For Immediate Release November 29, 2011

Tenth Circuit Allows Appeal of New Mexico Decision
That Allowed Los Alamos Plutonium Facility to Proceed

Contact: Thomas Hnasko, of Hinkle, Hensley, Shanor & Martin, L.L.P.,
(505) 660-3397 mobile (best this afternoon), (505) 982-4554 office;
Lindsay Lovejoy, (505) 983-1800; Greg Mello (505) 265-1200

Today the U.S. Court of Appeals for the Tenth Judicial District ruled (pdf) in favor of the Los Alamos Study Group on a motion by the Department of Justice (DOJ) requesting dismissal of the Study Group's appeal of a May 2011 decision by a New Mexico federal district court which allowed the National Nuclear Security Administration (NNSA) and the Department of Energy (DOE) to continue working toward building a $4-6 billion plutonium facility at Los Alamos National Laboratory (LANL).

The Study Group had claimed, and still claims in this appeal and in a second lawsuit filed in New Mexico federal court, that NNSA and DOE have never written an applicable environmental impact statement (EIS) for the facility, called the "Chemistry and Metallurgy Research Replacement Nuclear Facility" (CMRR-NF), that the agencies involved are violating the National Environmental Policy Act (NEPA), and that the project is proceeding illegally and must be halted while an applicable EIS is written.

"This is good news -- very positive for us." said Study Group director Greg Mello.  "The Tenth Circuit has decided to hear our appeal and the federal agencies, which we believe are grossly violating NEPA, must now explain themselves before a panel of senior judges in Denver."

In a separate positive ruling (pdf) yesterday for Study Group in their second NEPA case in New Mexico federal court, the court denied DOJ's attempt to transfer the new case to the Honorable Judith Herrera, who had ruled against the Study Group in the first case, the case now under appeal.

Mello: "Congress passed NEPA to require federal agencies to take a hard look at alternatives to projects that will endanger the environment.  That "hard look" has never happened in this case.  The project has ballooned to ten or fifteen times the original cost estimates, is going to be delayed at least 14 years, the nuclear stockpile has declined by half, the original raison d'etre for the project has largely evaporated -- and yet there are no possible alternatives to this massive project?  This is NNSA's position, and it is absurd.  There are, in fact, several reasonable alternatives, as many in government know.

"Regardless of this, NNSA and DOE cannot decide to build this or any project without first producing an applicable EIS.  Federal agencies cannot spend hundreds of millions of dollars implementing the first part of a project and then, and only when challenged, decide to write an alternative-free, post-hoc environmental report.  Such practices, should they be allowed, would effectively eliminate NEPA."

***ENDS***