The National Environmental Policy Act: New Mexico District Court Dismisses Challenge to Nuclear Pit Facility Based on Doctrine of “Prudential Mootness”

Posted on September 12, 2011 by Thomas Hnasko

A federal district judge in New Mexico has dismissed the Los Alamos Study Group’s (the “Study Group’s”) complaint challenging the United States Department of Energy (“DOE”) and the National Nuclear Security Administration’s (“NNSA”) efforts to construct the new Chemistry and Metallurgy Research Replacement Nuclear Facility (“CMRR-NF”) at Los Alamos, New Mexico.

Despite evidence presented by the Study Group that the project had changed so dramatically since the original NEPA analyses, and that defendants had acknowledged in their draft Supplemental Environmental Impact Statement (“SEIS”) that the originally-approved CMRR-NF project could no longer be built, the federal court nonetheless held that the doctrine of “prudential mootness” supported dismissal of the NEPA challenge because defendants had allegedly changed their policies during the lawsuit and were now conducting a SEIS to rectify any NEPA deficiencies with the project.

The Study Group pointed out at the hearing on defendants’ Motion to Dismiss and the Study Group’s Motion for Preliminary Injunction that the eight-year old EIS did not consider, mention, or remotely authorize the existing project.  The evidence presented by the Study Group also demonstrated that defendants had issued final design contracts for their preferred alternative, that those contracts required the final detailed designs for the project to be “construction-ready,” and that defendants were considering no other alternatives to the massive venture.  Moreover, even the draft SEIS produced by the defendants at the hearing acknowledged that the original project, selected from an EIS prepared in 2003, could no longer be built because of seismic conditions and other geologic constraints, and would be discarded as a “no-action” alternative.

The project as originally conceived called for a pit facility to be built no deeper than 50-75 feet below grade.  Based on the criteria examined in 2003, the 2004 ROD stated that:  “The environmental impacts of the preferred alternative” will be “minimal” and “small.”  Since the 2004 ROD, however, the project has undergone substantial changes.  The original budget for the Nuclear Facility was estimated at $350-$550 million.  The CMRR-NF, as now proposed, has changed from a structure to be built to a depth of 50 feet, to a structure requiring an excavation to 125 feet, with the bottom 50-60 feet of the hole filled with concrete.  The concrete now needed is 375,000 cubic yards, up from 3,194 cubic yards as originally estimated.  This is more concrete than was used for the Big-I Interchange in Albuquerque, or for the Elephant Butte Dam in southern New Mexico.  The steel needed is now 18,539 tons, up from 242 tons.  That is roughly the equivalent of the Eifel Tower.  In short, the present iteration of the Nuclear Facility dwarfs the Manhattan Project and will be the largest construction project in the history of the state of New Mexico.

Despite these fundamental changes, the Department of Justice successfully persuaded the District Court that it remained open to alternatives and was not irrevocably committed to the present iteration of the Nuclear Facility.  According to DOJ attorneys, alternatives were being considered because DOE had not yet decided just how deep the hole should be, i.e., whether it should be 125 feet as reported, or whether it could be reduced to around 80 feet.  The Study Group’s counsel countered that this was not an examination of alternatives, but rather design modifications to a single, pre-determined alternative reached without NEPA support.

 The district court accepted the DOJ’s arguments and reasoned that defendants could continue with their present project so long as additional NEPA compliance was achieved after the fact and no physical construction on the project had yet occurred.  The Study Group has appealed to the Tenth Circuit Court of Appeals, where the primary issue will be whether a federal agency may implement a major federal action and avoid an injunction under NEPA by claiming that additional NEPA analyses, through the vehicle of a SEIS, somehow render the already-chosen project compliant with NEPA’s directive that detailed design or construction activities should not take place until an EIS examines viable alternatives and a  ROD authorizes the federal action.

Any questions or comments should be directed to Thomas M. Hnasko.