opportunity to comment and irreparably harm NEPA decision-making	Gov: lost comment opportunity is procedural and, without likely environmental harm, does not justify injunction; prior EISs and SA provide sufficient analysis	Denied — procedural injury alone insufficient; no showing of likely irreparable harm
Whether DOE's decision not to prepare a supplemental EIS is arbitrary and capricious for PI purposes	Nevada: form/quantity/timing of plutonium and changed circumstances (population, construction) create new, material environmental risks requiring a supplemental EIS	Gov: SA relies on prior EISs that bound impacts; transport/staging are routine, containers and OST provide safety; claimed harms are speculative	Denied — Plaintiff failed to show environmental harms were probable or imminent to merit injunction
Whether shipments would moot Nevada's claims or allow NEPA evasion absent injunction	Nevada: shipments could be completed before merits decision, mooting review and enabling evasion of NEPA	Gov: compliance with South Carolina Order and statutory obligations requires removal; prior environmental analyses covered transport/staging risks	Court proceeded to decide PI motion on merits; denied injunction because no irreparable harm shown
Balance of equities and public interest for injunction	Nevada: protecting public/environment and NEPA process favors injunction	Gov: delay would violate court Order and statutory objectives; speculative harm to Nevada does not outweigh Government's obligation to comply with removal deadline	Held for Government — equities favor allowing shipments to proceed

Key Cases Cited

Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (sets four-factor preliminary injunction standard and requires plaintiffs show likelihood of irreparable harm)
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) (NEPA injunctions still require traditional four-factor test; no presumption of injunction for NEPA violations)
Amoco Production Co. v. Village of Gambell, 480 U.S. 531 (1987) (rejected presumption of irreparable harm; environmental injury must be likely to favor injunction)
Department of Transportation v. Public Citizen, 541 U.S. 752 (2004) (agency decision not to prepare EIS is subject to arbitrary and capricious review under APA)
Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) (NEPA imposes procedural requirements to ensure informed agency decisionmaking)
Sierra Club v. Marsh, 872 F.2d 497 (1st Cir. 1989) (discussed weight of procedural harms and remanded for evaluation of irreparable environmental harm)